HomeMy WebLinkAboutResolution No. 2011-052
CITY OF THE COLONY, TEXAS
RESOLUTION NO. 2011- 95;~
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
THE COLONY, TEXAS, AUTHORIZING THE CITY TO
EXECUTE AN ENGAGEMENT LETTER AND MUTUAL NON
DISCLOSURE AGREEMENT WITH VYBRANZ LLC., TO
CONDUCT AN OPERATIONAL COSTS ASSESSMENT;
PROVIDING AN EFFECTIVE DATE
WHEREAS, That the City Council has determined it to be in the best interest of
its citizens to evaluate the operational costs of the city in an effort to implement cost
saving measures where applicable; and
WHEREAS, The Colony City Council has determined it to be in the best interest
of its citizens to execute an engagement letter and mutual non-disclosure agreement with
VYBRANZ LLC., to conduct an operational costs assessment.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF THE COLONY, TEXAS:
Section 1. That the City Council of the City of The Colony, Texas hereby
authorizes the city execute an engagement letter and mutual non-disclosure agreement
with VYBRANZ LLC., to conduct an operational costs assessment.
Section 2. That this resolution shall take effect immediately from and after its
passage.
PASSED AND APPROVED by the City Council of the City of The Colony,
Texas, this 2nd day of August, 2011.
~oe McCodrry, Mayor
' City of Tli'e Colony, Texa
A 71,ES
Christie Wilson, TRMC, City Secretary!.
APPRQVED AS TO FORM:
15
Jeff Moor City Attorney
ENGAGEMENT AGREEMENT
VYBRANZ LLC Customer: City of The Colony
2445 Midway Road, Suite 100 Address: 6800 Main Street
Carrollton, TX 75006 City, State, Zip: The Colony, TX 75056
1. SERVICES TO BE RENDERED. This Engagement Agreement (the "Agreement") is made this August 2"a,
2011, (the "Effective Date") by and between VYBRANZ LLC (the "Company") and City of The Colony (the
"Customer"). During the term of this Agreement, (the Company) will furnish consulting services and advice
(collectively, the "Services") as specifically requested by or authorized by the Customer, through Tim Miller,
Executive Director of Administration, City Manager's Office, Customer's Primary Agent, for this
Agreement only. The services and advice will relate to matters or work being done or planned by the Customer
in the fields of Telecommunications (including mobile, air cards), Human Resources, Energy/Utilities
(Electric, Gas, Water, Waste, Recycling), Information Technology, Merchant Payment Processing (credit
card/checks), and Insurance (including Business, P&C, Health), Administrative Services, Best and Final
Offer (BAFO) Projects, and others identified through the Company's Micro Review Process, and will be
within the area of the Company's technical and operating competence, and will specifically include the
following:
Review of usage and expense with cost reduction solutions. Initial approach is to review and analyze current
provider, blend of products and services to determine satisfaction of delivery, service, and determine points of
negotiation. The Company may recommend modifications to the products with the Customer's current
provider(s). The Company may also obtain and present competitive quotes with alternative providers
designed to help drive the market price down from either existing or new providers if deemed necessary,
consistent with State competitive bidding andpurchasing laws applicable to Texas municipalities, including
Chapter 252 of the Texas Local Government Code.
The Customer is and will be under no obligation to accept any proposal or recommendation of the Company, or
to alter or take any action to alter any product, service, or provider. Any alterations to products, services, or
providers will be in complete consultation and with the full knowledge and written approval of the Customer.
2. PAYMENT OF FEES. In consideration of the Services, the Customer shall pay the Company an amount
equal to 35% of the Customer's net total savings resulting from the Services, beginning when the Customer first
has net savings under an amended or a new agreement or arrangement with an existing or a new provider and
continuing for 24 consecutive months. If the amended or a new agreement or arrangement with an existing or a
new provider is less than or greater than 24 consecutive months, the Customer will pay the Company 35% of
the Customer's net total savings for 24 consecutive months. The Customer may be directly or indirectly
involved in the negotiation, discussion, assessment, and/or analysis of the Service and such involvement does
not reduce or change the 35% payment to the company of net total savings. After the date that the Customer
specifically request or authorizes the Company to begin Services, the Customer agrees that but for the efforts of
the Company, savings would not have been achieved and will pay the Company 35% of net total savings. The
compensation payable to the Company by the Customer regarding the Customer's net total savings resulting
directly from the Services, with respect to one-time expenses that the Customer pays or incurs, will be billed at
an amount equal to 35% of the one-time savings. Billing will commence within 30 days of the Customer
achieving actual net savings for each completed project and may result in multiple invoices or billing line items
for each completed Cost Reduction Project. In each case, the Customer's payments of compensation to the
Company will be made in response to invoices sent to the Customer by the Company.
(a) TAXES. The fees and charges reflected in the Services will be exclusive of any sales, use, personal
property, value added and goods/services taxes. Where applicable, such taxes shall appear as a separate item on
the Company's invoice and the Customer shall be liable for the payment of such taxes to the Company.
Notwithstanding the foregoing, the Customer shall not be responsible for any foreign, federal, state or local
taxes based on the Company's net income or receipts, or such other taxes based on the Company doing business
in any particular jurisdiction.
3. OWNERSHIP OF WORK. The ownership of original source codes, financial models, process design,
design templates, workflow charts, artwork, including sketches, and any other materials created by the
Company in the cost reduction process, owned and used by the Company to perform the Services shall remain
with the Company. Nothing in this Agreement contemplates or requires the transfer of any property or
intellectual-property rights from the Customer to the Company or from the Company to the Customer.
4. INDEMNIFICATION.
(a) INDEMNIFICATION BY CUSTOMER. To the extent allowed by law, and except as otherwise
herein provided, the Customer agrees to indemnify, defend and hold the Company, and its owners and its
agents, officers, directors, lawyers, accountants, and employees, harmless from and against any and all losses,
claims, demands, damages, liabilities, costs and expenses, including but not limited to reasonable attorneys' fees
and the costs of any legal action arising from any claims because of the Customer's use or implementation, or
any improper use, of the Services rendered by the Company in accordance with the terms and conditions of this
Agreement.
(b) INDEMNIFICATION BY COMPANY. Except as otherwise herein provided, the Company agrees
to indemnify, defend and hold the Customer and its agents, officers, directors, lawyers, accountants, and
employees harmless from and against any and all losses, claims, demands, damages, liabilities, costs and
expenses, including (but not limited to) reasonable attorneys' fees and costs of any legal action arising from the
Services provided in this Agreement.
(c) SCOPE OF INDEMNIFICATION. To the extent allowed by law, indemnification under this
paragraph 4 shall include, but not be limited to, claims for libel, slander, infringement of copyright, theft of
misappropriation of intellectual property, or unauthorized use of any trademark, trade name, or service mark. In
no event will either party be liable for lost or damaged data, loss of business, or anticipatory profits, or any
other consequential or incidental damages resulting from the use or operation of the Services or the maintenance
thereof.
5. LIMITATION OF DAMAGES. The Company will endeavor to provide high quality Services and a high
quality Product. However, the Company is not, and will not be responsible for any consequential or incidental
damages resulting from any issues or malfunction resulting from the delivery of Product(s) or Service(s)
provided by recommended third party vendors and/or suppliers, including, but not limited to, any interruptions
of service.
6. TERMINATION OF AGREEMENT.
(a) MATERIAL BREACH. If either party is in material breach of this Agreement, the non-breaching
party may serve the breaching party with a written notice specifying the material breach and requesting the
breaching party to cure it. If the breaching party fails to cure the material breach within thirty (30) days after its
receipt of the notice, the non-breaching party may terminate this Agreement by sending a written notice of
termination to the breaching party. The termination of this Agreement shall take effect immediately on the
receipt of such notice of termination by the breaching party.
(b) TERMINATION ABSENT A BREACH. Neither party shall have the ability to unilaterally
terminate the Agreement, except as specifically permitted by provisions of this Agreement. Either party may
terminate this Agreement for any reason not covered by subsection (a) of this Paragraph. A party may exercise
this right by sending the other party a written notice stating that it is terminating the Agreement and citing the
specific paragraph and subparagraph providing the party with the ability to terminate the Agreement. The
termination of this Agreement shall take effect thirty (30) days following the other party's receipt of this notice.
This subparagraph shall not apply to any termination arising from a material breach.
(c) EFFECT OF TERMINATION. On any termination of this Agreement pursuant to this paragraph 6,
the Company may immediately cease providing Services to the Customer, and neither party shall have any
further obligation to the other under the Agreement, provided that neither party shall be relieved from any
obligations or liabilities arising under the Agreement prior to its termination, including (but not limited to)
Payment of Fees for Services rendered prior to termination in accordance with paragraph 2 and indemnification
obligations under paragraph 4.
7. INDEPENDENT CONTRACTOR. The Company is an independent contractor relative to the Customer,
and nothing contained herein shall be deemed to create a partnership or agency relationship.
8. WORK POLICY.
(a) The Company agrees to observe the working hours, work rules, building security measures and
holiday schedule of the Customer when on the Customer's premises, which will be provided to the Company
upon request; provided, however, that adherence to such working hours and schedules shall not constitute
justification for non-accomplishment of agreed upon schedules and timelines.
(b) The Company further agrees to employ all reasonable efforts to meet Customer's assignment
deadlines and documentation standards, as applicable. Unless otherwise agreed upon, the Company shall meet
the Customer personnel to discuss and review the progress of the current project assignment(s) on a regular
basis.
9. GENERAL PROVISIONS.
(a) PARAGRAPH HEADINGS. Paragraph headings are for convenience only and shall not be a part of
the terms and conditions of this Agreement.
(b) WAIVER. Failure by either party at any time to enforce any obligation by the other party, to claim a
breach of any term of this Agreement or to exercise any power agreed to hereunder will not be construed as a
waiver of any right, power or obligation under this Agreement, will not affect any subsequent breach, and will
not prejudice either party as regards to any subsequent action.
(c) SEVERABILITY. If any term or provision of the Agreement should be declared invalid by a court
of competent jurisdiction, the remaining terms and provisions of the Agreement shall remain unimpaired and in
full force and effect.
(d) SUBCONTRACTORS. The Company reserves the right to approve all subcontractors. Nothing in
this subparagraph or otherwise in this Agreement shall be construed to relieve the Company from its obligations
under this Agreement or-to create any contractual relationship between the Customer and any subcontractor, or
any obligation on the part of the Customer to pay or to see to payment of any money due any subcontractor as
may otherwise be required by law.
(e) ASSIGNMENT. Neither party may assign any rights or obligations under this Agreement without
the prior written consent of the other; provided, however, that either party may assign any rights or obligations
to a subsidiary or affiliate of that party or to any third party assuming all or part of the business function of
either party's unit which will receive or deliver the Services and Deliverables provided hereunder upon notice
of assignment to the other party.
(f) GOVERNING LAW. This Agreement will be construed and enforced in accordance with, and
governed by, the laws of the State of Texas in the United States of America without giving effect to any conflict
of laws principles. The parties hereby consent to the personal jurisdiction of the courts of the County of Dallas,
Texas, and waive any rights to change venue.
10. NOTICES. All notices required by this Agreement shall be in writing and sent by Facsimile, Electronic
Mail, Federal Express, or U.S. Mail, Return Receipt Requested as provided below. Such notice shall be
sufficient for the purposes of this Agreement only if sent to the party's "Address for Service" as listed below.
Such Address for Service may be changed by either party by serving notice (in compliance with this paragraph)
on the other party. No notice sent by facsimile shall be sufficient without a confirmation receipt. No notice sent
by electronic mail shall be sufficient unless sent to an address included in the recipient's Address for Service
and acknowledged by a human-generated response.
Company's Address for Service:
VYBRANZ LLC
2445 Midway Road, Suite 100
Facsimile: 469-252-1279
Email: Danell.Winsor@VYBRANZ.com
Carrollton, TX 75006
Customer's Address for Service:
Customer: City of The Colony
Address: 6800 Main Street
Facsimile: 972-624-2312
Email: tmiller@thecolonytx.gov
City, State, Zip: The Colony, TX 75056
11. ATTORNEYS' FEES. In the event of any legal, arbitral,=equitable or administrative action or proceeding
brought by either party against the other party under this Agreement, the prevailing party shall be entitled to
recover the reasonable fees of its attorneys and any costs incurred in such action or proceeding including costs
of appeal, if any, in such amount that the court, arbitrator, or administrative body having jurisdiction over such
action may award.
12. CURRENCY DENOMINATIONS. All currency denominations are in United States dollars.
13. WARRANTIES; LIMITATIONS ON LIABILITY. THE COMPANY MAKES NO WARRANTY,
REPRESENTATION, OR PROMISE NOT EXPRESSLY SET FORTH IN THIS AGREEMENT. EXCEPT AS
OTHERWISE EXPRESSLY SET FORTH HEREIN THE SERVICES ARE PROVIDED "AS IS." THE
COMPANY DISCLAIMS AND EXCLUDES ANY AND ALL IMPLIED WARRANTIES OF
MERCHANTABILITY, TITLE AND FITNESS OF THE SERVICES FOR A PARTICULAR PURPOSE. THE
COMPANY DOES NOT WARRANT THAT THE SERVICES OR RELATED MATERIALS WILL
SATISFY CUSTOMER'S REQUIREMENTS OR THAT THE SERVICES AND RELATED SERVICES
WILL BE WITHOUT DEFECT OR ERROR.
14. ENTIRE AGREEMENT. This Agreement supersedes all previous agreements between the parties, contains
the entire understanding between the parties, and may not be changed, except by in writing, duly executed by
each of the parties.
IN WITNESS WHEREOF, the parties hereto through their duly authorized officers or agents have
caused this Agreement to be duly executed and delivered as of the date set forth belpw.
VYBRANZ, LLC: City of The Colony
BY ~c~~yts By:_ f
Print Name: Danell Winsor Print Name: Tim`Miller
Title: Chief Operating Officer Title: Executive Director of Administration
Date: August 2, 2011 City Manager's Office
Date: August 2, 2011
MUTUAL NON-DISCLOSURE AGREEMENT
This Non-disclosure Agreement (this "Agreement") is made and entered into effective as of May
23rd, 2011 by and between VYBRANZ LLC (the "Company") and City of The Colony (the
"Customer") in contemplation of and in connection with the Customer's engagement of the
Company to perform certain consulting services for the Customer (the "Transaction"). In
consideration of the mutual covenants and conditions contained herein, to induce the parties to
exchange certain information and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties to this Agreement do hereby agree as
follows:
1. Definition of Confidential Information. For all purposes of this Agreement, the term
"Confidential Information" shall collectively refer to all information or material disclosed or
provided by a party (the "Disclosing Party") to the other party (the "Receiving Party") before,
on, or after the date of this Agreement, either orally or in writing, or obtained by Receiving Party
from a third party or any other source, concerning any aspect of the business or affairs of
Disclosing Party or its "affiliates" (as such term is defined in Rule 12b-2 under the Securities
Exchange Act of 1934). "Confidential Information" also includes any notes, analyses,
compilations, studies or other material or documents prepared by or on behalf of Receiving Party
which contain, reflect or are based, in whole or in part, on the Confidential Information.
Notwithstanding the foregoing, "Confidential Information" shall not include information or
material that (i) is publicly available or becomes publicly available through no action or fault of
Receiving Party, (ii) was already in Receiving Party's possession or known to Receiving Party
prior to being disclosed or provided to Receiving Party by or on behalf of Disclosing Party,
provided, that, the source of such information or material was not bound by a contractual, legal
or fiduciary obligation of confidentiality to Disclosing Party or any other party with respect
thereto, (iii) was or is obtained by Receiving Party from a third party, provided, that, such third
party was not bound by a contractual, legal or fiduciary obligation of confidentiality to
Disclosing Party or any other party with respect to such information or material, or (iv) is
independently developed by the Receiving Party without reference to the Confidential
Information.
2. Restrictions on Disclosure and Use. Each of the parties do hereby covenant and agree to
the extent allowed by law including the Texas Public Information Act, Chapter 552 of the Texas
Government Code, as amended, as follows:
2.1 Non-disclosure. Receiving Party shall keep strictly confidential and shall not
disclose, or cause or permit to be disclosed, to any person or entity, the Confidential Information,
except to those directors, managers, members, officers, employees or other authorized agents and
representatives and professional consultants of Receiving Party actively and directly
participating in or directing the Transaction and to whom disclosure is reasonably necessary in
connection with the consulting Transaction and who shall agree to be bound by the terms of this
Agreement; and except as otherwise consented to in writing by the Disclosing Party, Receiving
Party shall take all actions reasonably necessary to ensure that the Confidential Information
remains strictly confidential and is not disclosed to or seen, used or obtained by any person or
entity except in accordance with the terms of this Agreement, and State law.
In the event that Receiving Party is requested or required (by oral questions,
interrogatories, requests for information or documents in legal proceedings, subpoena, civil
investigative demand or other similar process or by any law, rule or regulation of any
governmental agency or regulatory authority) to disclose any of the Confidential Information,
Receiving Party shall provide Disclosing Party with prompt written notice of any such request or
requirement so that Disclosing Party may seek a protective order or other appropriate remedy
and/or waive compliance with the provisions of this Agreement. If, in the absence of a protective
order or other remedy or the receipt of a waiver by Disclosing Party, Receiving Party is
nonetheless, legally compelled to disclose Confidential Information, Receiving Party may,
without liability hereunder, disclose to such tribunal or third-party, only that portion of the
Confidential Information which counsel advises Receiving Party is legally required to be
disclosed, provided that Receiving Party shall use its best efforts to preserve the confidentiality
of the Confidential Information, including, without limitation, by cooperating with Disclosing
Party to obtain an appropriate protective order or other reliable assurance that confidential
treatment will be afforded the Confidential Information by such tribunal.
2.2 Ownership. To the extent allowed by law, confidential information owned solely
and exclusively by Disclosing Party shall remain the exclusive property of Disclosing Party, and
no right, title or interest in or to any of the Confidential Information or any material developed
therefrom is transferred to Receiving Party hereby or by its delivery or availability to Receiving
Party hereunder.
2.3 Use. Receiving Party shall use or cause the Confidential Information to be used
only for or in connection with the Transaction and in a manner consistent with the terms and
conditions of this Agreement, and at no time shall Receiving Party use the Confidential
Information for any other purpose.
2.4 Other Parties Bound. All affiliates of Receiving Party and all directors, managers,
members, officers, employees, agents and representatives of Receiving Party or its affiliates shall
be included within the definition of the term "Receiving Party" for purposes of this Agreement
and shall be bound by the terms and conditions of this Agreement. Receiving Party shall be
responsible for any breaches of this Agreement by any of its affiliates and any directors,
managers, members, officers, employees, agents and representatives of Receiving Party or its
affiliates.
3. No Solicitation. For a period of one year from the date of this Agreement, Receiving
Party will not directly solicit the employment of any employee of Disclosing Party or its
affiliates without Disclosing Party's prior written consent.
4. Return of Confidential Information. To the extent allowed by law, Receiving Party shall,
upon accomplishing the limited purpose of the consulting Transaction, or at any time upon the
request of Disclosing Party, immediately return to Disclosing Party or destroy all Confidential
Information (including, without limitation, notes, writings, summaries, abstracts and other
material developed therefrom by Receiving Party or its representatives) and all copies thereof
and retain none for its files, and shall provide to Disclosing Party a written certification from a
duly authorized officer of Receiving Party of such return and destruction if requested.
Notwithstanding such return and destruction, Receiving Party shall continue to be bound by this
Agreement.
5. Limited Representations or Warranties. The Confidential Information is being provided
to Receiving Party "as is" and without any representation or warranty of any kind, either express
or implied, regarding the accuracy or completeness or other quality of the Confidential
Information. In no event shall Disclosing Party or its affiliates or any of their respective
directors, managers, members, officers, employees, agents or representatives have any liability to
Receiving Party relating to or arising out of any use of the Confidential Information.
Notwithstanding anything in this Agreement to the contrary, the Disclosing Party hereby
represents and warrants that Disclosing Party may rightfully disclose or make available the
Confidential Information to the Receiving Party without the violation of any contractual, legal,
fiduciary or other obligation to any person, and the Disclosing Party shall indemnify and hold
harmless in full the Receiving Party against any and all damages, costs and expenses of any
nature whatsoever (including, without limitation, attorney's fees) incurred by the Receiving
Party in connection with the breach of such representation and warranty.
6. Indemnification. To the extent allowed by law, Receiving Party shall indemnify and hold
harmless Disclosing Party and its affiliates and their respective directors, officers, employees,
agents and representatives from and against any and all losses, damages, costs and expenses
(including, without limitation, reasonable attorneys' fees and expenses) caused by or arising out
of any breach of this Agreement by Receiving Party or any breach for which Receiving Party is
responsible hereunder, and any and all actions, suits, proceedings, claims, demands or judgments
incident thereto.
7. Equitable Remedies. Receiving Party hereby agrees that its failure to perform any
obligation or duty which it has agreed to perform under this Agreement may cause irreparable
harm to Disclosing Party, which harm cannot be adequately compensated for by money
damages. It is further agreed by Receiving Party that an order of specific performance or for
injunctive relief against Receiving Party in the event of a breach or default under the terms of
this Agreement would be equitable and would not work a hardship on Receiving Party.
Accordingly, in the event of a breach or default by Receiving Party hereunder, Disclosing Party,
without any bond or other security being required and in addition to whatever other remedies are
or might be available at law or in equity, shall have the right either to compel specific
performance by, or to obtain injunctive relief against, Receiving Party3 with respect to any
obligation or duty herein or breach thereof.
8. No Licenses Granted. Disclosing Party grants no licenses, by implication or otherwise,
under any patent, copyright, trademark, trade secret or other rights by disclosing Confidential
Information under this Agreement.
9. Definitive Agreement. Disclosing Party and Receiving Party understand and agree that no
contract or agreement providing for any transaction involving Disclosing Party or Receiving
Party shall be deemed to exist between Receiving Party and Disclosing Party unless and until a
final definitive agreement has been executed and delivered, and Disclosing Party and Receiving
Party hereby waive in advance, any claims (including, without limitation, breach of contract) in
connection with any such transaction unless and until Receiving Party and Disclosing Party shall
have entered into a final definitive agreement. Disclosing Party and Receiving Party also agree
that unless and until a final definitive agreement between Receiving Party and Disclosing Party
has been executed and delivered, neither Receiving Party nor Disclosing Party will be under any
legal obligation of any kind whatsoever with respect to such a transaction by virtue of this
Agreement except for the matters specifically agreed to herein. The Company reserves the right,
in its sole discretion, to reject any and all proposals made by the other party and to terminate
discussions and negotiations with the other party at any time. The parties further understand and
agree that (i) the Company shall be free to conduct any process for any transaction, if and as the
Company in its sole discretion shall determine (including, without limitation, negotiating with
any other interested party and entering into a definitive agreement without prior notice to the
other party or any other person), (ii) any procedures relating to such process or transaction may
be changed at any time in the Company's sole discretion without notice to the other party or any
other person, and (iii) the other party shall not have any claims whatsoever against the Company
or of it
any its agents or representatives arising out of or relating to any transaction involving the
Company (other than any claims pursuant to a definitive agreement with in accordance with the
terms thereof) nor, unless a definitive agreement is entered into, against any third party with
whom a consulting Transaction is entered into.
10. Preservation of Privilege. To the extent that any Confidential Information may include
material subject to the attorney-client privilege, work product doctrine or any other applicable
privilege concerning pending or threatened legal proceedings or governmental investigations, the
parties understand and agree that they have a commonality of interest with respect to such
matters and it is their desire, intention and mutual understanding that the sharing of such
information material is not intended to, and shall not, waive or diminish in any way the
confidentiality of such material or its continued protection under the attorney-client privilege,
work product doctrine or other applicable privilege. All Confidential Information provided by a
party that is entitled to protection under the attorney-client privilege, work product doctrine or
other applicable privilege shall remain entitled to such protection under these privileges, this
Agreement, and under the joint defense doctrine. Nothing in this Agreement obligates any party
to reveal material subject to the attorney-client privilege, work product doctrine or any other
applicable privilege.
11. Miscellaneous. This Agreement shall be binding upon, and inure to the benefit of, and be
enforceable by, the parties hereto and their respective successors and permitted assigns, but this
Agreement shall not be assignable by either party without the prior written consent of the other.
This Agreement, with the written agreement regarding the Transaction, constitutes the complete
agreement between the parties hereto with respect to the subject matter hereof and shall continue
in full force and effect until terminated in accordance with Section 12 below. The section
headings used herein are for reference purposes only and shall not in any way affect the meaning
or interpretation of this Agreement. This Agreement shall be construed, performed and enforced
in accordance with, and governed by, the internal laws of the State of Texas, without giving
effect to the principles of conflicts of law thereof, and each party consents to personal
jurisdiction in such state and voluntarily submits to the jurisdiction of the courts in Dallas
County, Texas for any action or proceeding relating to this Agreement. Whenever possible, each
provision of this Agreement shall be interpreted in such a manner as to be effective and valid
under applicable law, but if any provision hereof is held to be invalid, illegal or unenforceable
under any applicable law or rule in any jurisdiction, such provision will be ineffective only to the
extent of such invalidity, illegality, or unenforceability, without invalidating the remainder of
this Agreement. This Agreement may not be modified or amended, and no provision hereof may
be waived, in whole or in part, except by a written agreement signed by the parties hereto. No
waiver of any breach or default hereunder shall be considered valid unless in writing, and no
such waiver shall be deemed a waiver of any subsequent breach or default of the same or similar
nature. This Agreement may be executed in any number of counterparts, each of which shall be
deemed an original, but all of which taken together shall constitute one and the same instrument.
12. Term. This Agreement shall remain in full force and effect for three (3) years from the
date hereof.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
effective as of the date first set forth above.
r ~~1
VYBRANZ LLC City of The Colony f ,r.;- f
By -=-w~-c . L.~,~..~. By t
Title: Chief Operating Officer Title: Executive rector of Administration
Date: August 2, 2011 City Manager's Office
Date: August 2, 2011