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community support for the Project, including an opening event to commemorate the re- <br /> opening of the Red Morton Playground ("Opening Event"); <br /> NOW THEREFORE, in consideration of the mutual promises contained herein, and <br /> other good and valuable consideration, the Parties agree as follows: <br /> 1 . Responsibilities. City retains Magical Bridge to perform, and Magical Bridge agrees to <br /> perform, those services that are defined in attached Exhibit A ("Services"), which is <br /> incorporated herein by reference. In the event of a conflict between the provisions of <br /> Exhibit A and the terms of the Agreement, the terms of this Agreement shall prevail. City <br /> shall have the right to modify the Services to delete tasks in whole or in part provided that <br /> such modifications do not affect the City's payment obligations hereunder. <br /> Notwithstanding anything to the contrary in this Agreement, in any case in which Magical <br /> Bridge's performance of the Services depends or is contingent upon on activities or <br /> assistance of the City, for example in obtaining permits for and developing the Project, as <br /> reasonably determined by Magical Bridge, if the City fails to perform such activities or <br /> provide such assistance in a timely manner, Magical Bridge shall be excused for any delay <br /> in its performance of the Services for so long as the City fails to perform such activities <br /> and provide such assistance, and such delay shall not constitute a breach of this Agreement. <br /> 2. Standard of Performance. While performing the Services, Magical Bridge will exercise <br /> the reasonable professional care and skill customarily exercised by reputable members of <br /> Magical Bridge's profession practicing in the urban Northern California area, and will use <br /> reasonable diligence and its best judgment while exercising its professional skill and <br /> expertise. Except as expressly stated in this Agreement, Magical Bridge makes no other <br /> warranties, whether express, implied, or statutory regarding the Project or Magical <br /> Bridge's Services hereunder, and Magical Bridge specifically disclaims any implied <br /> warranties of non-infringement, title, merchantability, and fitness for a particular purpose. <br /> 3. Compensation. City shall pay to Magical Bridge a retainer of twenty thousand dollars <br /> ($20,000) per quarter not to exceed one hundred twenty thousand dollars ($120,000) <br /> ("Retainer"), payable on the dates set forth in Exhibit B, attached hereto and made a part <br /> by reference. City shall also pay to Magical Bridge four milestone payments totaling two <br /> hundred seventy five thousand dollars ($275,000) upon achieving the milestones and in the <br /> amounts set forth in Exhibit B ("Milestone Payments"). The Milestone Payments and the <br /> Retainer shall be the full and complete compensation to which Magical Bridge is entitled <br /> for the completion of the Services, which sum shall include all costs or expenses incurred <br /> by Magical Bridge, unless otherwise expressly set forth herein. The total payments under <br /> this Agreement from City to Magical Bridge shall not exceed three hundred ninety five <br /> thousand dollars ($395,000). <br /> 4. Termination. <br /> A. Termination. <br /> i. City may terminate this Agreement upon written notice to Magical Bridge <br /> pursuant to the notice provisions of this Agreement for any of the <br /> ATTY/AGR/2016.252/MAGICAL BRIDGE PLAYGROUND <br /> REV: 09-08-16 MK <br /> Page 2 of 23 <br />