R-04-10-14-14D1 - 10/14/2004 RESOLUTION NO. R-04-10-14-14D1
WHEREAS, the City of Round Rock desires to retain professional
consulting services for the Round Rock Convention and visitors Bureau
marketing and public relations program, and
WHEREAS, Kerry Tate Communications, Inc . dba TateAustin has
submitted an Agreement for Professional Consulting Services to provide
said services, and
WHEREAS, the City Council desires to enter into said Agreement
with Kerry Tate Communications, Inc. dba TateAustin, Now Therefore
BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK, TEXAS,
That the Mayor is hereby authorized and directed to execute on
behalf of the City an Agreement for Professional Consulting Services
with Kerry Tate Communications, Inc. dba TateAustin, a copy of same
being attached hereto as Exhibit "A" and incorporated herein for all
purposes .
The City Council hereby finds and declares that written notice of
the date, hour, place and subject of the meeting at which this
Resolution was adopted was posted and that such meeting was open to the
public as required by law at all times during which this Resolution and
the subject matter hereof were discussed, considered and formally acted
upon, all as required by the Open Meetings Act, Chapter 551, Texas
Government Code, as amended.
RESOLVED this 14th day of October, 0
N WELL, Mayor
City of Round Rock, Texas
ST:
CHRISTINE R. MARTINEZ, City Secreta y
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CITY OF ROUND ROCK AGREEMENT
WITH KERRY TATE COMMUNICATIONS, INC. dba TateAustin
FOR PROFESSIONAL CONSULTING SERVICES
THIS AGREEMENT for professional consulting services for planning, developing,
designing, performing, creating, writing, branding, marketing, advertising and supporting the
Round Rock Convention and Visitors Bureau marketing and public relations program
("Agreement") is made by and between the City of Round Rock, a Texas home-rule municipal
corporation, whose offices are located at 221 East Main Street, Round Rock, Texas 78664-5299,
("City") and Kerry Tate Communications, Inc. dba TateAustin ("Consultant"), whose offices are
located at 320 Congress Avenue, Suite 100, Austin, Texas 78701.
RECITALS:
WHEREAS, City has determined that there is a need for the delineated services; and
WHEREAS, City desires to contract for such professional services; and
WHEREAS, the parties desire to enter into this Agreement to set forth in writing their
respective rights, duties and obligations hereunder;
NOW, THEREFORE, WITNESSETH:
That for and in consideration of the mutual promises contained herein and other good and
valuable consideration, the sufficiency and receipt of which are hereby acknowledged, it is
mutually agreed between the parties as follows:
1.01 EFFECTIVE DATE, DURATION, AND TERM
This Agreement shall be effective on the date this Agreement has been signed by each
party hereto, and shall remain in full force and effect unless and until it expires by operation of
the term indicated herein, or is terminated or extended as provided herein.
The term of this Agreement shall be until full and satisfactory completion of the work
specified herein is achieved, but in no event later than the end of City's current fiscal year, that
being September 30, 2005.
City reserves the right to review the project at any time, including at the end of any
deliverable or phase, and may elect to terminate the project with or without cause or may elect to
continue with the next deliverable or phase.
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EXHIBIT
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1.02 CONTRACT AMOUNT; AND SCOPE OF WORK DELINEATION
In consideration for the professional services to be performed by Consultant, City agrees
to pay Consultant a total sum not to exceed One Hundred Fifty Thousand and No/100 Dollars
($150,000.00), in payment for services and the Scope of Work deliverables as delineated
hereafter:
AGENCY FEES $60,000.00
Agency fees in the total amount of$60,000.00 shall be due to Consultant, and shall be paid by
City in equal monthly payments of$5,454.50 each for eleven (11) months beginning November
30, 2004 and ending at the end of City's fiscal year on September 30, 2005. Agency fees shall
include, by way of delineation and not limitation, the following:
Planning
(a) Strategic planning of the tourism campaign;
(b) Develop a marketing plan designed to build and support the "Sports Capital of
Texas"brand;
(c) Develop action plans and cost budgets as requested by City
General Account Services
(a) Attend regular City meetings as needed;
(b) Deliver progress reports as requested by City;
(c) Track success and report against agreed-upon metrics
Message and Positioning
(a) Develop strategic messages and spokesperson talking points as needed or
requested by City;
(b) Draft media materials including the following: press releases and media
advisories as needed to support the campaign and/or as requested by City; and
Round Rock backgrounders and fact sheets specific to City's facilities, amenities
and activities
Media Relations
(a) Maintain media relationships in support of the"Sports Capital of Texas"
campaign;
(b) Develop a story bank and strategic timeline for media pitches;
(c) Develop and maintain current and active media list for tourism-related activities;
(d) Serve as coordinator of media interviews [note that City spokespersons will
always be the preferred choice to serve as "on the record" sources quoted in the
media, and that Consultant will likely never be quoted for City];
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(e) Field any incoming press calls, provide reporters with City-approved background
information, and facilitate "on the record" interviews with City spokespersons;
(f) Track, report and archive media mentions and post on Web site [note that media
clipping service is recommended by Consultant, but is not included in the budget
total for this Scope of Work item];
(g) Conduct one session of spokesperson coaching
WEBSITE HOSTING AND MAINTENANCE $5,000.00
(a) Provide hosting for the www.SportsCapitalofFexas.com during the term of this
Agreement;
(b) Provide periodic updates to website including the following: provide quarterly
updates to website content in the form of direct mail campaigns, tradeshow
announcements, and news; and make monthly updates to the calendar section with
information provided by PARD and other sources of sports-related events
DELIVERABLES OUTSIDE OF AGENCY FEES $85,000.00
Marketing Collateral
(a) Design, develop, and print one new marketing piece as a single-panel rack
brochure (quantity 100,000);
(b) Printing costs shall be included in the budget total for this Scope of Work item
Subtotal for deliverable of 100,000 brochures: $20,000.00
Advertising Campaign Design and Deliverable
(a) Design and develop advertising campaigns to support the "Sports Capital of
Texas"marketing effort
Advertising Campaign 1
$ Creative Concept and Design Deliverable (concept and design completed
during the term of previous Agreement; cost of$1,500.00 is for format
changes to apply concept to print publication);
$ Creative Deliverable (deliverable produced during the term of previous
Agreement; cost $0.00)
Subtotal for deliverable of one campaign and design: $1,500.00
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Advertising_Campaign 2
$ Creative Concept and Design (cost of$5,000.00);
$ Creative Deliverable (cost of$4,000.00)
Subtotal for deliverable of one campaign and design: $9,000.00
Advertising Buy
(a) Purchase advertising space in select media to support the "Sports Capital of
Texas" marketing effort
Advertising Bpy 1
$ One advertising buy to support Advertising Campaign 1 at a total cost of
$10,000;
$ Consultant shall only place advertisements that fall within budget
parameters for this effort
Advertising Buy 2
$ One advertising buy to support Advertising Campaign 2 at a total cost of
$10,000.00;
$ Consultant shall only place advertisements that fall within budget
parameters for this effort
Subtotal for Advertising Buys I and 2: $20,000.00
Direct Mail
(a) Develop and execute direct mail campaigns to gain awareness for the "Sports
Capital of Texas" among target audiences;
(b) Costs for printing, mailing, and development of the direct mail piece shall be
included in the budget total for this Scope of Work item
Direct Mail Campaign 1
$ Direct Mail Concept and Design Deliverable at a total cost of$5,000.00;
$ Direct Mail Deliverable (production of 150 units) at a total cost of
$4,000.00;
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$ Direct Mail Mailing at a total cost of$1,500.00
Subtotal for deliverable of one campaign and design,production of 150 units:
$10,500.00
Direct Mail Campaign 2
$ Direct Mail Concept and Design Deliverable at a total cost of$3,000.00;
$ Direct Mail Deliverable (production of online direct mail piece) at a total
cost of $0.00;
$ Direct Mail Mailing (sending via e-mail) at a total cost of$0.00
Subtotal for deliverable of one campaign and design,production of electronic
direct mail piece: $3,000.00
Direct Mail Campaign 3
$ Direct Mail Concept and Design Deliverable at a total cost of$0.00
(deliverable produced during the term of previous Agreement)
$ Direct Mail Deliverable (production of 150 units) at a total
cost of $0.00 (production cost for this piece allocated during the term of
previous Agreement);
$ Direct Mail Mailing (mailing of"Sports Capital of Texas" chairs) at a total
cost of$1,000.00
Subtotal for deliverable of mailing of direct mail: $1,000.00
Tradeshow Activities
(a) Develop activities to be conducted at tradeshows
Tradeshow Activity 1 (Large-scale)
$ Tradeshow Activity Concept Design for a total cost of$4,000.00;
$ Tradeshow Activity Deliverable(purchase or production of three units and
related booth needs) for a total of$6,000.00;
Subtotal for deliverable of one tradeshow activity concept and design, production
of three units: $10,000.00
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Tradeshow Activity 2 (Small-scale)
$ Tradeshow Activity Concept Design for a total cost of$4,000.00;
$ Tradeshow Activity Deliverable (purchase or production of 200 units and
related booth needs) for a total cost of$6,000.00;
Subtotal for deliverable of one tradeshow activity concept and design, production
of 200 units: $10,000.00
SUBTOTAL FOR AGENCY FEES $ 60,000.00
SUBTOTAL FOR WEBSITE HOSTING AND MAINTENANCE $ 5,000.00
SUBTOTAL FOR DELIVERABLES OUTSIDE OF AGENCY FEES $ 85,000.00
BUDGET TOTAL: $150,000.00
For purposes of this Agreement, Consultant has issued its Scope of Work for the
assignments delineated herein. Such Scope of Work is recited herein in Section 1.02 and is also
appended to this Agreement and labeled as Exhibit"A." When taken together with the appended
exhibits, this Agreement shall evidence the entire understanding and agreement between the
parties and supersede any prior proposals, correspondence or discussions.
Consultant shall satisfactorily provide all services and deliverables described under the
attached Scope of Work within the contract term specified in Section 1.01. Consultant's
undertakings shall be limited to performing services for City and/or advising City concerning
those matters on which Consultant has been specifically engaged. Consultant shall perform its
services in accordance with this Agreement, in accordance with the appended Scope of Work, in
accordance with due care, and in accordance with prevailing consulting industry standards for
comparable services.
1.03 PAYMENT FOR SERVICES; SUPPLEMENTAL AGREEMENTS
Payment for Services: In consideration for the consulting services to be performed by
Consultant, City agrees to pay Consultant the following sums:
(1) Agency fees in the total amount of$60,000.00 shall be due to Consultant and
be paid by City in equal monthly payments of $5,454.50 each for eleven(11)
months beginning on November 30, 2004 and ending at the end of City's fiscal
year on September 30, 2005;
(2) Fees for website hosting and maintenance in the total amount of $5,000.00
shall be due to Consultant and be paid by City upon activation of home page;
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(3) Fees for the listed deliverables outside of agency fees in the total amount of
$85,000.00 shall be paid by City upon complete delivery by Consultant to City
of each individual deliverable, along with appropriate billing and documentation.
Payment for Reimbursable Expenses: There shall be no payment for reimbursable
expenses in this Agreement.
Not-to-Exceed Total: Unless subsequently changed by additional Supplemental
Agreement to this Agreement, duly authorized by City Council or City Manager action,
Consultant's total compensation hereunder shall not exceed $150,000.00. This amount
represents the absolute limit of City's liability to Consultant hereunder unless same shall be
changed by additional Supplemental Agreement, and City shall pay, strictly within the confines
of the not-to-exceed sum recited herein, Consultant's professional fees for work done on behalf
of City.
Deductions: No deductions shall be made for Consultant's compensation on account of
penalty, liquidated damages or other sums withheld from payments to Consultant.
Additions: No additions shall be made to Consultant's compensation based upon Project
claims, whether paid by City or denied.
Supplemental Agreements: The terms of this Agreement may be modified by written
Supplemental Agreement hereto, duly authorized by City Council or City Manager action, if City
determines that there has been a significant change in (1) the scope, complexity, or character of
the services to be performed; or (2) the duration of the work. Any such Supplemental
Agreement must be executed by both parties within the period specified as the term of this
Agreement. Consultant shall not perform any work or incur any additional costs prior to the
execution, by both parties, of such Supplemental Agreement. Consultant shall make no claim for
extra work done or materials furnished unless and until there is full execution of any
Supplemental Agreement, and City shall not be responsible for actions by Consultant nor for any
costs incurred by Consultant relating to additional work not directly authorized by Supplemental
Agreement.
1.04 TERMS OF PAYMENT
Invoices: To receive payment, Consultant shall prepare and submit a series of monthly
detailed invoices to City for services rendered. Each invoice for professional services shall track
the attached Scope of Work, and shall detail the services performed, along with documentation
for each service performed. All payments to Consultant shall be made on the basis of the
invoices submitted by Consultant and approved by City. Such invoices shall conform to the
schedule of services and costs in connection therewith.
Should additional backup material be requested by City, Consultant shall comply
promptly. In this regard, should City determine it necessary, Consultant shall make all records
and books relating to this Agreement available to City for inspection and auditing purposes.
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If City has any dispute with work performed, then City shall notify Consultant within
thirty (30) days after receipt of invoice. In the event of any dispute regarding the work
performed,then and in that event Consultant shall either(a) satisfactorily re-perform the disputed
services or (b) provide City with an appropriate credit.
Payment of Invoices: City reserves the right to correct any error that may be discovered
in any invoice that may have been paid to Consultant and to adjust same to meet the
requirements of this Agreement. Following approval of invoices, City shall endeavor to pay
Consultant promptly, but no later than the time period required under the Texas Prompt Payment
Act described in Section 1.08 herein. Under no circumstances shall Consultant be entitled to
receive interest on payments which are late because of a good faith dispute between Consultant
and City or because of amounts which City has a right to withhold under this Agreement or state
law. City shall be responsible for any sales, gross receipts or similar taxes applicable to the
services, but not for taxes based upon Consultant's net income.
Offsets: City may, at its option, offset any amounts due and payable under this
Agreement against any debt (including taxes) lawfully due to City from Consultant, regardless of
whether the amount due arises pursuant to the terms of this Agreement or otherwise and
regardless of whether or not the debt due to City has been reduced to judgment by a court.
1.05 REQUIRED REPORTS
Consultant agrees to provide City with any necessary detailed final written reports,
together with all information gathered and materials developed during the course of the project.
Additionally, Consultant. agrees to provide City with any necessary oral presentations of such
detailed final written reports, at City's designation and at no additional cost to City.
1.06 LIMITATION TO SCOPE OF WORK
Consultant and City agree that the scope of services to be performed is generally
enumerated in Section 1.02 herein. Notwithstanding anything herein to the contrary, the parties
agree that City retains absolute discretion and authority for all funding decisions, such decisions
to be based solely on criteria accepted by City which may be influenced by but not be dependent
on Consultant's work.
1.07 NON-APPROPRIATION AND FISCAL FUNDING
This Agreement is a commitment of City's current revenues only. It is understood and
agreed that City shall have the right to terminate this Agreement at the end of any City fiscal year
if the governing body of City does not appropriate funds sufficient to purchase the services as
determined by City's budget for the fiscal year in question. City may effect such termination by
giving Consultant a written notice of termination at the end of its then current fiscal year.
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1.08 PROMPT PAYMENT POLICY
In accordance with Chapter 2251, V.T.C.A., Texas Government Code, payment to
Consultant will be made within thirty (30) days of the day on which City receives the
performance, supplies, materials, equipment, and/or deliverables, or within thirty (30) days of the
day on which the performance of services was complete, or within thirty (30) days of the day on
which City receives a correct invoice for the performance and/or deliverables or services,
whichever is later. Consultant may charge a late fee of one percent (1%) for payments not made
in accordance with this prompt payment policy; however, this policy does not apply to payments
made by City in the event:
(1) There is a bona fide dispute between City and Consultant concerning the supplies,
materials, or equipment delivered or the services performed which causes the
payment to be late; or
(2) The terms of a federal contract, grant, regulation, or statute prevent City from
making a timely payment with federal funds; or
(3) There is a bona fide dispute between the parties and subcontractors or between a
subcontractor and its suppliers concerning supplies, materials, or equipment
delivered or the services performed which causes the payment to be late; or
(4) Invoices are not mailed to City in strict accordance with instructions, if any, on
the purchase order or the Agreement or other such contractual agreement.
1.09 TERMINATION
This Agreement may be terminated for any of the following conditions:
(1) By City for reasons of its own, with or without cause, and not subject to the
mutual consent of any other party, such written termination notice to be given to
the other party not less than thirty (30) days prior to termination.
(2) By mutual agreement and consent of the parties, such agreement to be in writing.
(3) By either party for failure by the other party to perform the services set forth
herein in a satisfactory manner, such termination notice to be given in writing to
the other party.
(4) By either party for failure by the other party to fulfill its obligations herein.
(5) By satisfactory completion of all services and obligations described herein.
Should City terminate this Agreement as herein provided, no fees other than fees due and
payable at the time of termination shall thereafter by paid to Consultant. City shall pay
Consultant for all uncontested services performed to date of notice of termination.
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If either party defaults in performance of this Agreement or if City terminates this
Agreement for default on the part of the other party, then City shall give consideration to the
actual costs incurred by Consultant in performing the work to the date of default. The cost of the
work that is useable to City, the cost to City of employing another firm to complete the useable
work, and other factors will affect the value to City of the work performed at the time of default.
The termination of this Agreement and payment of an amount in settlement as set forth
above shall extinguish all rights, duties, and obligations of City and the terminated party to fulfill
contractual obligations. Termination under this section shall not relieve the terminated party of
any obligations or liabilities which occurred prior to cancellation.
1.10 INDEPENDENT CONTRACTOR STATUS
Consultant is an independent contractor, and is not City's employee. Consultant's
employees or subcontractors are not City's employees. This Agreement does not create a
partnership, employer-employee, or joint venture relationship. No party has authority to enter
into contracts as agent for the other party. Consultant and City agree to the following rights
consistent with an independent contractor relationship:
(1) Consultant has the right to perform services for others during the term hereof.
(2) Consultant has the sole right to control and direct the means, manner and method
by which services required by this Agreement will be performed.
(3) Consultant has the right to hire assistants as subcontractors, or to use employees
to provide the services required by this Agreement.
(4) Consultant or its employees or subcontractors shall perform services required
hereunder, and City shall not hire, supervise, or pay assistants to help Consultant.
(5) Neither Consultant nor its employees or subcontractors shall receive training from
City in skills necessary to perform services required by this Agreement.
(6) City shall not require Consultant or its employees or subcontractors to devote full
time to performing the services required by this Agreement.
(7) Neither Consultant nor its employees or subcontractors are eligible to participate
in any employee pension, health, vacation pay, sick pay, or other fringe benefit
plan of City.
1.11 NON-SOLICITATION
All parties hereto agree that they shall not directly or indirectly solicit for employment,
employ, or otherwise retain staff of the other during the term of this Agreement.
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1.12 CONFIDENTIALITY; AND MATERIALS OWNERSHIP
Any and all programs, data, or other materials furnished by City for use by Consultant in
connection with services to be performed under this Agreement, and any and all data and
information gathered by Consultant, shall be held in confidence by Consultant as set forth
hereunder. All parties agree to hold all confidential information in the strictest confidence and
not make any use thereof other than for the performance of this Agreement. Notwithstanding the
foregoing, the parties recognize and understand that City is subject to the Texas Public
Information Act and its duties run in accordance therewith.
Any and all materials created and developed by Consultant in connection with services
performed under this Agreement, including all trademark and copyright rights, shall be the sole
property of City at the expiration of this Agreement.
1.13 WARRANTIES
Consultant warrants that all services performed hereunder shall be performed consistent
with generally prevailing professional or industry standards, and shall be performed in a
professional and workmanlike manner. Consultant shall re-perform any work not in compliance
with this warranty.
1.14 INDEMNIFICATION
Consultant agrees to hold harmless, exempt, and indemnify City, its officers, agents,
directors, servants, representatives and employees, from and against any and all suits, actions,
legal proceedings, demands, costs, expenses, losses, damages, fines, penalties, liabilities and
claims of any character, type, or description, including but not limited to any and all expenses of
litigation, court costs, attorneys fees and all other costs and fees incident to any work done as a
result hereof.
City agrees to hold harmless, exempt, and indemnify Consultant, its officers, agents,
directors, servants, representatives and employees, from and against any and all suits, actions,
legal proceedings, demands, costs, expenses, losses, damages, fines, penalties, liabilities and
claims of any character, type, or description, including but not limited to any and all expenses of
litigation, court costs, attorneys fees and all other costs and fees incident to any work done as a
result hereof.
In no event shall either party be liable to the other for special or consequential damages,
statutory or otherwise.
1.15 ASSIGNMENT AND DELEGATION
The parties each hereby bind themselves, their successors, assigns and legal
representatives to each other with respect to the terms of this Agreement. Neither party may
assign any rights or delegate any duties under this Agreement without the other party's prior
written approval.
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1.16 LOCAL, STATE AND FEDERAL TAXES
Consultant shall pay all income taxes, and FICA (Social Security and Medicare taxes)
incurred while performing services under this Agreement. City will not do the following:
(1) Withhold FICA from Consultant's payments or make FICA payments on its
behalf;
(2) Make state and/or federal unemployment compensation contributions on
Consultant's behalf; or
(3) Withhold state or federal income tax from any of Consultant's payments.
If requested, City shall provide Consultant with a certificate from the Texas State
Comptroller indicating that City is a non-profit corporation and not subject to State of Texas
Sales and Use Tax.
1.17 COMPLIANCE WITH LAWS, CHARTER AND ORDINANCES
Consultant, its consultants, agents, employees and subcontractors shall use best efforts to
comply with all applicable federal and state laws, the Charter and Ordinances of the City of
Round Rock, as amended, and with all applicable rules and regulations promulgated by local,
state and national boards, bureaus and agencies. Consultant shall further obtain all permits,
licenses, trademarks, copyrights, and the like required in the performance of the services
contracted for herein, and same shall belong solely to City at the expiration of the term of this
Agreement.
1.18 FINANCIAL INTEREST PROHIBITED
Consultant covenants and represents that Consultant, its officers, employees, agents,
consultants and subcontractors will have no financial interest, direct or indirect, in the purchase
or sale of any product, materials or equipment that will be recommended or required under this
Agreement.
1.19 DESIGNATION OF CITY REPRESENTATIVE
City hereby designates the following representative authorized to act in its behalf with
regard to this Agreement:
Nancy Yawn, Director
Convention and Visitors Bureau
341 West Bagdad, Suite 210
Round Rock, Texas 78664-5299
Telephone: 512-218-7094
Facsimile: 512-341-3153
Email: Wawnground-rock.tx.us
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1.20 NOTICES
All notices and other communications in connection with this Agreement shall be in
writing and shall be considered given as follows:
(1) When delivered personally to recipient's address as stated herein; or
(2) Three (3) days after being deposited in the United States mail, with postage
prepaid to the recipient's address as stated in this Agreement.
Notice to Consultant:
TateAustin
320 Congress Avenue, Suite 100
Austin, TX 78701
Notice to City:
City of Round Rock
City Manager
221 East Main Street
Round Rock, TX 78664
AND TO:
City Attorney's Office
Stephan L. Sheets, City Attorney
309 East Main Street
Round Rock, TX 78664
Nothing contained in this section shall be construed to restrict the transmission of routine
communications between representatives of City and Consultant.
1.21 APPLICABLE LAW; ENFORCEMENT AND VENUE
This Agreement shall be enforceable in Round Rock, Texas, and if legal action is
necessary by either party with respect to the enforcement of any or all of the terms or conditions
herein, exclusive venue for same shall lie in Williamson County, Texas. This Agreement shall
be governed by and construed in accordance with the laws and court decisions of Texas.
1.22 EXCLUSIVE AGREEMENT
The terms and conditions of this Agreement, including the exhibits listed below,
constitute the entire agreement between the parties and supersede all previous communications,
representations, and agreements, either written or oral, with respect to the subject matter hereof.
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No modifications of this Agreement will be binding on any of the parties unless acknowledged in
writing by the duly authorized governing body or representative for each party.
1.23 DISPUTE RESOLUTION
If a dispute arises under this Agreement, the parties agree to first try to resolve the
dispute with the help of a mutually selected mediator. If the parties cannot agree on a mediator,
City shall select one mediator and Consultant shall select one mediator and those two mediators
shall agree upon a third mediator. Any costs and fees, other than attorney fees, associated with
the mediation shall be shared equally by the parties.
City and Consultant hereby expressly agree that no claims or disputes between the parties
arising out of or relating to this Agreement or a breach thereof shall be decided by any arbitration
proceeding, including without limitation, any proceeding under the Federal Arbitration Act (9
USC Section 1-14) or any applicable state arbitration statute.
1.24 ATTORNEYS FEES
In the event that any lawsuit is brought by one party against any of the other parties in
connection with this Agreement, the prevailing party shall be entitled to seek to recover its
reasonable costs and reasonable attorneys fees.
1.25 FORCE MAJEURE
Notwithstanding any other provisions of this Agreement to the contrary, no failure, delay
or default in performance of any obligation hereunder shall constitute an event of default or a
breach of this Agreement, only to the extent that such failure to perform, delay or default arises
out of causes beyond control and without the fault or negligence of the party otherwise
chargeable with failure, delay or default; including but not limited to acts of God, acts of public
enemy, civil war, insurrection, riots, fires, floods, explosion, theft, earthquakes, natural disasters
or other casualties, strikes or other labor troubles, which in any way restrict the performance
under this Agreement by the parties.
Consultant shall not be deemed to be in default of its obligations to City if its failure to
perform or its substantial delay in performance is due to City's failure to timely provide
requested information, data, documentation, or other material necessary for Consultant to
perform its obligations hereunder.
1.26 SEVERABILITY
The invalidity, illegality, or unenforceability of any provision of this Agreement or the
occurrence of any event rendering any portion of provision of this Agreement void shall in no
way affect the validity or enforceability of any other portion or provision of this Agreement. Any
void provision shall be deemed severed from this Agreement, and the balance of this Agreement
shall be construed and enforced as if this Agreement did not contain the particular portion of
provision held to be void. The parties further agree to amend this Agreement to replace any
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stricken provision with a valid provision that comes as close as possible to the intent of the
stricken provision. The provisions of this Article shall not prevent this entire Agreement from
being void should a provision which is of the essence of this Agreement be determined void.
1.27 STANDARD OF CARE
Consultant represents that it is specially trained, experienced and competent to perform
all of the services, responsibilities and duties specified herein and that such services,
responsibilities and duties shall be performed, whether by Consultant or designated
subconsultants, in a manner according to generally accepted business attraction practices.
1.28 GENERAL AND MISCELLANEOUS
The section numbers and headings contained herein are provided for convenience only
and shall have no substantive effect on construction of this Agreement.
The failure of a party to exercise any right hereunder shall not operate as a waiver of said
party's right to exercise such right or any other right in the future.
Time is of the essence to this Agreement. Consultant understands and agrees that any
failure of Consultant to complete the services due under this Agreement within the agreed term
as delineated in Section 1.01 herein will constitute a material breach of this Agreement.
City agrees to provide Consultant with one (1) fully executed original of this Agreement
document.
This Agreement may be executed in multiple counterparts, which taken together shall be
considered as one original.
IN WITNESS WHEREOF, the parties have executed this Agreement on the dates
hereafter indicated.
CITY OF ROUND ROCK, TEXAS ATTEST:
By: By:
Nyle Maxwell, Mayor Christine R. Martinez, City Secretary
Date Signed: Date Signed:
APPROVED AS TO FORM:
By:
Stephan L. Sheets, City Attorney
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KERRY TATE COMMUNICATIONS, INC.
dba TateAustin
By: FZ T-A -E
Title: pieEsl DeNT_
Date Signed: 9 2q 04
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DATE: October 8, 2004
SUBJECT: City Council Meeting - October 14, 2004
ITEM: 14.D.1. Consider a resolution authorizing the Mayor to execute an Agreement
for Professional Consulting Services with Kerry Tate Communications,
Inc. dba TateAustin for the Round Rock Convention and Visitors Bureau
marketing and public relations program.
Department: Administration Department
Staff Person: Nancy Yawn, Director of Convention and Visitors Bureau
Justification:
The Convention and Visitors Bureau is the principal organization that has been organized as the
marketing and sales arm of the City with the responsibility to increase occupancies of local
lodging facilities, and to increase tourism spending in Round Rock.
Funding•
Cost: $150,000.00
Funding Source: Hotel Occupancy Tax
Outside Resources: TateAustin
Background Information:
On December 18, 2003, the City Council adopted the Tourism plan presented by Destination
Development as a guide for Round Rock's tourism efforts. In the adopted plan, Destination
Development recommended the City to being a professional, progressive branding campaign. The
first year contract with TateAustin was very successful; laying the foundation - mostly targeted at
our internal audience. The second year scope of work in this contract is focused on continued
brand building, sales and our external target audience.
Public Comment: N/A
EXECUTED
DOCUMENT
FOLLOWS
CITY OF ROUND ROCK AGREEMENT
WITH KERRY TATE COMMUNICATIONS, INC. dba TateAustin
FOR PROFESSIONAL CONSULTING SERVICES
THIS AGREEMENT for professional consulting services for planning, developing,
designing, performing, creating, writing, branding, marketing, advertising and supporting the
Round Rock Convention and Visitors Bureau marketing and public relations program
("Agreement") is made by and between the City of Round Rock, a Texas home-rule municipal
corporation, whose offices are located at 221 East Main Street, Round Rock, Texas 78664-5299,
("City") and Kerry Tate Communications, Inc. dba TateAustin ("Consultant"), whose offices are
located at 320 Congress Avenue, Suite 100, Austin, Texas 78701.
RECITALS:
WHEREAS, City has determined that there is a need for the delineated services; and
WHEREAS, City desires to contract for such professional services; and
WHEREAS, the parties desire to enter into this Agreement to set forth in writing their
respective rights, duties and obligations hereunder;
NOW, THEREFORE, WITNESSETH:
That for and in consideration of the mutual promises contained herein and other good and
valuable consideration, the sufficiency and receipt of which are hereby acknowledged, it is
mutually agreed between the parties as follows:
1.01 EFFECTIVE DATE, DURATION, AND TERM
This Agreement shall be effective on the date this Agreement has been signed by each
party hereto, and shall remain in full force and effect unless and until it expires by operation of
the term indicated herein, or is terminated or extended as provided herein.
The term of this Agreement shall be until full and satisfactory completion of the work
specified herein is achieved, but in no event later than the end of City's current fiscal year, that
being September 30, 2005.
City reserves the right to review the project at any time, including at the end of any
deliverable or phase, and may elect to terminate the project with or without cause or may elect to
continue with the next deliverable or phase.
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1.02 CONTRACT AMOUNT; AND SCOPE OF WORK DELINEATION
In consideration for the professional services to be performed by Consultant, City agrees
to pay Consultant a total sum not to exceed One Hundred Fifty Thousand and No/100 Dollars
($150,000.00), in payment for services and the Scope of Work deliverables as delineated
hereafter:
AGENCY FEES $60,000.00
Agency fees in the total amount of$60,000.00 shall be due to Consultant, and shall be paid by
City in equal monthly payments of$5,454.50 each for eleven (11) months beginning November
30, 2004 and ending at the end of City's fiscal year on September 30, 2005. Agency fees shall
include, by way of delineation and not limitation, the following:
Planning
(a) Strategic planning of the tourism campaign;
(b) Develop a marketing plan designed to build and support the "Sports Capital of
Texas" brand;
(c) Develop action plans and cost budgets as requested by City
General Account Services
(a) Attend regular City meetings as needed;
(b) Deliver progress reports as requested by City;
(c) Track success and report against agreed-upon metrics
Message and Positioning
(a) Develop strategic messages and spokesperson talking points as needed or
requested by City;
(b) Draft media materials including the following: press releases and media
advisories as needed to support the campaign and/or as requested by City; and
Round Rock backgrounders and fact sheets specific to City's facilities, amenities
and activities
Media Relations
(a) Maintain media relationships in support of the"Sports Capital of Texas"
campaign;
(b) Develop a story bank and strategic timeline for media pitches;
(c) Develop and maintain current and active media list for tourism-related activities;
(d) Serve as coordinator of media interviews [note that City spokespersons will
always be the preferred choice to serve as "on the record" sources quoted in the
media, and that Consultant will likely never be quoted for City];
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(e) Field any incoming press calls, provide reporters with City-approved background
information, and facilitate "on the record" interviews with City spokespersons;
(f) Track, report and archive media mentions and post on Web site [note that media
clipping service is recommended by Consultant, but is not included in the budget
total for this Scope of Work item];
(g) Conduct one session of spokesperson coaching
WEBSITE HOSTING AND MAINTENANCE $5,000.00
(a) Provide hosting for the www.SportsCapitalofTexas.com during the term of this
Agreement;
(b) Provide periodic updates to website including the following: provide quarterly
updates to website content in the form of direct mail campaigns, tradeshow
announcements, and news; and make monthly updates to the calendar section with
information provided by PARD and other sources of sports-related events
DELIVERABLES OUTSIDE OF AGENCY FEES $85,000.00
Marketing Collateral
(a) Design, develop, and print one new marketing piece as a single-panel rack
brochure (quantity 100,000);
(b) Printing costs shall be included in the budget total for this Scope of Work item
Subtotal for deliverable of 100,000 brochures: $20,000.00
Advertising Campaign Design and Deliverable
(a) Design and develop advertising campaigns to support the "Sports Capital of
Texas" marketing effort
Advertising Campaign__1
$ Creative Concept and Design Deliverable (concept and design completed
during the term of previous Agreement; cost of$1,500.00 is for format
changes to apply concept to print publication);
$ Creative Deliverable (deliverable produced during the term of previous
Agreement; cost $0.00)
Subtotal for deliverable of one campaign and design: $1,500.00
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Advertising Campaign 2
$ Creative Concept and Design (cost of$5,000.00);
$ Creative Deliverable (cost of$4,000.00)
Subtotal for deliverable of one campaign and design: $9,000.00
Advertising Buy
(a) Purchase advertising space in select media to support the "Sports Capital of
Texas" marketing effort
Advertising Buy 1
$ One advertising buy to support Advertising Campaign 1 at a total cost of
$10,000;
$ Consultant shall only place advertisements that fall within budget
parameters for this effort
Advertising Buy 2
$ One advertising buy to support Advertising Campaign 2 at a total cost of
$10,000.00;
$ Consultant shall only place advertisements that fall within budget
parameters for this effort
Subtotal for Advertising Buys 1 and 2: $20,000.00
Direct Mail
(a) Develop and execute direct mail campaigns to gain awareness for the "Sports
Capital of Texas" among target audiences;
(b) Costs for printing, mailing, and development of the direct mail piece shall be
included in the budget total for this Scope of Work item
Direct Mail Campaign 1
$ Direct Mail Concept and Design Deliverable at a total cost of$5,000.00;
$ Direct Mail Deliverable (production of 150 units) at a total cost of
$4,000.00;
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$ Direct Mail Mailing at a total cost of$1,500.00
Subtotal for deliverable of one campaign and design, production of 150 units:
$10,500.00
Direct Mail Campaign_2
$ Direct Mail Concept and Design Deliverable at a total cost of$3,000.00;
$ Direct Mail Deliverable (production of online direct mail piece) at a total
cost of $0.00;
$ Direct Mail Mailing (sending via e-mail) at a total cost of$0.00
Subtotal for deliverable of one campaign and design, production of electronic
direct mail piece: $3,000.00
Direct Mail Campaign 3
$ Direct Mail Concept and Design Deliverable at a total cost of$0.00
(deliverable produced during the term of previous Agreement)
$ Direct Mail Deliverable (production of 150 units) at a total
cost of $0.00 (production cost for this piece allocated during the term of
previous Agreement);
$ Direct Mail Mailing (mailing of"Sports Capital of Texas" chairs) at a total
cost of$1,000.00
Subtotal for deliverable of mailing of direct mail: $1,000.00
Tradeshow Activities
(a) Develop activities to be conducted at tradeshows
Tradeshow Activity(Lar e-scale)
$ Tradeshow Activity Concept Design for a total cost of$4,000.00;
$ Tradeshow Activity Deliverable (purchase or production of three units and
related booth needs) for a total of$6,000.00;
Subtotal for deliverable of one tradeshow activity concept and design, production
of three units: $10,000.00
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Tradeshow Activity 2 (Small-scale)
$ Tradeshow Activity Concept Design for a total cost of$4,000.00;
$ Tradeshow Activity Deliverable (purchase or production of 200 units and
related booth needs) for a total cost of$6,000.00;
Subtotal for deliverable of one tradeshow activity concept and design, production
of 200 units: $10,000.00
SUBTOTAL FOR AGENCY FEES $ 60,000.00
SUBTOTAL FOR WEBSITE HOSTING AND MAINTENANCE $ 5,000.00
SUBTOTAL FOR DELIVERABLES OUTSIDE OF AGENCY FEES $ 85,000.00
BUDGET TOTAL: $150,000.00
For purposes of this Agreement, Consultant has issued its Scope of Work for the
assignments delineated herein. Such Scope of Work is recited herein in Section 1.02 and is also
appended to this Agreement and labeled as Exhibit"A." When taken together with the appended
exhibits, this Agreement shall evidence the entire understanding and agreement between the
parties and supersede any prior proposals, correspondence or discussions.
Consultant shall satisfactorily provide all services and deliverables described under the
attached Scope of Work within the contract term specified in Section 1.01. Consultant's
undertakings shall be limited to performing services for City and/or advising City concerning
those matters on which Consultant has been specifically engaged. Consultant shall perform its
services in accordance with this Agreement, in accordance with the appended Scope of Work, in
accordance with due care, and in accordance with prevailing consulting industry standards for
comparable services.
1.03 PAYMENT FOR SERVICES; SUPPLEMENTAL AGREEMENTS
Payment for Services: In consideration for the consulting services to be performed by
Consultant, City agrees to pay Consultant the following sums:
(1) Agency fees in the total amount of$60,000.00 shall be due to Consultant and
be paid by City in equal monthly payments of $5,454.50 each for eleven(11)
months beginning on November 30, 2004 and ending at the end of City's fiscal
year on September 30, 2005;
(2) Fees for website hosting and maintenance in the total amount of $5,000.00
shall be due to Consultant and be paid by City upon activation of home page;
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(3) Fees for the listed deliverables outside of agency fees in the total amount of
$85,000.00 shall be paid by City upon complete delivery by Consultant to City
of each individual deliverable, along with appropriate billing and documentation.
Payment for Reimbursable Expenses: There shall be no payment for reimbursable
expenses in this Agreement.
Not-to-Exceed Total: Unless subsequently changed by additional Supplemental
Agreement to this Agreement, duly authorized by City Council or City Manager action,
Consultant's total compensation hereunder shall not exceed $150,000.00. This amount
represents the absolute limit of City's liability to Consultant hereunder unless same shall be
changed by additional Supplemental Agreement, and City shall pay, strictly within the confines
of the not-to-exceed sum recited herein, Consultant's professional fees for work done on behalf
of City.
Deductions: No deductions shall be made for Consultant's compensation on account of
penalty, liquidated damages or other sums withheld from payments to Consultant.
Additions: No additions shall be made to Consultant's compensation based upon Project
claims, whether paid by City or denied.
Supplemental Agreements: The terms of this Agreement may be modified by written
Supplemental Agreement hereto, duly authorized by City Council or City Manager action, if City
determines that there has been a significant change in (1) the scope, complexity, or character of
the services to be performed; or (2) the duration of the work. Any such Supplemental
Agreement must be executed by both parties within the period specified as the term of this
Agreement. Consultant shall not perform any work or incur any additional costs prior to the
execution, by both parties, of such Supplemental Agreement. Consultant shall make no claim for
extra work done or materials furnished unless and until there is full execution of any
Supplemental Agreement, and City shall not be responsible for actions by Consultant nor for any
costs incurred by Consultant relating to additional work not directly authorized by Supplemental
Agreement.
1.04 TERMS OF PAYMENT
Invoices: To receive payment, Consultant shall prepare and submit a series of monthly
detailed invoices to City for services rendered. Each invoice for professional services shall track
the attached Scope of Work, and shall detail the services performed, along with documentation
for each service performed. All payments to Consultant shall be made on the basis of the
invoices submitted by Consultant and approved by City. Such invoices shall conform to the
schedule of services and costs in connection therewith.
Should additional backup material be requested by City, Consultant shall comply
promptly. In this regard, should City determine it necessary, Consultant shall make all records
and books relating to this Agreement available to City for inspection and auditing purposes.
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If City has any dispute with work performed, then City shall notify Consultant within
thirty (30) days after receipt of invoice. In the event of any dispute regarding the work
performed, then and in that event Consultant shall either (a) satisfactorily re-perform the disputed
services or (b) provide City with an appropriate credit.
Payment of Invoices: City reserves the right to correct any error that may be discovered
in any invoice that may have been paid to Consultant and to adjust same to meet the
requirements of this Agreement. Following approval of invoices, City shall endeavor to pay
Consultant promptly, but no later than the time period required under the Texas Prompt Payment
Act described in Section 1.08 herein. Under no circumstances shall Consultant be entitled to
receive interest on payments which are late because of a good faith dispute between Consultant
and City or because of amounts which City has a right to withhold under this Agreement or state
law. City shall be responsible for any sales, gross receipts or similar taxes applicable to the
services, but not for taxes based upon Consultant's net income.
Offsets: City may, at its option, offset any amounts due and payable under this
Agreement against any debt (including taxes) lawfully due to City from Consultant, regardless of
whether the amount due arises pursuant to the terms of this Agreement or otherwise and
regardless of whether or not the debt due to City has been reduced to judgment by a court.
1.05 REQUIRED REPORTS
Consultant agrees to provide City with any necessary detailed final written reports,
together with all information gathered and materials developed during the course of the project.
Additionally, Consultant agrees to provide City with any necessary oral presentations of such
detailed final written reports, at City's designation and at no additional cost to City.
1.06 LIMITATION TO SCOPE OF WORK
Consultant and City agree that the scope of services to be performed is generally
enumerated in Section 1.02 herein. Notwithstanding anything herein to the contrary, the parties
agree that City retains absolute discretion and authority for all funding decisions, such decisions
to be based solely on criteria accepted by City which may be influenced by but not be dependent
on Consultant's work.
1.07 NON-APPROPRIATION AND FISCAL FUNDING
This Agreement is a commitment of City's current revenues only. It is understood and
agreed that City shall have the right to terminate this Agreement at the end of any City fiscal year
if the governing body of City does not appropriate funds sufficient to purchase the services as
determined by City's budget for the fiscal year in question. City may effect such termination by
giving Consultant a written notice of termination at the end of its then current fiscal year.
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1.08 PROMPT PAYMENT POLICY
In accordance with Chapter 2251, V.T.C.A., Texas Government Code, payment to
Consultant will be made within thirty (30) days of the day on which City receives the
performance, supplies, materials, equipment, and/or deliverables, or within thirty (30) days of the
day on which the performance of services was complete, or within thirty (30) days of the day on
which City receives a correct invoice for the performance and/or deliverables or services,
whichever is later. Consultant may charge a late fee of one percent (1%) for payments not made
in accordance with this prompt payment policy; however, this policy does not apply to payments
made by City in the event:
(1) There is a bona fide dispute between City and Consultant concerning the supplies,
materials, or equipment delivered or the services performed which causes the
payment to be late; or
(2) The terms of a federal contract, grant, regulation, or statute prevent City from
making a timely payment with federal funds; or
(3) There is a bona fide dispute between the parties and subcontractors or between a
subcontractor and its suppliers concerning supplies, materials, or equipment
delivered or the services performed which causes the payment to be late; or
(4) Invoices are not mailed to City in strict accordance with instructions, if any, on
the purchase order or the Agreement or other such contractual agreement.
1.09 TERMINATION
This Agreement may be terminated for any of the following conditions:
(1) By City for reasons of its own, with or without cause, and not subject to the
mutual consent of any other party, such written termination notice to be given to
the other party not less than thirty (30) days prior to termination.
(2) By mutual agreement and consent of the parties, such agreement to be in writing.
(3) By either parry for failure by the other party to perform the services set forth
herein in a satisfactory manner, such termination notice to be given in writing to
the other party.
(4) By either party for failure by the other party to fulfill its obligations herein.
(5) By satisfactory completion of all services and obligations described herein.
Should City terminate this Agreement as herein provided, no fees other than fees due and
payable at the time of termination shall thereafter by paid to Consultant. City shall pay
Consultant for all uncontested services performed to date of notice of termination.
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If either party defaults in performance of this Agreement or if City terminates this
Agreement for default on the part of the other party, then City shall give consideration to the
actual costs incurred by Consultant in performing the work to the date of default. The cost of the
work that is useable to City, the cost to City of employing another firm to complete the useable
work, and other factors will affect the value to City of the work performed at the time of default.
The termination of this Agreement and payment of an amount in settlement as set forth
above shall extinguish all rights, duties, and obligations of City and the terminated party to fulfill
contractual obligations. Termination under this section shall not relieve the terminated party of
any obligations or liabilities which occurred prior to cancellation.
1.10 INDEPENDENT CONTRACTOR STATUS
Consultant is an independent contractor, and is not City's employee. Consultant's
employees or subcontractors are not City's employees. This Agreement does not create a
partnership, employer-employee, or joint venture relationship. No party has authority to enter
into contracts as agent for the other party. Consultant and City agree to the following rights
consistent with an independent contractor relationship:
(1) Consultant has the right to perform services for others during the term hereof.
(2) Consultant has the sole right to control and direct the means, manner and method
by which services required by this Agreement will be performed.
(3) Consultant has the right to hire assistants as subcontractors, or to use employees
to provide the services required by this Agreement.
(4) Consultant or its employees or subcontractors shall perform services required
hereunder, and City shall not hire, supervise, or pay assistants to help Consultant.
(5) Neither Consultant nor its employees or subcontractors shall receive training from
City in skills necessary to perform services required by this Agreement.
(6) City shall not require Consultant or its employees or subcontractors to devote full
time to performing the services required by this Agreement.
(7) Neither Consultant nor its employees or subcontractors are eligible to participate
in any employee pension, health, vacation pay, sick pay, or other fringe benefit
plan of City.
1.11 NON-SOLICITATION
All parties hereto agree that they shall not directly or indirectly solicit for employment,
employ, or otherwise retain staff of the other during the term of this Agreement.
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1.12 CONFIDENTIALITY; AND MATERIALS OWNERSHIP
Any and all programs, data, or other materials furnished by City for use by Consultant in
connection with services to be performed under this Agreement, and any and all data and
information gathered by Consultant, shall be held in confidence by Consultant as set forth
hereunder. All parties agree to hold all confidential information in the strictest confidence and
not make any use thereof other than for the performance of this Agreement. Notwithstanding the
foregoing, the parties recognize and understand that City is subject to the Texas Public
Information Act and its duties run in accordance therewith.
Any and all materials created and developed by Consultant in connection with services
performed under this Agreement, including all trademark and copyright rights, shall be the sole
property of City at the expiration of this Agreement.
1.13 WARRANTIES
Consultant warrants that all services performed hereunder shall be performed consistent
with generally prevailing professional or industry standards, and shall be performed in a
professional and workmanlike manner. Consultant shall re-perform any work not in compliance
with this warranty.
1.14 INDEMNIFICATION
Consultant agrees to hold harmless, exempt, and indemnify City, its officers, agents,
directors, servants, representatives and employees, from and against any and all suits, actions,
legal proceedings, demands, costs, expenses, losses, damages, fines, penalties, liabilities and
claims of any character, type, or description, including but not limited to any and all expenses of
litigation, court costs, attorneys fees and all other costs and fees incident to any work done as a
result hereof.
City agrees to hold harmless, exempt, and indemnify Consultant, its officers, agents,
directors, servants, representatives and employees, from and against any and all suits, actions,
legal proceedings, demands, costs, expenses, losses, damages, fines, penalties, liabilities and
claims of any character, type, or description, including but not limited to any and all expenses of
litigation, court costs, attorneys fees and all other costs and fees incident to any work done as a
result hereof.
In no event shall either party be liable to the other for special or consequential damages,
statutory or otherwise.
1.15 ASSIGNMENT AND DELEGATION
The parties each hereby bind themselves, their successors, assigns and legal
representatives to each other with respect to the terms of this Agreement. Neither party may
assign any rights or delegate any duties under this Agreement without the other party's prior
written approval.
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1.16 LOCAL, STATE AND FEDERAL TAXES
Consultant shall pay all income taxes, and FICA (Social Security and Medicare taxes)
incurred while performing services under this Agreement. City will not do the following:
(1) Withhold FICA from Consultant's payments or make FICA payments on its
behalf,
(2) Make state and/or federal unemployment compensation contributions on
Consultant's behalf; or
(3) Withhold state or federal income tax from any of Consultant's payments.
If requested, City shall provide Consultant with a certificate from the Texas State
Comptroller indicating that City is a non-profit corporation and not subject to State of Texas
Sales and Use Tax.
1.17 COMPLIANCE WITH LAWS, CHARTER AND ORDINANCES
Consultant, its consultants, agents, employees and subcontractors shall use best efforts to
comply with all applicable federal and state laws, the Charter and Ordinances of the City of
Round Rock, as amended, and with all applicable rules and regulations promulgated by local,
state and national boards, bureaus and agencies. Consultant shall further obtain all permits,
licenses, trademarks, copyrights, and the like required in the performance of the services
contracted for herein, and same shall belong solely to City at the expiration of the term of this
Agreement.
1.18 FINANCIAL INTEREST PROHIBITED
Consultant covenants and represents that Consultant, its officers, employees, agents,
consultants and subcontractors will have no financial interest, direct or indirect, in the purchase
or sale of any product, materials or equipment that will be recommended or required under this
Agreement.
1.19 DESIGNATION OF CITY REPRESENTATIVE
City hereby designates the following representative authorized to act in its behalf with
regard to this Agreement:
Nancy Yawn, Director
Convention and Visitors Bureau
301 West Bagdad, Suite 210
Round Rock, Texas 78664-5299
Telephone: 512-218-7094
Facsimile: 512-341-3153
Email: nyawnLa]round-rock.tx.us
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1.20 NOTICES
All notices and other communications in connection with this Agreement shall be in
writing and shall be considered given as follows:
(1) When delivered personally to recipient's address as stated herein; or
(2) Three (3) days after being deposited in the United States mail, with postage
prepaid to the recipient's address as stated in this Agreement.
Notice to Consultant:
TateAustin
320 Congress Avenue, Suite 100
Austin, TX 78701
Notice to City:
City of Round Rock
City Manager
221 East Main Street
Round Rock, TX 78664
AND TO:
City Attorney's Office
Stephan L. Sheets, City Attorney
309 East Main Street
Round Rock, TX 78664
Nothing contained in this section shall be construed to restrict the transmission of routine
communications between representatives of City and Consultant.
1.21 APPLICABLE LAW; ENFORCEMENT AND VENUE
This Agreement shall be enforceable in Round Rock, Texas, and if legal action is
necessary by either party with respect to the enforcement of any or all of the terms or conditions
herein, exclusive venue for same shall lie in Williamson County, Texas. This Agreement shall
be governed by and construed in accordance with the laws and court decisions of Texas.
1.22 EXCLUSIVE AGREEMENT
The terms and conditions of this Agreement, including the exhibits listed below,
constitute the entire agreement between the parties and supersede all previous communications,
representations, and agreements, either written or oral, with respect to the subject matter hereof.
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No modifications of this Agreement will be binding on any of the parties unless acknowledged in
writing by the duly authorized governing body or representative for each party.
1.23 DISPUTE RESOLUTION
If a dispute arises under this Agreement, the parties agree to first try to resolve the
dispute with the help of a mutually selected mediator. If the parties cannot agree on a mediator,
City shall select one mediator and Consultant shall select one mediator and those two mediators
shall agree upon a third mediator. Any costs and fees, other than attorney fees, associated with
the mediation shall be shared equally by the parties.
City and Consultant hereby expressly agree that no claims or disputes between the parties
arising out of or relating to this Agreement or a breach thereof shall be decided by any arbitration
proceeding, including without limitation, any proceeding under the Federal Arbitration Act (9
USC Section 1-14) or any applicable state arbitration statute.
1.24 ATTORNEYS FEES
In the event that any lawsuit is brought by one party against any of the other parties in
connection with this Agreement, the prevailing party shall be entitled to seek to recover its
reasonable costs and reasonable attorneys fees.
1.25 FORCE MAJEURE
Notwithstanding any other provisions of this Agreement to the contrary, no failure, delay
or default in performance of any obligation hereunder shall constitute an event of default or a
breach of this Agreement, only to the extent that such failure to perform, delay or default arises
out of causes beyond control and without the fault or negligence of the party otherwise
chargeable with failure, delay or default; including but not limited to acts of God, acts of public
enemy, civil war, insurrection, riots, fires, floods, explosion, theft, earthquakes, natural disasters
or other casualties, strikes or other labor troubles, which in any way restrict the performance
under this Agreement by the parties.
Consultant shall not be deemed to be in default of its obligations to City if its failure to
perform or its substantial delay in performance is due to City's failure to timely provide
requested information, data, documentation, or other material necessary for Consultant to
perform its obligations hereunder.
1.26 SEVERABILITY
The invalidity, illegality, or unenforceability of any provision of this Agreement or the
occurrence of any event rendering any portion of provision of this Agreement void shall in no
way affect the validity or enforceability of any other portion or provision of this Agreement. Any
void provision shall be deemed severed from this Agreement, and the balance of this Agreement
shall be construed and enforced as if this Agreement did not contain the particular portion of
provision held to be void. The parties further agree to amend this Agreement to replace any
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stricken provision with a valid provision that comes as close as possible to the intent of the
stricken provision. The provisions of this Article shall not prevent this entire Agreement from
being void should a provision which is of the essence of this Agreement be determined void.
1.27 STANDARD OF CARE
Consultant represents that it is specially trained, experienced and competent to perform
all of the services, responsibilities and duties specified herein and that such services,
responsibilities and duties shall be performed, whether by Consultant or designated
subconsultants, in a manner according to generally accepted business attraction practices.
1.28 GENERAL AND MISCELLANEOUS
The section numbers and headings contained herein are provided for convenience only
and shall have no substantive effect on construction of this Agreement.
The failure of a party to exercise any right hereunder shall not operate as a waiver of said
party's right to exercise such right or any other right in the future.
Time is of the essence to this Agreement. Consultant understands and agrees that any
failure of Consultant to complete the services due under this Agreement within the agreed term
as delineated in Section 1.01 herein will constitute a material breach of this Agreement.
City agrees to provide Consultant with one (1) fully executed original of this Agreement
document.
This Agreement may be executed in multiple counterparts, which taken together shall be
considered as one original.
IN WITNESS WHEREOF, the parties have executed this Agreement on the dates
hereafter indicated.
CITY OF ROUND ROCK TEXAS ATTEST:
By. By. le ,
a VK Mayor Christine R. Martinez, City Secr tary
000-late Signed: /0-I LI-0 L Date Signed:
APPROVED AS TO FORM:
By: AM -A.- L , &
Steph L. Sheets, City Attorney
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KERRY TATE COMMUNICATIONS, INC.
dba TateAustin
By: E12 TATE
Title: JpR-�si D�N'r
Date Signed: q 29 o4
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