R-11-10-27-10C1 - 10/27/2011RESOLUTION NO. R -11-10-27-10C1
WHEREAS, the City of Round Rock desires to retain professional consulting services for the
development and provision of strategic and creative services relating to the City of Round Rock and its
brand "The Sports Capital of Texas", and
WHEREAS, Arsenal Brand, Inc. has submitted an Agreement for Professional Consulting
Services and a Work Made for Hire Agreement to provide said services, and
WHEREAS, the City Council desires to enter into said agreements with Arsenal Brand, Inc.,
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 and a Work Made for Hire Agreement with Arsenal
Brand, Inc., 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 27th day of October, 2011.
191114
ALAN MCGRAW, Mayor
City of Round Rock, Texas
ATTEST:
SARA L. WHITE, City Secretary
O:\wdo x\S CClnts\0112\ 1104 \MUNICIPAL\ 00235 63 5. DOC/rmc
CITY OF ROUND ROCK AGREEMENT
FOR PROFESSIONAL CONSULTING SERVICES
WITH ARSENAL
This Agreement shall recite the contractual terms whereby the City of Round Rock
engages Arsenal to perform, by way of illustration and not limitation, the following:
Development and provision of a package of professional services focusing on
strategic and creative services relating to the City of Round Rock and its brand
"The Sports Capital of Texas" including the following four key areas of
communications support: (i) overall proactive strategic planning and
development; (ii) creative development, execution and production of campaign
materials; (iii) media planning and placement as directed by City, and (iv) social
media and website optimization; and the development of a marketing plan that
establishes business goals and objectives targeted to reach the ideal market,
including components that will allow feedback and the ability to measure results;
and creation and execution of a comprehensive marketing plan that includes the
following three key components: (i) broadcast promotions; (ii) interactive
marketing, including social media and email campaigns; and (iii) print
advertising.
This Agreement (hereinafter referred to as the "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, (hereinafter referred to as the "City") and
Arsenal, whose offices are located at 610 Brazos, Suite 500, Austin, Texas 78701 (hereinafter
referred to as the "Consultant").
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.
002339897/jkg/revised
The initial 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 fiscal year ending
September 30, 2012.
At City's option, this Agreement may be renewed for four additional twelve (12) month
periods from the expiration date of the initial term, only upon the express written agreement of
both parties and only provided Consultant has performed each and every contractual obligation
specified in this Agreement.
City reserves the right to review the Agreement and contractual relationship at any time,
and may elect to terminate same with or without cause or may elect to continue.
1.02 CONTRACT AMOUNT; AND SCOPE OF SERVICES 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-six Thousand Two Hundred and
No/100 Dollars ($156,200.00) in payment for services and the Scope of Services deliverables as
delineated hereafter:
For purposes of this Agreement Consultant has issued its Scope of Services. Such Scope
of Services is attached as Exhibit "A" and incorporated herein for all purposes. This Agreement,
including all exhibits, shall evidence the entire understanding and agreement between the parties
and shall supersede any prior proposals, correspondence or discussions.
Consultant shall satisfactorily provide all services described under the attached Scope of
Services 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 any appended exhibits, 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 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 $156,200.00. 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.
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Additions: No additions shall be made to Consultant's compensation based upon claims,
whether paid by City or denied.
Supplemental Agreements: The terms of this Agreement may be modified by written
Supplemental Agreement, 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 detail
the services performed, along with documentation. All payments to Consultant shall be made on
the basis of the invoices submitted by Consultant and approved by City.
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.
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.
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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
enutnerated in Exhibit "A." 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.
1.08 PROMPT PAYMENT POLICY
In accordance with Chapter 2251, V.T.C.A., Texas Government Code, payment to be
made by City to Consultant will be made within thirty (30) days of the date City receives goods
under this Agreement, the date the performance of the services under this Agreement are
completed or the date City receives a correct invoice for the goods or services, whichever is later.
Consultant may charge interest on an overdue payment at the "rate in effect" on September 1 of
the fiscal year in which the payment becomes overdue, in accordance with V.T.C.A., Texas
Government Code, Section 2251.025(b). This Prompt Payment Policy does not apply to
payments made by City in the event:
(1) There is a bona fide dispute between City and Consultant, a contractor,
subcontractor, or supplier about the goods delivered or the service performed that
causes the payment to be late; or
(2) There is a bona fide dispute between Consultant and a subcontractor or between a
subcontractor and its supplier about the goods delivered or the service performed
that causes the payment to be late;
The terms of a federal contract, grant, regulation, or statute prevent City from
making a timely payment with federal funds; or
(4) The invoice is not mailed to City in strict accordance with any instruction on the
purchase order relating to the payment.
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(3)
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.
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)
(2)
Consultant has the right to perform services for others during the term hereof.
Consultant has the sole right to control and direct the means, manner and method
by which services required by this Agreement will be performed.
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(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.
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.
(7)
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.
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
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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.
To the extent allowable by law, 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 hereunder without the other's prior written approval.
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 comply with all
applicable federal and state laws, the Charter and Ordinances of the City of Round Rock, as
amended, and 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 tern of this Agreement.
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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 reconunended or required hereunder.
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
231 East Main Street, Suite 150
Round Rock, Texas 78664
Telephone: 512-218-7094
Facsimile: 512-341-3153
Email: nyawn@round-rock.tx.us
round-rock.tx.us
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:
Arsenal
610 Brazos, Suite 500
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
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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 any appended exhibits, 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.
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.
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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
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.
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.
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CITY OF ROUND ROCK, TEXAS
By:
Alan McGraw, Mayor
Date Signed:
ATTEST:
By:
Sara L. White, City Secretary
FOR CITY, APPROVED AS TO FORM:
By:
Stephan L. Sheets, City Attorney
ARSENAL
By:
Printee `ame:
Title: rfl e,Y4sf
Date Signed: 9
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ShaA.J Ste, fG,
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11
Scope of Services
2011/2012
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Overall
The sixth action -packed season is just around the corner and Arsenal is ready to score another home run
with plenty of creative ideas and strategic firepower. This year, the City of Round Rock has won more
awards, and is recognized nationwide for its ground breaking gatefold sports campaign. The bases are
loaded and it is time for us to knock it out of the park and leave the competition in the dust.
The City of Round Rock has stood it's ground and held it's own in this tough economy. The Sports
Capital of Texas brand needs to continue to stake it's claim in the nation and sell out its award winning
facilities and own its title. Youth Sports is one area that still continues to thrive, even when money is
tight. As your strategic and creative coach, we have an Arsenal of ways to outdo the competition and stay
ahead of the game. So batter up...and let's win this game.
As your full-service advertising agency, our professional services starting October 1, 2011 through
September 30, 2012 will focus on four key areas of communications support.
These areas of support include:
• Overall, proactive strategic planning and development
• Creative development, execution and production of campaign materials
• Media planning and placement as needed
• Social Media and website optimization
Strategic Development
The team at Arsenal has developed a marketing plan that establishes The Sports Capital of Texas goals
and objectives for the 2011/2012 time period. This plan will reach the most ideal target market of sports
events planners and have components that will allow us to receive feedback and measure results. One of
the biggest differences in this year will be if Round Rock voters adopt plans for a multi -use sports event
center. If we have this new asset to market, our story for Round Rock will be stronger than ever before.
Creative Execution
Round Rock has made strong in -roads with our audience of sports events planners. Our creative execution
will continue to differentiate the City's offerings with this audience and stand out from the typical CVB
ads they're used to seeing. Our creative executions will highlight the energy and excitement. of Round
Rock while featuring the City's single-minded commitment to being the best tournament destination
anywhere, one that has a strong heart for sports, with the important facilities, amenities and resources our
audiences want and need. Our plan includes the following three key elements:
Broadcast Promotions
Interactive Marketing including social media and email campaigns
Print Advertising
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EXHIBIT
nAu
WORK MADE FOR HIRE AGREEMENT WITH ARSENAL
This Agreement is made on the day of the month of
2011, by and between ARSENAL, and any of its authors and/or artists (hereinafter
referred to as "Author/Artist," and if there is more than one author/artist affiliated with
the entity, then the entity and all of them collectively) and the CITY OF ROUND
ROCK, TEXAS (hereinafter referred to as the "City").
This Agreement is made simultaneous to an agreement entitled "City of Round
Rock Agreement for Professional Consulting Services with Arsenal," and encompasses
the subject matter contracted for thereunder.
AUTHOR/ARTIST AND CITY HEREBY AGREE THAT:
1. Title and Copyright Assignment
(a) Author/Artist and City intend this to be a contract for services and each considers
the products and results of the services to be rendered by Author/Artist hereunder (the
"Work") to be a work made for hire. Author/Artist acknowledges and agrees that the
Work (and all rights therein, including, without limitation, copyright) belongs to and shall
be the sole and exclusive property of City.
(b) If for any reason the Work would not be considered a work made for hire under
applicable law, Author/Artist does hereby sell, assign, and transfer to City, its successors
and assigns, the entire right, title and interest in and to the copyright in the Work and any
registrations and copyright applications relating thereto and any renewals and extensions
thereof, and in and to all works based upon, derived from, or incorporating the Work, and
in and to all income, royalties, damages, claims and payments now or hereafter due or
payable with respect thereto, and in and to all causes of action, either in law or in equity
for past, present, or future infringement based on the copyrights, and in and to all rights
corresponding to the foregoing throughout the world.
(c) If the Work is one to which the provisions of 17 U.S.C.106A apply, Author/Artist
hereby waives and appoints City to assert on Author/Artist's behalf the Author/Artist's
moral rights or any equivalent rights regarding the form or extent of any alteration to the
Work (including, without limitation, removal or destruction) or the making of any
derivative works based on the Work, including, without limitation, drawings or other
visual reproductions or the Work, in any medium, excepting photographs, for City's
purposes.
(d) Author/Artist agrees to execute all papers and to perform such other proper acts as
City may deem necessary to secure for City or its designee the rights herein assigned.
00233994/jkgf revised
2. Delivery of the Work
(a) Author/Artist will deliver to City on or before any contractually -obligated date the
completed Work (with all illustrations, charts, graphs, graphics, and other material,
including supplements, handouts, reference lists, indexes, etc., in the medium mutually
agreed upon for the Work) in form and content satisfactory to City.
(b) If Author/Artist fails to deliver the Work on time, City will have the right to
terminate this agreement and the referenced simultaneous agreement and to recover from
Author/Artist any sums advanced in connection with the Work. Upon such termination,
Author/Artist may not have the Work published or used in any form elsewhere until such
advances have been repaid.
3. Quoted Material
With the exception of short excerpts from others' works, which constitute fair use,
the Work will contain no material from other copyrighted works without a written
consent of the copyright holder. Author/Artist will obtain such consents at his/her/its own
expense after consultation with City and will file them with City at the time the Work is
delivered. Any obligations associated with permissions will be the responsibility of
Author/Artist.
4. Author/Artist's Warranty
Author/Artist warrants that he/she/it is the sole owner of the Work and has full
power and authority to make this agreement; that the Work does not infringe any
copyright, violate any property rights, or contain any scandalous, libelous, or unlawful
matter. Author/Artist will defend, indemnify, and hold harmless City and/or its licensees
against all claims, suits, costs, damages, and expenses that City and/or its licensees may
sustain by reason of any scandalous, libelous, or unlawful matter contained or alleged to
be contained in the Work or any infringement or violation by the Work of any copyright
or property right; and until such claim or suit has been settled or withdrawn, City may
withhold any sums due Author/Artist under the referenced simultaneous agreement.
5. Consideration
In consideration for delivery of the Work in accordance with the provisions of the
referenced simultaneous agreement, City shall pay Author/Artist as indicated therein.
6. Revisions
Author/Artist shall, at the request of City, revise the Work at one year intervals
during the term of the referenced simultaneous agreement.
7. Term and Termination
(a) This agreement shall remain in effect for the same length of time as the referenced
simultaneous agreement unless terminated earlier in accordance with this Section 7.
(b) In the event that either party shall be in default of its material obligations under
this agreement or the referenced simultaneous agreement and shall fail to remedy such
default within thirty (30) days after receipt of written notice thereof, the agreements shall
terminate upon expiration of the thirty (30) day period.
(c) Upon the expiration of the term of this agreement and the referenced simultaneous
agreement, the parties may agree to renew those agreements for additional terms, only as
allowed by the terms of the referenced simultaneous agreement, upon the same terms and
conditions as set forth.
8. Options/Contracts with Third Parties
Nothing contained in Section 7 shall affect any license or other grant of rights,
options, or agreements made with third parties prior to the termination date or the rights
of City in the income resulting from such agreements.
9. Amendments
The written provisions contained in this agreement, taken together inextricably
with the referenced simultaneous agreement, constitute the sole and entire agreement
made between Author/Artist and City concerning this Work, and any amendments to
same shall not be valid unless made in writing and signed by both parties.
10. Construction, Binding Effect, Venue, and Assignment
This agreement shall be construed and interpreted according to the laws of the
State of Texas and shall be binding upon the parties hereto, their heirs, successors,
assigns, and personal representatives; and venue shall lie exclusively in Williamson
County, Texas; and references to Author/Artist and to City shall include their heirs,
successors, assigns, and personal representatives.
IN WITNESS WHEREOF, the parties have duly executed this agreement as of
the date indicated below.
[ SIGNATURE PAGE FOLLOWS j
CITY OF ROUND ROCK, TEXAS
By:
Alan McGraw, Mayor
Date Signed:
ATTEST:
By:
Sara L. White, City Secretary
FOR CITY, APPROVED AS TO FORM:
By:
Stephan L. Sheets, City Attorney
ARSENAL
By:
Printe
Title:
Date Signed:
anle: tiny
GP Ar5t064 LLC.
11
Agenda Item No. 10C1.
City Council Agenda Summary Sheet
Consider a resolution authorizing the Mayor to execute a Professional Consulting Services
Agenda Caption: Agreement and Work Made for Hire Agreement with Arsenal.
Meeting Date: October 27, 2011
Department: Administration
Staff Person making presentation: Nancy Yawn
CVB Director
Item Summary:
Development and provision of package of professional services focusing on strategic and creative services relating to
the City of Round Rock and its brand "The Sports Capital of Texas".
Cost:
Source of Funds:
$156,000.00
Hotel Occupancy Tax Fund
Date of Public Hearing (if required): N/A
Recommended Action: Approval
EXECUTED
DOCUMENTS
FOLLOW
CITY OF ROUND ROCK AGREEMENT
FOR PROFESSIONAL CONSULTING SERVICES
WITH ARSENAL
This Agreement shall recite the contractual terms whereby the City of Round Rock
engages Arsenal to perform, by way of illustration and not limitation, the following:
Development and provision of a package of professional services focusing on
strategic and creative services relating to the City of Round Rock and its brand
"The Sports Capital of Texas" including the following four key areas of
communications support: (i) overall proactive strategic planning and
development; (ii) creative development, execution and production of campaign
materials; (iii) media planning and placement as directed by City, and (iv) social
media and website optimization; and the development of a marketing plan that
establishes business goals and objectives targeted to reach the ideal market,
including components that will allow feedback and the ability to measure results;
and creation and execution of a comprehensive marketing plan that includes the
following three key components: (i) broadcast promotions; (ii) interactive
marketing, including social media and email campaigns; and (iii) print
advertising.
This Agreement (hereinafter referred to as the "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, (hereinafter referred to as the "City") and
Arsenal, whose offices are located at 610 Brazos, Suite 500, Austin, Texas 78701 (hereinafter
referred to as the "Consultant").
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.
002339897/jkg/revised
The initial 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 fiscal year ending
September 30, 2012.
At City's option, this Agreement may be renewed for four additional twelve (12) month
periods from the expiration date of the initial term, only upon the express written agreement of
both parties and only provided Consultant has performed each and every contractual obligation
specified in this Agreement.
City reserves the right to review the Agreement and contractual relationship at any time,
and may elect to terminate same with or without cause or may elect to continue.
1.02 CONTRACT AMOUNT; AND SCOPE OF SERVICES DELINEATION
In consideration for the professional services to be performed by Consultant, City agrees
to pay Consultant a total sum not to exceed One Hlundred Fifty-six Thousand Two Hundred and
No/100 Dollars ($156,200.00) in payment for services and the Scope of Services deliverables as
delineated hereafter:
For purposes of this Agreement Consultant has issued its Scope of Services. Such Scope
of Services is attached as Exhibit "A" and incorporated herein for all purposes. This Agreement,
including all exhibits, shall evidence the entire understanding and agreement between the parties
and shall supersede any prior proposals, correspondence or discussions.
Consultant shall satisfactorily provide all services described under the attached Scope of
Services 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 any appended exhibits, 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 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 $156,200.00. 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 sump 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.
2
Additions: No additions shall be made to Consultant's compensation based upon claims,
whether paid by City or denied.
Supplemental Agreements: The terms of this Agreement may be modified by written
Supplemental Agreement, 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 detail
the services performed, along with documentation. All payments to Consultant shall be made on
the basis of the invoices submitted by Consultant and approved by City.
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.
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.
3
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 Exhibit "A." 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.
1.08 PROMPT PAYMENT POLICY
In accordance with Chapter 2251, V.T.C.A., Texas Government Code, payment to be
made by City to Consultant will be made within thirty (30) days of the date City receives goods
under this Agreement, the date the performance of the services under this Agreement are
completed or the date City receives a correct invoice for the goods or services, whichever is later.
Consultant may charge interest on an overdue payment at the "rate in effect" on September 1 of
the fiscal year in which the payment becomes overdue, in accordance with V.T.C.A., Texas
Government Code, Section 2251.025(b). This Prompt Payment Policy does not apply to
payments made by City in the event:
(1)
There is a bona fide dispute between City and Consultant, a contractor,
subcontractor, or supplier about the goods delivered or the service performed that
causes the payment to be late; or
(2) There is a bona fide dispute between Consultant and a subcontractor or between a
subcontractor and its supplier about the goods delivered or the service performed
that causes the payment to be late;
The terms of a federal contract, grant, regulation, or statute prevent City from
making a timely payment with federal funds; or
(4) The invoice is not mailed to City in strict accordance with any instruction on the
purchase order relating to the payment.
4
(3)
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.
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.
5
(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.
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.
(7)
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.
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
6
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.
To the extent allowable by law, 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 hereunder without the other's prior written approval.
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 comply with all
applicable federal and state laws, the Charter and Ordinances of the City of Round Rock, as
amended, and 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.
7
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 hereunder.
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
231 East Main Street, Suite 150
Round Rock, Texas 78664
Telephone: 512-218-7094
Facsimile: 512-341-3153
Email: nyawn@round-rock.tx.us
round-rock.tx.us
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:
Arsenal
610 Brazos, Suite 500
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
8
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 any appended exhibits, 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.
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.
9
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
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.
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.
10
CITY OF ROUND ROCK, TEXAS
By:
Alan McGraw, Mayor
Date Signed: J.2_-'()
ATTEST:
By:
Sara L. White, City Secretary
FOR CIT £ PROVED AS TO FORM:
By:\ft
G::► a
Stepha ' L. Sheets, City Attorney
ARSENAL
By: wA, '. I
ft
Printe. ' ame: � . � � � s � L f,
Title: rne�.►ixf� Shams o r his
Date Signed:
1 1090:
Scope of Services
2011/2012
Overall
The sixth action -packed season is just around the corner and Arsenal is ready to score another home run
with plenty of creative ideas and strategic firepower. This year, the City of Round Rock has won more
awards, and is recognized nationwide for its ground breaking gatefold sports campaign. The bases are
loaded and it is time for us to knock it out of the park and leave the competition in the dust.
The City of Round Rock has stood it's ground and held it's own in this tough economy. The Sports
Capital of Texas brand needs to continue to stake it's claim in the nation and sell out its award winning
facilities and own its title. Youth Sports is one area that still continues to thrive, even when money is
tight. As your strategic and creative coach, we have an Arsenal of ways to outdo the competition and stay
ahead of the game. So batter up... and let's win this game.
As your full-service advertising agency, our professional services starting October 1, 2011 through
September 30, 2012 will focus on four key areas of communications support.
These areas of support include:
• Overall, proactive strategic planning and developrnent
• Creative development, execution and production of campaign materials
• Media planning and placement as needed
• Social Media and website optimization
Strategic Development
The team at Arsenal has developed a marketing plan that. establishes The Sports Capital of Texas goals
and objectives for the 2011/2012 time period. This plan will reach the most ideal target market of sports
events planners and have components that will allow us to receive feedback and measure results. One of
the biggest differences in this year will be if Round Rock voters adopt plans for a multi -use sports event
center. If we have this new asset to market, our story for Round Rock will be stronger than ever before.
Creative Execution
Round Rock has made strong in -roads with our audience of sports events planners. Our creative execution
will continue to differentiate the City's offerings with this audience and stand out from the typical CVB
ads they're used to seeing. Our creative executions will highlight the energy and excitement of Round
Rock while featuring the City's single-minded commitment to being the best tournament destination
anywhere, one that has a strong heart for sports, with the important facilities, amenities and resources our
audiences want and need. Our plan includes the following three key elements:
Broadcast Promotions
Interactive Marketing including social media and email campaigns
Print Advertising
EXHIBIT
WORK MADE FOR HIRE AGREEMENT WITH ARSENAL
This Agreement is made on the 2, 'day of the month of ,
2011, by and between ARSENAL, and any of its authors and/or artists (hereinafter
referred to as "Author/Artist," and if there is more than one author/artist affiliated with
the entity, then the entity and all of them collectively) and the CITY OF ROUND
ROCK, TEXAS (hereinafter referred to as the "City").
This Agreement is made simultaneous to an agreement entitled "City of Round
Rock Agreement for Professional Consulting Services with Arsenal," and encompasses
the subject matter contracted for thereunder.
AUTHOR/ARTIST AND CITY HEREBY AGREE THAT:
1. Title and Copyright Assignment
(a) Author/Artist and City intend this to be a contract for services and each considers
the products and results of the services to be rendered by Author/Artist hereunder (the
"Work") to be a work made for hire. Author/Artist acknowledges and agrees that the
Work (and all rights therein, including, without limitation, copyright) belongs to and shall
be the sole and exclusive property of City.
(b) If for any reason the Work would not be considered a work made for hire under
applicable law, Author/Artist does hereby sell, assign, and transfer to City, its successors
and assigns, the entire right, title and interest in and to the copyright in the Work and any
registrations and copyright applications relating thereto and any renewals and extensions
thereof, and in and to all works based upon, derived from, or incorporating the Work, and
in and to all income, royalties, damages, claims and payments now or hereafter due or
payable with respect thereto, and in and to all causes of action, either in law or in equity
for past, present, or future infringement based on the copyrights, and in and to all rights
corresponding to the foregoing throughout the world.
(c) If the Work is one to which the provisions of 17 U.S.C.106A apply, Author/Artist
hereby waives and appoints City to assert on Author/Artist's behalf the Author/Artist's
moral rights or any equivalent rights regarding the form or extent of any alteration to the
Work (including, without limitation, removal or destruction) or the making of any
derivative works based on the Work, including, without limitation, drawings or other
visual reproductions or the Work, in any medium, excepting photographs, for City's
purposes.
(d) Author/Artist agrees to execute all papers and to perform such other proper acts as
City may deem necessary to secure for City or its designee the rights herein assigned.
00233994/jkg/revised
2. Delivery of the Work
(a) Author/Artist will deliver to City on or before any contractually -obligated date the
completed Work (with all illustrations, charts, graphs, graphics, and other material,
including supplements, handouts, reference lists, indexes, etc., in the medium mutually
agreed upon for the Work) in form and content satisfactory to City.
(b) If Atithor/Artist fails to deliver the Work on time, City will have the right to
terminate this agreement and the referenced simultaneous agreement and to recover from
Author/Artist any sums advanced in connection with the Work. Upon such termination,
Author/Artist may not have the Work published or used in any form elsewhere until such
advances have been repaid.
3. Quoted Material
With the exception of short excerpts from others' works, which constitute fair use,
the Work will contain no material from other copyrighted works without a written
consent of the copyright holder. Author/Artist will obtain such consents at his/her/its own
expense after consultation with City and will file them with City at the time the Work is
delivered. Any obligations associated with permissions will be the responsibility of
Author/Artist.
4. Author/Artist's Warranty
Author/Artist warrants that he/she/it is the sole owner of the Work and has full
power and authority to make this agreement; that the Work does not infringe any
copyright, violate any property rights, or contain any scandalous, libelous, or unlawful
matter. Author/Artist will defend, indemnify, and hold harmless City and/or its licensees
against all claims, suits, costs, damages, and expenses that City and/or its licensees may
sustain by reason of any scandalous, libelous, or unlawful matter contained or alleged to
be contained in the Work or any infringement or violation by the Work of any copyright
or property right; and until such claim or suit has been settled or withdrawn, City may
withhold any sums due Author/Artist under the referenced simultaneous agreement.
5. Consideration
In consideration for delivery of the Work in accordance with the provisions of the
referenced simultaneous agreement, City shall pay Author/Artist as indicated therein.
6. Revisions
Author/Artist shall, at the request of City, revise the Work at one year intervals
during the term of the referenced simultaneous agreement.
7. Term and Termination
(a) This agreement shall remain in effect for the same length of time as the referenced
simultaneous agreement unless terminated earlier in accordance with this Section 7.
(b) In the event that either party shall be in default of its material obligations under
this agreement or the referenced simultaneous agreement and shall fail to remedy such
default within thirty (30) days after receipt of written notice thereof, the agreements shall
terminate upon expiration of the thirty (30) day period.
(c) Upon the expiration of the term of this agreement and the referenced simultaneous
agreement, the parties may agree to renew those agreements for additional terms, only as
allowed by the terms of the referenced simultaneous agreement, upon the same terms and
conditions as set forth.
8. Options/Contracts with Third Parties
Nothing contained in Section 7 shall affect any license or other grant of rights,
options, or agreements made with third parties prior to the termination date or the rights
of City in the income resulting from such agreements.
9. Amendments
The written provisions contained in this agreement, taken together inextricably
with the referenced simultaneous agreement, constitute the sole and entire agreement
made between Author/Artist and City concerning this Work, and any amendments to
same shall not be valid unless made in writing and signed by both parties.
10. Construction, Binding Effect, Venue, and Assignment
This agreement shall be construed and interpreted according to the laws of the
State of Texas and shall be binding upon the parties hereto, their heirs, successors,
assigns, and personal representatives; and venue shall lie exclusively in Williamson
County, Texas; and references to Author/Artist and to City shall include their heirs,
successors, assigns, and personal representatives.
IN WITNESS WHEREOF, the parties have duly executed this agreement as of
the date indicated below.
[ SIGNATURE PAGE FOLLOWS
CITY OF ROUND ROCK, TEXAS
By:
Printed Name:
Title:
Date: ` 10 .731-1,
FOR CITY, ATTEST:
By:
Sara L. White, City Secretary
FOR CITY APPROVED AS TO FORM:
A.
By:
G►' moi' •
.. 1
Stephu�.i L. Sheets, City Attorney
ARSENAL
By:
Printed Name:' flt e S�-,,i
Title: M.0-ilbx o4 Sh u J ' ►fin L -a , Gr o C"' P rs.r16LI LP
Date: 9/2V1