Loading...
R-02-01-10-12D2 - 1/10/2002RESOLUTION NO. R- 02- 01- 10 -12D2 WHEREAS, the City has a need for professional marketing, advertising, and public relations services, and WHEREAS, WarrenCreative+ has submitted an Agreement for Consulting Services to provide said services, and WHEREAS, the City Council desires to enter into said agreement with WarrenCreative +, 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 Consulting Services with WarrenCreative+ for professional marketing, advertising, and public relations services, a copy of said agreement 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 10th day of Ja 002 . e!ri A. STLUKA, JR., M ayor :: 0DMA\ WORLDOX\ 0 : \WDOX \RESOLUTI \R20110172.WPD /6c RO CHRISTINE R. MARTINEZ, City Secret City of Round Rock, Texas THI$ AGREEMENT is made and entered into on this the day of the month of , 200 21 by and between the City of Round Rock, a Texas home - rulemunicipal corporation, whose offices are located at 221 East Main Street, Round Rock, Texas 78664 -5299 (hereinafter referred to as the City ), and WarrenCreative +, whose offices are located at 714 Congress Avenue, Suite 200, Austin, Texas 78701 (hereinafter referred to as the Consultant ). CITY OF ROUND ROCK AGREEMENT FOR CONSULTING SERVICES WITH WARRENCREATIVE + WHEREAS, City desires to contract for marketing communication services; and WHEREAS, City desires to contract for Consultant s assistance in providing strategic marketing, advertising, and communicationservices to City, including by recitation and not limitation a brand logo and tag line, marketing collateral, economic developmentwebsite, advertisingcampaigns, associated public relations and event scheduling, and other marketing, advertising, and public relations services; and WHEREAS, the parties desire to enter into this Agreement to set forth in writing their respective rights, duties and obligations hereunder, hereof. NOW, THEREFORE, WITNESSETH, RECITALS: 1.01 EFFECTIVE DATE, DURATION, AND TERM t o 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: This Agreement shall be effective on the date it has been signed by every 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 for twelve (12) months beginning from the effective date 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 CRAY'S: 00CUMENTS MICROSOFT USER U.ATA:SAVEO ATTACNMENTS:W'ARREN CREATIVE OOC EXHIBIT "An continue with the next deliverable or phase. 1.02 PAYMENT In consideration for the professional services to be performed by Consultant, City agrees to pay Consultant a not -to- exceed total sum of One Hundred Forty -seven Thousand Five Hundred and No /100 Dollars ($147,500.00), plus expenses only as enumerated on Exhibit A attached hereto and made a part hereof for all purposes. Consultant's compensation for professional services shall not exceed, without written consent, the amounts indicated in this Agreement and exhibits. City shall pay, strictly within the confines of the not -to- exceed sum recited in Section 1.02 herein, Consultant's professional fees for work done on behalf of City, including strategy development, creative services, copywriting, positioning and branding, advertising and graphic design. City shall pay the out -of- pocket expenses of media purchase, printing, photography, and postage incurred on behalf of City. City agrees to pay a fifteen percent (15 %) markup on all such out -of- pocket expenses. Printing markup covers the costs of gathering competitive bids from a minimum of three (3) printers, negotiations, coordination and/or attendance at meetings with printers on each project, and may include press checks. City shall pay the actual out -of- pocket expenses of necessary travel associated with this Agreement, but City shall not pay any markup for travel expenses. City shall pay a media commission of fifteen percent (15 %). Media commission covers the costs of media placement, media relations, coordination and shipping of materials, negotiations on media buy, rates, position in publication, billing reconciliation, tracking of make -goods and confirmation of run dates and times. 1.03 TERMS OF PAYMENT City agrees to pay Consultant based on pre - approved and signed project estimates provided to City prior to inception of the work. To receive payment, Consultant shall prepare and submit monthly invoices. Each invoice shall state and detail the deliverable(s) accomplished, along with documentation for each deliverable, and shall state the percent completion of the work accomplished during that particular billing period. City agrees to pay Consultant any media commission payments either in advance or within fifteen (15) days of proper billing, at the election of City. 1.04 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 and/or 2 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 conceming the services performed that 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 Consultant and a subcontractor or between a subcontractor and its supplier concerning the services performed which causes the payment to be late; or 4. the invoice is not mailed to City in strict accordance with instructions, if any, on any purchase order, or this Agreement or other such contractual agreement. 1.05 EXPENSES City shall reimburse Consultant for expenses described in Exhibit A that are directly attributable to work performed under this Agreement. Consultant shall submit an itemized invoice of Consultant's expenses, with appropriate documentation attached. City shall endeavor to pay Consultant in accordance with the prompt payment policy described above, and in accordance with the specified terms of this Agreement. 1.06 OBJECTIVES, DELIVERABLES, AND SCOPE OF WORK See Exhibit B attached hereto and incorporated herein by reference for all purposes. 1.07 NON - APPROPRIATION 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 goveming body of City does not appropriate funds sufficient to purchase the services as determined byCity'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 TERMINATION City may terminate or suspend performance of this Agreement for City's convenience, with or without cause, upon written notice to Consultant. Consultant shall terminate or suspend performance of the Services on a schedule acceptable to City. If termination or suspension is for 3 City's convenience, City shall pay Consultant for all uncontested services performed to date of notice. This Agreement may be terminated by either City or Consultant upon written notice in the event of substantial failure by the other party to perform in accordance with the terms of this Agreement. The non - performing party shall have fifteen (15) calendar days from the date of the termination notice to cure or to submit a plan for cure acceptable to the other party. The non- defaulting party shall be entitled to receive just and equitable compensation for all services completed and all legal fees incurred by this action. 1.09 INDEPENDENT CONTRACTOR STATUS Consultant is an independent contractor, not City's employee. Consultant's employees or subcontractors are not City's employees. This Agreement does not create a partnership relationship. Neither 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 this Agreement term. 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 Consultant's employees or subcontractors shall perform the services required by this Agreement. City shall not hire, supervise, or pay any assistants to help Consultant. 5. Neither Consultant nor Consultant's employees or subcontractors shall receive any training from City in the skills necessary to perform the services required by this Agreement. 6. City shall not require Consultant or Consultant's employees or subcontractors to devote full time to performing the services required by this Agreement. 7. Neither Consultant nor Consultant's employees or subcontractors are eligible to participate in any employee pension, health, vacation pay, sick pay, or other fringe benefit plan of City. 1.10 CONFIDENTIALITY Both parties shall take all reasonable measures to preserve the confidentiality of any proprietary or confidential information that the other party provides to it in connection with this 4 engagement, provided that no claim may be made for any failure to protect information that occurs more than two (2) years after the termination or expiration of this Agreement. It is understood and agreed by and between the parties that each is to regard information and project work presented to either party during this engagement as confidential, and the parties agree not to disclose such information to any third party except as required bylaw. It is further understood and agreed by and between the parties that any confidential information received from the other party pursuant to this Agreement shall not be released without the other party's express written consent, except as required by law. At the conclusion of the engagement, at City's request, Consultant shall retum to City all materials, data and documents that City has provided to Consultant, except that Consultant may retain one (1) copy of these materials for its archival purposes, subject to Consultant's confidentiality obligations hereunder. 1.11 INTELLECTUAL PROPERTY AND WORK PRODUCT OWNERSHIP Consultant brings its procedures and processes to the scope of work addressed by this Agreement. Nothing herein shall limit Consultant's right to copyrights, patent rights, and other intellectual property rights held by Consultant and utilized in performing the services hereunder. Consultant shall maintain ownership and copyright to all creative work, strategy development, media strategy, strategic planning, marketing plans, collateral design, logo, identity and graphic design elements only until compensation therefor is made. Upon payment, Consultant shall release and transfer ownership and copyright to all creative work, strategy development, media strategy, strategic planning, marketing plans, collateral design, logo, identity and graphic design elements, as to the whole or any part thereof. All final documents and reports prepared by Consultant as part of the services shall become the exclusive property of City. Project work which has been presented and rejected in writing by City shall remain the property of Consultant. 1.12 WARRANTIES Consultant warrants that all services performed under this Agreement shall be performed consistent with generally prevailing professional or industry standards. City must report any deficiencies in Consultant's services to Consultant in writing within 120 days of performance to receive warranty remedies. City's exclusive remedy for breach of the above warranty shall be the re- performance of Consultant's services or as otherwise provided for herein. THIS WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY ORAL OR WRITTEN REPRESENTATIONS, PROPOSALS OR STATEMENTS MADE PRIOR TO THIS AGREEMENT. 5 1.13 LIMITED LIABILITY Consultant's total liability to City under this Agreement for damages, costs and expenses, regardless of cause, shall not exceed the compensation received by Consultant under this Agreement. In no event shall Consultant be liable for City's lost profits or special, incidental or consequential damages even if Consultant has been advised of the possibility of such damages. 1.14 INDEMNIFICATION Consultant agrees to hold harmless, defend, and indemnify City for and from all losses, damages, and claims arising as a result of actions by Consultant and its agents and subcontractors during its performance pursuant to this Agreement. Except to the extent that Consultant is obligated to indemnify City, City shall indemnify Consultant against any third party claim or liability not arising from negligent or wrongful performance by Consultant. 1.15 ASSIGNMENT AND DELEGATION No party may assign any rights or delegate any duties under this Agreement without the other parties' 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 Consultant's behalf; 2. Make state and/or federal unemployment compensation contributions on Consultant's behalf; or 3. Withhold state or federal income tax from Consultant's payments. 1.17 NOTICES All notices and other communications in connection with this Agreement shall be in writing and shall be considered given as follows: 6 1. When delivered personally to the recipient's address as stated in this Agreement. 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: Charlotte P. Warren CEO and Firm Principal 714 Congress Avenue, Suite 200 Austin, Texas 78701 Notice to City: City of Round Rock AND TO: Attention: City Manager 221 East Main Street Round Rock, Texas 78664 Nothing contained in this section shall be construed to restrict the transmission of routine communications between representatives of City and Consultant. 1.18 APPLICABLE LAW The laws of the State of Texas shall govern this Agreement. Venue shall lie in Williamson County, Texas. 1.19 EXCLUSIVE AGREEMENT City. 1.20 DISPUTE RESOLUTION 7 City of Round Rock Attention: City Attomey 309 East Main Street Round Rock, Texas 78664 This Agreement is and represents the entire contractual agreement between Consultant and 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 and Consultant shall each select a mediator and the 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. 1.22 SEVERABIL,ITY 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 of 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. IN WITNESS WHEREOF, City and Consultant have executed this Agreement on the dates indicated. CITY OF ROUND ROCK, TEXAS ATTEST: By: Robert A. Stluka, Jr., Mayor Christine Martinez, City Secretary Date Signed: Date Signed: WARRENCREATIVE + By: h Charlotte P. Warren, CEO Date Signed: /a / ,Li /O/ 8 EXHIBIT A Expenses City shall reimburse Consultant at actual cost plus fifteen percent (15 %) markup for the following expenses that are directly attributable to authorized work performed under this Agreement. • Printing costs. • Photography costs. • Media purchase. • Computer services. • Meals, not to exceed City's travel per diem. • Lodging. • Telephone, fax, online and telegraph charges. • Postage and courier services. City shall reimburse Consultant at actual cost, with no markup, for the following expenses that are directly attributable to authorized work performed under this Agreement: • Travel expenses other than normal commuting, including airfares, rental vehicles, and highway mileage in company or personal vehicles at $0.31 cents per mile. All travel must be approved by City prior to Consultant incurring travel expenses. 9 EXHIBIT B Objectives, Deliverables, and Scope of Work Branding Develop logo, tagline, identity, key message development, meetings Estimated Cost: $15,000.00 Research Executive interviews of 10 -15 companies, covering those which have located in Round Rock, those who chose to locate elsewhere, and prospective companies to be used as foundation for multiple deliverables, including articles for submissions, quote sheet, and relevant marketing/sales content Estimated Cost: $8,000.00 Marketing Campaign Rollout Develop strategy and implement the year -long plan for events and community buy -in, meetings Estimated Cost: $8,500.00 - $10,000.00 Public Relations Develop and assist in implementation of a twelve-month civic and economic development public relations campaign to include media strategy development, public relations plan, pitch topics and themes and material development in coordination with internal Round Rock staff Estimated Cost: $45,000.00 - $55,000.00 Creation of Economic Development Website Original design and layout of website, including supplying information and graphics content to maintain up -to -date look and content (hosting not included; owner of programming deliverable to be determined) Estimated Cost: $15,000.00 Concept, Design, and Production of Collateral Materials City of Round Rock brochure, including original photography by Round Rock photographer Estimated Cost: $20,000.00 - $25,000.00 City identity paper system, including letterhead, business cards, envelopes, labels, PowerPoint template, presentation folder /package for collateral) Estimated Cost: $15,000.00 - $19,500.00 Total $126,500.00 - $147,500.00 10 Estimated Printing Costs: Folder Quantity 1,000, pocket folder, four color with varnish Brochure Quantity 1,000, four page, four color with varnish Quantity 2,000, four page, four color with varnish Quantity 1,000, eight page, four color with varnish Quantity 2,000, eight page, four color with varnish Paper system (letterhead, business cards) Graphics standard manual 11 $3,500.00 - $5,500.00 $2,250.00 $2,615.00 $3,575.00 $4,222.00 N /A, delivered electronically N /A, delivered electronically DATE: January 10, 2002 SUBJECT: City Council Meeting — January 4, 2002 ITEM: 12.D.2. Consider a resolution authorizing the Mayor to execute an Agreement for Consulting Services with Warren Creative+ for marketing, advertising, and public relations services Resource: Nancy Yawn, Public Affairs, Business Development Director Joe Vining, Planning Director History: Council adopted the Angelou Economic Development Plan recommended by the Economic Development Advisory Commission in September 2001. The plan includes hiring a marketing/advertising/public relations firm to provide a brand logo and tag line, marketing collateral, economic development web -site, advertising campaigns, associated public relations and event scheduling and other marketing, advertising and public relations services. Funding: Cost: $126,500 - $147,500 plus printing costs Source of funds: General fund, economic development program Outside Resources: N/A Impact: These professional services are needed for implementation of this part of the plan. Benefit: This contract will allow the City to have the materials and resources needed to market the City of Round Rock in a professional manner. It will also provide the vehicle for a public relations and advertising campaign to put Round Rock on the top of the minds of the decision makers nationally in our target market segments. Public Comment: N/A Sponsor: N/A CITY OF ROUND ROCK AGREEMENT FOR CONSULTING SERVICES WITH WARRENCREATIVE + GP" THIS AGREEMENT is made and entered into on this the day of the month of , 200jby 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 WarrenCreative +, whose offices are located at 714 Congress Avenue, Suite 200, Austin, Texas 78701 (hereinafter referred to as the Consultant ). RECITALS: WHEREAS, City desires to contract for marketing communication services; and WHEREAS, City desires to contract for Consultant s assistance in providing strategic marketing, advertising, and communication services to City, including by recitation and not limitation a brand logo and tag line, marketing collateral, economic developmentwebsite, advertisingcampaigns, associated public relations and event scheduling, and other marketing, advertising, and public relations 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 hereof. CRAWS USER DATA:SAVED - ATTACHMENTS WARREN CREATIVE DOC I D" This Agreement shall be effective on the date it has been signed by every 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 for twelve (12) months beginning from the effective date 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. 1.02 PAYMENT In consideration for the professional services to be performed by Consultant, City agrees to pay Consultant a not -to- exceed total sum of One Hundred Forty -seven Thousand Five Hundred and No /100 Dollars ($147,500.00), plus expenses only as enumerated on Exhibit A attached hereto and made a part hereof for all purposes. Consultant's compensation for professional services shall not exceed, without written consent, the amounts indicated in this Agreement and exhibits. City shall pay, strictly within the confines of the not -to- exceed sum recited in Section 1.02 herein, Consultant's professional fees for work done on behalf of City, including strategy development, creative services, copywriting, positioning and branding, advertising and graphic design. City shall pay the out -of- pocket expenses of media purchase, printing, photography, and postage incurred on behalf of City. City agrees to pay a fifteen percent (15 %) markup on all such out -of- pocket expenses. Printing markup covers the costs of gathering competitive bids from a minimum of three (3) printers, negotiations, coordination and/or attendance at meetings with printers on each project, and may include press checks. City shall pay the actual out -of- pocket expenses of necessary travel associated with this Agreement, but City shall not pay any markup for travel expenses. City shall pay a media commission of fifteen percent (15 %). Media commission covers the costs of media placement, media relations, coordination and shipping of materials, negotiations on media buy, rates, position in publication, billing reconciliation, tracking of make -goods and confirmation of run dates and times. 1.03 TERMS OF PAYMENT City agrees to pay Consultant based on pre - approved and signed project estimates provided to City prior to inception of the work. To receive payment, Consultant shall prepare and submit monthly invoices. Each invoice shall state and detail the deliverable(s) accomplished, along with documentation for each deliverable, and shall state the percent completion of the work accomplished during that particular billing period. City agrees to pay Consultant any media commission payments either in advance or within fifteen (15) days of proper billing, at the election of City. 1.04 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 and/or 2 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 services performed that 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 Consultant and a subcontractor or between a subcontractor and its supplier concerning the services performed which causes the payment to be late; or 4. the invoice is not mailed to City in strict accordance with instructions, if any, on any purchase order, or this Agreement or other such contractual agreement. 1.05 EXPENSES City shall reimburse Consultant for expenses described in Exhibit A that are directly attributable to work performed under this Agreement. Consultant shall submit an itemized invoice of Consultant's expenses, with appropriate documentation attached. City shall endeavor to pay Consultant in accordance with the prompt payment policy described above, and in accordance with the specified terms of this Agreement. 1.06 OBJECTIVES, DELIVERABLES, AND SCOPE OF WORK See Exhibit B attached hereto and incorporated herein by reference for all purposes. 1.07 NON - APPROPRIATION 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 suchtermination by giving Consultant a written notice of termination at the end of its then current fiscal year. 1.08 TERMINATION City may terminate or suspend performance of this Agreement for City's convenience, with or without cause, upon written notice to Consultant. Consultant shall terminate or suspend performance of the Services on a schedule acceptable to City. If termination or suspension is for 3 City's convenience, City shall pay Consultant for all uncontested services performed to date of notice. This Agreement may be terminated by either City or Consultant upon written notice in the event of substantial failure by the other party to perform in accordance with the terms of this Agreement. The non - performing party shall have fifteen (15) calendar days from the date of the termination notice to cure or to submit a plan for cure acceptable to the other party. The non- defaulting party shall be entitled to receive just and equitable compensation for all services completed and all legal fees incurred by this action. 1.09 INDEPENDENT CONTRACTOR STATUS Consultant is an independent contractor, not City's employee. Consultant's employees or subcontractors are not City's employees. This Agreement does not create a partnership relationship. Neither 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 this Agreement term. 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 Consultant's employees or subcontractors shall perform the services required by this Agreement. City shall not hire, supervise, or pay any assistants to help Consultant. 5. Neither Consultant nor Consultant's employees or subcontractors shall receive any training from City in the skills necessary to perform the services required by this Agreement. 6. City shall not require Consultant or Consultant's employees or subcontractors to devote full time to performing the services required by this Agreement. 7. Neither Consultant nor Consultant's employees or subcontractors are eligible to participate in any employee pension, health, vacation pay, sick pay, or other fringe benefit plan of City. 1.10 CONFIDENTIALITY Both parties shall take all reasonable measures to preserve the confidentiality of any proprietary or confidential information that the other party provides to it in connection with this 4 engagement, provided that no claim may be made for any failure to protect information that occurs more than two (2) years after the termination or expiration of this Agreement. It is understood and agreed by and between the parties that each is to regard information and project work presented to either party during this engagement as confidential, and the parties agree not to disclose such information to any third party except as required by law. It is further understood and agreed by and between the parties that any confidential information received from the other party pursuant to this Agreement shall not be released without the other party's express written consent, except as required by law. At the conclusion of the engagement, at City's request, Consultant shall return to City all materials, data and documents that City has provided to Consultant, except that Consultant may retain one (1) copy of these materials for its archival purposes, subject to Consultant's confidentiality obligations hereunder. 1.11 INTELLECTUAL PROPERTY AND WORK PRODUCT OWNERSHIP Consultant brings its procedures and processes to the scope of work addressed by this Agreement. Nothing herein shall limit Consultant's right to copyrights, patent rights, and other intellectual property rights held by Consultant and utilized in performing the services hereunder. Consultant shall maintain ownership and copyright to all creative work, strategy development, media strategy, strategic planning, marketing plans, collateral design, logo, identity and graphic design elements only until compensation therefor is made. Upon payment, Consultant shall release and transfer ownership and copyright to all creative work, strategy development, media strategy, strategic planning, marketing plans, collateral design, logo, identity and graphic design elements, as to the whole or any part thereof. All final documents and reports prepared by Consultant as part of the services shall become the exclusive property of City. Project work which has been presented and rejected in writing by City shall remain the property of Consultant. 1.12 WARRANTIES Consultant warrants that all services performed under this Agreement shall be performed consistent with generally prevailing professional or industry standards. City must report any deficiencies in Consultant's services to Consultant in writing within 120 days of performance to receive warranty remedies. City's exclusive remedy for breach of the above warranty shall be the re- performance of Consultant's services or as otherwise provided for herein. THIS WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ANY ORAL OR WRITTEN REPRESENTATIONS, PROPOSALS OR STATEMENTS MADE PRIOR TO THIS AGREEMENT. 5 1.13 LIMITED LIABILITY Consultant's total liability to City under this Agreement for damages, costs and expenses, regardless of cause, shall not exceed the compensation received by Consultant under this Agreement. In no event shall Consultant be liable for City's lost profits or special, incidental or consequential damages even if Consultant has been advised of the possibility of such damages. 1.14 INDEMNIFICATION Consultant agrees to hold harmless, defend, and indemnify City for and from all losses, damages, and claims arising as a result of actions by Consultant and its agents and subcontractors during its performance pursuant to this Agreement. Except to the extent that Consultant is obligated to indemnify City, City shall indemnify Consultant against any third party claim or liability not arising from negligent or wrongful performance by Consultant. 1.15 ASSIGNMENT AND DELEGATION No party may assign any rights or delegate any duties under this Agreement without the other parties' 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 Consultant's behalf; 2. Make state and /or federal unemployment compensation contributions on Consultant's behalf; or 3. Withhold state or federal income tax from Consultant's payments. 1.17 NOTICES All notices and other communications in connection with this Agreement shall be in writing and shall be considered given as follows: 6 1. When delivered personally to the recipient's address as stated in this Agreement. 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: Charlotte P. Warren CEO and Firm Principal 714 Congress Avenue, Suite 200 Austin, Texas 78701 Notice to City: City of Round Rock AND TO: Attention: City Manager 221 East Main Street Round Rock, Texas 78664 Nothing contained in this section shall be construed to restrict the transmission of routine communications between representatives of City and Consultant. 1.18 APPLICABLE LAW The laws of the State of Texas shall govern this Agreement. Venue shall lie in Williamson County, Texas. 1.19 EXCLUSIVE AGREEMENT City. 1.20 DISPUTE RESOLUTION 7 City of Round Rock Attention: City Attorney 309 East Main Street Round Rock, Texas 78664 This Agreement is and represents the entire contractual agreement between Consultant and 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 and Consultant shall each select a mediator and the two mediators shall agree upon a third mediator. Any costs and fees, other than attomey 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. 1.22 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 of 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. IN WITNESS WHEREOF, City and Consultant have executed this Agreement on the dates indicated. . Stluka, Jr.) ay°�j Christine Martinez, City Secreta Date Signed: r — / �` (%� Date Signed: / — /0 — 0 WARRENCREATIVE + By: hGG� X1E Charlotte P. Warren, CEO Date Signed: 7027,77/07 8 ATTEST: EXHIBIT A Expenses City shall reimburse Consultant at actual cost plus fifteen percent (15 %) markup for the following expenses that are directly attributable to authorized work performed under this Agreement: • Printing costs. • Photography costs. • Media purchase. • Computer services. • Meals, not to exceed City's travel per diem. • Lodging. • Telephone, fax, online and telegraph charges. • Postage and courier services. City shall reimburse Consultant at actual cost, with no markup, for the following expenses that are directly attributable to authorized work performed under this Agreement: • Travel expenses other than normal commuting, including airfares, rental vehicles, and highway mileage in company or personal vehicles at $0.31 cents per mile. All travel must be approved by City prior to Consultant incurring travel expenses. 9 EXHIBIT B Objectives, Deliverables, and Scope of Work Branding Develop logo, tagline, identity, key message development, meetings Estimated Cost: $15,000.00 Research Executive interviews of 10 -15 companies, covering those which have located in Round Rock, those who chose to locate elsewhere, and prospective companies to be used as foundation for multiple deliverables, including articles for submissions, quote sheet, and relevant marketing/sales content Estimated Cost: $8,000.00 Marketing Campaign Rollout Develop strategy and implement the year -long plan for events and community buy -in, meetings Estimated Cost: $8,500.00 - $10,000.00 Public Relations Develop and assist in implementation of a twelve -month civic and economic development public relations campaign to include media strategy development, public relations plan, pitch topics and themes and material development in coordination with intemal Round Rock staff Estimated Cost: $45,000.00 - $55,000.00 Creation of Economic Development Website Original design and layout ofwebsite, including supplying information and graphics content to maintain up -to -date look and content (hosting not included; owner of programming deliverable to be determined) Estimated Cost: $15,000.00 Concept, Design, and Production of Collateral Materials City of Round Rock brochure, including original photography by Round Rock photographer Estimated Cost: $20,000.00 - $25,000.00 City identity paper system, including letterhead, business cards, envelopes, labels, PowerPoint template, presentation folder /package for collateral) Estimated Cost: $15,000.00 - $19,500.00 Total $126,500.00 - $147,500.00 10 Estimated Printing Costs: Folder Quantity 1,000, pocket folder, four color with varnish Brochure Quantity 1,000, four page, four color with varnish Quantity 2,000, four page, four color with varnish Quantity 1,000, eight page, four color with varnish Quantity 2,000, eight page, four color with vamish Paper system (letterhead, business cards) Graphics standard manual 11 $3,500.00 - $5,500.00 $2,250.00 $2,615.00 $3,575.00 $4,222.00 N /A, delivered electronically N /A, delivered electronically