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CM-07-02-012CONTRACT FOR PROFESSIONAL SERVICES } ' This CONTRACT is made and entered into on this the p . day of :;' 2007 by and between the City of Georgetown, the Village of Salado, and the City of Round Rock, Texas (hereinafter referred to collectively as the "CITIES") and The Dealey Group, a Texas corporation located at 5944 Luther Lane, Suite 800, Dallas, Texas 75225 (hereinafter referred to as the "PUBLISHER"). WHEREAS, this Contract provides for the furnishing of professional services by the PUBLISHER for the purpose of providing the CITIES with the design and production of camera-ready art for brochures and a website (hereinafter referred to as the "PROJECT"), the same being more fully described in Exhibit "A" attached hereto and incorporated herein by reference for all purposes; and WHEREAS, the parties desire to enter into this Contract to set forth in writing their respective rights, duties and obligations hereunder: NOW, THEREFORE, for and in consideration of the foregoing and the mutual promises herein contained, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, all parties mutually covenant and agree as follows: I. Scope of Work The CITIES hereby agree to retain PUBLISHER to perform professional services in connection with the PROJECT, and the PUBLISHER agrees to perform such services in accordance with the terms and conditions of this Contract. The parties agree that the PUBLISHER shall perform such services as are set forth and described in Exhibit "A." The parties understand and agree that this Contract may only be amended or supplemented by mutual agreement of the parties hereto in writing. II. Authorization of Services; Date of Completion No professional services of any nature shall be undertaken by the PUBLISHER pursuant to this Contract until the PUBLISHER has received written authorization to proceed from each of the CITIES. Time is of the essence in this Contract, and the PUBLISHER agrees to deliver the finished PROJECT to the CITIES on or before May 9, 2007, provided that the effective date of this Contract is on or before February 2, 2007. III. Effective Date; Term; Renewal Provisions This Contract shall be effective on the date it has been executed by the last of the parties hereto, and shall remain in full force and effect until the PROJECT is completed or until this Ca- 09-01-01 00106475/jkg Contract is terminated under the provisions of Section XI herein, whichever occurs earlier. The initial term of this Contract is for twelve (12) months from the effective date. After that initial term, and notwithstanding the foregoing, this Contract may be renewed for successive terms of twelve (12) months each, not to exceed in the aggregate two (2) such renewals, with such renewals to occur on or before the expiration date of the preceding term, and with such renewals being absolutely predicated upon the express written agreement of all parties. IV. Coordination with CITIES The CITIES hereby designate Shelly Hargrove of the City of Georgetown, Debbie Charbonneau of the Village of Salado, and Nancy Yawn of the City of Round Rock as the Project Coordinators, through whom the PUBLISHER shall coordinate all work efforts and meetings pertaining to the PROJECT. The PUBLISHER shall attend meetings as determined by the Project Coordinators for the CITIES, in accordance with the Scope and Services and Schedule. The PUBLISHER may rely upon the accuracy and completeness of information provided to it by the CITIES to the extent noted by the CITIES. V. Compensation and Method of Payment The parties agree that the PUBLISHER shall be compensated for services provided pursuant to this Contract in the amount and manner set forth in the Compensation Schedule attached hereto as Exhibit "B," the same being attached hereto and incorporated herein by reference for all purposes. VI. Standard of Care; Confidentiality; Right to Inspect The PUBLISHER will exercise due diligence and care and will perform and complete all work related to the PROJECT in a good and workmanlike manner in accordance with customary standards in the industry. Acceptance by the CITIES should not constitute or be deemed a release of the responsibility and liability of PUBLISHER, its employees, agents, or associates, for the exercise of skill and diligence to promote the accuracy and competency of its designs, information, plans, specifications or any other document; nor shall acceptance be deemed to be the assumption of such responsibility by the CITIES with respect to any defect or error in the documents prepared or work done by PUBLISHER, its employees, agents, or associates. The PUBLISHER shall not, either during or after the term of this Contract, disclose to any third party any confidential information relative to the work or the business of the CITIES without the express prior written consent of the CITIES. The CITIES and the Project Coordinators shall at all times have access to the work for the purpose of inspecting the work and determining that the work is being performed in accordance with the terms of this Contract. 2 VII. Independent Contractor Relationship In performance of the services hereunder, the PUBLISHER shall be an independent contractor with the sole authority to control and direct the performance of the details of the work. The PUBLISHER is self-employed, shall not purport to be an employee or an agent of the CITIES, and shall not have any right or power to bind the CITIES to any obligation not otherwise specifically authorized in writing by the CITIES. The PUBLISHER shall provide its own premises for performance of its duties hereunder, but shall have access to the premises of the CITIES during reasonable working hours in order to secure information, records and other material relevant to its work hereunder. VIII. Indemnification The PUBLISHER agrees to indemnify and hold harmless each of the CITIES and their officers, agents and employees of and from damages, injuries (including death), claims, property damages (including loss of use), losses, demands, suits, judgments and costs, including reasonable attorneys' fees and expenses, which directly arise out of the PUBLISHER'S breach of any of the terms or provisions of this CONTRACT, or by any other negligent act, error or omission of the PUBLISHER, its agents, servants, employees, subcontractors, or any other persons or entities for whose acts the PUBLISHER is legally liable. IX. Progress Meetings The PUBLISHER agrees to be available during all progress meetings scheduled by the Project Coordinators, and at such meetings shall outline work accomplished and identify any special problems or issues known to the PUBLISHER which are encountered in connection with the PROJECT. X. CITIES' Ownership of Documents The CITIES agree that they shall provide to the PUBLISHER the textual content and materials necessary for the PROJECT, and each City shall retain ownership and copyrights to such text and logos provided by them. If requested and if available, the CITIES shall also provide the PUBLISHER with access to their photo libraries for stock photos for use in the PROJECT. All documents, including photographs and any text, prepared or furnished by the PUBLISHER (and the PUBLISHER'S independent professional associates and agents, if applicable) pursuant to this Contract are instruments of service with respect to the PROJECT. The CITIES shall each retain ownership and property interests therein, whether or not the PROJECT is completed, upon full and complete payment of uncontested amounts by the CITIES to the PUBLISHER for the costs of report/document reproduction (i. e. printing) and other similar direct expenses. The PUBLISHER agrees that it shall not use any text or photos provided by the CITIES or prepared by the PUBLISHER for this PROJECT for any purposes other than for the PROJECT. 3 XI. Termination Any party to this Contract may terminate the Contract by giving the other parties thirty (30) days' notice in writing. Upon delivery of such notice by any of the CITIES to the PUBLISHER, the PUBLISHER shall immediately discontinue all services in connection with the performance of this Contract, and shall proceed to promptly cancel all existing orders and contracts insofar as such are chargeable to this Contract. If this Contract is terminated prior to final acceptance of the services described in Exhibit "A," the CITIES shall each pay one-third (1/3rd) of the actual documented costs incurred by the PUBLISHER for work performed before the date of termination, but in no event more than the maximum amounts shown on Exhibit "A." In no event shall any of the CITIES be responsible for consequential damages, exemplary damages, damages for unabsorbed office overhead, or for anticipated profits. XII. Delay The PUBLISHER, in undertaking to complete the PROJECT and deliver the required deliverables on or before May 9, 2007 (provided that the effective date of this Contract is on or before February 2, 2007), has taken into consideration and made allowance for all hindrances and delays incident to such work, whether growing out of delays in securing material or workmen or weather or otherwise. No charge shall be made by the PUBLISHER for hindrance or delays from any cause during the progress of any portion of the work, but the CITIES collectively may grant an extension of time for the completion of the work, solely at their own discretion, provided that there is acceptable documentation that satisfies the CITIES that such delays or hindrances were due to extraordinary causes or to the acts of omission or commission by the CITIES. It is agreed that the granting of such extension of time, if any, shall in no instance exceed the time actually lost by the PUBLISHER for reason of such cause, provided the PUBLISHER shall give the CITIES immediate notice in writing of the cause of the detention or delay. XIII. Breach of Contract The CITIES shall have the right to declare the PUBLISHER to be in breach of this Contract for cause when any of the CITIES determines that this Contract is not being performed according to its understanding of the intent and meaning of this Contract. Such breach shall not in any way invalidate, abrogate or terminate the PUBLISHER'S obligations hereunder. XIV. Waiver No waiver by any party hereto of any term or condition of this Contract shall be deemed or construed to be a waiver of any other term or condition or subsequent waiver of the same term or condition. 4 XV. Entire Agreement This Contract, and all appended documents, constitutes the entire agreement between the parties covering the subject matter. No modifications or amendments shall be valid unless in writing and signed by both parties. XVI. Severability In case any one or more of the provisions contained in this Contract shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof, and this Contract shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. XVII. Performance This entire Contract shall be construed under the laws of the State of Texas, and all obligations of the parties are performable in Williamson County, Texas. Exclusive venue shall lie in Williamson County, Texas. No rights, remedies, or warranties available to the CITIES under this Contract or by operation of law are waived or modified unless expressly waived or modified by the CITIES in writing. XVIII. Successors and Assignments Neither the CITIES nor the PUBLISHER shall assign or transfer any interest in this Contract without the written consent of all the other parties. Unless specifically stated to the contrary, in any written consent to an assignment, no agreement will release or discharge the assignor from any duty or responsibility under this Contract. XIX. Dispute Resolution All of the parties hereby expressly agree that no claims or disputes between the parties arising out of or relating to this Contract 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. X. Standard of Care The PUBLISHER represents that is employs trained, experienced and competent persons to perform all of the services, responsibilities and duties specified herein and that such services, responsibilities and duties shall be performed in a manner according to generally accepted industry practices. 5 XI. Notices Notices required to be provided under this Contract shall be in writing and sent via certified mail, return receipt requested, and shall be effective when received. The responsible parties for any notice or contact between the CITIES and the PUBLISHER shall be as follows, and any changes in the address for notice shall be provided to all parties in writing: PUBLISHER: JoAnn Dealey The Dealey Group 5944 Luther Lane, Suite 800 Dallas, Texas 75225 THE CITY OF GEORGETOWN: City Manager Post Office Box 409 Georgetown, Texas 78627 THE CITY OF ROUND ROCK: City Manager 221 East Main Street Round Rock, Texas 78664 THE VILLAGE OF SALADO: Tourism Director Post Office Box 219 Salado, Texas 76571 IN WITNESS WHEREOF, the parties have executed this Contract in four counterparts (each of which is an original), on the dates hereafter indicated. THE DEALEY GROUP, the PUBLISHER By: Printed me: Title: Cr) Date Signed: 1123107 6 CITY OF GEORGETOWN, TEXAS By: Printed Name: P,G . "3 / fr Title: C: . Date Signed: / ; J U./o n APPROVED AS TO FORM: City Attorney, City of Georgetown ATTEST: City Secretary, City of Georgetown CITY OF ROUND ROCK, TEXAS By: w✓ Printed Title: Date Signed: APPRO E Ci orney, Ci "¶of ' ound Rock City Secretary, City of Round Rock VILLAGE OF SALADO By: Printed Name: Title: f 11Z-16 A 47Z-40 Date Signed: / - 7 APPROVED AS TO FORM: Attorney, Village of Salado ATTEST: Secret ary, Village of S do 8 EXHIBIT "A" Scope of Services and Schedule I. Tri -Cities Shopping Guide Brochure 1. PUBLISHER shall design and produce a total of thirty thousand (30,000) Tri -Cities Shopping Guide booklets with content for the City of Georgetown, City of Round Rock and Village of Salado. The booklets will be a minimum of six panels — 3 panels on 2 sides - that fold to 4 inches x 9 inches, on 70 -Ib. dull text, using a 4 -color process throughout the booklet. 2. PUBLISHER shall sell advertising and to provide sales materials such as specifications, rate sheets and prospect letters for potential advertisers, and will create all advertising materials necessary for marketing. PUBLISHER shall report to the CITIES on a weekly basis as to how many inches/lines of advertising have been sold. 3. PUBLISHER agrees to coordinate all text, graphics and photographs into the final draft of the Tri -Cities Shopping Guide booklet. Unless otherwise agreed to by the CITIES, photographs will be supplied by CITIES. Any photograph used in the Tri -Cities Shopping Guide, except those included in an advertisement, becomes property of the CITIES. CITIES will edit text content in the Tri -Cities Shopping Guide as provided by PUBLISHER. The CITIES will proof and have final approval of all editorial pages and photographs for content and design before going to press. 4. PUBLISHER agrees to obtain photo release authorization for photographs taken by PUBLISHER and deliver original documentation to the CITIES. II. Web Site Development and Maintenance 1. PUBLISHER shall design a website with a homepage and five subcategories with the ability to modify the design to easily accommodate additional content. 2. PUBLISHER provides an average of three hours of work on the website each quarter for updates. PUBLISHER shall provide website troubleshooting as necessary to ensure that the website functions properly. 3. PUBLISHER agrees to coordinate all text, graphics and photographs into the final draft of the website. Unless otherwise agreed to by the CITIES, photographs will be supplied by CITIES. Any photograph used on the website, except those included in an advertisement, becomes property of the CITIES. CITIES will edit text content on the website as provided by PUBLISHER. The CITIES will proof and have final approval of all editorial pages and photographs for content and design before uploading the website. 4. PUBLISHER agrees to obtain photo release authorization for photographs taken by PUBLISHER and deliver original documentation to the CITIES. 5. CITIES shall each secure their own website hosting and URL for the website. 9 EXHIBIT "B" Compensation Schedule 1. The CITIES are each a tax-exempt entity. All charges shall be free of tax. 2. For the brochure, PUBLISHER shall be compensated as follows: a. The parties agree that the "turnkey price" for the 2006 Tri -Cities Shopping Guide brochure shall not exceed $19,255 (nineteen thousand two hundred fifty five dollars), and further agree that each individual City's share of such price shall not exceed $6,418 (six thousand four hundred eighteen dollars). PUBLISHER will be compensated by selling advertising necessary to cover the costs of producing the Tri -Cities Shopping Guide based on the rate sheet provided to the CITIES. The parties agree that all sold advertising revenue will be applied and deducted from this turnkey cost. The parties agree that PUBLISHER will provide the Project Coordinators with any and all information regarding advertising revenues at least once per week. b. The parties agree the CITIES will pay to PUBLISHER the difference between the overall revenue from advertising sales and the turnkey price for the Tri -Cities Shopping Guide brochure after the final accounting of all advertising sold for the Tri -Cities Shopping Guide, up to a maximum of $19,255. The parties agree all revenue in excess of the turnkey price will go towards future reprints. c. All sums due and owing to PUBLISHER from the CITIES (if any after the application of advertising revenues) shall be paid by the CITIES to PUBLISHER after the final acceptance of the Tri -Cities Shopping Guide brochure by the CITIES. 3. For the Website, shall be compensated as follows: a. The parties agree that the "turnkey price" for the 2006 Tri -Cities Shopping Website shall not exceed $10,000 (ten thousand dollars), and further agree that each individual City's share of such price shall not exceed $3,333 (three thousand three hundred thirty-three dollars). Payment shall be made by CITIES to PUBLISHER upon the CITIES' acceptance of the form and content of the website. b. The parties agree the CITIES will pay to PUBLISHER a flat total maintenance fee of $200 (two hundred dollars) per calendar quarter, and further agree that each individual City's share of such cost shall not exceed $66.67 (sixty six dollars and sixty seven cents) per calendar quarter. These quarterly payments shall be made by the CITIES on March 31, June 30, September 30, and December 31 of each year for the term of this Contract. 10 DATE: January 29, 2007 SUBJECT: City Manager - February 2, 2007 ITEM: Consider City Manager approval to execute a Contract for Advertising with The Dealey Group to use Hotel Occupancy Tax monies for publication of a Tri -Cities Shopping Guide Brochure. Department: Convention and Visitor Bureau Staff Person: Nancy Yawn, Director, Convention and Visitors Bureau Justification: The Convention & Visitors Bureau will join with the City of Salado and the City of Georgetown to publish a Tri -Cities Shopping Guide Brochure to promote the City of Round Rock along with our neighboring cities Salado and Georgetown to collectively grow our tourism industry. This effort directly supports the departmental goal of "aggressive...marketing" and "building relationships" in "external target markets" as stated in the city's Strategic Budget. Outside Resources: The City of Salado Funding: Cost: $9,918.68 Source of funds: Hotel Occupancy Tax Background Information: The Georgetown, Salado and Round Rock CVBs are joining together to market our 3 cities showcasing the unique offerings of each city. This collaboration will hopefully result in over night stays where individual marketing efforts may not. Public Comment: N/A