CM-07-08-192CITY OF ROUND ROCK
AGREEMENT FORCONSULTING SERVICES FOR
UPDATE OF A TOURISM DEVELOPMENT AND MARKETING PLAN
WITH DESTINATION DEVELOPMENT, INC.
THIS AGREEMENT is made and entered into on this the
�T day of the month of
, 2007, 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 DESTINATION DEVELOPMENT, INC.,
whose offices are located at = - ! �, Washingtop 9f59i 'Mee'
(hereinafter referred to as "Consultant"). /'ao°a Rie, Su, /o seo_/7/
RECITALS:
WHEREAS, the City desires to contract for Consultant's performance of professional
consulting services for the update of a previously -produced Tourism Development and
Marketing Plan; and
WHEREAS, the City has determined that there is a need for the delineated services; and
WHEREAS, the City desires to contract for such professional services; and
WHEREAS, the parties desire to enter into this Agreement to set forth in writing their
respective rights, duties and obligations hereunder;
NOW, THEREFORE, WITNESSETH:
That for and in consideration of the mutual promises contained herein and other good and
valuable consideration, the sufficiency and receipt of which are hereby acknowledged, it is
mutually agreed between the parties as follows:
1.01 EFFECTIVE DATE, DURATION, AND TERM
This Agreement shall be effective on the date this Agreement has been signed by each
party hereto, and shall remain in full force and effect unless and until it expires by operation of
the term indicated herein, or is terminated or extended as provided herein.
The term of this Agreement shall be until full and satisfactory completion of the work
specified herein is achieved, but in no event later than twelve (12) months from the effective date
of this Agreement.
The City reserves the right to review the Agreement at any time, including at the end of
any deliverable or phase or task, and may elect to terminate the Agreement with or without cause
or may elect to continue.
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1.02 GENERAL CONDITIONS
The General Conditions contained herein shall apply to the Scope of Services, attached
hereto as Exhibit "A" and made a part hereof for all appropriate purposes. This Agreement and
such Scope of Services is entered into by and between the City of Round Rock or its subsidiaries
or affiliates (collectively "City") and Destination Development, Inc., or any entity directly or
indirectly owned or controlled by same (collectively "Destination").
1.03 SCOPE OF SERVICES
For purposes of this Agreement, Consultant has issued its Scope of Services for the
assignments delineated herein. Such Scope of Services is appended to this Agreement and is
labeled as Exhibit "A." Such Scope of Services shall be deemed to incorporate the General
Conditions contained herein. Except with respect to the description of specific services and fees
for the assignments delineated therein, the General Conditions of this Agreement and this
Agreement itself shall prevail over any conflicting terms therein. Taken together with the
appended Scope of Services, the General Conditions contained in this Agreement 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 and deliverables described under the
referenced Scope of Services within the contract term specified in Section 1.01. Consultant's
undertakings shall be limited to performing services for the City and/or advising the City
concerning those matters on which Consultant has been specifically engaged. Consultant shall
perform its services in accordance with this Agreement and with the referenced Scope of
Services, in accordance with due care, and in accordance with prevailing consulting industry
standards for comparable services.
Consultant shall not undertake work that is beyond the Scope of Services set forth in
Exhibit "A." However, either party may make written requests for changes to the Scope of
Services. To be effective, a change to the Scope of Services must be negotiated and agreed to in
all relevant details, and must be embodied in a valid Supplemental Agreement as described in
Section 1.05 hereof.
1.04 PAYMENT FOR SERVICES; REIMBURSABLE EXPENSES
Payment for Services: In consideration for the consulting services to be performed by
Consultant, the City agrees to pay Consultant as follows:
Fees for the listed deliverables in the total amount of Twenty One Thousand Five
Hundred and No/100 Dollars ($21,500.00) shall be paid by the City in the following manner:
To receive payment, Consultant shall prepare and submit detailed monthly invoices to the
City for services rendered in correlation with Exhibit "A." If the City has any dispute with
services performed, then the City shall notify Consultant within thirty (30) days after receipt of
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invoice. In the event of any dispute regarding the services performed, then and in that event
Consultant shall either (a) satisfactorily re -perform the disputed services or (b) provide the City
with an appropriate credit.
Payment for Reimbursable Expenses: Reimbursable expenses are included within the
$21,500.00 payment referenced above.
Not -to -Exceed Total Payment for Services: Unless subsequently changed by
Supplemental Agreement to this Agreement, Consultant's total compensation for consulting
services hereunder shall not exceed Twenty One Thousand Five Hundred and No/100 Dollars
($21,500.00). This amount represents the absolute limit of the City's liability to Consultant
hereunder unless same shall be changed by additional Supplemental Agreement, and the 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 the City.
Deductions: No deductions shall be made for Consultant's compensation on account of
penalty, liquidated damages or other sums withheld from payments to Consultant.
Additions: No additions shall be made to Consultant's compensation based upon project
claims, whether paid by the City or denied.
1.05 SUPPLEMENTAL AGREEMENT
The terms of this Agreement may be modified by written Supplemental Agreement
hereto, duly authorized by City Council or by the City Manager, if the 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
the 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.
1.06 INVOICE REQUIREMENTS; TERMS OF PAYMENT
Invoices: To receive payment for services, Consultant shall prepare and submit detailed
monthly progress invoices to the City, in a form acceptable to the City, for services rendered.
Such invoices for professional services shall track the referenced Scope of Services, and shall
detail the services performed, along with documentation for each service performed. Payment to
Consultant shall be made on the basis of the invoices submitted by Consultant and approved by
the City. Such invoices shall conform to the schedule of services and costs in connection
therewith. Should additional backup material be requested by the City relative to deliverables, it
is Consultant's duty to comply promptly. In this regard, should the City determine it necessary,
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Consultant shall make all records and books relating to this Agreement available to the City for
inspection and auditing purposes.
Payment of Invoices: The 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 an invoice, the City shall endeavor to pay
Consultant promptly, but no later than the time period required under the Texas Prompt Payment
Act described 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 the City or
because of amounts which the City has a right to withhold under this Agreement or state law.
The 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. The City may, at its option, offset any amounts due and payable under this
Agreement against any debt (including taxes) lawfully due to the 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 the City has been reduced to judgment by a
court.
1.07 LIMITATION TO SCOPE OF WORK
Consultant and the City agree that the Scope of Services to be performed is enumerated
in Exhibit "A" herein, and may not be changed without the express written agreement of the
parties. Notwithstanding anything herein to the contrary, the parties agree that the City retains
absolute discretion and authority for all funding decisions, such to be based solely on criteria
accepted by the City which may be influenced by but not be dependent on Consultant's work.
1.08 NON -APPROPRIATION AND FISCAL FUNDING
This Agreement is a commitment of the City's current revenues only. It is understood and
agreed that the City shall have the right to terminate this Agreement at the end of any City fiscal
year if its governing body does not appropriate funds sufficient to purchase the services as
determined by its budget for the fiscal year in question. The City may effect such termination by
giving Consultant written notice of termination at the end of its then current fiscal year.
1.09 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 the City receives the
performance, supplies, materials, equipment, and/or deliverables, or within thirty (30) days of the
day on which the performance of services was complete, or within thirty (30) days of the day on
which the City receives a correct invoice for the performance and/or deliverables or services,
whichever is later. Consultant may charge a late fee (not exceeding that allowable by law) for
payments not made in accordance with this prompt payment policy; however, this policy does
not apply to payments made by the City in the event:
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(1) There is a bona fide dispute between the City and Consultant concerning the
supplies, materials, or equipment delivered or the services performed which
causes the payment to be late; or
(2) The terms of a federal contract, grant, regulation, or statute prevent the City from
making a timely payment with federal funds; or
(3)
There is a bona fide dispute between the parties and subcontractors or between a
subcontractor and its suppliers concerning supplies, materials, or equipment
delivered or the services performed which causes the payment to be late; or
(4) Invoices are not mailed to the City in strict accordance with instructions, if any,
on the purchase order or the Agreement or other such contractual agreement.
1.10 TERMINATION; DEFAULT
Termination: In connection with the work outlined in this Agreement, it is agreed and
fully understood by Consultant that the City may cancel or indefinitely suspend further work
hereunder or terminate this Agreement either for cause or for the convenience of the City, upon
thirty (30) days' written notice to Consultant, with the understanding that immediately upon
receipt of said notice all work being performed under this Agreement shall cease. Consultant
shall invoice the City for work satisfactorily completed and shall be compensated in accordance
with the terms hereof for work accomplished prior to the receipt of said notice of termination.
Consultant shall not be entitled to any lost or anticipated profits for work terminated under this
Agreement. Unless otherwise specified in this Agreement, all data, information, and work
product related to this project shall become the property of the City upon termination of this
Agreement, and shall be promptly delivered to the City in a reasonably organized form without
restriction on future use. Should the City subsequently contract with a new consultant for
continuation of service on the project, Consultant shall cooperate in providing information.
Termination under this section shall not relieve the terminated party of any obligations or
liabilities which occurred prior to termination.
Nothing contained in this section shall require the City to pay for any work which is
unsatisfactory as determined by the City or which is not submitted in compliance with the terms
of this Agreement.
Consultant may terminate this Agreement only for cause, that being in the event of a
material and substantial breach by the City, or by mutual agreement to terminate evidenced in
writing by and between the parties.
Default: The City may terminate this Agreement, in whole or in part, for default if the
City provides Consultant with written notice of such default and Consultant fails to cure such
default to the satisfaction of the City within fifteen (15) business days of receipt of such notice
(or a greater time if permitted by the City).
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If Consultant defaults in performance of this Agreement and if the City terminates this
Agreement for such default, then the 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
the City, the cost to the City of employing another firm to complete the useable work, and other
factors will affect the value to the City of the work performed at the time of default. Consultant
shall not be entitled to any lost or anticipated profits for work terminated for default hereunder.
The termination of this Agreement for default shall extinguish all rights, duties, and
obligations of the 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 termination.
Nothing contained herein shall require the City to pay for any work deemed
unsatisfactory by the City, or which is not submitted in compliance with the terms hereof.
1.11 INDEPENDENT CONTRACTOR STATUS
Consultant is an independent contractor, and is not the City's employee. Consultant's
employees or subcontractors are not the 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 the City agree to the following rights
consistent with an independent contractor relationship:
(1) Consultant has the right to perform services for others during the term hereof.
(2) Consultant has the sole right to control and direct the means, manner and method
by which services required by this Agreement will be performed.
(3)
Consultant has the right to hire assistants as subcontractors, or to use employees
to provide the services required by this Agreement.
(4) Consultant or its employees or subcontractors shall perform services required
hereunder, and the City shall not hire, supervise, or pay assistants to help
Consultant.
(5)
Neither Consultant nor its employees or subcontractors shall receive training from
the 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 the City.
(7)
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1.12 CITY'S RESPONSIBILITIES
Full information: The City shall provide full information regarding project
requirements. The City shall have the responsibility of providing Consultant with such
documentation and information as is reasonably required to enable Consultant to provide the
services called for. The City shall cause its employees and any third parties who are otherwise
assisting, advising or representing the City to cooperate on a timely basis with Consultant in the
provision of its services. Consultant may rely upon written information provided by the City and
its employees and agents as accurate and complete. Consultant may rely upon any written
directives provided by the City or its designated representative concerning provision of services.
Required materials: Consultant's performance requires receipt of all requested
information reasonably necessary to provision of services. The City shall furnish information
which includes but is not limited to access to the property, preliminary information and/or data
regarding the site and surrounding property (if applicable), pertinent correspondence with other
local municipal and planning officials, previous market analyses or feasibility studies, and other
pertinent information. Consultant agrees, within ten (10) days of the effective date of this
Agreement, to provide the City with a comprehensive and detailed information request list.
1.13 CONFIDENTIALITY; AND DISPOSITION OF MATERIALS
Each party shall take reasonable measures to preserve the confidentiality of any
proprietary or confidential information provided to it in connection with this 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.
At the conclusion of the engagement, upon written request, each party shall return to the
other all materials, data and documents that have been provided to the other party, except that
Consultant may retain one (1) copy of the City's materials for its archival purposes, subject to
Consultant's confidentiality obligations hereunder. The City shall retain ownership of all data
and materials provided by it to Consultant. Original drawings shall remain the property of
Consultant.
The parties recognize and understand that the City is subject to the Texas Public
Information Act and its duties run in accordance therewith.
Notwithstanding anything to the contrary in this Agreement, the City will own as its sole
property all written materials created, developed, gathered, or originally prepared expressly for
the City and delivered to the City under the terms of this Agreement (the "Deliverables"); and
Consultant shall own any general skills, know-how, expertise, ideas, concepts, methods,
techniques, processes, software, or other similar information which may have been discovered,
created, developed or derived by Consultant either prior to or as a result of its provision of
services under this Agreement (other than the Deliverables). Consultant's working papers and
Consultant's Confidential Information (as described herein) shall belong exclusively to
Consultant. The City shall have a non-exclusive, non -transferable license to use Consultant's
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Confidential Information for the City's own internal use and only for the purposes for which they
are delivered to the extent that they form part of the Deliverables.
1.14 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. CONSULTANT DISCLAIMS ALL OTHER WARRANTIES EXPRESS
OR IMPLIED INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
1.15 LIMITATION OF LIABILITY
Should any of Consultant's services not conform to the requirements of this Agreement,
then and in that event the City shall give written notification to Consultant; thereafter, (a)
Consultant shall either promptly re -perform such services to the City's satisfaction at no
additional charge, or (b) if such deficient services cannot be cured within the cure period set
forth herein, then this Agreement may be terminated for default.
In no event will Consultant be liable for any loss, damage, cost or expense attributable to
negligence, willful misconduct or misrepresentations by the City, its directors, employees or
agents.
In no event shall Consultant be liable to the City, by reason of any act or omission
relating to the services provided under this Agreement (including the negligence of Consultant),
whether a claim be in tort, contract or otherwise, (a) for any consequential, indirect, lost profit,
punitive, special or similar damages relating to or arising from the services, or (b) in any event,
in the aggregate, for any amount in excess of the total professional fees paid by the City to
Consultant under this Agreement, except to the extent determined to have resulted from
Consultant's gross negligence, willful misconduct or fraudulent acts relating to the service
provided hereunder.
1.16 INDEMNIFICATION
Consultant and the City each agree to indemnify, defend and hold harmless the other
from and against any and all amounts payable under any judgment, verdict, court order or
settlement for death or bodily injury or the damage to or loss or destruction of any real or
tangible personal property to the extent arising out of the indemnitor's negligence in the
performance of this Agreement.
Consultant agrees to indemnify, defend and hold harmless the City from and against any
and all amounts payable under any judgment, verdict, court order or settlement for Third Party
claims of infringement of any trade secrets, copyrights, trademarks or trade names alleged to
have occurred and arising from the deliverables provided by Consultant to the City in connection
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with the performance of this Agreement. Should the City's use of such deliverables be
determined to have infringed, Consultant may, at its option: (i) procure for the City the right to
continue using such deliverables provided or (ii) replace or modify them to make their use non -
infringing while yielding substantially equivalent results. If neither of the above options are or
would be available on a basis that is commercially reasonable, then Consultant may terminate
this Agreement, the City shall return such deliverables provided, and Consultant will refund to
the City the fees paid for the deliverables provided. This infringement indemnity does not cover
claims arising from the combination of such deliverables with products or services not provided
by Consultant; the modification of such deliverables by any person other than Consultant;
deliverables complying with or based upon (1) designs provided by or at the direction of the City
or (2) specifications or other information provided by or at the direction of the City; or use of
systems, materials or work performed in a manner not permitted hereunder or by another
obligation of the City to Consultant.
The indemnities in this section are contingent upon: (1) the indemnified party promptly
notifying the indemnifying party in writing of any claim which gives rise to a claim for
indemnification hereunder; (2) the indemnifying party being allowed to participate in the defense
and settlement of such claim; and (3) the indemnified party cooperating with all reasonable
requests of the indemnifying party (at the indemnifying party's expense) in defending or settling
a claim. The indemnified party shall have the right, at its option and expense, to participate in
the defense of any suit or proceeding through counsel of its own choosing.
1.17 ASSIGNMENT AND DELEGATION
The parties each hereby bind themselves, their successors, assigns and legal
representatives to each other with respect to the terms of this Agreement. Neither party may
assign any rights or delegate any duties under this Agreement without the other party's prior
written approval, which approval shall not be unreasonably withheld.
1.18 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. The 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, the City shall provide Consultant with a certificate from the Texas State
Comptroller indicating that the City is a non-profit corporation and not subject to State of Texas
Sales and Use Tax.
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1.19 INSURANCE
Insurance. Consultant, at Consultant's sole cost, shall have and maintain during the
term of this Agreement professional liability insurance coverage in the minimum amount of One
Million Dollars from a company authorized to do insurance business in Texas and otherwise
acceptable to the City.
Subconsultant Insurance. Without limiting any of the other obligations or liabilities of
Consultant, Consultant shall require each subconsultant performing work under this Agreement
to maintain during the term of the Agreement, at the subconsultant's own expense, the same
stipulated minimum insurance required in the immediately preceding paragraph, including the
required provisions and additional policy conditions as shown below. As an alternative,
Consultant may include its subconsultants as additional insureds on its own coverages as
prescribed under these requirements. Consultant's certificate of insurance shall note in such
event that the subconsultants are included as additional insureds.
Consultant shall obtain and monitor the certificates of insurance from each subconsultant
in order to assure compliance with the insurance requirements. Consultant must retain the
certificates of insurance for the duration of this Agreement, and shall have the responsibility of
enforcing these insurance requirements among its subconsultants. The City shall be entitled,
upon request and without expense, to receive copies of these certificates of insurance.
Insurance Policy Endorsements. Each insurance policy hereunder shall include the
following conditions by endorsement to the policy:
(1)
Each policy shall require that thirty (30) days prior to the expiration, cancellation,
non -renewal or any material change in coverage, a notice thereof shall be given to
the City by certified mail to:
City Manager, City of Round Rock
221 East Main Street
Round Rock, Texas 78664
Consultant shall also notify the City, within twenty-four (24) hours of receipt, of
any notices of expiration, cancellation, non -renewal, or material change in coverage
it receives from its insurer.
(2) Companies issuing the insurance policies shall have no recourse against the City for
payment of any premiums or assessments for any deductibles which all are at the
sole responsibility and risk of Consultant.
(3)
Terms "the City" or "the City of Round Rock" shall include all authorities, boards,
commissions, departments, and officers of the City and individual members,
employees and agents in their official capacities, or while acting on behalf of the
City of Round Rock.
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(4) The policy clause "Other Insurance" shall not apply to any insurance coverage
currently held by the City, to any future coverage, or to the City's Self -Insured
Retentions of whatever nature.
(5) Consultant and the City mutually waive subrogation rights each may have against
the other for loss or damage, to the extent same is covered by the proceeds of
insurance.
Cost of Insurance. The cost of all insurance required herein to be secured and
maintained by Consultant shall be borne solely by Consultant, with certificates of insurance
evidencing such minimum coverage in force to be filed with the City.
1.20 COMPLIANCE WITH LAWS, CHARTER AND ORDINANCES
Consultant, its consultants, agents, employees and subcontractors shall use best efforts to
comply with all applicable federal and state laws, the Charter and Ordinances of the City of
Round Rock, as amended, and with all applicable rules and regulations promulgated by local,
state and national boards, bureaus and agencies. Consultant shall further obtain all permits,
licenses, trademarks, or copyrights required in the performance of the services contracted for
herein, and same shall belong solely to the City at the expiration of the term of this Agreement.
1.21 FINANCIAL INTEREST PROHIBITED
Consultant covenants and represents that Consultant, its officers, employees, agents,
consultants and subcontractors will have no financial interest, direct or indirect, in the purchase
or sale of any product, materials or equipment that will be recommended or required under this
Agreement.
1.22 DESIGNATION OF REPRESENTATIVES
The City hereby designates the following representative authorized to act in its behalf
with regard to this Agreement:
Nancy Yawn
Executive Director, CVB
120 South Brown Street
Round Rock, Texas 78664
Consultant hereby designates the following representative authorized to act in its behalf
with regard to this Agreement:
Roger A. Brooks
President, Destination Development, Inc.
510 Custer Way, Suite 301
Olympia, Washington 98501
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1.23 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:
Roger A. Brooks
President, Destination Development, Inc.
510 Custer Way, Suite 301
Olympia, Washington 98501
Notice to City:
City Manager, City of Round Rock
221 East Main Street
Round Rock, TX 78664
AND TO:
Stephan L. Sheets, City Attorney
309 East Main Street
Round Rock, TX 78664
Nothing contained in this section shall be construed to restrict the transmission of routine
communications between representatives of the City and Consultant.
1.24 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.
1.25 EXCLUSIVE AGREEMENT
The terms and conditions of this Agreement, including 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. The parties
understand and expressly agree that, in the event of any conflict between the terms of this
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Agreement and any other writing, this Agreement shall prevail. 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.
1.26 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,
the 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.
The 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.
1.27 FORCE MAJEURE
Notwithstanding any other provisions of this Agreement to the contrary, no failure, delay
or default in performance of any obligation hereunder shall constitute an event of default or a
breach of this Agreement, only to the extent that such failure to perform, delay or default arises
out of causes beyond control and without the fault or negligence of the party otherwise
chargeable with failure, delay or default; including but not limited to acts of God, acts of public
enemy, civil war, insurrection, riots, fires, floods, explosion, theft, earthquakes, natural disasters
or other casualties, strikes or other labor troubles, which in any way restrict the performance
under this Agreement by the parties.
Consultant shall not be deemed to be in default of its obligations to the City if its failure
to perform or its substantial delay in performance is due to the City's failure to timely provide
requested information, data, documentation, or other material necessary for Consultant to
perform its obligations hereunder.
1.28 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.
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1.29 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.
1.30 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.
No delay or omission by either party in exercising any right or power shall impair such
right or power or be construed to be a waiver. A waiver by either party of any of the covenants
to be performed by the other or any breach thereof shall not be construed to be a waiver of any
succeeding breach or of any other covenant. No waiver of discharge shall be valid unless in
writing and signed by an authorized representative of the party against whom such waiver or
discharge is sought to be enforced.
This Agreement may be executed in multiple counterparts, which taken together shall be
considered one original. The City agrees to provide Consultant with one fully executed original.
IN WITNESS WHEREOF, the parties have executed this Agreement on the dates
hereafter indicated.
City of Round Rock, Texas
By:
Title: I T y m 14'1 J,
Date Signed: -a'4- 0 rf
Destination Development, Inc.
By:
Title: PRS
Date Signed: J2S (o-)
14
Attest:
R.n1
Christine R. Martinez, City Secret
For ' , , Ap s roved s to Form:
4
Steph. L. Sheets, City Attorney
EXHIBIT "A"
Scope of Services
15
WHEREAS, Destination Development, Inc. previously produced
the Tourism Development and Marketing Plan for Round Rock,
Texas. The Round Rock Convention & Visitors Bureau has been
working towards implementation of that Plan, and after numerous
accomplishments, desires to update the Plan, in order to refocus
the theme for the city, product development initiatives, and
marketing strategies to increase visitor spending in Round Rock.
With this goal, the CVB hereby retains DDI to produce an update
of the Tourism Development and Marketing Plan for Round Rock.
SCOPE OF WORK
The Update to the Tourism Development and Marketing Plan
shall include the following assignments:
Phase 1. Reassessment in Round Rock - Three day Visit
Task 1. Meeting with stakeholders
Roger Brooks will meet individually with Nancy Yawn and up to
ten other stakeholders to review all aspects of the tourism
branding, development and marketing efforts; review challenges;
market changes; trends; capital, operational and capital
budgets; capital projects; next steps; timelines, etc.
Task 2. Meeting with Round Rock CVB
While in Round Rock, Roger Brooks will also meet with the CVB
board to review operations, funding, budgets, sales figures,
marketing, venues, etc.
Task 3. Review previous Plan and additional studies
Roger Brooks will review the previous Plan, examining each
recommendation, re-examining funding solutions and expenditures,
staffing needs, marketing direction, and capital projects, based
EXHIBIT
HA"
on meetings and interviews. DDI will also review other plans and
studies recently produced that may influence or play a role in
Round Rock's tourism efforts.
Task 4. Examine Special Events Center feasibility
Roger Brooks will review the feasibility analysis and other work
produced on behalf of this and other capital projects.
Task 5. Workshop
If requested by the CVB, during this first visit to Round Rock,
Roger Brooks will present a "Brand Development Workshop" that
details the steps to developing a community brand including case
histories, rules, and products necessary to a successful
branding effort.
Phase 2. Plan Update
Task 6. Creation of Plan Update
Upon return to DDI's office, DDI will update the plan with
additional recommendations, next steps, and potential funding
solutions, based on the information learned during the time in
Round Rock. The update will include all issues:
• Brand marketing, niche group marketing, public relations,
advertising, co-op programs
• Facilities development that will expand the branding effort,
including non -tourism business interests
• Operations assessment, CVB organization
DDI will submit a draft update for review and comment, and then
make final edits and changes.
Task 7. Presentation of Plan/Deliverables
Upon completion of the final Plan Update, DDI will present the
Plan to the CVB, City Council and staff. Six copies of the
updated Plan in full-color hard copy will be delivered, and two
CDs of the Plan in PDF format, so that the CVB can print
additional copies of the Plan, if desired.
COST
Total cost for updating the Tourism, Development, and Marketing
Plan for Round Rock: $21,500.00. This includes all travel
expenses and production costs.
THE PROJECT MANAGER
Roger Brooks will be the lead manager of this project, and will
be the key contact for all elements of the program. Additional
DDI staff will work on the project under Roger Brooks' direction
as required.
TIMELINE
Work shall begin at a time mutually agreed upon, and proceed
according to a mutually agreed upon timeline.
REQUIRED FROM CVB
1. CVB shall provide DDI with such documentation and
information as is reasonably required to enable DDI to provide
the services called for.
2. CVB shall coordinate and provide any public forum logistics
including meeting times, location, publicity, local
representatives' invitations, etc.
3. CVB shall provide a liaison to DDI during the project and
also provide assistance regarding possible sources of funding,
funds available, for the promotion and development of the
recommended projects.
4. CVB shall provide copies of all marketing materials,
budgets, and other marketing advertising information produced by
Visitors Bureau, Chamber, the City, and organizations who market
to people outside the community, as well as hard copies of
recently produced studies and plans that would affect the
recommendations to be developed in this plan.
5. CVB will take comments gathered from review of the draft
Plan, combine them into a single copy, then will forward that
copy to DDI so the final Plan can be produced.
6. CVB will provide DDI with a list of stakeholders, local
representatives, and officials recommended to be included in the
interview and discussion process.
DATE: July 23, 2007
SUBJECT: City Manager - August 24, 2007
ITEM: Consider City Manager approval to execute a Contract for
Consulting Services with Destination Development, Inc. to
use Hotel Occupancy Tax monies for an update of the
Tourism Development and Marketing Plan.
Department: Convention and Visitor Bureau
Staff Person: Nancy Yawn, Director, Convention and Visitors
Bureau
Justification:
Destination Development, Inc. will provide an update to the city's
Tourism Development and Marketing Plan.
Outside Resources: N/A
Funding:
Cost: $21,500.00
Source of funds: Hotel Occupancy Tax
Background Information:
Destination Development, Inc. was hired by the City in 2003 to
develop the Tourism Development and Marketing Plan. They are being
requested to update that plan for the City.
Resolution No. R -03-12-18-8D2 approved the original Tourism
Development & Marketing Plan developed by Destination Development,
Inc. in 2003.
Public Comment: N/A