CM-08-02-024DATE: January 7, 2008
SUBJECT: City Manager Approval - February 1, 2008
ITEM: Consider City Manager approval of agreement for the
yearly renewal with Designwrite Studios for the graphic
design and production of the monthly publication of
NewsFlash.
Department: Administration
Staff Person: Will Hampton, Communication Director
Justification: This is the third renewal of twelve months for this multi-
year contract with a not to exceed of four such renewals.
Funding:
Cost: No additional cost with this renewal. The budgeted yearly
cost is $2,430.00
Source of funds: 5216-100-12000 (funds were relocated from
5284-100-12000)
Outside Resources: Designwrite Studios
Background Information: Initial contract approved by CM -04-12-094,
Supplemental Agreement No. 1 & No. 2 were
approved by CM -05-10-181 and CM -06-11-
210.
Public Comment: N/A
CITY OF ROUND ROCK
AGREEMENT FOR PURCHASE OF
GRAPHIC DESIGN FOR MONTHLY NEWSLETTER "NEWSFLASH"
FROM
DESIGNWRITE STUDIOS
THE STATE OF TEXAS
CITY OF ROUND ROCK
COUNTY OF WILLIAMSON
KNOW ALL BY THESE PRESENT:
That this Agreement for services to provide Graphic Designs (referred to herein as the
"Agreement") to commence on January 1, 2008, is made and entered into by and between the
CITY OF ROUND ROCK, TEXAS, a home -rule municipality whose offices are located at 221
East Main Street, Round Rock, Texas 78664 (referred to herein as the "City"), and Designwrite
Studios, whose offices are located at 2126 Jefferson Avenue, St. Paul, MN 55105 (referred to
herein as the "Vendor"). This Agreement supersedes and replaces any previous agreement
between the named parties, whether oral or written, and whether or not established by custom
and practice.
RECITALS:
WHEREAS, City desires to purchase Graphic Design and Services from Vendor for
production and updating of City's monthly newsletter "Newsflash;" and
WHEREAS, City has issued its Solicitation for provision of said services, and City has
selected the Response to Solicitation submitted by Vendor; and
WHEREAS, the parties desire to enter into this Agreement to set forth in writing their
respective rights, duties, and obligations;
NOW, THEREFORE:
WITNESSETH:
That for and in consideration of the mutual promises contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
mutually agree as follows:
1.01 DEFINITIONS
A. Agreement means the binding legal contract between City and Vendor whereby
City is obligated to buy specified goods or services and Vendor is obligated to sell
specified goods or services.
B. City means the City of Round Rock, Williamson and Travis Counties, Texas.
C. Effective Date means the date upon which the binding signatures of both parties
to this Agreement are affixed.
D. Force Majeure means acts of God, strikes, lockouts, or other industrial
disturbances, acts of the public enemy, orders of any kind from the government of
the United States or the State of Texas or any civil or military authority,
C)4-. 03 -Ca
insurrections, riots, epidemics, landslides, lightning, earthquakes, fires,
hurricanes, storms, floods, restraint of the government and the people, civil
disturbances, explosions, or other causes not reasonably within the control of the
party claiming such inability.
E. Goods mean the specified supplies, materials, or equipment.
F. Services means work performed to meet a demand; the furnishing of labor, time,
or effort by the vendor, involving the delivery of any specific end product.
G. Vendor means DESIGNWRITE STUDIOS or any of its successors or assigns.
2.01 EFFECTIVE DATE, DURATION, AND TERM
A. This Agreement shall be effective on the date it has been signed by both parties
hereto, and shall remain in full force and effect unless and until it expires by
operation of the term stated herein, or until terminated or extended as provided
herein.
B. The term of this Agreement shall be for a twelve (12) month period of time. After
the initial term, this Agreement may be renewed for up to four (1) additional
periods of time not to exceed twelve (12) months for each renewal provided both
parties agree in writing.
C. City reserves the right to review the Vendor's performance at any time during the
initial agreement or renewal period, and may elect to terminate this Agreement
with or without cause or may elect to continue.
3.01 CONTRACT DOCUMENTS AND EXHIBITS
City selected Vendor as the integrator of choice to supply the goods or services as
outlined in Exhibit "A" attached hereto and made a part hereof for all purposes. The
intent of these documents is to formulate an Agreement listing the responsibilities of both
parties as outlined in the Solicitation and as offered by Vendor in its Response to the
Solicitation.
The Agreement includes the following in Exhibit "A":
a. City's Solicitation designated as IFB No. 05-008 "Graphic Design of Newsflash";
b. Specification Number 04-966-60, dated October 2004;
c. Vendor's Response to Solicitation;
d. Any exhibits, addenda, and/or amendments thereto.
Any inconsistencies or conflicts in the contract documents shall be resolved by
giving preference in the following order:
00128210/PS
(1) This Agreement;
(2) Bidder's Response to Solicitation;
(3) City's Solicitation, exhibits, and attachments.
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4.01 ITEMS AWARDED
The goods or services, which are the subject matter of
described in Exhibit "A" and, together with this Agreement,
Agreement and they are fully a part of this Agreement as if repeated
5.01 COSTS
The bid costs listed in Exhibit "A" shall be the basis of any
the Vendor.
6.01 INVOICES
All invoices shall include, at a minimum, the following information:
A.
B.
C.
D.
Name and address of Vendor;
Purchase Order Number;
Description and quantity of items received; and
Delivery dates.
this Agreement, are
comprise the total
herein in full.
charges collected by
7.01 NON -APPROPRIATION AND FISCAL FUNDING
This Agreement is a commitment of City's current revenues only. It is understood and
agreed that City shall have the right to terminate this Agreement at the end of any City
fiscal year if the governing body of City does not appropriate funds sufficient to purchase
the goods or services as determined by City's budget for the fiscal year in question. City
may effect such termination by giving Vendor a written notice of termination at the end
of its then current fiscal year.
8.01 PROMPT PAYMENT POLICY
In accordance with Chapter 2251, V.T.C.A., Texas Government Code, payment to
Vendor will be made within thirty (30) days of the day on which City receives the
performance, supplies, materials, equipment, and/or deliverables, or within thirty (30)
days of the day on which the performance of services was complete, or within thirty (30)
days of the day on which City receives a correct invoice for the performance and/or
deliverables or services, whichever is later. Vendor may charge a late fee 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:
A. There is a bona fide dispute between City and Vendor concerning the supplies,
materials, or equipment delivered or the services performed which causes the
payment to be late; or
B. The terms of a federal contract, grant, regulation, or statute prevent City from
making a timely payment with federal funds; or
C. There is a bona fide dispute between any of 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
D. Invoices are not mailed to City in strict accordance with instructions, if any, on
the purchase order or the Agreement or other such contractual agreement.
00128210/PS
3
9.01 GRATUITIES AND BRIBES
City may, by written notice to Vendor, cancel this Agreement without liability to
Vendor if it is determined by City that gratuities or bribes in the form of entertainment,
gifts, or otherwise were offered or given by Vendor or its agents or representatives to any
City officer, employee or elected representative with respect to the performance of this
Agreement. In addition, Vendor may be subject to penalties stated in Title 8 of the Texas
Penal Code.
10.01 TAXES
City is exempt from Federal Excise and State Sales Tax; therefore, tax shall not
be included in Vendor's charges.
11.01 ORDERS PLACED WITH ALTERNATE VENDORS
If Vendor cannot provide the goods as specified, City reserves the right and
option to obtain the products from another supplier or suppliers.
12.01 INSURANCE
Vendor shall meet all requirements as stated in the attached solicitation number
05-008 and its bid response.
13.01 CITY'S REPRESENTATIVE
City hereby designates the following representative authorized to act in its behalf with
regard to this Agreement:
Will Hampton
221 East Main Street,
Round Rock, Texas 78664
512-218-5409
14.01 RIGHT TO ASSURANCE
Whenever either party to this Agreement, in good faith, has reason to question the
other party's intent to perform hereunder, then demand may be made to the other party
for written assurance of the intent to perform. In the event that no written assurance is
given within the reasonable time specified when demand is made, then and in that event
the demanding party may treat such failure as an anticipatory repudiation of this
Agreement.
15.01 DEFAULT
If Vendor abandons or defaults under this Agreement and is a cause of City
purchasing the specified goods or services elsewhere, Vendor agrees that it may be
charged the difference in cost, if any, and that it will not be considered in the re -
advertisement of the goods or service and that it may not be considered in future bids for
the same type goods or service unless the scope of work is significantly changed.
00128210/PS
4
Vendor shall be declared in default of this Agreement if it does any of the following:
A. Fails to make any payment in full when due;
B. Fails to fully, timely and faithfully perform any of its material obligations under
this Agreement;
C. Fails to provide adequate assurance of performance under the "Right to
Assurance" section herein; or
D. Becomes insolvent or seeks relief under the bankruptcy laws of the United States.
16.01 TERMINATION AND SUSPENSION
A. City has the right to terminate this Agreement, in whole or in part, for convenience
and without cause, at any time upon thirty (30) days' written notice to Vendor.
B. In the event of any default by Vendor, City has the right to terminate this
Agreement for cause, upon ten (10) days' written notice to Vendor.
C. Vendor has the right to terminate this Agreement only for cause, that being in the
event of a material and substantial breach by City, or by mutual agreement to
terminate evidenced in writing by and between the parties.
D. In the event City terminates under subsections (A) or (B) of this section, the
following shall apply: Upon City's delivery of the referenced notice to Vendor,
Vendor shall discontinue all services in connection with the performance of this
Agreement and shall proceed to cancel promptly all existing orders and contracts
insofar as such orders and contracts are chargeable to this Agreement. Within
thirty (30) days after such notice of termination, Vendor shall submit a statement
showing in detail the goods and/or services satisfactorily performed under this
Agreement to the date of termination. City shall then pay Vendor that portion of
the charges, if undisputed. The parties agree that Vendor is not entitled to
compensation for services it would have performed under the remaining term of
the Agreement except as provided herein.
17.01 INDEMNIFICATION
Vendor shall defend (at the option of City), indemnify, and hold City, its
successors, assigns, officers, employees and elected officials harmless from and against
all suits, actions, legal proceedings, claims, demands, damages, costs, expenses,
attorney's fees, and any and all other costs or fees arising out of, or incident to,
concerning or resulting from the fault of Vendor, or Vendor's agents, employees or
subcontractors, in the performance of Vendor's obligations under this Agreement, no
matter how, or to whom, such loss may occur. Nothing herein shall be deemed to limit
the rights of City or Vendor (including, but not limited to the right to seek contribution)
against any third party who may be liable for an indemnified claim.
18.01 COMPLIANCE WITH LAWS, CHARTER AND ORDINANCES
Vendor, its 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.
5
19.01 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
shall assign, sublet or transfer any interest in this Agreement without prior written
authorization of the other party.
20.01 NOTICES
All notices and other communications in connection with this Agreement shall be
in writing and shall be considered given as follows:
a) When delivered personally to the recipient's address as stated in this Agreement; or
b) 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 Vendor:
Designwrite Studios
2126 Jefferson Avenue
St. Paul, MN 55105
Notice to City:
David Kautz, Asst. City Manager
Chief Financial Officer
221 East Main Street AND TO:
Round Rock, TX 78664
Stephan L. Sheets, City Attorney
309 East Main Street
Round Rock, TX 78664
c) Nothing contained herein shall be construed to restrict the transmission of routine
communications between representatives of City and Vendor.
21.01 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 the State of Texas.
22.01 EXCLUSIVE AGREEMENT
This document, and all appended documents, constitutes the entire Agreement
between Vendor and City. This Agreement may only be amended or supplemented by
mutual agreement of the parties hereto in writing.
23.01 DISPUTE RESOLUTION
If a dispute or claim arises under this Agreement, the parties agree to first try to
resolve the dispute or claim by appropriate internal means, including referral to each
party's senior management. If the parties cannot reach a mutually satisfactory resolution,
then and in that event any such dispute or claim will be sought to be resolved with the
help of a mutually selected mediator. If the parties cannot agree on a mediator, City and
Vendor 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.
6
City and Vendor 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 arbitrationproceeding, including without limitation, any proceeding under the
Federal Arbitration Act (9 USC Section 1-14) or any applicable state arbitration statute.
24.01 SEVERABILITY
The invalidity, illegality, or unenforceability of any provision of this Agreement
or the occurrence of any event rendering any portion or 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 or 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 section
shall not prevent this entire Agreement from being void should a provision which is of
the essence of this Agreement be determined void.
25.01 MISCELLANEOUS PROVISIONS
Standard of Care. Vendor represents that it 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.
Time is of the Essence. Vendor understands and agrees that time is of the essence and
that any failure of Vendor to fulfill obligations for each portion of this Agreement within
the agreed timeframes will constitute a material breach of this Agreement. Vendor shall
be fully responsible for its delays or for failures to use best efforts in accordance with the
terms of this Agreement. Where damage is caused to City due to Vendor's failure to
perform in these circumstances, City may pursue any remedy available without waiver of
any of City's additional legal rights or remedies.
Force Majeure. Neither City nor Vendor shall be deemed in violation of this Agreement
if it is prevented from performing any of its obligations hereunder by reasons for which it
is not responsible as defined herein. However, notice of such impediment or delay in
performance must be timely given, and all reasonable efforts undertaken to mitigate its
effects.
Multiple Counterparts. This Agreement may be executed in multiple counterparts, any
one of which shall be considered an original of this document; and all of which, when
taken together, shall constitute one and the same instrument.
IN WITNESS WHEREOF, City and Vendor have executed this Agreement on the
dates indicated.
7
CITY OF ROUND ROCK, TEXAS DESIGNWRITE STUDIOS
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Sara White, City Secretary
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Stephan L. Sheets, City Attorney
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