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CM-2016-1199 - 10/7/2016CITY OF ROUND ROCK CONSULTING SERVICES AGREEMENT FOR PREPARATION OF A TOURISM ROADMAP WITH ROGER BROOKS INTERNATIONAL THIS AGREEMENT for consulting services related to preparation of a five (5) -year Tourism Roadmap (the "Agreement") is made by and between the CITY OF ROUND ROCK, a Texas home -rule municipal corporation with offices located at 221 East Main Street, Round Rock, Texas 78664-5299 (hereinafter referred to as "City"), and Roger Brooks International, with offices located at 24654 North Lake Pleasant Parkway, Suite 103-487, Peoria, Arizona 85383 (hereinafter referred to as "Consultant"). RECITALS: WHEREAS, City desires to contract for Consultant's preparation of a five (5) -year Tourism Roadmap; 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 A. This Agreement shall be effective on the date this Agreement has been signed by each party hereto ("effective date"), 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. B. The term of this Agreement shall be until services are completed but in no event shall exceed six (6) months from the effective date. 1.02 SCOPE OF WORK The Consultant shall satisfactorily provide the services set forth in the attached Exhibit "A," "Scope of Work." Consultant shall satisfactorily provide all services and deliverables in a professional and workmanlike manner. 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. 00364823/ss2 A4 .-ac7l 1.03 CONSULTING FEE A. The consulting fee shall be Twenty -Four Thousand Five Hundred and No/100 Dollars ($24,500.00). B. The City agrees to pay for Consultant's reimbursable expenses related to reasonable travel costs, including coach airfare, lodging costs, dining, rental car and other reasonable travel expenses, in an amount not to exceed Four Thousand and No/100 Dollars ($4,000.00). Payments for reimbursable expenses shall be in addition to the fee set forth in paragraph A above. 1.04 TERMS OF PAYMENT A. To receive payment, Consultant shall prepare and submit detailed monthly invoices to the City, in accordance with the delineation contained herein, for services rendered. Such invoices 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. B. Should additional backup material be requested by the City relative to service deliverables, Consultant shall comply promptly. In this regard, should the City determine it necessary, Consultant shall make all records and books relating to this Agreement available to the City for inspection and auditing purposes. C 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 in Section 1.06 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. 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 PROMPT PAYMENT POLICY In accordance with Chapter 2251, V.T.C.A., Texas Government Code, any payment to be made by the City to Consultant will be made within thirty (30) days of the date the City receives goods under this Agreement, the date the performance of the services under this Agreement are completed, or the date the City receives a correct invoice for the goods or services, whichever is later. Consultant may charge interest on an overdue payment at the "rate in effect" on September 1 of the fiscal year in which the payment becomes overdue, in accordance with V.T.C.A., Texas Government Code, Section 2251.025(b). This Prompt Payment Policy does not apply to payments made by the City in the event: (a) There is a bona fide dispute between the City and Consultant, a contractor, subcontractor, or supplier about the goods delivered or the service performed that cause the payment to be late; or (b) There is a bona fide dispute between Consultant and a subcontractor or between a subcontractor and its supplier about the goods delivered or the service performed that causes the payment to be late; or (c) The terms of a federal contract, grant, regulation, or statute prevent the City from making a timely payment with federal funds; or (d) The invoice is not mailed to the City in strict accordance with any instruction on the purchase order relating to the payment. 1.07 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 the governing body of the City does not appropriate funds sufficient to purchase the services as determined by the City's budget for the fiscal year in question. The City may effect such termination by giving Consultant a written notice of termination at the end of its then - current fiscal year. 1.08 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 it performs its services required by this Agreement. (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. (7) 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. 1.09 CONFIDENTIALITY; AND MATERIALS OWNERSHIP Any and all programs, data, or other materials furnished by the City for use by Consultant in connection with services to be performed under this Agreement, and any and all data and information gathered by Consultant, shall be held in confidence by Consultant as set forth hereunder. Each party agrees to take reasonable measures to preserve the confidentiality of any proprietary or confidential information relative to this Agreement, and to not make any use thereof other than for the performance of this Agreement, provided that no claim may be made for any failure to protect information that occurs more than three (3) years after the end of this Agreement. The parties recognize and understand that the City is subject to the Texas Public Information Act and its duties run in accordance therewith. All data relating specifically to the City's business and any other information which reasonably should be understood to be confidential to City is confidential information of City. Consultant's proprietary software, tools, methodologies, techniques, ideas, discoveries, inventions, know-how, and any other information which reasonably should be understood to be confidential to Consultant is confidential information of Consultant. The City's confidential information and Consultant's confidential information is collectively referred to as "Confidential Information." Each party shall use Confidential Information of the other party only in 4 furtherance of the purposes of this Agreement and shall not disclose such Confidential Information to any third party without the other party's prior written consent, which consent shall not be unreasonably withheld. Each party agrees to take reasonable measures to protect the confidentiality of the other party's Confidential Information and to advise their employees of the confidential nature of the Confidential Information and of the prohibitions herein. Notwithstanding anything to the contrary contained herein, neither party shall be obligated to treat as confidential any information disclosed by the other party (the "Disclosing Party") which: (1) is rightfully known to the recipient prior to its disclosure by the Disclosing Party; (2) is released by the Disclosing Party to any other person or entity (including governmental agencies) without restriction; (3) is independently developed by the recipient without any reliance on Confidential Information; or (4) is or later becomes publicly available without violation of this Agreement or may be lawfully obtained by a party from any non-party. Notwithstanding the foregoing, either party will be entitled to disclose Confidential Information of the other to a third party as may be required by law, statute, rule or regulation, including subpoena or other similar form of process, provided that (without breaching any legal or regulatory requirement) the party to whom the request is made provides the other with prompt written notice and allows the other party to seek a restraining order or other appropriate relief. Subject to Consultant's confidentiality obligations under this Agreement, nothing herein shall preclude or limit Consultant from providing similar services for other clients. Consultant retains the right to display graphics and other materials and elements of the project as examples of Consultant's work. Neither the City nor Consultant will be liable to the other for inadvertent or accidental disclosure of Confidential Information if the disclosure occurs notwithstanding the party's exercise of the same level of protection and care that such party customarily uses in safeguarding its own proprietary and confidential information. 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; 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. 1.10 TERMINATION; DEFAULT Termination: It is agreed and understood by Consultant that the City may terminate this Agreement for the convenience of the City, upon 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 of this Agreement 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 in this section shall require the City to pay for any work which it deems unsatisfactory or which is not performed in compliance with the terms of this Agreement. Default: Either party may terminate this Agreement, in whole or in part, for default if the Party provides the other Party with written notice of such default and the other fails to satisfactorily cure such default within ten (10) business days of receipt of such notice (or a greater time if agreed upon between the Parties). If default results in termination of this Agreement, 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. Neither party shall 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 terminating Party 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 in this section shall require the City to pay for any work which it deems unsatisfactory, or which is not performed in compliance with the terms of this Agreement. 1.11 INDEMNIFICATION Consultant and the City each agree to indemnify, defend and hold harmless the other from and against 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 property to the extent arising out of the indemnitor's negligence in the performance of this Agreement. 1.12 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. 1.13 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 the recipient's address as stated in this Agreement; 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 Brooks International 24654 North Lake Pleasant Parkway Suite 103-487 Peoria, AZ 85383 Notice to City: City Manager Stephan L. Sheets, City Attorney 221 East Main Street AND TO: 309 East Main Street Round Rock, TX 78664 Round Rock, TX 78664 Nothing contained herein shall be construed to restrict the transmission of routine communications between representatives of City and Consultant. 1.14 COMPLIANCE WITH LAWS, CHARTER AND ORDINANCES A. 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. B. Consultant acknowledges and understands that City has adopted a Storm Water Management Program (SWMP) and an Illicit Discharge Ordinance, Sections 14-139 through 14- 152 of the City's Code of Ordinances, to manage the quality of the discharges from its Municipal Separate Storm Sewer System (MS4) and to be in compliance with the requirements of the Texas Commission on Environmental Quality (TCEQ) and the Texas Pollutant Discharge Elimination System (TPDES). The Consultant agrees to perform all operations on City -owned facilities in compliance with the City's Illicit Discharge Ordinance to minimize the release of pollutants into 7 the MS4. The Consultant agrees to comply with of the City's stormwater control measures, good housekeeping practices and any facility specific stormwater management operating procedures specific to a certain City facility. In addition, the Consultant agrees to comply with any applicable TCEQ Total Maximum Daily Load (TMDL) Requirements and/or I -Plan requirements. 1.15 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. 1.16 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. 1.17 FORCE MAJEURE Notwithstanding any other provisions hereof to the contrary, no failure, delay or default in performance of any obligation hereunder shall constitute an event of default or 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. 1.18 SEVERABILITY The invalidity, illegality, or unenforceability of any provision of this Agreement or the occurrence of any event rendering any portion of provision of this Agreement void shall in no way affect the validity or enforceability of any other portion or provision of this Agreement. Any void provision shall be deemed severed from this Agreement, and the balance of this Agreement shall be construed and enforced as if this Agreement did not contain the particular portion of provision held to be void. The parties further agree to amend this Agreement to replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken provision. The provisions of this Article shall not prevent this entire Agreement from being void should a provision which is of the essence of this Agreement be determined void. 1.19 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 shall evidence the entire understanding and agreement between the parties and shall supersede any prior proposals, correspondence or discussions. 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. [Signatures on the following page.] IN WITNESS WHEREOF, the parties have executed this Agreement on the dates hereafter indicated. City of Round Rock, Texas Rober Brooks International, Consultant By: (✓��� (✓ By: ( e� Printed �ame: Printed Nainep� Title: ( -1. it"I /-, I Title: f:,F,�S. CES Date Signed:' 1C . J7- /4 Date Signed: V-,>7-�/t For City, Attest: By: C w,. RQ)Qt Sara L. White, City Clerk- For lerk For City, proved asto F rm: B��-� to L Stephan . Shcets, City Attorney in Exhibit "A." CITY OF ROUND ROCK Tourism Roadmap Next Five Years SCOPE OF WORK 1. Intelligence gathering Roger Brooks would visit Round Rock for two days (including travel) to meet with tourism, city, and private -sector stakeholders to talk about goals, challenges, and new opportunities that could or should be part of the Five Year Tourism Roadmap. Roger would also tour the city to see newer developments (such as the Sports Center), and be brought up to date since his last visit several years ago. 2. Developing the Action Plan Roger and his team would develop the Five Year Action Plan that would address a number of items including: - Staffing: additions, changes, responsibilities, contracted services - Marketing: becoming a conference and convention destination with Kalahari Resorts coming to town, and how to achieve that without diluting the Sports Capital brand. Next steps (where do we go from here?) with the Sports Capital program, other marketing recommendations and expenditures. How to expand the Sports Capital brand to community development and traditional economic development to create a unified "one strong singular voice" brand the city can leverage for the next generations. - Product development: What's next in terms of product to cement ownership of the Sports Capital brand and to capitalize on the stronger move into the meetings market, including leisure time activities, nightlife, etc. As an Action Plan, each recommendation will be placed in chronological order (implementation timeline) and will also include: - Approximate cost to implement - Funding source idea(s) - Timeline - Who would be charged with implementation (this is a community -wide effort) - Rationale for making the recommendation The plan would start with a Vision Statement: how this effort will help Round Rock continue to diversify its economy, will improve the quality of life for its citizens, and how Round Rock's tourism efforts will expand and grow, making Round Rock one of Texas' premier destinations on a year round basis. 3. Draft & final Action Plan The draft plan will be sent to Round Rock Tourism for review and feedback, edits will be facilitated and a final Round Rock Tourism Roadmap and Action Plan will be created. Six hard copies will be printed and bound, plus print and screen resolution copies of the plan will be provided in PDF format. Exhibit "A" 4. Final presentation Once the plan has been completed, Roger will return to Round Rock to present the plan to the City and local stakeholders. The presentation will briefly showcase how far Round Rock has come since the original tourism plan was created in 2004, and how that assisted in the original goal of diversifying the local economy, and how tourism — working with economic and community development - will continue to be a very important piece of Round Rock's future. It is recommended that the presentation be professionally filmed so that it can be made available, through streaming methods, for other stakeholders and interested citizens to watch. Likewise, the Roger Brooks International (RBI) team, will provide Round Rock Tourism with the actual presentation so it can be presented at other local community organizational meetings. Cost: $24,500 for development of the plan including all related costs except travel. Travel costs: $4,000 including air fares, lodging, dining, rental car and all other related travel costs associated with the project. Timeline: The final plan and presentation would take place before the end of January, 2017. City of Round Rock F� ROUND ROCK TEXAS Agenda Item Summary Agenda Number: Title: Consider executing a Consulting Services Agreement with Roger Brooks International for preparation of a Tourism Roadmap. Type: City Manager Item Governing Body: City Manager Approval Agenda Date: 10/7/2016 Dept Director: Chad McKenzie Cost: $24,500.00 Indexes: Hotel Occupancy Tax Fund Attachments: Roger Brooks Agreement Department: Sports Management and Tourism Text of Legislative File CM -2016-1199 Consider executing a Consulting Services Agreement with Roger Brooks International for preparation of a Tourism Roadmap. We have worked with Roger Brooks in the past on other City projects and he is familiar with the staff and the goals of the City. This agreement is to develop a 5 -year Tourism Roadmap. $24,500 plus $4,000 for travel Hotel Occupancy Tax Fund Staff recommends approval. City of Round Rock Page 1 Printed on 1 01612 01 6