GreenbergTrau rig Elizabeth Rogers Tel 512.320.7200 Fax 512.320.7210 September 30, 2015 Via email: Patricia.Link@austintexas.gov and Ms. Patricia L. Link Ms. Elaine Nicholson City of Austin Law Department City Hall, 301 West 2nd Street PO. BOX 1546 Austin, Texas 78767-1546 Re: Titan Music Group LLC's Position Regarding the Public Information Requests Related to the ATX Music Industry Census (?Census?) Dear Ms. Link and Ms. Nicholson: Thank you for your letter dated September 17, 2015 concerning the Public Information Requests that seek the raw data, without personal identi?ers, that Titan Music Group LLC (?Titan?) collected and used in order to produce the Census. Titan has not changed its position since meeting with members of the staff of the City?s Economic Development Division and the Law Department on September 10, 2015. Titan urged then and still maintains that Titan has turned over all public information that the City paid for in the Agreement for the Census. We have enclosed a copy of the Agreement that describes the deliverables that Titan promised and provided to the City of Austin for your convenience. Our understanding is that the City has already given Professor Royal all of the deliverables that the Agreement required Titan to produce to the City. The Agreement did not require Titan to produce the raw data and the City did not pay for the raw data. Our understanding is that the City already told Professor Royal that it did not want the raw data in its response to her on August 27, 2015, which is consistent with both the written and oral understanding under which Titan and City staff have been operating since the inception of the Austin Music Census project. It is also the mutual understanding of both Titan and City staff that the sole data to be provided to the City, referred to in section 4.1.1 of the Agreement, is a CVS ?le of respondents who opted into a separate set of questions unrelated to the survey itself who wish to be included in a City-sponsored online business directory. (A copy of a screenshot of the Opt-In Page is included for your convenience.) Please refer to Section 4.1.1.1 ?ofthe Agreement for a description of the ?elds to be included in the CVS ?le. The GREENBERG TRAURIG, LLP I ATTORNEYS AT LAW I 300 West 6th Street I Suite 2050 I Austin, TX 78701 I Tel 512.320.7200 I Fax 512.320.7210 Ms. Patricia L. Link September 30, 2015 Page 2 City staff also has repeatedly acknowledged both publicly and privately that Titan has produced all required deliverables and satis?ed all its obligations under the Agreement. As you know, prior to the release and distribution of the Census survey to the public, the City committed to privacy of the data and survey respondents in the Agreement, and also approved the Survey?s Welcome Page that included Titan?s written, absolute promise of con?dentiality of all data provided by the respondents, including a promise to destroy the data once the analysis was complete. (A copy of the screenshot of the Survey?s Welcome Page is included for your convenience). Note that these promises would be broken upon disclosure of the raw data because, even if Titan changed the format of the raw data to remove personal identifying information, many of the survey responses would reveal the identity of the participant based simply on personal facts that were provided in the answers. Thus, Titan and the City could be potentially jointly liable for violating the privacy of 4,000 survey participants. Aside from the legal position that Titan takes, Titan urges the City to be mindful of the underlying reasons for conducting the Census to begin with. That is the desire to collect information that would be helpful for the City to address some serious socio-economic issues that the Austin?s music industry is facing. In order to provide the City with the most valuable information needed to serve these artists, Titan and City staff jointly agreed that keeping the individual surveys solely in the possession of Titan not to be disclosed to the City would encourage both a higher response rate and more truthful answers from respondents. Titan promised the survey participants that all of the answers would remain confidential and be destroyed following all data analysis requested by the City, and Titan takes that promise and ethical responsibility seriously, and will honor that commitment. A disclosure of the raw data, under these circumstances ironically would betray the trust of the very audience who the City intends to assist. Based on these facts, I have advised Titan that because the raw data is not data that the City paid for, it was not data used in the course of an of?cial transaction with a governmental body and is not public information. Therefore, the raw data is not subject to the requirements of the Local Government Code or the expanded de?nition of public information that the Texas legislature added in 2013. I have also advised Titan that the raw data is proprietary in nature and belongs only to Titan. Finally, I have advised Titan that as sole owner of this private information, it has a duty to keep the promise of con?dentiality and privacy to all 4,000 survey participants. Please let me know if you have any further questions. Best regards, Elizabeth Rogers Enclosures Agreement Between The City of Austin, Texas and Titan Music Group 1.0 Purpose: 1.1 This Agreement (?Agreement?) is made between Titan Music Group, LLC (?Contractor?) and the City of Austin, Texas a home-rule municipality, through its Economic Development Department. 1.2 The purpose of the Agreement is to implement the ATX Music Industry Census (?Census?), which is a study and measure of the current status of Austin?s music industry. 1.3 The goal of the Census is to collect data to establish the size and composition of the Austin music industry; identify current de?ciencies or barriers to economic development as described by the industry itself via surveys and focus groups; and ascertain potential future growth trends within the industry. The Census results will assist the City in understanding the needs of Austin?s music industry. Additionally, the City intends to use the quantitative data collected to create a web-enabled database system. 2.0 Background and Findings: 2.1 The City?s Music Entertainment Division (?Division?) is an economic development accelerator and centralized resource center for Austin?s music industry. The Division is highly engaged in deve10ping and executing initiatives that help facilitate the growth of the music industry by focusing on job creation, talent export, trade development, and industry revenue growth. 2.2 In order to make the most and best use of its allocated budget, the Division must partner with both private industry and nonpro?t entities that provide music services at no cost to the community. 2.3 Titan Music Group is a music industry consulting company based in Austin, Texas that provides policy development and results~driven strategic planning for private companies, public entities, and nonpro?t organizations. 3.0 De?ned Terms 3.1 Census means an of?cial count or survey of a pOpulation, Speci?cally the Austin Music Industry for this Agreement. 3.2 CSV means a comma-separated value ?le that stores tabular data (numbers and plain text) in plain~text form. 3.3 Data cleaning means the process of detecting and correcting, or removing, corrupt or inaccurate records from a record set, table, or database. Data cleaning may involve removing typographical errors or validating and correcting values against a known list of entities, and activities such as harmonization of data and standardization of data. EDD Agreement with Titan Music Group August, 2014 Page 1 of5 3.4 Division database means an organized collection of indexed information that allows easy retrieval, updating, analysis, and output of data. 3.5 Effective date means the date this Agreement is signed by Contractor. 3.6 Focus group means the individuals involved in the Austin?s music industry that will assist Contractor and City with collecting additional qualitative information related to the economic growth assessment of Austin?s current and future music industry. 3.7 Music Industry means all major sectors of the ?traditional? commercial music industry; music?related technology, including mobile apps, digital content platforms; fan development/retention; and all other aspects of the industry. 3.8 Plain text means that the ?le is a sequence of characters, with no data that has to be interpreted instead, as binary numbers. 4.0 Term of the Agreement. The parties agree that this Agreement shall be in effect for a term of 10 months, beginning with the Effective date of this Agreement. 5.0 Scope of Work. The parties agree that the scope of work for this Agreement is set out in Exhibit A, which is attached and incorporated by reference. 6.0 Payments. The parties agree that the payment schedule for this Agreement is set out in Exhibit B, which is attached and incorporated by reference. 7.0 Termination. This agreement can be terminated in the following ways: 7.1 Both parties may mutually agree in writing to terminate the Agreement. 7.2 Termination due to breach. Either the City or the Contractor may terminate this Agreement due to breach after the following conditions have occurred: 7.2.1 7.2.2 7.2.3 7.2.4 7.2.5 The non-breaching party noti?es the other party in writing of the speci?c Violations of the Agreement. The breaching party must cure its breach within 10 calendar days from date the notice is received. If the violation cannot be cured within the 10? day period, and the breaching party has diligently pursued such a remedy as is necessary to cure the Violation, then the parties may agree in writing to an extension of the period in which the violation must be cured. If the breaching party fails to cure its breach within the 10?day period or the extension, as appropriate, then the non?breaching party, at its sole option, may terminate this Agreement. This termination shall be made by sending written ?Notice of Termination? to the breaching party. This Notice of Termination shall be effective for all purposes when deposited in the U.S. Mail, postage prepaid and mailed Certi?ed Mail, Return Receipt Requested. If Contractor determines that it has defaulted by not performing the obligations under this Agreement and that it will continue to default. Contractor shall notify City in writing and return to City any funds previously provided to Contractor by City for any period in which Contractor did not perform, within 10 days when Contractor knew or should have known it was in default. Upon such noti?cation and retum of EDD Agreement with Titan Music Group August, 2014 Page 2 of 5 funds, the City shall audit the return of ?nds and will notify Contractor of any pending obligations under this Agreement and when the City will release Contractor from the obligations of this Agreement. 7.3 Termination by the City. City may also terminate this Agreement for convenience by providing at least 30 calendar days written notice to the Contractor. 7.4 Contractor shall return to City any funds previously provided to Contractor by City for any period in which Contractor did not perform through the date of termination. 8.0 Contract Managers 8.1 Designation of Contract Managers 8.1.1 The City and Contractor designate the following individuals as Contract Managers. 8.1.1.1 Contractor?s Contract Manager. Nikki Rowling; Phone: (512) 597- 8895; E-mail: 8.1.1.2 City?s Contract Manager. Ashley Buchanan; Phone: (512) 974- 7849; E-mail: 8.2 Replacement of Contract Manager. 8.2.1 If Contractor replaces its Contract Manager, Contractor shall send written notice of the change to the City?s Contract Manager. The notice shall identify a quali?ed and competent replacement and provide contact information. 8.2.2 Contractor agrees to request the City?s approval for the replacement. The City agrees not to unreasonably withhold approval. 9.0 Meeting Requirements. 9.1 Pre-planning. 9.1.1 Contractor shall schedule a pre-planning meeting with the City?s Contract manager no later than 15 business days after the effective date of this Agreement. 9.1.2 The meeting will include a discussion of the scope of work requirements and deadlines. 9.2 Contract Closing. 9.2.1 City will schedule a contract closing meeting with the Contractor after the deliverables, as described in Section 4 of Exhibit A, are received by the City. 9.2.2 The meeting will include a discussion on the ?ndings of the Study and a live PowerPoint presentation by the Contractor for the Division and any other parties as requested by the City. 10.0 General Terms. 10.] Communications. 10.1.1 All communications with the City regarding this Agreement shall be directed to: City of Austin Music?s and Entertainment Division Economic DeveIOpment Department EDD Agreement with Titan Music Group August, 2014 Page 3 of 5 10.2 10.3 10.4 10.5 10.6 10.7 10.8 10.9 Don Pitts, Music Program Manager Phone: (512) 974-7821; Email: ov 505 Barton Springs Road, Suite 1070 Austin, Texas 78704 (P.O. Box 1088, Austin, Texas 78767-1088) 10.1.2 All communications with the Contractor regarding this Agreement shall be directed to: Titan Music Group Nikki Rowling Phone: (512) 597-8895; E-mail: nikki@jritanmusicgroup.com 3800 North Lamar Blvd. Suite 73 0-259 Austin, Texas 78756 Amendment. Amendments to this Agreement shall not be effective unless set forth in writing and signed by an authorized representative of each party. No Assignment. This Agreement is not assignable, and shall terminate automatically and immediately if assigned by Contractor. Right to Audit. 10.4.1 Contractor agrees that the representatives of the Office of the City Auditor, or other authorized representatives of the City, shall have access to, and the right to audit, examine, or reproduce, any and all records of the Contractor related to performance of this Agreement, during normal business hours (Monday-Friday 8:00 am to 5:00 pm). 10.4.2 Contractor shall retain all records for a period of two years after the termination of this Agreement or until all audit and litigation matters that the City has brought to the attention of Contractor are resolved, whichever is longer. 10.4.3 Contractor agrees to refund to the City any overpayments disclosed by any such audit. Failure to return funds owed to the City may result in legal action by the City to recover any funds due as a result of overpayment or termination of this Agreement. Severability. If any provision(s) of this Agreement is held invalid, illegal, or unenforceable, the remainder shall be construed to conform to the intent of the parties. Choice of Law and Venue. Any causes of action arising under this Agreement shall be controlled by the laws of the State of Texas and venue shall be in Travis County, Texas. No Waiver. Failure of the City to insist in any one or more instances upon performance of any of the terms or conditions of this Agreement shall not be construed as a waiver or relinquishment of the future performance of any terms or conditions. Contractor shall perform the obligations set forth in the Agreement as an independent contractor. Texas Public Information Act. 10.9.1 Contractor acknowledges that the City, this Agreement, and the information generated by and resulting from this Agreement are subject to EDD Agreement with Titan Music Group August, 2014 Page 4 of 5 10.10 10.11 10.12 10.9.2 the Texas Public information Act. The City agrees to use all reasonable precautions to protect the con?dentiality of and to prevent the unauthorized use or disclosure of the Contractor?s con?dential information. Notwithstanding the foregoing, the City shall disclose the Contractor?s confidential information only as required by Texas Government Code Chapter 552, and will provide notice, as required by Texas Government Code Section 552.305, to the Contractor prior to any such disclosure. Contractor shall maintain the con?dentiality of, prevent the unauthorized use or disclosure of information received from the City that is confidential under Texas Government Code Chapter 552. Regardless of the actual drafter of this Agreement, the parties agree that this Agreement shall, in the event of any dispute over its meaning or application, be interpreted fairly and reasonably, and neither more strongly or against any party. Entire Agreement. The above text, along with the Exhibits listed below, constitute the entire agreement between the parties with regard to the subject matter of this Agreement. Exhibits. The exhibits identified below are attached and incorporated into this Agreement for all purposes. Exhibit A: Scope of Work Exhibit B: Payment Schedule and Process BY THE affixed below, the above Agreement is hereby accepted as to all terms and contlitimlsrand is effective as of the date signed by ContractorDate I Titan Music Gl't?l7L - Hm. . a a? 27? 2513/ Don Pitts. I Date Music and Entertainment Division, Music Program Manager City of Austin Economic Development Department 13,] [iridium a? it' to It l" 'itiin [ti-nix' lint: Assistant City Attorney EDD Agreement with Titan Music Group August, 2014 Page 5 of 5 ATX Rnusnc ii; 552%?? ATX MUSIC OFFICE REGRISTRY (OPT-IN): As a separate effort unrelated to the Needs Assessment Survey, the ATX Music Office is creating an online, searchable registry for music businesses and contacts in Austin. Would you like to include your company, name contact info for the registry? Inclusion in the registry is entirely voluntary. Yes No Yes No Back Next Questionnaire Builder powered by FluidSur?veys Administrator [Page 37 Austin Music Industry Needs Assessment Survey Stand Up and Be Counted. Welcome! Survey introduction Welcome to the firstsever Austin Music industry Census and Needs Assessment Survey. Thank you for taking time to provide your thoughts and experiences. This survey has been created and wiil be anaiyzed by Titan Music Group on behalf ofthe City of Austin?s Music Entertainment Division. Piease be assured that 011 your answers mi} be kept confidentiai and be used only in combination with answers from other survey respondents. Absolutely no personal identifying information will be iinked to survey responses or used in any form, and individual surveys will be destroyed once analysis and reporting is complete. The most important thing you can do is to provide truthful and accurate answers to the best of your This should take abput_15 ane you; begin, you will not: beable to save your work and come back later, so please plan to finish in one sitting. Thank you! Copyright 2014 Titan Music Group. All Rights Reserved. Questions about this survey? Contact us at {gt-mgr: View privacy policy and survey contest rules This survey is not open to or intended for minors. I certify that I am ?18 years of age or older. By entering this website, i accept the Terms Conditions. GET START ED