Amendment No. 1 to Agreementao~o-a73o q
AMENDMENT NO. 1 TO THE PROFESSIONAL SERVICES AGREEMENT
BETWEEN THE CITY OF MIAMI BEACH, FLORIDA (CITY) AND THE
SUPERLATIVE GROUP, INC. (CONSULTANT) FOR PROFESSIONAL
SERVICES IN CORPORATE SPONSORSHIP MARKETING PURSUANT TO
REQUEST FOR PROPOSALS NO. 06-04/05
This Amendment No. 1 is made and entered this ~ day of tC (~raGr~, 2010, by
and between the CITY OF MIAMI BEACH, FLORIDA (City), a municipal
corporation having its principal office at 1700 Convention Center Drive, Miami Beach,
Florida, 33139, and THE SUPERLATIVE GROUP, INC. (Consultant), an Ohio
corporation, having its principal office at 2706 Franklin Blvd., Cleveland, Ohio, 44113.
RECITALS:
WHEREAS, on February 23, 2005, the City Commission approved the issuance
of Request for Proposals No. 06-04/05 for the purpose of implementing a municipal
marketing program (the RFP); and
WHEREAS, on March 22, 2007, the City entered into a Professional Services
Agreement with Consultant for Phase I of a municipal marketing program, which
included the development of an Asset and Valuation Inventory, a Strategic Planning
Document, and a Policy Document (the Agreement); and
WHEREAS, Consultant has completed its Phase Iservices/deliverables; and
WHEREAS, the City and Consultant now wish to amend the Agreement in order
to proceed with, and provide the scope of services and compensation schedule for, Phase
II of the municipal marketing program, which will address implementation of the
program (including, without limitation, soliciting and entering into municipal marketing
agreements with business entities).
NOW THEREFORE, in consideration of the mutual promises contained herein,
the City and Consultant hereby amend the Agreement as follows:
1. The foregoing recitals are true and correct and are hereby incorporated by
reference into this Amendment.
2. Section 1 of the Agreement, entitled "Definitions," is amended to include the
following defined term:
Sponsorship Agreements: shall mean fully executed written contracts
procured by Consultant, and approved by the City, for sponsorships,
naming rights, and/or licensing agreements. Notwithstanding the
preceding, Sponsorship Agreements shall not include contracts where the
sponsor, person or entity requesting the naming right(s), and/or licensee,
initiates the contact directly with the City, and there has been no previous
contract between Consultant and that sponsor (or person/entity requesting
the naming right(s) and/or licensee) on behalf of the City.
3. Section 2 of the Agreement, entitled "Scope of Work," is amended to include and
incorporate Exhibit "A," attached hereto, which shall define Consultant's scope of
work/services for Phase II of the Agreement (development and implementation of
the City's municipal marketing program). In addition to the scope of services,
Exhibit "A" also sets forth the timeline within which Consultant is required to
complete any deliverables, and/or achieve milestones/benchmarks, as required by
the City for Phase II.
4. Section 3.1 of the Agreement, entitled "Fixed Fee," is deleted in its entirety and
replaced with the following new Section 3.1, entitled "Compensation for Phase
II":
3.1. The City hereby acknowledges that it has elected to proceed with
Consultant to provide Phase II services under the Agreement, as more
specifically set forth in Exhibit "A" hereto.
Accordingly, in consideration of Consultant's performance in a
satisfactory and efficient manner, as determined solely by the City
Manager or his designee, of Phase II services and work, as set forth in this
Amendment No. 1 and Exhibit "A" hereto, the City agrees to compensate
Consultant as follows:
3.1.1 Upon the parties' execution of this Amendment No. 1, and
as agreed in the original Agreement, Consultant shall
refund to City fifty percent (50%) of the fees (or $19,500)
paid to Consultant for Phase I services under the
Agreement. The City shall deduct this $19,500 amount as a
reimbursable draw from commissions earned by Consultant
on the first $2 million of total gross revenues to the City
(GR) generated by Sponsorship Agreements obtained by
Consultant pursuant to this Agreement. In the event that
the commissions due Consultant during the initial term of
the Agreement do not satisfy the $19,500 owed to the City,
then the City and Consultant shall mutually agree on an
alternative method for reimbursement of the full (or
remainder of the full) amount.
3.1.2 On the Commencement Date (as defined in Section 4.4),
and thereafter at the beginning of every month for the
proceeding eight (8) months of the Term, City shall pay
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Consultant a draw against future commissions on
Sponsorship Agreements, in the amount of $5,500. The
draws shall be credited against any commissions due
Consultant. In no event shall the total amount of the draws
against commissions paid to Consultant during the first
nine (9) months of the Term, exceed $49,500.
3.1.3 Commission Structure. Consultant shall be entitled to
receive a commission based upon a percentage of total
gross revenues to the City (GR) generated by Sponsorship
Agreements obtained by Consultant pursuant to this
Agreement (Commission Payment). The commission
structure shall be as follows:
(i) 15% commission on $0 - 250,000 in GR to
City;
(ii) 12% commission on $250,001 - 500,000 in GR
to City;
(iii)10% commission on $500,001 - 1,000,000 in
GR to City;
(iv)6% commission on $1,000,000+ in GR to City;
And, additionally,
(v) 7% commission on renewals (percentage of GR
for first renewal only);
(vi)45% commission on licensing agreements (to
include monitoring); and
(vii) 10% commission on budgeted cost
avoidance measures, as defined in Section 3.1.6.
3.1.4 City shall pay Consultant the Commission Payment within
sixty (60) days following receipt of revenues from
Sponsorship Agreements. Consultant shall only be entitled
to receive Commission Payments on payments actually
received by the City. If the Agreements are multi-year in
nature, and payments to the City are made annually or in
installments, then Consultant shall be paid the Commission
Payment within sixty (60) days after receipt of the annual
(or other installment) payment by City.
3.1.5 The packaging and pricing of Sponsorship Agreements
may be changed by the City from time to time, in its sole
and reasonable judgment and discretion, and Consultant
shall not receive any increase in Commission Payments as
a result of such change(s) unless (i) Consultant directly
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negotiated the change(s); and (ii) the City (through its City
Manager or his/her designee) and Consultant agree, in
writing, that Consultant is entitled to an increased
Commission Payment(s) as a result of such change(s).
3.1.6 For purposes of this Section 3.1, "budgeted cost avoidance
measures" shall mean procurement by Consultant of items
previously included in the City's approved annual
operating budget. Consultant shall receive a Commission
Payment for such item(s) if, and only if, City would have
purchased said item(s) from another source outside the
scope of this Agreement. The Commission Payment for
said item(s) shall be based on the amount budgeted and
such payment shall be made upon delivery and acceptance
by the City of the item(s). The City shall not owe nor be
required to pay a Commission Payment if said item(s)
does/do not assist or reduce items in the City's approved
annual operating budget. Whether or not a particular item
falls within the definition of budgeted cost avoidance
measures shall be left to the sole discretion of the City
Manager or his/her designee.
3.1.7 The City shall reimburse Consultant's travel and other out
of pocket expenses for Phase II, up to a total amount not to
exceed $15,000 during the Term. The City Manager or
his/her designee must approve all expense reimbursements
in advance, in writing. The City shall not owe, nor be
required to reimburse Consultant for, any expenses that
have not been pre-approved, in writing, by the City
Manager or his/her designee.
3.1.8 All work/services performed by Consultant hereunder shall
be performed to the satisfaction of the City Manager or
his/her authorized designee. The determination by the City
Manager (or his/her authorized designee) shall be final,
binding and conclusive on all parties hereto. Final
acceptance of work product and services shall require
written approval by the City Manager or his/her designee.
Payment will only be made to Consultant following written
approval of any such final work product and/or services by
the City Manager or his/her designee. The City shall be
under no obligation to pay for any work services performed
by Consultant which is not satisfactory to the City Manager
or his/her designee. The City Manager shall have the right
to terminate this Agreement should Consultant's work not
be satisfactory to the City Manager (or his/her authorized
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designee); provided however, that the City shall have no
obligation to terminate and may withhold payment for any
unsatisfactory work/services, (even should City not elect to
terminate).
3.19 The City shall not be obligated nor liable under this
Agreement to any party other than Consultant, for the
payment of any monies or the provision of any goods or
services.
3.2.0 Additional Services. At its sole option and discretion, the
City may request Consultant to provide additional services
(and reserves the right to negotiate an additional fee and/or
separate commission structure for), subject to mutual
agreement of the parties and pursuant to a written
amendment to this Agreement, executed by the parties.
Additional services may include, without limitation, a
request by the City to Consultant for Consultant's
assistance with any existing City municipal marketing
and/or agreement(s); and assistance on sponsorship
agreements, license agreements, etc. that the City
negotiates directly with Consultant.
5. The language in Section 4.4 of the Agreement, entitled "Duration and Extent of
Agreement Term," is deleted in its entirety, and replaced with the following new
language:
The term of this Agreement shall be for an initial term of three (3) years,
commencing on the last date of execution of the Agreement by the parties hereto
(Commencement Date). At the City Manager's sole option and discretion, the
Agreement may be renewed for two (2) additional one (1) year renewal terms,
upon the same terms and conditions set forth herein, upon written notice to
Consultant, which notice shall be provided no later than thirty (30) days prior to
the expiration of the initial term (or the first renewal term, as the case may be).
6. Section 4.7 of the Agreement, entitled "Termination, Suspension and Sanctions,"
is amended to include the following new Section 4.7.5, entitled "Payment
Calculation Upon Termination/Procedure(s) Upon Termination:"
4.7.5 Payment Calculation Upon Termination/Procedure(s) Upon
Termination.
4.7.5.1 For Convenience by City or for Cause by Consultant.
In the event the City terminates the Agreement for
convenience, or Consultant terminates the Agreement for
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cause, Consultant shall be entitled to its Commission
Payment(s) on Sponsorship Agreements executed as of the
date of termination.
4.7.5.2 For Cause by CitX.
In the event this Agreement is terminated for cause by the
City (as a result of breach by the Consultant), any amount
owed Consultant will be calculated based solely upon the
fair value to the City provided by Consultant up to the date
of termination.
The City shall have the right, at its sole option and
discretion, to contract with another consultant to complete
(and/or continue, as the case may be) the work services
required under this Agreement. The City shall also have
the right to offset the cost of the agreement with a new
consultant against Consultant's future or unpaid invoices
(including, without limitation, any unpaid Commission
Payments).
4.7.5.3 Within thirty (30) calendar days of the effective date of
termination of this Agreement, Consultant shall submit to
City its claims, in detail, for the monies owed by the City
for work services performed under this Agreement through
the effective date of termination. Failure of Consultant to
submit its claims within said thirty (30) calendar days shall
negate any liability on the part of City and constitute a
waiver by Consultant of any and all right or claims to
collect monies that Consultant may rightfully be otherwise
entitled to for work services performed under this
Agreement.
4.7.5.4 Upon the effective date of termination of this Agreement,
Consultant shall cease all work services being performed
by Consultant (including any of its subcontractors)
pursuant to this Agreement. Should Consultant be in
negotiations with a potential sponsor at the time of
expiration or earlier termination of this Agreement, the City
will be allowed, at its discretion, to continue negotiations
and/or otherwise follow up with any such potential
sponsor(s), without any liability to Consultant (whether
financial or otherwise).
4.7.5.5 Regardless of how this Agreement is terminated,
Consultant shall affect an orderly transfer to City, or to
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such person(s) or firm(s) as the City Manager or his/her
designee may designate, at no additional cost to the City, of
all completed or partially completed documents, papers,
records, charts, reports, and any and all other materials or
information produced as a result of, or pertaining to, the
work/services rendered by Consultant, hereunder,
regardless of storage medium (collectively, the Records).
Assembly and delivery of the Records to City shall be at
Consultant's sole cost and expense. Payment of any
compensation due to Consultant shall be conditional upon
delivery of any and all Records, as required herein.
4.7.5.6 In no event shall City's action of terminating this
Agreement, whether for cause or otherwise, be deemed an
election of City's remedies, nor shall such termination
limit, in any way, at law or equity, City's right to seek
damages or otherwise pursue Consultant for any default
hereunder or other action.
4.7.5.7 UNDER NO CIRCUMSTANCES SHALL CITY BE
LIABLE TO CONSULTANT, OR TO ANY THIRD
PARTY CLAIMING BY OR THROUGH
CONSULTANT, FOR CONSEQUENTIAL DAMAGES
OR LOST PROFITS.
7. Section 4.16, entitled "Notices," shall delete the reference to the City's
Communications Office (and Jay Moore).
8. Section 4.19, entitled "Limitation of Liability," is hereby amended throughout
said section to change the dollar amount of the City's limit on its liability from
$1000 to $50,000. In addition to being capped at $50,000, the City's liability for
any cause of action for money damages due to an alleged breach by the City of
the Agreement shall also be offset by any sums actually paid to Consultant by
City through the effective date of termination of the Agreement.
9. Section 4.20, entitled "Dispute Resolution," is hereby added as follows:
4.20 Dispute Resolution.
City and Consultant agree that every effort shall be made to
resolve any dispute arising under this Agreement informally
through their designated representatives. For purposes of this
section, the City's designated representative shall be the City
Manager or his/her designee.
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If the informal efforts are unsuccessful, then either party may
request mediation by submitting a written request to the other
party. Within thirty (30) calendar days, of the request of any party,
the parties shall mutually agree on the person or alternative dispute
resolution agency to conduct the mediation. The initiating party
shall then schedule the mediation. The costs of the mediation and
fees of the mediator, if any, shall be borne equally by the parties.
Any dispute not resolved through the mediation may proceed to
litigation in a court of competent jurisdiction in Miami-Dade
County, Florida, unless the parties agree, in writing, to submit the
dispute to binding arbitration.
The duties and obligations imposed by this Agreement, and the
rights and remedies available hereunder, shall be in addition to,
and not a limitation of, any duties, obligations, rights, and remedies
otherwise imposed or available by law. No action or failure to act
by the City or Consultant shall constitute a waiver of any right or
duty afforded either of them under this Agreement, nor shall any
such action or failure to act constitute an approval of or
acquiescence in any breach thereunder, except as may be
specifically agreed to in writing.
10. Consultant's invoices for any payments due pursuant to this Agreement shall be
mailed to:
City of Miami Beach
Office of the City Manager
1700 Convention Center Drive, Miami Beach, Florida 33139
Attention: Hilda Fernandez, Assistant City Manager
11. No Further Modifications. Except as provided in this Amendment No. 1, the
Agreement remains unmodified and in full force and effect.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their appropriate officials, as of the date first entered above.
ATTEST:
CITY OF MIAMI BEACH, FLORIDA
~i /~,
ity Clerk a r
ATTEST:
ecretary
_Ashley Malone
Print Name
APPROVED AS TO
FORM ~ LANGUAGE
~ FOR EXECUTION
C.
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EXHIBIT A
SCOPE OF SERVICES
1. Develop and present within 90 days of agreement execution a list of
corporate prospects (local, regional, national and/or international) to pursue,
both short term (12 - 18 months) and long term (18-36 months), and develop
a priority list and marketing and sales plan for these prospects.
2. Develop, in cooperation with the City's Communications staff, marketing
materials (within 90 days of agreement execution)
3. Assist the City in the development of Request for Proposals or "Invitation for
Best Value Bids" or any such other process that assists the City in
maintaining an open and competitive process for soliciting and securing
corporate partnerships, as may be appropriate for each type of municipal
marketing opportunity. This would include marketing the opportunity to
potential partners, and assisting the City in the evaluation of proposals
received.
4. Assist the City in negotiating the municipal marketing partnership agreement
terms with selected partners, and in the development of the municipal
marketing partnership agreement document.
5. Present prospective municipal marketing partners for the City's consideration.
6. Assist City staff with any community vetting necessary to ensure an
understanding of proposed partnerships and address concerns.
7. Assist City staff, as needed, in determining what, if any, City ordinances may
require amendment to accomplish some of the goals or particular municipal
marketing strategies.
8. Develop a plan for managing the fulfillment obligations for each successful
municipal marketing agreement
9. Provide monthly reports that provide a status update on the progress in
achieving Item 1 above, including what phase of progress has been made
(e.g. research/identification of targets, contact made, meetings held, follow up
held, preliminary proposal drafted/discussed, etc.)
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