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Resolution 2018-30138RESOLUTION NO. 2018 -30138 A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, APPROVING AND AUTHORIZING THE MAYOR AND CITY CLERK TO ENTER INTO AN AGREEMENT WITH THE MIAMI HERALD FOR THE PURPOSE OF ADVERTISING CITY MEETINGS, EVENTS, PROGRAMS, AND FACILITIES. WHEREAS, the City_ is required _by law _to advertise_certain_meetings and public_ hearings in the newspaper; and WHEREAS, individual City departments purchase advertising from the Miami Herald to promote various meetings, events, programs, and facilities; and WHEREAS, the Administration recommends that the Mayor and City Commission approve and authorize the City to enter into an agreement with The Miami Herald for the 2017- 2018 Fiscal Year; and WHEREAS, the 2017 -2018 Agreement sets forth an Advertising Minimum of $295,314; and WHEREAS, the City anticipates that the City will also receive in -kind advertising from the Miami Herald valued at approximately $80,000. NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY- OF MIAMI BEACH, FLORIDA, that the Mayor and City Commission hereby approve and authorize the Mayor and City Clerk to execute and enter into an Agreement with The Miami Herald for the purpose of advertising City meetings, events, programs, and facilities. PASSED and ADOPTED this /7 day of 1 t r/ , 2018. ATTEST: an Gelber Mayor Raf. -I E. Gra ado City Clerk T:\AGENDA \2018 \01 Ja I /2gll APP ED AS TO NGUAGE ECUTION City Attorney ate ons \Miami Herald Advertising Reso FY2017- 2018.docx IAM BEACH Resolutions - C7 I COMMISSION MEMORANDUM TO: Honorable Mayor and Members of the City Commission FROM: Jimmy L. Morales, City Manager DATE: January 17, 2018 SUBJECT: A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, APPROVING AND AUTHORIZING THE MAYOR AND CITY CLERK TO ENTER INTO AN AGREEMENT WITH THE MIAMI HERALD FOR THE PURPOSE OF ADVERTISING CITY MEETINGS, EVENTS, PROGRAMS, AND FACILITIES. RECOMMENDATION Adopt the Resolution. ANALYSIS Each individual City department may make purchases pursuant to this Agreement, subject to each department's approved marketing and advertising budget. The Advertising Minimum set forth in the 2017 -2018 Agreement is $295,314. Each year, various City departments purchase advertising from the Miami Herald. Some of this advertising, such as public notices, are required by law, while other advertising promotes public events, programs, and facilities. During the budget process, individual budget items were approved in each department's budget and are already in the 2017 -2018 budget. No additional funds are being requested for this contract. In previous years, City departments worked individually to purchase advertising from the Miami Herald. Beginning last year, City staff identified that the City could negotiate better rates and additional cash and in -kind advertising if the City was to sign one large contract with the Miami Herald, instead of each department purchasing advertising independently, in order to leverage the City's buying power. Media companies commonly work with organizations for preferred pricing when purchasing higher volumes as opposed to one ad at a time. When working with media buys, and working in larger amounts at once, you are also more apt to be able to negotiate sponsorships and in -kind media options Based on the agreement signed in 2016, staff has again been working with the individual departments to see what would be best for them; media plans have been developed for all departments planning to advertise the Miami Herald in FY 2017= 2018, totaling $295;314. Total spending in 2016 was approximately $248,300 in cash and $75,000 was received in in -kind. The FY 2017 -2018 budget encompasses election advertising as well as advertising for Environmental, Communications, Transportation, Planning, Parking and Parks and Recreation initiatives. By organizing and bundling these media buys, the City is able to receive a higher return on our Page 245 of 923 investment, and therefore reach a broader market, while maximizing City monies. Organizing all purchases into one contract, the City will receive approximately $80,000 in additional in -kind advertising with the Miami Herald. This in -kind advertising value will be used to supplement the aforementioned marketing campaigns and to support marketing efforts for other City events that do not have a pre- approved marketing budget. CONCLUSION Staff worked diligently to organize all City advertising purchases and negotiate a contract with the Miami Herald. The Administration recommends the adoption of the attached Resolution, authorizing an agreement with the Miami Herald in the amount of $295,314 in cash and $80,000 in -kind for the purpose of advertising City meetings, events, programs, and facilities. Legislative Tracking Marketing and Communications ATTACHMENTS: Description a 2.017 2018 Miami Herald Executed Reso a 2017_2018 Miami Herald Contract Page 246 of 923 Miami Herald Media Company (Referred to as "MHMC ") 351 1 Northwest 91 Avenue, Mian)1,0.33172 ° ADVERTISING AGREEMENT h. This advertising agreement (the "Agreement ") is entered into between Miami Herald Media Company ("Publisher"), with its principal address at 3511 Northwest 91 Avenue, Miami Fl 33172, and City of MrarniBeacl (the "Advertiser"), with its principal trailing address at 1.700 Convention Center Drive, Miami Beach, Florida 33139, as follows: 1. Term, The term of this Agreement shall begin on October 1, 2017, and end on September 30, 2018. 2, Advertising Investment. During the Term, Advertiser agrees to pay MHMC no less than $295,314 (the " Advertising _Minimum "_). Any _payments for- postage shall not count towards satisfaction of-the Advertising Minimum - - - — Only the net amounts actually paid by Advertiser for charges incurred during the Term and which are received and cleared MHMC's account shall count towards satisfying the Advertising Minimum, without taking into account any discounts, rebates, set -offs or credits, This Agreement refers only to advertising or services purchased by the retail stores commonly known as " N/A and which are commonly owned or controlled by or with Advertiser. Any advertising by other divisions, entities or other lines of business, even if affiliated with Advertiser shall (i) not count towards satisfying the Advertising Minimum, nor (ii) be eligible for Special Rates, as described below. Special Rates, Subject to the Advertiser satisfying all material terms and conditions of this Agreement, including payment to Publisher in full of all amounts due, Publisher will charge Advertiser at the special rates set forth in Exhibit A (collectively, the "Special Rate "), For advertising or other services not described in the Special Rates, MHMC's normal charges in its then current rate card shall apply, 3, Special Rates do not apply to any purchases not made under this Agreement and during the Term. Special Rates shall apply only to the full normal applicable card rate and additional or multiple discounts may not be used on the same purchases, Special Rates are neither transferable nor redeemable for cash or credit and if not used during the time period stated or during the Term (if no time period is stated) will expire. 4. Contract Terms. Advertiser must consume and pay for the minimum space indicated herein within one year from the 151 Run Date (the "Minimum Amount "). If Advertiser fails to satisfy the Minimum Commitment, Advertiser shall not be entitled to the Rates or discounts set forth herein and will be retroactively billed for all advertising during the term at the applicable then current standard published rate card rate (the "Corrected Rate'). Advertiser will pay MHMC any such Corrected Rate balance immediately. Advertiser agrees to pay this Corrected Rate in addition to all amounts paid or payable by Advertiser under this Agreement. Payment of any Corrected Rate does not count toward the Minimum Commitment. 5. Other Conditions. This Agreement is subject to: (i) the applicable MHMC's rate card (ii) MHMC's publication, deadline, policies and procedure, all as amended by MHMC from time to time. Rates may be amended by MHMC upon 30 days' written notice to Advertiser, 6. Payment Terms. All invoices (including applicable sales taxes) are due on the 20th of the month following insertion(s)and if not paid by the 30th day of the month following the date of insertion(s) will be late (except for accounts designated by MHMC as weekly which are due within 7 days of the invoice date). Late amounts will bear interest at the maximum rate allowed by law. Advertiser shall pay all applicable taxes. If any invoice is not timely paid, then MHMC reserves the right to suspend its performance at any time and /or cancel this Agreement without notice. In the event of such a cancellation, all charges for advertising since the 1st Run Date will be re- invoiced to reflect the Corrected Rate, as described herein, All disputes of any kind must be reported in writing to MHMC no later than 30 days from the date the invoice containing such disputed item or such item will be deemed correct and conclusively accepted by Advertiser, Advertiser waives any claim after said 30 -day period. Submission of a written dispute notice by Advertiser shall not relieve Advertiser of its obligation to timely pay all undisputed amounts. Credits, refunds or payments must be used or claimed within 2 years from the date of such credit, refund or payment or shall be deemed to have been earned and correctly applied or paid, Unless agreed in writing, multiple discounts shall not apply for the same advertising purchase, MHMC is not obligated to extend credit to Advertiser unless agreed in writing. If Advertiser breaches this Agreement, Advertiser agrees to pay all of MHMC's collection agency fees and expenses, investigation, courtand- litigation expenses along with attorney fees equal to the greater of: (i) 25% of the amount owed, or (ii) the 9/5/2017 Page 248 of 923 amount awarded by the court. Sunday circulation and advertising rates will apply to the following holidays: Independence Day, Labor Day, Thanksgiving Day, Day After Thanksgiving, Day Before Christmas, Christmas Day, Day After Christmas, New Year's Eve Day and New Year's Day. 7. Obligations of Advertiser. Advertiser agrees to indemnify and hold MHMC for any and all costs, claims, damages, and /or liability claimed against or incurred by MHMC as a result of MHMC's publication of any advertisement or other material submitted by Advertiser (or submitted on behalf of Advertiser) to Publisher. Advertiser represents warrants and guarantees that any copy so submitted to MHMC is accurate, truthful and in compliance with all copyright laws and all other applicable laws and regulations. 8. Ownership of Ads. MHMC retains all rights of ownership in and to all advertisements designed or created by MHMC. Advertiser grants MHMC a non- exclusive license to publish all camera -ready advertisements provided by Advertiser (or provided on Advertiser's behalf) to MHMC. MHMC is not obliged to return ads or ad materials to Advertiser and MHMC is not responsible for any damage or loss to any ads, copy,- drawings, at't or any other materials provided by Advertiser. Advertiser represents and warrants to MI-IMC that any advertisement submitted to MHMC is original, does not violate any law, or infringe the copyrights, trademarks, trade name or patents of any other person, entity or corporation, and contains no matter which is libelous, an invasion of privacy, and unlawful appropriation of name or likeness, or otherwise injurious to the rights of any person and that Advertiser has obtained all necessary consents prior to the submission of such advertisement to MHMC. 9. Cancellation policy for ROP premium Positions ROP premium positions defined as Spadeas, Double tnicks, and Section A front page strips in Miami Herald, el Nuevo Herald, Caliente and Yes (Sunday Select), publishing on January 1, July 4, February 14, Febnrary 17, May 26, September 1, and during November and December will be subject to a mandatory cancellation fee. Once advertiser reserves Publication Date (s) for ROP premium position(s) for any of the positions and dates outlined, Advertiser cannot cancel or change that date(s)unless Advertiser delivers written notice of change or cancellation to MHMC not less than seven (7) business days prior to publication date. If Advertiser's written notice is not timely, or if Advertiser otherwise fails to keep the Publication Date for such premium positions, then unless the advertising runs as scheduled, Advertiser agrees to pay a cancellation fee equal to 25% of reserved ad position amount 10. Copyrights. Advertiser hereby grants a non - exclusive license to MHMC for all copyrights and other ownership rights in any advertisement of Advertiser which is submitted for insertion in any publication of MHMC, including the right to publish, reproduce, display, adapt, transmit, or produce derivative works in any medium, including any digital electronic medium. Advertiser authorizes MHMC to bring suit in MI -IMC's discretion and at Publisher's expense for any unauthorized use, reproduction, display, distribution, or performance of the advertisement for its unauthorized re- production, re- publishing or alteration. 11. Acceptance /Rejection of Advertisers. MHMC reserves the right to revise, alter or reject any advertisement for any reason whatsoever, or to omit ads without notice. MHMC may cancel any ad at its sole discretion, even if previously accepted for publication. Advertising copy not timely submitted by Advertiser will be excluded. Special position for advertising is not guaranteed but may be available for a premium and if agreed to in writing. 12. Publication Errors and Omissions_MHMC is not liable for any omission of all or any portion of any advertisement or other material, nor is MHMC responsible for orders, cancellations or corrections given by telephone, facsimile or telegraph. MHMC is also not liable for any error in a published advertisement unless an advertising proof is requested in advance and in writing, Advertiser clearly marks any error in the advertising proof for corrections, and Publisher is notified of the error in sufficient time before publication, in which case Advertiser's sole remedy is an appropriate credit to the extent of the error up to the cost of the first insertion of the error (if there is more than one incorrect insertion, credit shall be allowed only for the first incorrect insertion). 13. MHMC's Rights Regarding Mechanical Specifications_, MHMC reserves the right to alter any advertising material due to press /production requirements. This reservation of right includes MHMC's right to reduce the size of any advertisement as long as the advertisement maintains the same proportion of the entire page. Advertising will be billed based on the space reserved /ordered. 14. Unavoidable Nonperformance. MHMC is not liable for failure to publish ads or distribute its publications because of flood, fire, riots, strikes, terrorists, storms, shortages of material, orders of government, failure Page 249 of 923 2 of transportation, acts of God or other causes beyond MHMC's control. In such an event, this Agreement will be extended for a period equal to the time during which such performance was not possible, 15. Clerical Errors. Incorrect rates on advertisements, which do not correspond to the rate card or as, otherwise specified in this Agreement, will be regarded as clerical errors and such advertisements will be charged at the applicable rate for such advertisement at the time of the signing of this Agreement. 16. Multiple Advertisers. Two or more advertisers will not be allowed to combine contracts, nor will advertising agencies be allowed to combine contracts of their clients or accounts, unless the businesses advertised are under common ownership and prior approval of MHMC has been obtained. 17. Advertising Agencies. The obligations of Advertiser and its advertising agency (if any) hereunder shall be joint and several. 18. Online Advertising. Without limiting the generality of any provision_ of this Agreement, — any - online advertising which is subject to this Agreement is subject to the following additional terms and conditions; (a) Advertiser grants to MI-IMC and any other party who is to publish the advertising described in this Agreement (each, a "Publishing Party") a non - exclusive, royalty -free, worldwide license in connection with this Agreement to (i) use, copy, adapt, reformat, recompile, manipulate, communicate by telecommunication, and /or modify any part of the Advertiser's online advertising materials (the "Advertisements ") for public performance, public display, and distribution; (ii) access, index, cache, and display the websites to which the Advertisements link, or any portion thereof, by many mean, including web spiders and /or crawlers; (iii) create and display copies of any text, images, graphics, audio, or video on the websites to which the Advertisements link or elsewhere; and (iv) distribute the Advertisements through the websites, properties, applications, and /or devices described in this Agreement (the "Distribution Network"), (b) Advertiser agrees that no Publishing Party shall have a liability for the Advertisements, Advertiser must provide all Advertisements to MHMC for review before any such Advertisement is published to the Distribution Network. A Publishing Party may refuse, reject, truncate, edit, cancel or remove any Advertisement or space reservation in its sole discretion at any time, Advertisements may be subject to inventory availability, and the final decision as to relevancy is at MHMC's discretion. MHMC does not guarantee that any Advertisement will be placed in, or available through, any part of the Distribution Network, nor does MHMC guarantee that any Advertisement will appear in a particular position or rank. Advertiser agrees to indemnify and hold harmless each Publishing Party, any other entities that own or operate any part of the Distribution Network, and the subsidiaries and affiliates of each of the foregoing, and their respective directors, officers, employees, agents, third -party service providers, and third parties distributing the Ads via the Distribution Network (collectively, the "Indemnified Parties "), from and against any and all damages, losses or expenses of any kind, whether actual or claimed (including reasonable attorneys' fees) (collectively, "Claims ") that arise out of or in connection with (1) any Advertisement, or any website(s) or material(s) that can be linked to through an Advertisement or (ii) Advertiser's breach of this Agreement, Advertiser agrees to be solely responsible for defending any Claim against an Indemnified Party, subject to such Indemnified Party's right to participate with counsel of its own choosing, and for payment of any and all judgments, settlements, damages, losses, liabilities, costs and expenses, including reasonable attorneys' fees, resulting from all Claims against an Indemnified Party, provided that Advertiser may not agree to any settlement that imposes any obligation or liability on an Indemnified Party without that party's express written consent. (c) If a Publishing Party fails to deliver, by the end of the period specified in this Agreement, the aggregate number of Advertisements agreed herein, then Advertiser's sole and exclusive remedy is limited to the following, which the Publishing Party may choose in its discretion: (1) a refund of the charges representing the Advertisements that were undelivered; (ii) placement of the Advertisements at a later time in a comparable position as determined by the Publishing Party; and /or (iii) an extension of the term of this Agreement with a refund representing any remaining undelivered Advertisements at the end of such extended term, (d) In the event of any error in publishing an Advertisement, the liability of any Publishing Party shall not exceed the cost of the time occupied by the error. In no event shall any Publishing Party's liability to Advertiser under this Agreement exceed the total amount paid or payable by Advertiser thereunder for online advertising. Claims for errors must be submitted by the Advertiser in writing within ten (10) days following the date on which the Advertisement is first published._ Advertiser- must - notify - MHMC —of the- error-to enable MHMC to make the appropriate Page 250 of 923 3 correction. Credit, if allowed, will be given in the form of re- publishing the correct Advertisement. No adjustment will be made where Advertiser is responsible for the error. (e) No Publishing Party shall have an3Fliability whatsoever in the event any act of God, the public enemy or government authority, labor dispute, war (whether declared or not), civil disobedience, riot or other occurrences beyond such Publishing Party's control shall in any way restrict or prevent the publishing of any Advertisement(s). (f) MHMC does not guarantee any given level of audience, (g) Any cancellation, change of date on which any Advertisement is to be published, and /or correction requested by Advertiser must meet MHMC's published deadlines. In the event Advertiser does not furnish Advertising in accordance with MI -IMC's deadline schedule, MI -IMC may, at its option, publish on behalf of Advertiser the last Advertisement provided as shall be necessary for Advertiser to comply with the terms of this Agreement. - -- ----- - - - - -- -- — - Terms and conditions submitted by Advertiser and /or Advertiser's forms of insertion order or copy instructions are not binding on MI-IMC or any other Publishing Party. Only the terms and conditions of this Agreement are binding. 19. Miscellaneous. Florida law shall govern the enforcement and interpretation of this Agreement, without regard to any conflict of law principles, The parties agree to submit to the exclusive jurisdiction of a court of competent jurisdiction located in Miami -Dade County, Florida. This Agreement may executed in one or more counterparts, each of which shall constitute an original and all of which shall constitute one and the same document. A legible facsimile copy of this Agreement when fully executed shall be considered an original copy of this Agreement. Advertiser represents and warrants to Publisher that: (i) no additional consents, approvals or corporate actions are necessary for Advertiser to enter into this Agreement; (ii) execution of this Agreement by Advertiser will not cause a breach or default in any other agreement to which Advertiser is a party; and, (iii) Advertiser is not insolvent. In the event of a fling by or against Advertiser of a petition under the Bankruptcy Code, in its sole discretion, Publisher may (i) discontinue one or all of Advertiser's advertisings; (ii) demand advance payment; or, (iii) terminate all agreements with Advertiser, This Agreement and any exhibits attached hereto contains the entire understanding between the parties and supersedes any prior written or oral understandings, as well agreements, between them regarding the subject matter, This Agreement shall not be modified except in writing signed by the parties. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective permitted successor and assigns. The Agreement may not be assigned (by operation of law or otherwise) by Advertiser. In the event that any provision contained in this Agreement or the application thereto to any circumstance is for any reason held to be invalid or unenforceable, such provision shall be ineffective to the minimum extent of such invalidity or unenforceability and the remainder of this Agreement will remain valid and enforceable according to its terms. 20. LIMITATION OF LIABILITY. IN THE EVENT OF ANY ALLEGED BREACH BY PUBLISHER OF THE AGREEMENT OR ANY OTHER CLAIMS BY ADVERTISER OR ANY OTHER PARTY, PUBLISHER SHALL IN NO EVENT BE LIABLE FOR SPECIAL OR CONSEQUENTIAL DAMAGES. UNDER NO CIRCUMSTANCES SHALL PUBLISHER BE LIABLE FOR DAMAGES IN EXCESS OF THE LESSER OF AN AMOUNT WHICH (I) EXCEEDS OF THE COST OF THE ADVERTISEMENT; OR, (II) THE AMOUNT ACTUALLY PAID BY ADVERTISER TO PUBLISHER. PUBLISHER'S PAYMENT OF SUCH AMOUNT SHALL BE ADVERTISER'S EXCLUSIVE REMEDY AND AGREED UPON LIQUIDATED DAMAGES. PUBLISHER HEREBY DISCLAIMS ANY WARRANTIES NOT SPECIFICALLY SET FORTH IN THIS AGREEMENT AND ADVERTISER WAIVES ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR ARISING BY COURSE OF DEALING OR PERFORMANCE, CUSTOM, USAGE IN THE TRADE OR OTHERWISE. 21. Undersigned's Authority to Execute and Deliver This Agreement. Each person purporting to execute and deliver this Agreement on behalf of his or her respective party hereby personally represents and warrants to the other party that such individual has all requisite power, right and authority to so execute and deliver this Agreement on behalf of such party and that no further consents or permissions are required in order to legally bind such party. Agreement is executed by the parties on the date first written above and delivered in Miami, Florida. 4 Page 251 of 923 Publisher: Advertiser: Miami Herald Media Company By: By: Print Name: Print Name: Title: Title: Exhibit Advertising Agreement Special Rates L Dole City Attorney Set forth below are the Special Rates in effect for the Term: ROP Rates. The following rates reflect the 48x contract level from the RetalL rate card. The Miami Herald 48x APPROVED AS TO LANGUAGE EXECUTION El Nuevo Herald 48x Nett 48x All Special Rates for each product is as indicated and may not be combined with Special Rates for other products or other discounts. ADDED VALUE Annual Spend of $295,314 receives value added of 7.5% in ROP advertising to be used throughout the duration of the contract 5 Page 252 of 923