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RESOLUTION 93-20747 1 . • 1 RESOLUTION NO. 93-20747 A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AUTHORIZING THE MAYOR AND THE CITY CLERK TO ENTER INTO AN AGREEMENT BETWEEN THE CITY OF MIAMI BEACH AND KELLEY SWOFFORD, INC. ("AGENCY") TO PROVIDE THE CITY WITH A CREATIVE CAMPAIGN FOR ITS ANTI-LITTER AND RECYCLING PROGRAM. WHEREAS, on December 23 , 1992 , Request for Proposals were issued by the City of Miami Beach regarding an Anti-Litter campaign to be undertaken by the City, and; WHEREAS, Kelley Swofford, Inc. ("Agency") agrees to provide the City with a creative campaign for its Anti-Litter and Recycling Program, and; WHEREAS, the Agency shall perform or provide and be responsible for all work, labor and services, and furnish all supplies, materials, tools and equipment necessary for executing the aforementioned creative campaign, and; WHEREAS, the Agency shall complete and submit the creative campaign within sixty (60) days of the execution of the attached Agreement, pursuant to the Agreement attached hereto as Exhibit "A" . NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and the City Clerk are hereby authorized to enter into an Agreement between the City of Miami Beach and Kelley Swofford, Inc. to provide the City with a creative campaign for its Anti-Litter and Recycling Program. PASSED and ADOPTED this 17th day of ' arch 1993 . MAYOR ATTEST: 4141 • 111N1610 IT CLERK FORM APPROVED RMC:EC: lcd LEGAL DEPT. Attachment "-cc By Date S.- /1.- �3 CITY OF MIAMI BEACH (1:;1 CITY HALL 1700 CONVENTION CENTER DRIVE MIAMI BEACH FLORIDA 33139 OFFICE OF THE CITY MANAGER TELEPHONE: (305) 673-7010 FAX: (305) 673-7782 COMMISSION MEMORANDUM NO. 0-93 TO: Mayor Seymour Gelber and DATE: March 17 , 1993 Members of the City Commission FROM: Roger M. Ca , City Manage SUBJECT: RESOLUTION AUTHORIZING THE MAYOR AND THE CITY CLERK TO ENTER INTO AN AGREEMENT BETWEEN THE CITY OF MIAMI BEACH AND KELLEY SWOFFORD, INC. TO PROVIDE THE CITY WITH A CREATIVE CAMPAIGN FOR ITS ANTI-LITTER AND RECYCLING PROGRAM. ADMINISTRATION RECOMMENDATION: The Administration recommends that the City Commission approve the Resolution authorizing the Mayor and the City Clerk to enter into an Agreement between the City of Miami Beach and Kelley Swofford, Inc. , to provide the City with a creative campaign for its Anti- Litter nti- Li`ter and Recycling Program. BACKGROUND: At the February 17, 1993 Commission meeting and pursuant to Commission Memorandum No. 110-93, the Commission confirmed the selection of Kelley Swofford Inc. which was the highest ranked firm. The Commission also authorized the Administration to enter into an Agreement with Kelley Swofford, Inc. ANALYSIS: In order for the City to move forward with its effort to improve the cleanliness of city streets, sidewalks, and parks, an integral part of the Anti-Litter program is the commencement of the advertising campaign. CONCLUSION: The Administration recommends that the City Commission approve the Resolution authorizing the Mayor and the City Clerk to enter into an Agreement between the City of Miami Beach and Kelley Swofford, Inc. RMC:EC: lcd Attachments 238 AGENDA AS:1g ITEM DATE 3- F/-93 Agreement between The City of Miami Beach and Kelley Swofford, Inc. Agreement -7trft` is made and entered into this -`7 day of March, 1993 , by and between the CITY OF MIAMI BEACH ("CITY") AND KELLEY SWOFFORD, INC. ("Agency") , located at 355 Palermo, Coral Gables, Florida 33134 . I . Scope of Basic Services The Agency agrees to provide the City with a creative campaign for its Anti-Litter and Recycling Program. The Agency shall perform or provide and be responsible for all work, labor and services, and furnish all supplies, materials, tools and equipment necessary for executing the aforementioned creative campaign, which shall include the following: A. ) Creative concepts, designs, layouts, copy, comprehensive designs, TV storyboards and radio scripts necessary to implement an effective Anti-Litter and Recycling Campaign. B. ) The creative concepts and designs supplied will be applicable for ads and/or materials for newspaper, magazines, ads, TV, radio spots and posters. C. ) The creative concepts will be applied in English and adaptable to other languages. The Agency also agrees to assist in the judging of a campaign slogan contest open to the general public, and based on the winning slogan, will design a campaign logo. The aforementioned basic services are for a creative campaign only. Any subsequent finished art or production activity directed t in execution of the creative campaign shall be considered an Additional Service(s) , and subject to the terms and conditions of Article III of this Agreement. The Agency shall complete and submit the aforementioned work consisting of the creative campaign within sixty (60) days of execution of this Agreement. II . Compensation The City shall pay the Agency a fixed fee of seven thousand five hundred and 00/100 dollars ($7, 500 . 00) for the preparation and completion of the creative services delineated in Article I of this Agreement. III . Additional Services and Terms The City shall also approve a total capped budget which shall in no event exceed the amount of $40, 000, for the purpose of promoting and executing Phase I (the Slogan Contest) of the Anti- Litter and Recycling Campaign. Subject to the limitations of the above amount budgeted by the City to promote and execute Phase I of its Anti-Litter and Recycling Campaign, the Agency shall agree to provide the following additional services, in accordance with the following terms. In addition to budgetary considerations, such additional services shall also be subject to the prior written approval of the City of a work order submitted by Agency prior to commencement of the work and detailing the type of work to be performed, as well as the cost and time of completion for same. A) The Agency agrees to produce all approved required ads, TV and radio commercials, posters, flyers and any other art work and materials requested and budgeted by the City. 2 B) All production costs will be submitted to City in writing, in advance, for its approval before any work commences. C) "Production costs" include all expenses for services and materials required to develop advertising materials, such as: photography, models, illustrations, image manipulation, digital art work, color and black and white transfers, veloxes, film output, typesetting, retouching, printing, filming, on line and off line editing for radio and TV commercials, art direction, film direction, production supervision, dubbing, master tapes, scanning and special effects, rental props and equipment. D) Additionally, invoices for photo copies, delivery, postage, mail handling, telephone and fax related to such additional services herein will be billed to City, and so included by Agency and City in the total budgeted amount for the campaign. E) The Agency shall inform City when it intends to subcontract with any outside services required for the production of any of the aforementioned material . Any such subcontract shall be subject to the prior written approval of the City. F) The Agency shall receive a commission of 17 . 65% of the net production costs made by third parties with whom the Agency has subcontracted with on behalf of the City, for products or services which are to be used to implement the advertising proposals approved by the City. G) The Agency will make its best effort to negotiate favorable rates from all parties for this project for the good of the City of Miami Beach. H) The City shall pay the Agency a flat fee of $4 , 000 for any special services not included above. In addition to budgetary 3 considerations, such special services shall also be subject to the prior written approval of the City. I) "Special services" can include the research and planning of an appropriate media placement campaign for print (newspaper and magazine) , radio and TV; and making contracts on behalf of the City, with the advertising media for space or time and with others to effectuate the advertising program and obtaining the most favorable terms and rates available. All contracted paid media space or time will be billed by the media directly to the Agency, and Agency shall bill City, and be subject to the budgetary limits established for the campaign. J) The Agency shall make its best efforts through packaging, marketing and negotiating to secure commitments for free space and time for the Public Service Advertising for the City. K) In the event media or other charges increase or decline after the Agency has submitted an estimate, the City shall pay for such increase or be given a credit for such reduction, as the case may be. In the event the amount of space or time or other advertising services actually used are less than those previously contracted for on behalf of the City, City shall pay for any increased rate charged by the media due to loss of volume discount or because of higher scheduled rates. In the event additional space or time or services are so used, thereby resulting in a lower rate, the City shall make payment to the respective media at such lower rate. L) In the event the City, after having approved any planned advertising, cancels all or any part thereof, the City shall pay for all media costs incurred therefore to the date of cancellation and any unavoidable costs incurred thereafter, including any noncancellable commitments for time or space. 4 M) If so directed in writing by the City, the Agency shall : i) Provide marketing consulting and program development which can include but not be limited to: encouraging local businesses to participate in the City' s Anti-Litter and Recycling Campaign to expand its reach and frequency of the message; ii) Provide public relations or publicity work on behalf of the City. This can include the development of a publicity program, press releases, coordinations of press conferences and media relations; iii) Provide the City with additional marketing services including direct response campaigns, telemarketing distribution and data base management. All services provided will be on a mutually agreed upon fee, each fee to be included in and subject to the budget to be established for the additional services for the campaign. N) All plans, preliminary outlines, sketches, copy, TV and radio tapes and all other property and materials which are produced under this Agreement, shall be the property of the City as soon as payment has been made therefor. 0) The City agrees to make prompt payments within thirty (30) days of presentation of the Agency' s monthly invoices. City shall pay contracted media directly and on a timely basis to maintain continuation of the advertising program. IV. Time Extensions A reasonable extension of contract time will be granted in the event there is a delay on the part of the City in fulfilling its 5 part of the Agreement or should conditions beyond the Agency' s control or Acts of God render performance of Agency' s duties impossible. The City Manager shall be the sole judge of what constitutes "beyond the Agency' s control . " V. Inspection The City shall have the right at reasonable times to review the progress of the scope of work outlined by Article I and of such other additional or special services as may be budgeted and approved in Article III, during the work thereon, and to receive progress reports from the Agency upon request. VI . Assignment, Transfer or Subcontracting The Agency shall not assign, transfer, or subcontract their creation and control over the scope of services provided in this Agreement to another party without the prior written approval of the City. VII. Equal Employment Opportunity and Non-Discrimination In connection with the execution of this Agreement, the Agency or its subcontractors shall not discriminate against employees or applicants for employment because of race, religion, color, age, sex, ancestry, marital status, physical handicap, place of birth or national origin. The Agency shall take affirmative actions to ensure that applicants are employed, and that employees are treated during their employment, without discrimination as to religion, color, sex, age, ancestry, martial status, physical handicap, place of birth or national origin. Such actions shall include, but not be limited to, the following: employment, upgrading, demotion or transfer; recruitment or recruitment advertising; and selection for training, including apprenticeship. 6 VIII . Termination for Convenience Performance by either party under this Agreement may be terminated for the convenience of either party at any time upon furnishing seven (7) days written notice to the other party. In the event of termination for convenience of either party, the Agency shall at its option have the right to either: A) An equitable adjustment in the fee (without allowance for an anticipated profit on unperformed services) in which event the City shall have the right at its discretion to possession and use of the sketches, designs, and models already produced and submitted or produced for submission by the Agency under this Agreement prior to the date of termination; or B) The possession of all sketches, designs, models or other documents or materials produced and submitted or produced for submission to the City in the course of the Agency' s performance under this Agreement prior to termination, in which case the Agency shall remit to the City a sum equal to all payments (if any) made to the Agency pursuant to this Agreement prior to termination. IX. Breach or Default; Termination I f, through any cause, the Agency should fail to fulfill in a timely manner, the material obligations under this Agreement, or if Agency should violate any of the material covenants, agreements or stipulations of this Agreement, the City shall thereupon have the right to terminate this Agreement. Prior to terminating the Agreement, the City shall notify the Agency of its intent to terminate, stating the provision giving rise to the alleged default. In the event the default is not timely corrected, the Agreement may be terminated by written notice from the City to the Agency. In the event that the City so terminates this Agreement, 7 the City is not required to compensate the Agency for its services or any expenses incurred after receipt of notification of the termination. X. Arbitration Any controversy or claim for money damages arising out of or relating to this Agreement, or the breach hereof, shall be settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and the arbitration award shall be final and binding upon the parties hereto and subject to no appeal , and shall deal with the question of the costs of arbitration and all matters related thereto. In that regard, the parties shall mutually select one arbitrator, but to the extent the parties cannot agree upon the arbitrator, then the American Arbitration Association shall appoint one. Judgment upon the award rendered may be entered into any court having jurisdiction, or application may be made to such court for an order of enforcement. Any controversy or claim other than a controversy or claim for money damages arising out of or relating to this Agreement, or the breach hereof, including any controversy or claim relating to the right to specific performance, shall be settled by litigation and not arbitration. XI . Limitation of Liability The City desires to enter into this Agreement only if in so doing the City can place a limit on City' s liability for any cause of action for money damages due to an alleged breach by the City of this Agreement, so that its liability for any such breach never exceeds the sum equal to the total amounts established under this Agreement as the Agency' s compensation for the scope of work under Article I and for such budgeted compensated amount to Agency as shall be determined by the agreed upon and budgeted scope of work for Additional Services, pursuant to Article III of the Agreement. Agency hereby expresses its willingness to enter into this 8 Agreement with Agency' s recovery from the City for any damage action for breach of contract to be limited to a maximum amount equal to the compensation it receives for the scope of work to be performed under Article I, and agreed upon and budgeted under Article III of this Agreement, less the amount of all funds actually paid by the City to Agency pursuant to this Agreement. Accordingly, and notwithstanding any other term or condition of this Agreement, Agent hereby agrees that the City shall not be liable to Agent for damages in an amount in excess of the aforementioned determinable amounts which amounts shall be reduced by the amount actually paid by the City to Agent pursuant to this Agreement, for any action or claim for breach of contract arising out of the performance or non-performance of any obligations imposed upon the City by this Agreement. Nothing contained in this subparagraph or elsewhere in this Agreement is in any way intended to be a waiver of the limitation placed upon City' s liability as set forth in Florida Statutes, Section 768 . 28 . XII . Indemnification The Agency agrees to indemnify and hold harmless, the City, its officers, employees and agents, from and against any and all actions, claims, liabilities, losses, and expenses, including but not limited to attorneys ' fees, for personal, economic or bodily injury, wrongful death, loss of or damage to property, in law or in equity, which may arise or be alleged to have arisen from the negligent acts or willful omission or other wrongful conduct of the Agency or his subcontractors, employees, or agents in connection with the Agency' s performance of services pursuant to this Agreement. The Agency' s obligation under this article shall not include the obligation to indemnify the City and its officers, employees and agents, from and against any actions or claims which arise or are alleged to have arisen from negligent acts or omissions or other wrongful conduct of the City, and its officers, employees and agents. 9 • The parties each agree to give the other party prompt notice of any claim coming to its knowledge that in any way directly or indirectly affects the other party. XIII . Notices All notices under the terms of this Agreement shall be sent to the following: Agency: Kelley Swofford, Inc. 355 Palermo Avenue, Coral Gables, FL 33134 City: City of Miami Beach, c/o City Manager' s Office, 1700 Convention Center Drive, Miami Beach, Florida 33139 . XIV. Unenforceable Provisions If any provision of this Agreement is determined to be void or unenforceable by any court or in any arbitration proceeding as provided herein, the Agreement shall remain in effect in accordance with its terms, excluding the provision declared void or unenforceable, subject to the other terms, covenants, conditions and provisions of this Agreement. XV. Entirety of Agreement This writing embodies the entire agreement and understanding between the parties hereto, and there are no other agreements and understandings, oral or written, with reference to the subject matter hereof that are not merged herein and superseded hereby. No alteration, change, or modification of the terms of the Agreement shall be valid unless made in writing and signed by both parties hereto and approved by appropriate action of the City Commission. This Agreement, regardless of where executed, shall be governed by and construed according to the laws of the State of Florida. 10 • IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the this 21-1*-- day of ititt.4-U,L, 1993 . ATTEST: CITY CLERK CITY "F MIAMI BE, -H BY: ' CitiNtAAA -" B •YOR Adi, ifr 4• cr WITNESS PRESS DENT K tY SWOFFO' s INC. 611A4.1A..A) . CkiL WITNESS SECRETARY KELLj SWOFFORD, INC. FORM APPR9VED L GA � By Date 3/ 1-3 /4) jm\a:rja\antilit.agr March 22, 1993 11 ORIGINAL RESOLUTION NO. 93-•2U,4/ Authorizing the Mayor and the City Clerk 111111111111 to enter into an agreement between the City of Miami Beach and Kelly Swofford, Inc. ("Agency") to provide the City with a creative campaign for its anti-litter and recycling program.