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Agreement PROFESSIONAL SERVICES AGREEMENT BETWEEN THE CITY OF MIAMI BEACH, FLORIDA AND THE NIXON GROUP, INC. TO DEVELOP THE CITY OF MIAMI BEACH CULTURAL ARTS COUNCIL MARKETI NG PLAN THIS AGREEMENT is made this a. Co day of A v3uSt , 1999 by and between the CITY OF MIAMI BEACH, FLORIDA (City), which term shall include its officials, successors, legal representatives, and assigns, and THE NIXON GROUP, INC. (Consultant). SECTION 1 DEFINITIONS Agreement: This written Agreement between the City and the Consultant. City Manager: "City Manager" means the Chief Administrative Officer of the City. Consultant: For the purposes of this Agreement, Consultant shall be deemed to be an independent contractor, and not an agent or employee of the City. Fixed Fee: Fixed amount paid to the Consultant to allow for its costs and margin of profit. Project Coordinator: An individual designated by the City Commission to coordinate, direct and review on behalf of the City all technical matters involved in the Services. Proposal Documents: Proposal Documents shall mean the a) Request for Proposals No. 35- 98/99 (RFP No. 35-98/99) for the City of Miami Beach Cultural Arts Council Marketing Plan, issued by the City, in contemplation of this Agreement, together with all amendments, and b) the Consultant's proposal and response (Proposal) which is incorporated by reference in this Agreement and made a part hereof. Risk Manager: The Risk Manager of the City, with offices at 1700 Convention Center Drive, Third Floor, Miami Beach, Florida 33139. Services: All services, work and actions by the Consultant performed pursuant to or undertaken under this Agreement described in Section 2. Termination: Termination of Consultant Services as provided in Subsection 11 of this Agreement. Task: A discrete portion of the Services to be accomplished by the Consultant, as described in Section 2, as directed and authorized by the City. SECTION 2 SCOPE OF WORK AND SERVICES REQUIRED The scope of work to be performed by the Consultant is set forth in Exhibit "A," entitled "Scope of Services" (Services). -2- SECTION 3 COMPENSATION 3.1 FIXED FEE Consultant shall be compensated for the Services performed herein on a fixed fee basis of One Hundred and Fifty Thousand and 00/100 Dollars ($150,000), for providing the Services as set forth in Exhibit "A" hereto, such fixed fee to be distributed in the manner provided in the attached Exhibit "A". 3.2 METHOD OF PAYMENT Payment shall be made monthly to the Consultant pursuant to invoices or other submissions by the Consultant which detail or represent the completion of those phases of the Services, as set forth in Exhibit "A". Specific milestones shall include the submission of an invoice documenting the completion of the proportion of the Services performed in each phase of the work. All submissions shall contain a statement that the items set forth therein are true and correct and in accordance with the Agreement. Payments shall be made within thirty (30) days of submission of the invoice or report to the City. SECTION 4 GENERAL PROVISIONS RESPONSIBILITY OF THE CONSULTANT With respect to the performance of the Services, the Consultant shall exercise that degree of skill, care, efficiency and diligence normally exercised by recognized professionals 4.1 -3- with respect to the performance of comparable Services. In its performance of the Services, the Consultant shall comply with all applicable laws and ordinances, including but not limited to, applicable regulations of the City, County, State, Federal Government, ADA, EEO Regulations and Guidelines. 4.2 PUBLIC ENTITY CRIMES State of Florida Form PUR 7068, Sworn Statement under Section 287.133(3)(a) Florida Statute on Public Entity Crimes as available with the office of the City Clerk, shall be filed by Consultant. 4.3 PROIECT MANAGEMENT The Consultant shall appoint a qualified individual acceptable to the City to serve as Project Manager for the Services who shall be fully responsible for the day-to-day activities under this Agreement and who shall serve as the primary contact for the City's Project Coordinator. 4.4 DURATION AND EXTENT OF AGREEMENT The term of this Agreement shall be for a period of one year, commencing retroactively on July 1, 1999, and ending on July 1, 2000. Provided, however, that as to any additional services requested by the City within such one year period, such services may be completed beyond such one year period, as mutually agreed to in writing by the parties, prior to their commencement. A reasonable extension oftime shall be granted in the event the work of the Consultant is delayed or prevented by the City or by any circumstances beyond the reasonable control of the Consultant, including weather conditions or acts of God which render performance of the Consultant's duties impracticable. -4- 4.5 NOTICE TO PROCEED Unless directed by the City otherwise, the Consultant shall proceed with work on the Services only upon issuance of a Notice to Proceed by the City. 4.6 OWNERSHIP OF DOCUMENTS AND EQUIPMENT All documents prepared by the Consultant pursuant to this Agreement are related exclusively to the Services described herein, and are intended or represented for ownership by the City. Any reuse by Consultant or the parties shall be approved in writing by the City. 4.7 INDEMNIFICATION Consultant agrees to indemnify and hold harmless the City of Miami Beach and 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, at law or in equity, which may arise or be alleged to have arisen from the negligent acts, errors, omissions or other wrongful conduct of the Consultant, its employees, agents, sub-consultants, or any other person or entity acting under Consultant's control, in connection with the Consultant's performance of the Services pursuant to this Agreement; and to that extent, the Consultant shall pay all such claims and losses and shall pay all such costs and judgements which may issue from any lawsuit arising from such claims and losses, and shall pay all costs and attorneys' fees expended by the City in the defense of such claims and losses, including appeals. The parties agree that one percent (1 %) of the total compensation to the Consultant for performance of the Services under this Agreement is the specific consideration from the City to the Consultant for the Consultant's Indemnity Agreement. The Consultant's obligation under this Subsection shall not include the obligation to -5- indemnify the City of Miami Beach 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. 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. 4.8 INSURANCE REQUIREMENTS The Consultant shall not commence any work pursuant to this Agreement until all insurance required under this Subsection has been obtained and such insurance has been approved by the City's Risk Manager. The Consultant shall maintain and carry in full force during the term of this Agreement and throughout the duration of the work the following Insurance: 1. Consultant General Liability in the amount of $1,000,000.00. A certified copy of the Consultant's (and any sub-consultants') Insurance Policy must be filed and approved by the Risk Manager prior to commencement. 2. Workers Compensation & Employers Liability as required pursuant to Florida statute. Thirty (30) days written notice of cancellation or substantial modification in the insurance coverage must be given to the City's Risk Manager by the Consultant and his insurance company. The insurance must be furnished by insurance companies authorized to do business in the State of Florida and approved by the City's Risk Manager. Original certificates of insurance for the above coverage must be submitted to the City's Risk Manager for approval prior to any work commencing. These certificates will be kept on file in the office of the Risk Manager, 3rd Floor, City Hall. The Consultant is responsible for obtaining and -6- submitting all insurance certificates for their consultants. All insurance policies must be issued by companies authorized to do business under the laws of the State of Florida. The companies must be rated no less than "B +" as to management and not less than "Class VI" as to strength by the latest edition of Best's Insurance Guide, published by A.M. Best Company, Oldwick, New Jersey, or its equivalent, subject to the approval of the City's Risk Manager. Compliance with the foregoing requirements shall not relieve the Consultant of the liabilities and obligations under this Subsection or under any other portion of this Agreement, and the City shall have the right to obtain from the Consultant specimen copies of the insurance policies in the event that submitted certificates of insurance are inadequate to ascertain compliance with required overage. 4.8.1 Endorsements All of Consultant's certificates, above, shall contain endorsements providing that written notice shall be given to the City at least thirty (30) days prior to termination, cancellation or reduction in coverage in the policy. 4.8.2 Certificates Unless directed by the City otherwise, the Consultant shall not commence the Services until the City has received and approved, in writing, certificates of insurance showing that the requirements of this Subsection (in its entirety) have been met and provided for. 4.9 TERMINATION. SUSPENSION AND SANCTIONS 4.9.1 Termination for Cause If through any cause within the reasonable control of the Consultant, the Consultant shall fail to fulfill in a timely manner, or otherwise violate any of the covenants, agreements, -7- or stipulations material to this Agreement, the City shall thereupon have the right to terminate the Services then remaining to be performed. Prior to exercising its option to terminate for cause, the City shall notify the Consultant of its violation of the particular terms of this Agreement and shall grant Consultant ten (10) days to cure such default. If such default remains uncured after (10) days, the City, upon seven (7) days notice to Consultant, may terminate this Agreement. In that event, all finished and unfinished documents, data, studies, surveys, drawings, maps, models, photographs, reports and other work products prepared by the Consultant and its subcontractors shall be properly delivered to the City and the City shall compensate the Consultant in accordance with Section 3 for all Services satisfactorily performed by the Consultant prior the date of the Notice of Termination. Notwithstanding the above, the Consultant shall not be relieved of liability to the City for damages sustai ned by the City by vi rtue of any breach of the Agreement by the Consu Itant and the City may reasonably withhold payments to the Consultant for the purposes of set-off until such time as the exact amount of damages due the City from the Consultant is determined. 4.9.2 Termination for Convenience of City The City may, for its convenience and without cause, terminate the Services then remaining to be performed at any time by giving written notice to Consultant of such termination, which shall become effective seven (7) days following receipt by Consultant of the written termination notice. In that event, all finished or unfinished documents and other materials as described in Section 2 and Exhibit "A" shall be properly delivered to the City. If the Agreement is terminated by the City as provided in this Subsection, the City shall -8- compensate the Consultant for all Services satisfactorily performed by the Consultant and reasonable direct costs of Consultant for assembling and delivering to City all documents. Such payment shall be the total extent of the City's liability to the Consultant upon a Termination for Convenience, as provided for in this Subsection. 4.9.3 Termination for Insolvency The City also reserves the right to terminate the remaining Services to be performed in the event the Consultant is placed either in voluntary or involuntary bankruptcy or makes an assignment for the benefit of creditors. In such event, the right and obligations for the parties shall be the same as provided for in Section 4.11.2. 4.9.4 Sanctions for Noncompliance with Nondiscrimination Provisions In the event of the Consultant's noncompliance with the nondiscrimination provisions of this Agreement, the City shall impose such sanctions as the City or the State of Florida may determine to be appropriate, including but not limited to, withholding of payments to the Consultant under the Agreement until the Consultant complies and/or cancellation, termination or suspension of the Services. In the event the City cancels or terminates the Services pursuant to this Subsection the rights and obligations of the parties shall be the same as provided in Section 4.11.2. 4.9.5 Chan&es and Additions Each such change shall be directed by a written Notice signed by the duly authorized representatives of the Consultant. Said Notices shall provide an equitable adjustment in the time of performance, a reallocation of the task budget and, if applicable, any provision of this Agreement which is affected by said Notice. The City shall not reimburse the Consultant for the cost of preparing Agreement change documents, written Notices to Proceed, or other -9- documentation in this regard. 4.10 ASSIGNMENT. TRANSFER OR SUBCONTRACTING The Consultant shall not subcontract, assign, or transfer any work under this Agreement without the prior written consent of the City. 4.11 SUB-CONSULTANTS The Consultant shall be liable for the Consultant's serVices, responsibilities and liabilities under this Agreement and the services, responsibilities and liabilities of sub- consultants, and any other person or entity acting under the direction or control of the Consultant. When the term "Consultant" is used in this Agreement, it shall also be deemed to include any sub-consultants and any other person or entity acting under the direction or control of Consultant. 4.12 EQUAL EMPLOYMENT OPPORTUNITY In connection with the performance of this Agreement, the Consultant shall not discriminate against any employee or applicant for employment because of race, color, religion, ancestry, sex, age, national origin, place of birth, marital status, or physical handicap. The Consultant shall take affirmative action to ensure that applicants are employed and that employees are treated during their employment without regard to their race, color, religion, ancestry, sex, age, national origin, place of birth, marital status, disability, or sexual orientation. Such action shall include, but not be limited to the following: employment, upgrading, demotion, or termination; recruitment or recruitment advertising; layoff or termination; rates of pay, or other forms of compensation; and selection for training, including apprenticesh i p. -10- 4.13 CONfliCT OF INTEREST The Consultant agrees to adhere to and be governed by the Metropolitan Dade County Conflict of/Interest Ordinance (No. 72-82), as amended; and by the City of Miami Beach Charter and Code, which are incorporated by reference herein as if fully set forth herein, in connection with the Agreement conditions hereunder. The Consultant covenants that it presently has no interest and shall not acquire any interest, direct or indirectly which should conflict in any manner or degree with the performance of the Services. The Consultant further covenants that in the performance of this Agreement, no person having any such interest shall knowingly be employed by the Consultant. No member of or delegate to the Congress of the United States shall be admitted to any share or part of this Agreement or to any benefits arising therefrom. 4.14 PATENT RIGHTS: COPYRIGHTS: CONFIDENTIAL FINDINGS Any patentable result arising out of this Agreement, as well as all information, design specifications, processes, data and findings, shall be made available to the City for public use. No reports, other documents, articles or devices produced in whole or in part under this Agreement shall be the subject of any application for copyright or patent by or on behalf of the Consultant or its employees or subcontractors. 4.15 NOTICES All communications relating to the day-to-day activities shall be exchanged between the Project Manager appointed by Consultant and the Project Coordinator designated by the City. The Consultant's Project Manager and the City's Project Coordinator shall be designated promptly upon commencement of the Services. All other notices and communications in writing required or permitted hereunder may -11- be delivered personally to the representatives of the Consultant and the City listed below or may be mailed by registered mail, postage prepaid (or airmailed if addressed to an address outside of the city of dispatch). Until changed by notice in writing, all such notices and communications shall be addressed as follows: TO CONSULTANT: The Nixon Group, Inc. Attn: Kim Falconer 2800 Biscayne Blvd., 6th Floor Miami, Florida 33137 (305) 573-9955 TO CITY: City of Miami Beach Cultural Arts Council Attn: David Whitman 1700 Convention Center Drive, 4th Floor Miami Beach, FL 33139 (305) 672-ARTS WITH COPIES TO: City of Miami Beach Office of the City Attorney Attn: Murray H. Dubbin, City Attorney 1 700 Convention Center Drive Miami Beach, FL 33139 Notices hereunder shall be effective: If delivered personally, on delivery; if mailed to an address in the city of dispatch, on the day following the date mailed; and if mailed to an address outside the city of dispatch on the seventh day following the date mailed. 4.16 LITIGATION IURISDICTION/VENUE This Agreement shall be enforceable in Dade County, Florida, and if legal action is -12- necessary by either party with respect to the enforcement of any or all of the terms or conditions herein exclusive venue for the enforcement of same shall lie in Dade County, Florida. 4.17 ENTIRETY OF AGREEMENT This writing and the Services embody 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. The Services and the Proposal Documents are hereby incorporated by reference into this Agreement. No alteration, change, or modification of the terms of this Agreement shall be valid unless amended in writing, signed by both parties hereto, and approved by the City Commission of the City of Miami Beach. This Agreement, shall be governed by and construed according to the laws of the State of Florida. 4.18 LIMITATION OF CITY'S LIABILITY The City desires to enter into this Agreement only if in so doing the City can place a limit on the 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 total sum of the Agreement, as set forth herein, less any sums already paid to Consultant. Consultant hereby expresses its willingness to enter into this Agreement with Consultant's recovery from the City for any damage action for breach of contract to be limited to a maximum amount equal to the sum of the Agreement, less the amount of all funds actually paid by the City to Consultant pursuant to this Agreement. -13- Accordingly, and notwithstanding any other term or condition of this Agreement, Consultant hereby agrees that the City shall not be liable to the Consultant for damages in an $150,OOO,~~ amount in excess of I'\which amo~~1I be reduced by the amount actually paid by the City to Consultant 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 paragraph or elsewhere in this Agreement is in any way intended to be a waiver of the limitation placed upon the City's liability as set forth in Section 768.28, Florida Statutes. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their appropriate officials, as of the date first entered above. FOR CITY: CITY OF MIAMI BEACH, FLORIDA ATTEST: By: ~J- feudv- By: ~~ Mayor City Clerk APPROVED AS TO FORM & LANGUAGE & FOR EXECUTION FOR CONSULTANT: THE NIXON GROUP BY:~ Secretary -..- 111~ gln/dn_ City AitorMV ~ BY:~~~~~ reSident ATTEST: Corporate Seal -14- EXHIBIT A MIAMI RF.ACH CIJ14TlJRAL ARTS COIJNCIL The Nixon Group: Monthly S"'(Jpe t~lSf!'rv;n',~. 7129/99 CLlltura, Arts CouncU Invoice. submitted on 15th of neh month Month July Augu.t September October Deliverables Develop marketing plan timeline Attend Council Marketing Committee meetings Create targeted national, local & trade media Itsts Present 4-5 tag-line ideas to Council for approval Present marketing materials concepts to Council for approval Commence negotiations with Internet & media partners Prepare agency introduction for distribution to Council niembe1'5 Begin researching and compiling News Bureau story ideas Draft launch press kit materials Out-of-pocket expenses.. On-going development and management of News Bureau Development and distribution ot News Bureau fax-back questionnaire for Council members Prepare key message training for Council spokespeople Approval of Council mar1tetlng collateral Council marketing materials to print Finalize targeted media lists Finalize launch press kit materials Finalize negotiations for Council Internet aite Monthly progress report Out-of-pocket expenses.. On-going News Bureau development and management Commence pitchin~ of News Bureau story Ideas Attend Council Merketing Committee meetings Disseminate Council marketing collateral Invitation to The Arts Disseminate and follo.up on COundl press materials Begin Council Internet site development Monthly progress report Out-of-pocket expenses" On-gotng News Bureau development and management On-going pitchIng of News Bureau story ideas Attend Council MarkeUng Committee meetings Begin development of Business Partnership program On.going Councillnter"et site development Monthly progress report Out of pocket expenses.. Progress Payment $12,500 $12.500 $12,500 $12,500 MIAMI BEACH (:UI.T\JRAL ARTS (:OlJNCIL The Nixon Group: Monthly St'ope of Services. 1/2919Q November On-going News Bureau development and management Attend Council Marketing Committee meetings Present overview at Miami Beach Arts Council Town Meeting Arts Council Internet Site Launch Begin development of Culture Counter program Begin development. of Cultural Consulates Begin development of Cultural Conciergn On-going Business Partnership development Monthly progress report Out of pocket expenses- December Ja"U8ry February March AprU On-going News Bureau development and management On-going pitching of News Bureau story ideas Attend Council Mar1ceting Committee meetings Council I nte mat site update and management Manage on1l0ing Council programs Monthly progress report Out of pocket expenses" On-going News Bureau development and management On-gOing pitching of News Bureau story ideas Attend Coun<:il Marketing CommIttee meetings Councillntemet site update and management Manage on-going Council programs Monthly progress report Out of pocket expenses.. On-going News Bureau development and management On-going pitching of News Bureau atory ideas Attend Council M8rket.ng Committee meetings Council Internet site update and management Manage on-going Council programs Monthly progress report Out of pocket expenses.. On-going News Bureau development and management On-going pitching of Newa Bureau story ideas Attend Council Marketing Committee meetings Councillntemet site update and management Manage on-going Council programs Monthly progress report Out of pocket expenses.. On-going News Bureau development and management On-going pitching of News Bureau story ideas Attend Council Marketing Committee meetings Councillnt.rn.t aite update and management Manage on-going Council programs Monthly progress report Out of pocket expenses" $12,500 $12,500 $12,500 $12,500 $12,500 $12,500 MIAMl.DEACH l:UL T\JRAI.. ARTS CUUNCIL Thc! Nixon Group: Monthly Scope ofSc!rvict.'.o;* 7/29/99 MIY June Total 12-month Budget On-going News Bureau development and management On-going pitching of News Bureau story ideas Attend CounCil Marketing Committee meetings Council I ntemet site update and management Manage on-going Council programs Monthly progress report Year two research and planning Out of pocket expenses" On-going News Bureau development and management On-going pitching of News Bureau story ideas Attend Council Marketing Committee meetings On-going Internet activity Manage on-going Council programs Monthly progress report Yelr two research and planning Out of pocket expenses" $12,500 $12,500 $150,000 · Monthly budgata Inclualva of In .ervle.. .. Out of Pocket expen..a Inelud,: printing costs for '99 Council coIl8tf/lflll pif1C8; monthly clipping service: set up & management of faxle-mail hot/ine