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HomeMy WebLinkAboutConsensus Media, LLC Agreement for Communications and Branding Services - 2022 01 31 AGREEMENT FOR COMMUNICATIONS AND BRANDING SERVICES This Agreement is entered into this day of 20 between the CITY OF WINTER SPRINGS, a Florida municipal corporation (the "Client' or-the "City"}, 1126 East State Road 434 and CONSENSUS MEDIA, LLC. (the "Consultant"), a Florida limited liability company whose principal place of business is 201 S. Orange Avenue, Suite 950, Orlando, Florida 32801. Section 1. Engagement and Service Client hereby engages Consultant and Consultant hereby accepts the engagement upon the terms and conditions hereinafter as set forth. Consultant shall provide consulting services in support of Client's City Services Educational Program as outlined in Consultant's response (Exhibit A)to Client's Request for Proposal (RFP) (Exhibit B), both Exhibits being attached and incorporated herein by this reference. Within the scope of the engagement, Consultant shall devote its best effort and such time, attention, and energy to the business of Client as is required to fulfill its assignments, and shall be available for meetings and travel, with reasonable notice, and for telephone or video conferencing. Section 2. Authorization and Duties 2.01 The parties hereto agree and acknowledge that Ryan Houck and Trent Phillips ("Authorized Individuals") shall be authorized to act on behalf of Client in connection with the performance of Consultant's obligations pursuant to this agreement and that Casey Howard and Shawn Boyle of the City of Winter Springs shall be the individual(s) authorized to direct Consultant activities on behalf of Client. 2.02 Consultant shall respond promptly to all requests by Client. 2.03 The activities of Consultant on behalf of Client shall at all times be conducted in accordance with the highest ethical and professional standards, in strict compliance with all applicable laws and regulations. Section 3. Term Subject only to the provisions for termination set forth in Section 5 below,the term of Consultant's engagement shall be for a period of time beginning on January 1, 2022 and ending upon December 31, 2022. Client and Consultant may extend this engagement under the same terms and conditions in writing by addendum to this Agreement for up to two (2) additional one (1) year terms. Section 4. Compensation 4.01 For General Communications Counsel and Support (as outlined in Exhibit A), Client shall pay Consultant a fee of$3,500 per month,which shall be invoiced at the beginning of each month. 4.02 For Creative Content Development(as outlined in Exhibit A), Client shall pay Consultant a fee of$2,500 per month, which shall be invoiced at the beginning of each month. 4.03 For Graphic Design (as outlined in Exhibit A), Client shall pay Consultant a fee of$1,500 per month, which shall be invoiced at the beginning of each month. 4.04 For Digital and Social Media Programming, Brand Development,and Mail Programming (as outlined in Exhibit A), Consultant shall invoice Client 30-days prior to deploying funds, unless another mutually acceptable arrangement is agreed upon in writing by both parties. 4.05 For all other aspects of Client's City Services Educational Program, Consultant shall invoice Client as expenses are incurred and in accordance with Exhibit A. 4.06 Pricing included in Exhibit A is inclusive of Consultant's actual out-of-pocket expenses incurred by Consultant on behalf of Client in the performance of this Agreement including, without limitation, mileage, airfare, parking, meals, lodging, and duplication services. 4.07 No other fees or expenses shall be paid by the Client unless otherwise agreed in advance by the Client in writing. The Consultant shall not invoice the Client or seek any compensation from the Client to correct or revise any errors or deficiencies in the Consultant's services provided under this Agreement. 4.08 Invoicing and payments made under this Agreement shall be subject to the Florida Prompt Payment Act Section 218.70 et. seq., Florida Statutes. Section S. Termination Either Client or Consultant may terminate this Agreement without cause or penalty upon 30- days written notice to the other party. In the event of early termination by either party, Consultant shall immediately cease work under this Agreement unless otherwise directed by the Client in writing. Consultant shall then present an invoice to the Client within 10-days for any unpaid work actually performed pursuant to this Agreement up to the date that work ceased if not already paid by the Client, along with all completed and incomplete or draft work product prepared by the Consultant under this Agreement. Upon review of the work product and acceptance of said invoice by the Client,the Client will pay any fees incurred by Consultant in connection with the performance of Consultant's obligations pursuant to this agreement. If this Agreement is terminated,then Client shall be entitled to a refund of the pro-rata portion of any fees pre-paid by Client under this Agreement to the extent unearned by Consultant as of the effective date of termination or expiration Section 6. Indemnification Because of Client's intimate familiarity with its own business and the fact that Consultant serves as agent, Consultant cannot undertake to verify all the facts supplied by Client. Accordingly, subject to the limitations of Section 768.28, Florida Statutes, Client agrees to indemnify, defend and hold harmless Consultant from and against all liabilities, losses, damages or expenses, including reasonable attorneys' fees and costs, which Consultant may incur as the result of any claim, suit or 2 proceeding brought or threatened arising out of the any assertions made by Consultant on Client's behalf in any materials, that Consultant may prepare on Client's behalf, including assertions about Client's products or services if, and only if,the assertions are based on information, representations, reports, data or releases supplied to Consultant by or through Client or which Client approves (excluding claims covered under Consultant's indemnity below). Neither this provision nor any other provision of this Agreement shall be construed as a waiver of the Client's right to sovereign immunity under Section 768.28, Florida Statutes, or other limitations imposed on the Client's potential liability under state or federal law. Consultant will indemnify, defend and hold harmless Client against all liabilities, losses, damages or expenses, including reasonable attorneys'fees and costs, which Client may incur as the result of any claim,suit or proceeding brought or threatened against Client pertaining to libel, slander, defamation, copyright infringement or other intellectual property infringement, invasion of privacy and/or plagiarism, except to the extent that such claims arise from information or materials supplied or approved by or through Client. The Consultant also specifically assumes potential liability for actions brought by the Consultant's own employees against the Client and, solely for the purpose of carrying out this assumption,the Consultant specifically waives its entitlement, if any,to immunity under Section 440.11, Florida Statutes. This waiver has been specifically and mutually negotiated by the parties. In the event that Consultant is asked by Client to respond to or assist Client in connection with litigation commenced or threatened against Client by third parties that does not implicate or trigger Consultant's obligation to indemnify the Client (for example, in complying with a document subpoena unrelated to a claim for libel, slander, defamation, intellectual property infringement, invasion of privacy or other obligation requiring Consultant to indemnify Client), Consultant will be entitled to reimbursement of out-of-pocket expenses for services rendered to Client or time spent by Consultant, including its staff, in connection with such matters. After Consultant has issued information or materials to the press or to another third party at the direction of Client,the use of such information is no longer under Consultant's control. Consultant cannot assure the use of such information or materials by any media, nor that any information published will accurately convey the information provided by Consultant. Section 7. Records, Information and Confidentiality 7.1 Consultant agrees to deliver to Client at the end of the term of this Agreement, termination of this Agreement by either party or at any other time Client may request, all lists, memoranda, notes, plans, records and other documentation and data relating to Consultant's work for Client which Consultant may possess or have under its control. 7.2 Consultant agrees to keep confidential and not to disclose or use for its own benefit or for the benefit of any party other than Client (except as may be required for the performance of services under this agreement or as may be required by law, or at the direction of Client), any information, documents or materials (including those dealing with strategy or strategic discussions) identified by Client to be proprietary or confidential at the time that such information is made available. The confidentiality obligations in the preceding sentence, however, shall not extend to any 3 information, documents, or materials that (a) become publicly available without breach of this provision, (b) are received from a third party without restriction, or (c) are independently developed without reference to or benefit of information received hereunder from Client. The confidentiality provisions of this Section 7 shall survive the term of this Agreement or any extension of this Agreement. 7.3 Pursuant to Section 119.0701, Florida Statutes and other applicable public records laws, Consultant agrees that any records, documents, transactions, writings, papers, letters, computerized information and programs, maps, books, audio or video tapes, films, photographs, data processing software, writings or other material(s), regardless of the physical form, characteristics, or means of transmission, of Consultant related, directly or indirectly, to the services provided to the Client under this Agreement and made or received pursuant to law or ordinance or in connection with the transaction of official business by the Client, may be deemed to be a public record, whether in the possession or control of the Client or the Consultant. Said records, documents, transactions, writings, papers, letters, computerized information and programs, maps, books, audio or video tapes, films, photographs, data processing software, writings or other material(s), regardless of the physical form,characteristics, or means of transmission of Consultant are subject to the provisions of Chapter 119, Florida Statutes, and may not be destroyed without the specific written approval of the Client's designated custodian of public records. IF THE CONSULTANT HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE CONSULTANT'S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS AGREEMENT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS, THE CITY CLERK, AT (407) 327-5955, cityclerkdepartment@winterspringsfl.org, City Clerk's Office, 1126 East State Road 434, Winter Springs, FL 32708. Consultant is required to and agrees to comply with public records laws. Consultant shall keep and maintain all public records required by the Client to perform the services as agreed to herein. Consultant shall provide the Client, upon request from the City Clerk, copies of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided by law. Consultant shall ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law for the duration of the Agreement term. Upon completion of the Agreement, Consultant shall transfer to the Client, at no cost, all public records in possession of the Consultant, provided the transfer is requested in writing by the City Clerk. Upon such transfer, Consultant shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. However, if the City Clerk does not request that the public records be transferred, the Consultant shall continue to keep and maintain the public records upon completion of the Agreement and shall meet all applicable requirements for retaining public records. All records stored electronically must be provided to the Client, upon request from the City Clerk, in a format that is compatible with the information technology systems of the Client. Should the Client not possess public records relating to this Agreement which are requested to be inspected or copied by the Client or any other person, the Client shall immediately notify Consultant of the request and the Consultant shall then provide such records to the Client or allow the records to be inspected or copied within a reasonable time. if the Consultant does not comply with a public records request,the Client may enforce this Section to the extent permitted by law. Consultant acknowledges that if the Consultant does not provide the public records to the Client within a reasonable time, the Consultant 4 may be subject to penalties under Section 119.10, Florida Statutes. The Consultant acknowledges that if a civil action is filed against the Consultant to compel production of public records relating to this Agreement, the court may assess and award against Consultant the reasonable costs of enforcement, including reasonable attorney fees. All public records in connection with this Agreement shall, at any and all reasonable times during the normal business hours of the Consultant, be open and freely exhibited to the Client for the purpose of examination, audit, or otherwise. Failure by Consultant to grant such public access and comply with public records laws and/or requests shall be grounds for immediate unilateral cancellation of this Agreement by the Client upon delivery of a written notice of cancellation. If the Consultant fails to comply with this Section, and the Client must enforce this Section, or the Client suffers a third party award of attorney's fees and/or damages for violating Chapter 119, Florida Statutes, due to Consultant's failure to comply with this Section, the Client shall collect from Consultant prevailing party attorney's fees and costs, and any damages incurred by the City, for enforcing this Section against Consultant. If applicable, the Client shall also be entitled to reimbursement of all attorneys' fees and damages which the Client had to pay a third party because of the Consultant's failure to comply with this Section. The terms and conditions set forth in this Section shall survive the termination of this Agreement. 7.3 The City and the Consultant agree that upon payment of fees due to the Consultant by the City for a particular report, compilation, drawing, video, brochure or otherwise, said report, compilation, drawing, video, brochure or otherwise produced by the Consultant in the performance of this Agreement, or any Work hereunder, shall be the sole property of the City, and the City is vested with all rights therein. The Consultant waives all rights of copyright in said report, compilation, drawing, video, brochure or otherwise produced by the Consultant in the performance of this Agreement, and hereby assigns and conveys the same to the City whether in the possession or control of the Consultant or not. Said report, compilation, drawing, video, brochure or otherwise produced by the Consultant may be reused by the City for any reason or purpose at any time. Section S. Restrictive Covenant This Agreement is non-exclusive. Section 9. Limit of Engagement It is expressly understood and agreed that Consultant is and shall at all times remain an independent contractor and shall not at anytime serve as an employee of Client. Section 10. Notices Any notice required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been given three business days after mailing in the U.S. Mail in a postage prepaid envelope addressed as set forth above, or to such address as either Client or Consultant shall designate by written notice to the other. Notices to the Client shall be addressed to the City Manager. Section 11. Miscellaneous 5 11.01 This Agreement shall be subject to and governed by the laws of the State of Florida. Venue for any state action or litigation between the parties under this Agreement shall be Seminole County, Florida. Venue for any federal action or litigation shall be Orlando, Florida. 11.02 This Agreement contains the entire agreement of the parties. It may not be modified except by an agreement in writing executed by the parties hereto. 11.03 This Agreement with respect to the services specified shall constitute the entire agreement between the Client and Consultant and shall supersede all previous agreements and any previous written addenda thereto between Client and Consultant, both oral and written with respect to said services. 11.04 This Agreement may not be assigned by either party without the express written consent of the other party, provided that such consent may not be unreasonably withheld. 11.5 Unless otherwise expressly provided under this Agreement, should any litigation arise concerning this Agreement between the parties,the parties agree to bear their own costs and attorney's fees, whether at settlement, trial or on appeal. 11.6 Client and Consultant each represent that they have both shared equally in drafting this Agreement and no party shall be favored or disfavored regarding the interpretation of this Agreement in the event of a dispute between the parties. 11.7 Consultant shall not assign or subcontract this Agreement, or any rights or any monies due hereunder without the prior, written consent of the Client. 11.8 Notwithstanding any other provision set forth in this Agreement, nothing contained in this Agreement shall be construed as a waiver of the City's right to sovereign immunity under section 768.28, Florida Statutes, or other limitations imposed on the City's potential liability under state or federal law. 11.9 Pursuant to section 448.095, Florida Statutes, beginning January 1, 2021,Contractors, which shall include Consultant, shall register with and use the U.S. Department of Homeland Security's E-Verify system, https:Le-verify,uscis.gov/emp to verify the work authorization status of all employees hired on and after January 1, 2021. a. Subcontractors 1. Consultant shall also require all subcontractors performing work under this Agreement to use the E-Verify system for any employees they may hire during the term of this Agreement. 2. Consultant shall obtain from all such subcontractors an affidavit stating the subcontractor does not employ, contract with, or subcontract with an unauthorized alien, as defined in section 448.095, Florida Statutes. 3. Consultant shall provide a copy of all subcontractor affidavits to the City upon receipt and shall maintain a copy for the duration of the Agreement. b. Consultant must provide evidence of compliance with section 448.095, Florida Statutes. Evidence shall consist of an affidavit from the Consultant stating all employees hired 6 on and after January 1, 2021 have had their work authorization status verified through the E- Verify system and a copy of their proof of registration in the E-Verify system. C. Failure to comply with this provision is a material breach of the Agreement, and shall result in the immediate termination of the Agreement without penalty to the City. Consultant shall be liable for all costs incurred by the City securing a replacement Agreement, including but not limited to, any increased costs for the same services, any costs due to delay, and rebidding costs, if applicable. Section 12 Insurance 12.1 Liability Amounts. During the term of this Agreement, Consultant shall be responsible for providing the types of insurance and limits of liability as set forth below. a. General Commercial Liability. The Consultant shall maintain comprehensive general liability insurance in the minimum amount of$1,000,000 as the combined single limit for each occurrence and $2,000,000 in the aggregate to protect the Consultant from claims of property damages and personal injury which may arise from any Services performed under this Agreement whether such Services are performed by the Consultant or by anyone directly employed by or contracting with the Consultant. b. Automobile Liability. The Consultant shall maintain comprehensive automobile liability insurance in the minimum amount of$1,000,000 combined single limit bodily injury and minimum $50,000 property damage as the combined single limit for each occurrence to protect the Consultant from claims for damages for bodily injury, including wrongful death, as well as from claims from property damage, which may arise from the ownership, use, or maintenance of owned and non-owned automobiles, including rented automobiles whether such operations be by the Consultant or by anyone directly or indirectly employed by the Consultant. C. Worker's Compensation. The Consultant shall maintain, during the life of this Agreement, adequate Workers' Compensation Insurance and Employers' Liability Insurance in at least such amounts as are required by law for all of its employees performing Work for the City pursuant to this Agreement. 12.2 Special Requirements. Current,valid insurance policies meeting the requirements herein identified shall be maintained during the term of this Agreement. Renewal certificates shall be sent to the City thirty (30)days prior to any expiration date. There shall also be a thirty(30) day advance written notification to the City in the event of cancellation or modification of any stipulated insurance coverage. The City shall be an additional named insured on stipulated insurance policies included in article 12.1.b and 12.1.c herein, as its interest may appear,from time to time. In the event that the Consultant shall fail to comply with the foregoing requirement, the City is authorized, but in no event shall be obligated,to purchase such insurance, and the City may bill the Consultant. The Consultant shall immediately forward funds to the City in full payment for said insurance. It is expressly agreed that neither the provision of the insurance referred to in this Agreement nor the City's acceptance of the terms, conditions or amounts of any insurance policy shall be deemed a warranty or representation as to adequacy of such coverage. All insurance coverage shall be with insurer(s) rated as A+ by Best's Rating Guide (or equivalent rating and rating service as reasonably determined by the 7 City Manager) and licensed or approved by the State of Florida to engage in the business of writing of insurance. IN WITNESS THEREOF,the parties have executed this Agreement effective as of the day and year written below. [SIGNATURES ON FOLLOWING PAGE] City of linter Springs Consensus Media, LLC (the "Client") (the "Consultant") Shawn Boyle Ryan Houck City Manager Partner DATE: a 8 -2-0 Z Z DATE: 8