CONTRACT 3244 Vender Agreement CLOSED3 2 4 4 ..
AGREEMENT
THIS AGREEMENT, ( "Agreement ") is made and entered into by and among the CITY OF EL
SEGUNDO, a municipal corporation, (hereafter "City ") and TEAM ONE ADVERTISING
(hereafter "Agency ").
The parties hereby agree as follows:
1. AGENCY RESPONSIBILITIES AND SERVICE
Agency will be responsible to City for the preparation, execution and placement of advertising
on behalf of City. In connection therewith, Agency will perform the following services for City:
A. Planning Advertising
i. Familiarize itself with the business of the City and with City's attributes
and /or services.
TeamOne
A o v E R T I S I N c ii. Analyze City's present and potential markets.
iii. Provide marketing counsel, utilizing its knowledge of the factors of
economic development and its methods of operation.
iv. Provide media planning services, utilizing its knowledge of the available
media and means that can be used to advertise City's attributes and /or services.
B. Execution and Placement of Advertising. In the execution of these plans, when
approved by City, Agency will do the following:
i. Prepare copy, layouts, scripts, storyboards and other elements and
materials ( "work product ") to be used in implementing City's advertising plans.
ii. Secure, on City's behalf, all materials and services necessary for the
production of finished advertising materials. Should it be necessary in connection
therewith to employ performing talent, Agency will utilize the services of an
independent talent payment service organization as "employer of record."
iii. Contract for the space, time or other means to be used for dissemination of
City's advertising.
iv. Prepare or supervise the preparation of all materials in accordance with
applicable specifications and time requirements and forward the same to the
media with proper instructions for fulfillment of the contract.
V. Endeavor to make all purchases at the most advantageous rates available
and audit and pay all invoices received for medial, production and services.
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C. General Verification. Agency will check regularly, in accordance with the reasonable
practices and procedures of the industry, to ensure advertising placed in the various
media has appeared as ordered. Specifically, Agency will check:
i. The insertions of all print advertising for appearance, date, position, size
and mechanical reproduction.
ii. The broadcast of radio and television advertising for time, accuracy and
other related factors.
iii. The display of outdoor advertising for appearance, position, size,
workmanship and mechanical reproduction.
D. Credits, Rebates, Adjustments. Agency will use reasonable efforts to secure for
City's account any credits or adjustments due from any media by reason of the
publication of any of City's advertising not in accordance with the contract specifications
or trade custom.
2. INDEMNIFICATION — INSURANCE
A. It will be Agency's responsibility to:
i. Use due care in the performance of Agency's obligations under this
Agreement.
ii. Obtain the necessary consents, licenses, releases or other authorization for
the use of all materials, properties or services in connection with the performance
of Agency's services.
iii. Use Agency's best efforts to protect City against claims for the
unauthorized use of name or likeness of any person; libel; slander; defamation;
disparagement; piracy; plagiarism; idea misappropriation; infringement of
copyright, title, slogan or other property rights; and any invasion of the right of
privacy as well as third -party personal injury and damage claims attributable to
Agency's activities undertaken pursuant to this agreement.
iv. Submit to City for approval, and obtain City's approval of, all advertising
or other materials prepared under this Agreement, prior to the publication,
broadcast or dissemination thereof.
B. Agency will defend, indemnify and hold City, its elected and appointed officials,
employees and agents harmless and free of liability and expense occasioned by any
claim, suit or proceeding instituted by a third party which results from or arises out of
Agency's negligence or intentionally wrongful conduct relating to Agency's
responsibilities as specified in paragaph II.A., above.
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C. Notwithstanding any provision to the contrary, Agency will, at its own expense,
indemnify and defend City against any claim that Agency's work product furnished
under this Agreement infringes a copyright in the United States. In such event, Agency
will pay all costs damages and attorney's fees that a court finally awards as a result of
such claim. To qualify for such defense and payment, City must (a) give Agency prompt
written notice of any such claim; and (b) allow Agency to control, and fully cooperate
with Agency in the defense and all related settlement negotiations. City agrees that if the
use of Agency's work product becomes, or Agency believes is likely to become, the
subject of such an intellectual property claim, City will permit Agency, at its option and
expense, either to secure the right for City to continue using Agency's work product or to
replace it with comparable work product.
D. It is expressly understood and agreed that the foregoing provisions will survive
termination of this Agreement.
E. Agency agrees to obtain and maintain in force, at Agency's sole expense, an
Advertising Agency Liability Policy with Agency as the insured, and City as an
additional insured, having a minimum limit of liability of $2,000,000 per occurrence.
Agency further agrees to obtain and maintain in force additional insurance, as follows:
i. Before commencing performance under this Agreement, and at all other
times this Agreement is effective, Agency will procure and maintain the following
types of insurance with coverage limits complying, at a minimum, with the limits
set forth below:
Type of Insurance
Commercial general liability:
Professional Liability
Workers compensation
Limits
$1,000,000
$1,000,000
Statutory requirement
ii. Commercial general liability insurance will meet or exceed the
requirements of ISO -CGL Form No. CG 00 01 11 85 or 88. The amount of
insurance set forth above will be a combined single limit per occurrence for
bodily injury, personal injury, and property damage for the policy coverage.
Liability policies will be endorsed to name City, its officials, and employees as
"additional insureds" under said insurance coverage and to state that such
insurance will be deemed "primary" such that any other insurance that may be
carried by City will be excess thereto. Such insurance will be on an "occurrence,"
not a "claims made" basis. Agency will notify City of any cancellation or
reduction of coverage.
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iii. Agency will furnish to City duly authenticated Certificates of Insurance
evidencing maintenance of the insurance required under this Agreement as may
be reasonably required by City from time to time. Insurance must be placed with
insurers with a current A.M. Best Company Rating equivalent to at least a Rating
of "A:VII." Certificates must reflect that the insurer will provide thirty (30) day
notice of any cancellation of coverage.
F. It is City's responsibility to:
iv. Provide information and /or data relevant to claims or representations made
with respect to City's attributes or services.
V. Review all advertising or other materials prepared under this Agreement in
order to ascertain that all claims or representations made therein, whether direct or
implied, are true, based upon reliable data in City's possession and to confirm the
accuracy of the descriptions and depictions of City's attributes and services and/or
any competitors attributes or services.
G. City will defend, indemnify and hold Agency harmless and free of liability and
expense occasioned by any claim, suit or proceeding instituted by a third party which
results from the use by Agency of material, information or data furnished by City or from
City's failure to discharge City's responsibility as specified in Paragraph ILF above.
H. In the event of any proceeding by any state or federal regulatory agency or any
court action challenging or objecting to information contained in any published
advertisement prepared by Agency pursuant to this Agreement and approved by City,
Agency will assist in the preparation of the defense of such action or proceeding in
cooperation with City and City's attorneys. Any out -of- pocket costs Agency may incur
will be reimbursed by City, provided they have been authorized in advance by City's
authorized representative.
I. It is understood that Agency reserves the right to refuse to undertake any
campaign, or prepare or cause publication of any advertising, publicity or other material
which, in Agency's judgment, would be misleading, indecent, libelous, unlawful, or
otherwise prejudicial to City's or Agency's interest.
3. APPROVALS AND AGENCY AUTHORIZATION
A. No expenditures or commitments shall be made, nor shall any advertising material
be released to the media, without the prior approval of City's appropriate authorized
representative. If initial approval is obtained orally, confirming approval shall be
obtained in writing from City's appropriate authorized representative within five (5)
working days.
B. Agency will be authorized to act on City's behalf and as City's agent in securing
materials and services required to execute City's advertising and in contracting for
advertising space and time in any of the media.
IN
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4. BASIC COMPENSATION. In accordance with the services outlined in Section I above and
in Exhibit A, Agency will bill City and City agrees to pay for the items set forth in this section
IV, however, in no event shall the amount City is obligated to pay under this agreement exceed
$ 50,000
A. Agency will bill City for, and City agrees to pay, the published or negotiated rates for
advertising run in all media, including a commission of 15% of the gross charges (16-
2/3% commission in the case of outdoor advertising). However, in cases where media
allow no commission or less than 15% commission, City agrees to pay Agency at the
published or negotiated rates plus an amount which, together with the commission, if any,
allowed by media, will yield Agency 15% (16 -2/3% in the case of outdoor advertising) of
Agency's total charges to City before cash discount.
B. Agency will bill City for, and City agrees to pay the net out -of- pocket cost of all
materials purchased by Agency for City on City's authorization. Items to be billed on
this basis include, but are not limited to, charges for the following:
i. Artwork, photography, comprehensive layouts, mechanicals and
production storyboards.
ii. Print production, including typography, engraving, electrotypes, printing,
photostats and color photocopies.
iii. Radio ad /or TV production, including talent, studios, facilities, music and
all necessary production elements such as film prints, duplicate tapes and the
storage and distribution of materials.
iv. Purchase rights and payments of royalties.
C. Upon City's request, and as a supplement to the basic advertising services
referred to in Section I above, Agency is prepared to provide services in the following
specialized areas at a fee of $125.00 per hour:
i. Creation and production of collateral and sales support materials such as
brochures, marketing literature, audio /visual presentations and point -of -sale
materials.
ii. Direct marketing services, including development and execution of direct
mail material, and broadcast and direct response advertising.
iii. Comprehensive business -to- business communication services.
iv. Marketing services including lifestyle marketing, special events,
promotions and young adult marketing.
V. Design and execution of public relations programs.
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vi. Services relating to merchandising and display, sales promotion,
premiums, business meetings /presentations, and interactive in -store
merchandising.
vii. Corporate communications and corporate identity programs.
viii. Hispanic marketing and advertising.
ix. Marketing and communications research and consulting services.
Agency's fee for the above mentioned special services shall be estimated on a per job basis and
included in the "total cost" of each project assigned. No expenditures or commitments shall be
made without prior approval by City's appropriate authorized representative in writing or as
indicated in Paragraph III above.
D. Title to Purchased Products
City authorizes Agency to produce tangible personal property for City's account from time to
time as approved by City. In producing the finished products, it is expressly understood that the
title to all materials purchased by Agency to complete the property to be produced passes,
provided Agency has been reimbursed for said materials as provided herein, to City at the time
of purchase and prior to any use by Agency. Notwithstanding the foregoing, it is understood that
title to licensed materials shall not pass to City and that such materials will be used only in
accordance with the applicable license.
Such materials may include, but are not limited to, art work, illustrations, photography,
topography, airbrushing and photo retouching, film work, photostats, dyes, lithographic film and
plates, photo engravings and other materials needed to prepare the finished product.
E. Title to Preliminary Art
However, it is also understood that preliminary art, meaning roughs, visualizations, layouts and
comprehensives prepared by Agency for the purpose of demonstrating an idea or message prior
to approval for preparation of finished art, will remain Agency's property.
F. Sales Tax
City is responsible for any sales tax applicable to work performed for City, which may at any
time be levied as a result of an audit by a taxing authority having jurisdiction.
5. CHARGES FOR RESEARCH, TRAVEL, FREIGHT AND TELEPHONE
City agrees to pay the net out -of- pocket costs for the following:
A. Consumer and Market Research
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When Agency works as a supplier, City will assume the costs for copy research designed to
evaluate specific agency recommendations and /or to measure the effectiveness of advertising
executions, and for the other agency supervised consumer and market research projects
undertaken on Agency's behalf and with City's prior approval.
B. Travel
City shall reimburse Agency for the net cost of all travel expenses, including transportation, hotel
accommodations, meals, etc. incurred on City's behalf and with City's prior approval.
C. Freight and Mailing
Postage and shipping of materials plus applicable taxes.
D. Telephone
The cost of long distance calls and faxes incurred on City's behalf.
E. Materials produced by Agency will be billed at market rate (based on three
competitive bids). Agency has extensive capabilities to produce materials in -house on a
timely, high- quality and cost effective basis, such as:
-- Mechanicals
-- Stats
-- Computer Generated Work
-- Color Xeroxes
6. TERMS OF PAYMENT
A. Terms of Payment
In accordance with the generally recognized principle that an agency is not expected to finance
the advertising or activities of its clients, Agency's invoices shall be payable in accordance with
the due dates specified thereon.
B. Cash Discounts
All calculations of commissions shall be made before applicable cash discounts. The exact
amount of cash discount allowed to Agency for prompt payment shall be allowed to City,
provided City makes timely payment to Agency, and provided that City is not overdue on any
other payments due to Agency.
C. Responsibility for Payment to the Media
Agency will be solely liable to the media to the extent that proceeds have cleared from City to
Agency for advertising space or time purchased in accordance with this Agreement. For any
sums owing, but not cleared to the Agency, City shall be solely responsible to the media.
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7. TERMINATION OF AGREEMENT
A. Either party may terminate this Agreement, with or without cause, upon ninety (90)
days written notice.
B. Agency's rights, duties and responsibilities shall continue in full force during the
period of notice, including the ordering and billing of all advertising in media whose
closing dates or broadcast dates fall within such period.
C. Completed or partially completed projects that do not have corresponding media
support (thereby allowing Agency no media commissions) shall be billed on an hourly
basis at $125 /hour. Any production compensation on these projects previously billed
shall be credited against the calculated hourly compensation.
D. Upon expiration of the period of notice, all continuing rights and obligations under
this Agreement shall cease, with the following exceptions:
i. Any noncancellable or transferable contract made on City's authorization,
and still existing at the expiration of the period of notice, shall be carried to
completion by Agency and paid for by City in accordance with the provisions of
this Agreement, unless mutually agreed in writing to the contrary.
ii. Any materials, services, etc., which Agency has committed itself to
purchase on City's account pursuant to City's approval (or any uncompleted work
as previously approved by City either specifically or as part of a plan) shall be
paid for by City in accordance with the provisions of this Agreement.
iii. City is responsible for any sales tax applicable to work performed for City,
which may at any time be levied as a result of an audit by a taxing authority
having jurisdiction.
iv. As soon as may be practicable after the effective date of termination of
this Agreement, Agency shall render to City an invoice for all amounts then
payable by City hereunder. City agrees to pay such proper charges contained in
that invoice within ten (10) days after receipt. City acknowledge that upon
termination of this Agreement, City shall continue to be liable for all outstanding
obligations to third parties incurred in connection with Agency's services
pursuant to this Agreement, and City agrees to indemnify Agency with respect to
the same.
V. The obligation of Agency to defend and indemnify City pursuant to
paragraph II.B.
E. Upon payment by City of any amount due pursuant to Paragraph IV above, and
upon performance by City of any other obligations hereunder existing at the effective
date of termination, Agency will:
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i. Transfer, assign and make available to City or City's designated
representative, all property and materials in Agency's possession or control
belonging to City, including, but not necessarily limited to, all data, files, reports
and other written documents of whatever type or nature which have come into
Agency's possession from City or which relate to City's business, except to the
extent that it may be otherwise agreed upon herein.
ii. Give all reasonable cooperation toward transferring with approval of third
parties in interest, all reservations, contracts and arrangements with advertising
media, or others, for advertising space and time, or materials yet to be used, and
all rights and claims thereto and therein, upon being duly released from the
obligations thereof.
F. The covenants made in this Section VII and in Section II of this Agreement shall
survive the termination of this Agreement.
8. MISCELLANEOUS
A. Agency shall retain for such reasonable time as City may request (not to exceed two
(2) years from the date of termination of this agreement) all contracts, papers,
correspondence, copybooks, accounts, invoices and other information in Agency's
possession relating to Agency's handling of City's business and make all of such
material, or such portions of it as City may request, available at Agency's office for
examination by City's authorized representative during Agency's normal business hours.
B. The parties agree that disputes will be submitted to neutral non - binding (except as
provided herein) arbitration. The exclusive venue for any arbitration will be in Los
Angeles County. The expenses and fees of the arbitrators and the administrative fees, if
any, will be divided among the parties equally. Each party will pay its own counsel fees,
witness fees, and other expenses incurred for its own benefit. The decision rendered by
the arbitrator will become binding upon the parties unless appealed to the Los Angeles
County Superior Court within 30 days of the decision. If subsequent litigation results in
an award to the party appealing the arbitration that is less than or equal to that of the
arbitration decision, or if the litigation results in a decision in favor of the nonappealing
party, then the party appealing the arbitration will pay the nonappealing party's attorney's
fees and court costs.
C. This Agreement contains the entire understanding between the parties with respect to
the subject matter hereof and supersedes all prior understandings relating thereto. No
amendment, modification or waiver of this Agreement or any term hereof may be
effected except by an instrument in writing duly executed on behalf of the party against
whom the enforcement of such amendment, modification or waiver is sought.
D. The Parties represent and warrant that all necessary action has been taken by the Parties
to authorize the undersigned to execute this Agreement and to engage in the actions
described herein. This Agreement may be modified by written amendment. City's city
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manager may execute any such amendment on City's behalf.
E. The headings contained in this Agreement have been inserted for convenience of
reference only and shall in no way define, limit or affect the scope and intent of this
Agreement.
F. The Parties agree that this Agreement, agreements ancillary to this Agreement, and
related documents to be entered into in connection with this Agreement will be
considered signed when the signature of a party is delivered by facsimile transmission.
Such facsimile signature will be treated in all respects as having the same effect as an
original signature.
G. This Agreement has been made under and shall be governed by and construed in
accordance with the laws of the State of California. Venue for any action involving this
Agreement is Los Angeles County.
H. This Agreement shall become effective upon being fully executed.
IN WITNESS WHEREOF the parties hereto have executed this contract the day and year
first hereinabove written.
CITY OF EL SEGUNDO,
a general law city.
M Str
City Manager
ATTEST:
Cindy Mdttbsen,
City Clerk
APPRC
MARK
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Lewis F. Katz
Director Finance
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