09/08/1993 Agreement AGREEMENT
THIS AGREEMENT is entered into this fh day of se��• ,
1993, by and between the BOARD OF COUNTY COMMISSIONERS, Monroe County,
Florida, hereinafter referred to as the COUNTY and TINSLEY ADVERTISING &
MARKETING, INC. hereinafter referred to as FIRM;
WITNESSETH
WHEREAS, FIRM is qualified to provide advertising services which promote tourism,
and
WHEREAS, the Tourist Development Council (TDC) has recommended to COUNTY
that FIRM be awarded a contract for advertising services, and
WHEREAS, wishes to enter into this Agreement for advertising services with the
FIRM,
1. TERM.; The term of this Agreement is for a period of three (3) years
beginning October 1, 1993. The COUNTY has an option to extend this contract for an
additional (12) month period beyond the initial award period, upon 60 days prior written
notice of agreement extension to FIRM.
2. SCOPE OF SERVICES: The FIRM's services shall include, but not be limited
to the following:
A. Enhance, recommend and implement the current annual plan for the
most effective advertising and promotional program, with strategies especially directed
toward:
1. Consumers including and not limited to the State of Florida, the
United States, Canada, United Kingdom, Europe and Asia;
2. Travel industry, including travel agents, tour and vacation
packages, including, but not limited to, the United States, Canada, the United Kingdom,
Europe and Asia;
3. Convention and meeting planners; and
4. Other population segments that will yield the greatest return to
Monroe County tourism for advertising dollars expended.
B. Create, design, and produce a program of advertisements to most
effectively appeal and target tourists to visit and revisit the Florida Keys and Key West.
C. Analyze, develop, and purchase the most efficient and productive
media, including, but not limited to, newspapers, magazines, and broadcast.
D. Provide and produce the necessary materials for placing advertisements
and the production of brochures and related sales materials.
E. Develop and continue co-op programs with mutually beneficial partners.
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F. Develop and coordinate district advertising efforts to enhance the over-
all generic campaign while emphasizing the five district features.
G. Analyze, on an on-going basis data from outside research services to
which the FIRM subscribes, including, but not limited to the following: Mediamark Research
Inc., Simmons, Monroe Medelsohn, Leading National Advertisers, Publishers Information
Bureau, Broadcast Advertisers Report, Arbiton, and Neilson.
H. Perform custom research as approved by the TDC which will be billable
at agency's cost plus thirteen and one half (13.5) percent.
3. DETAIL OF AGENCY SERVICES:
A. Key Personnel: This contract is a professional services contract with
expectation that principal personnel performing the services are those personnel listed.
Notice of any change in personnel shall be sent to the Board of County Commissioners and
the Tourist Development Council. The principals assigned are the following:
1) Sandra Tinsley, Chairman of the Board;
2) Jim Flanagan, President;
3. Jim Johnson, Vice President, Account Manager
MINIMUM STAFF PERSONNEL ASSIGNED:
1) Account Supervisor;
2) Account Executive; and additional staff within the normal agency
services will be assigned as required.
B. At least one of the principals shall meet with the Monroe County Tourist
Development Council (TDC) at all regularly scheduled meetings of the TDC and at any other
times as directed by the TDC.
C. The FIRM agrees to assign an Advertising Account Supervisor who will
devote such time and effort as necessary to the account on a priority basis, including full
time when required. Duties of the Account Supervisor will include contact as required with
the Chairman or Vice-Chairman of the TDC; the Chairman of the Advertising committee or
other designee. Other duties include regular visits to major tourism centers throughout
Monroe County; consultations with TDC Advisory Committees form the five districts and/or
Chambers of Commerce within the Keys as directed by the TDC; participation in, and
coordination of, media planning, coordination of production and traffic activities with the
FIRM, coordination within the FIRM, coordination liaison with Mail fulfillment Services on
behalf of the Council, and liaison with private sector resorts, attractions and other tourism
related fields in Monroe County, as it relates to the development of an effective advertising
program for the Florida Keys.
D. The FIRM agrees that time is of the essence, and to provide on a timely
basis copy and concepts; supervision of tangible materials for media and collateral
production, including: radio and television, print, outdoor, direct mail, etc.; traffic and billing
of media and collateral production materials.
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E. FIRM shall employ its knowledge of available media and media
research, and normal use of outside media research services to which the FIRM subscribes
for the purpose of planning media advertising programs.
F. FIRM shall counsel COUNTY in the use of special media, marketing,
product and consumer research as may be advisable.
G. FIRM shall formulate and recommend plans as defined with the Scope of
Services.
H. FIRM shall order space, time or other means of media to be used,
endeavoring to secure the most advantageous rates available, checking and verifying such
media use, auditing and paying invoices to media.
I. FIRM shall negotiate special talent fees, with TDC approval; and
supervise talent payments in accordance with trade agreements.
4. COMPENSATION: Compensation shall be paid, subject to availability of
Tourist Development Tax Funds as follows:
A. Generic Program:
1) The FIRM will bill all gross media, billings which include a 15%
commission, to the County at a one and one half (1.5) percent discount and all net media at
cost plus thirteen and one half (13.5) percent and all collateral material will be charged at
cost plus thirteen and one half (13.5) percent. This will include all generic district campaign,
fishing and diving umbrella campaigns, organization representing artistic/special/dramatic
campaigns, and event activities.
2) Co-op advertising shall be defined as any advertising dollars,
tangible or intangible inkind services that would normally be paid for by the TDC under this
contract. Cooperative advertising would include, but not be limited to the following:
Corporate sponsorship of everts supported by TDC Funds, Airline cooperative advertising,
shipping of brochures to Europe by an airline, co-op advertising from hotels, motels,
attractions and credit card companies etc.
The agency will be paid a percentage based on the following scale:
Up to $ 200,000 - 14% of co-op
Up to $ 300,000 - 16% of co-op
Up to $ 400,000 - 189/0 of co-op
Up to $ 500,000 - 20% of co-op
Up to $ 600,000 - 22% of co-op
Up to $ 700,000 - 24% of co-op
Up to $ 800,000 - 26% of co-op
Up to $ 900,000 - 28% of co-op
Up to $1,000,000 - 30% of co-op
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Compensation based on the value of co-op advertising shall be determined on an
annual basis commencing October 1, 1993, through September 30, 1994. On October 1,
1994, the value will begin at V and only the value of co-op advertising obtained during the
fiscal year ending September 30, 1995, shall be used to determine the percentage paid
during that fiscal year. Each subsequent fiscal year's compensation will be calculated in the
same manner.
Co-op value up to $200,000.00 shall be deemed the first level, to which is applied the
first level percentage. Each $100,000 and 2% scheduled thereafter is a new level. Upon
reaching a new level, an additional 201* will be paid on all previous co-op advertising value
obtained for that fiscal year in addition to the new level percentage paid on additional co-op
advertising.
To be eligible for a co-op payment the co-op vendor must give a certified itemized
statement of the value of the co-op advertising and/or the FIRM will deduct the amount of
payments from its billing to County.
3) All creative staff time for generic, district, fishing, diving,
artisWspecial/dramatic and event campaigns (Creative Director, Art Director, copywriter,
Computer Artists, Mechanical Artists, Broadcast Producer & Assistants and Production and
Traffic personnel), will be invoiced at prevailing agency rates. (See Exhibit A)
5. REIMBURSABLE EXPENDITURES: The COUNTY shall
reimburse the FIRM for all approved expenditures and payments made on the COUNTY's
account and in addition thereto shall pay the FIRM for its respective services.
A. Invoices
1) All invoices submitted by the FIRM to the TDC shall be marked as
to which account it is properly chargeable.
2) Normal production costs for specific pre-approved jobs will be
submitted for payment at one time upon completion.
3) No percentage will be acted to FIRM charges for packaging,
shipping, express mail, postage, telephone, telegraph, FAX and travel expenses for FIRM's
personnel.
4) The FIRM's invoices and statements shall be due and payable
within ten (10) days after submission with properly documented backup, referencing
Resolution #397-1990 and as/or amended subject to availability of Tourist Development tax
funds administered by the COUNTY. Media bills subject to an additional two (2) percent
discount are to be paid by the County within ten (10) days of submission by the agency to
take advantage of such discounts.
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B. Maior Work
The FIRM agrees to render monthly invoices for completed portions of all
work in progress (i.e. television commercial production, audio visual aids, photo shots, and
brochures, etc.), copies of proof of performance at the following stages shall be submitted for
approval:
1) print Production
a) layout, design and mechanicals (typeset pasted in position)
b) printing or publication
2) Television. Audio Visual or Photo Shoot
Progressive billing shall be based on prior approved estimates for
same with costs and proper documentation accompanying said invoices.
3) Invoice Reconciliation
Media costs will be billed after tearsheets are received with
property earned discounts credited to the COUNTY. The FIRM shall check, and audit the
authenticity of all invoices from publishers for such advertising. The FIRM will reconcile all
accounts, and attach tearsheets as proof of proper insertion. FIRM shall pay no media until
it has received proof of proper performance.
County agrees to pay media and production invoices within the guidelines of the COUNTY's
Finance Office upon previous approval by TDC and COUNTY.
4) e=E=nses
Travel expenses of the Chairman, President, Account Supervisor
or their designee on behalf of the business of the TDC shall be compensated at the rates
established by Florida Law and County Administrative Orders. Any other representatives of
the agency attencling meetings must be approved by the Advertising Chairman of the TDC or
Administrative Office Manager.
6. GENERAL PROVISIONS:
A. Advertising Agency of Record: The FIRM shall act as the agency of
record of the COUNTYfW Bed Tax funds for the preparation and placing of all of the
latter's advertising, except as mutually agreed otherwise, and for the performance of related
or special services as requested by the TDC.
B. COUNTY shall indemnify and hold FIRM harmless from any suits,
claims, damages, costs, or expenses arising in connection with false, defamatory, or
otherwise objectionable advertising material, including material which invades the privacy
of individuals, which advertising material has been suggested, ordered or approved by
TDC. FIRM agrees to indemnify and hold harmless Monroe County against any claim of
liability, losses and causes of action which may arise out of the fulfillment of the agreement.
It agrees to pay all claims and losses and shall defend all suits filed due to the negligent
acts, errors or omissions of its employees and/or agents, including related court costs.
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C. Property Rights: The COUNTY shall own and have all rights subject
to Screen Actors Guild and American Federation of TV and Radio Artists regulations and
talent contracts, to any and all layouts, copy, art work, films and other advertising materials
which the FIRM prepared or purchased for the COUNTY's account pursuant to a program,
campaign, or project which the TDC has approved in writing, regardless of whether such
material was published, displayed, broadcast, distributed or otherwise presented prior to the
termination of the Agreement, provided the COUNTY has paid for same in accordance with
the provisions of this Agreement. Rejected concepts and layouts will not be charged to
COUNTY. (Screen Actors Guild and American Federation of TV and Radio Artists contracts
as provided to and maintained on file in the Administrative Office.)
7. APPROVAL AND CHANGES: The TDC shall have the sole and exclusive
right to approve, modify, reject, or cancel any and all plans, proposals, submissions and
other work in progress, in which case the TDC's directions shall be immediately
implemented. However, nothing in this Agreement shall be construed as requiring the FIRM
to violate any contractual commitments to media made on the TDC's behalf. All contractual
commitments to media require the TDC's prior written approval. The COUNTY shall only be
liable for charges approved in writing prior to the FIRM entering into such contractual
commitment.
S. TERMINATION: Either party shall have the right to cancel this Agreement at
its sole discretion upon 120 days written notice to the other party. FIRM shall deliver to the
COUNTY all papers and other material related to the work performed under this contract
upon termination thereof.
9. EXCLUSIVE REPRESENTATION: The FIRM agrees that it will not represent
any private resort or attraction within Monroe County or an other municipal or County
destination in Florida.
FIRM shall act at all time herein as independent contractor, and nothing contained
herein shall be construed to create the relation of principal agent or employer and
employee, between COUNTY and FIRM.
10. DISCLOSURE OF FINANCIAL INTEREST: The FIRM agrees to disclose
within thirty (30) days of the execution of this Agreement any existing financial interest in the
business of its suppliers or providers utilized in fulfillment of this Agreement, and shall
disclose said interests as they may arise from time to time.
11. LAWS AND REGULATIONS: ft shall be understood and agreed that any and
all services, materials and equipment shall comply full with all Local, State and Federal laws
and regulations.
12. TAXES: The BOCC and TDC are exempt from Federal Excise and State of
Florida Sales Tax.
13. FINANCE CHARGES: The BOCC and TDC will not be responsible for any
finance charges.
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14. RELATION OF BOCC/TQC. It is the intent of the parties hereto that Tinsley
Advertising & Marketing Inc. shall be legally considered as an independent contractor and
that neither it nor its employees shall, under any circumstances, be considered servants or
agents of the BOCC and TDC and the BOCC and TDC shall at no time be legally responsible
for any negligence on the part of Tinsley Advertising & Marketing Inc., its employees or
agents, resulting in either bodily or personal injury or property damage to any individual,
firm, or corporation.
15. DISCLOSURE: The FIRM shall be required to list any or all potential conflicts
or interest, as defined by Florida Statute 112 and Monroe County Code and shall disclose to
the BOCC and TDC all actual or proposed conflicts of interest, financial or otherwise, direct
or indirect, involving any client's interest which may conflict with the interest of the BOCC
and TDC.
15. FORCE MAJEURE: Firm shall not be liable for delay in performance or
failure to perform, in whole or in part, the services due to the occurrence of any contingency
beyond its control or the control of any of its subcontractors or suppliers, including labor
dispute, strike, labor shortage, war or act of war, whether an actual declaration thereof if
made or not insurrection, sabotage, riot or civil commotion, act of public enemy, epidemic,
quarantine restriction, accident, fire, explosion, storm, flood, drought or other act of God, act
of any governmental authority, jurisdictional action, or insufficient supply of fuel, electricity,
or materials or supplies, or technical failure where FIRM has exercised reasonable care in
the prevention thereof, and any such delay or failure shall not constitute a breach of this
Agreement.
16. ASSIGNMENT: The FIRM shall not assign, transfer, convey, sublet or
otherwise dispose of this contract, or of any or all of its right, title or interest therein, or its
power to execute such contract to any person, company or corporation without prior written
consent of the BOCC.
17. COMPLIANCE WITH LAWS - NONDISCRIMINATION: The FIRM shall comply
with all international, federal, state and local laws and ordinances applicable to the work or
payment for work thereof, and shall not discriminate on the grounds of race, color, religion,
sex, age, or national origin in the performance of work under this Agreement. This
Agreement shall be subject to all international, federal, state, and local laws and
ordinances.
18. INSURANCE: The FIRM shall maintain the following required insurance
throughout the entire term of this contract and any extensions. Failure to comply with this
provision may result in the immediate suspension of all work until the rehired insurance has
been reinstated or replaced. Delays in the completion of worts resulting from the failure of the
FIRM to maintain the required insurance shall not extend any deadlines specified in this
contract and any penalties and failure to perform assessments shall be imposed as if the
work had not been suspended, except for FIRM's failure to maintain the required insurance.
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The FIRM shall provide, to the County, as satisfactory evidence of the required
insurance, either:
" Certificate of Insurance
or
* A Certified copy of the actual insurance policy
The COUNTY, at its sole option, has the right to request a certified copy of any or all
insurance policies required by this contract.
All Insurance policies must specify that they are not subject to cancellation, non-
renewal, material change, or reduction in coverage unless a minimum of thirty (30) days
prior notification is given to the COUNTY by the insurer.
The acceptance and/or approval of the FIRM's insurance shall not be construed as
relieving the FIRM from any liability or obligation assumed under this contract or imposed by
law.
The Monroe County Board of County Commissioners, its employees and officials will
be included as "Additional Insured" on all policies, except for Workers' Compensation.
Any deviations from these General Insurance Requirements must be requested in
writing on the County prepared from entitled "Request for Waiver of Insurance Requirements"
and approved by Monroe County Risk Management.
A. Prior to the commencement of work governed by this contract, the FIRM shall
obtain Workers' Compensation Insurance with limits sufficient to respond to Florida
Statute 440.
In addition, the FIRM shall obtain Employers' Liability Insurance with limits of
not less than:
$100,000 Bodily Injury by Accident
$500,000 Bodily Injury by Disease
$100,000 Bodily Injury by Disease, each employee
Coverage shall be maintained throughout the entire term of the contract.
Coverage shall be provided by a company or companies authorized to transact
business in the state of Florida and the company or companies must maintain a
minimum rating of A-V1, as assigned by the A.M. Best Company.
B. Prior to the commencement of work governed by this contract, the FIRM shall
obtain General Liability Insurance. Coverage shall be maintained throughout the life
of the contract and include, as a minimum:
Premises Operations
* Products and Completed Operations
Blanket Contractual Liability
* Personal Injury Liability
Expanded Definition of Property Damage
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The minimum limits acceptable shall be:
$1,000,000 Combined Single Limit (CSL)
If split limits are provided, the minimum limits acceptable shall be:
$ 500,000 per person
$ 1,000,000 per Occurrence
$ 100,000 Property Damage
An Occurrence Form policy is preferred. If coverage is provided on a Claims
Made policy, its provisions should include coverage for claims filed on or after the
effective date of this contract. In addition, the period for which claims may be reported
should extend for a minimum of twelve (12) months following the acceptance of work
by the COUNTY.
The Monroe County Board of County Commissioners shall be named as
Additional Insured on all policies issued to satisfy the above requirements.
C. Recognizing that the work governed by this contract requires the use of
vehicles, the FIRM, prior to the commencement of work, shall obtain Vehicle Liability
Insurance. Coverage shall be maintained throughout the life of the contract and
include, as a minimum, liability coverage for:
Owned, Non-Owned, and Hired Vehicles
The Minimum limits acceptable shall be:
$300,000 Combined Single Limit (CSL)
If split limits are provided, the minimum limits acceptable shall be:
$100,000 per Person
$300,000 per Occurrence
$ 50,000 Property Damage
D. Advertising Professional Liability Insurance with minimum limits of $1,000,000
per Occurrence and $2,000,000 aggregate.
19. GOVERNING LAWNENUE: This Agreement shall be governed and construed
by and in accordance with the laws of the State of Florida and constitutes the entire
agreement between the SOCC and FIRM. Venue for any dispute shall be in Monroe
County.
20. ENTIRE AGREEMENT AMENDMENT: This writing embodies the entire
Agreement and understanding between the parties hereto, and there are not other
agreements and understandings, oral or written, with reference to the subject matter hereof
that are not merged herein and superseded hereby. Any amendment to this Agreement shall
be in writing recommended by the TDC and approved by the BOCC and signed by both
parties.
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22. SEVERABILITY: If any provision of this Agreement shall be held by a Court of
competent jurisdiction to be invalid or unenforceable, the remainder of this agreement, or the
application of such provision other than those as to which it is invalid or unenforceable,
shall not be affected thereby; and each provision of this Agreement shall be valid and
enforceable to the fullest extent permitted by law.
23 AUTHORITY: Each of the signatories for the sponsor below certifies and
warrants that:
a) The contractor's name in the agreement is the full name as designated in its
corporate charter, and b) they are empowered to act and contract for the contractor and c)
this agreement has been approved by the sponsor's Board of Directors.
24. ETHICS CLAUSE: FIRM warrants that heft has not employed retained or
otherwise had act on his/its behalf any former COUNTY office or employee in violation of
Section 2 or Ordinance No. 10-1990 or any COUNTY officer or employee in violation of
Section 3 of Ordinance No. 10-1990. For breach or violation of the provision the COUNTY
may, at its discretion terminate this contract without liability and may also, at its discretion,
deduct from the contract or purchase price, or otherwise recover, the full amount of any fee,
commission, percentage, gift, or consideration paid to the former or present COUNTY officer
or employee.
IN WITNESS WHEREOF, the parties hereto have executed this agreement the day
and year first above written.
AL)
Att
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Advertising & M e mg, Inc.
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Atte DA7W4Y T,. Yr)T;TTArF.!j
C1er ....r-
c.
Clerk COUNTY BOARD OF COUNTY COWASSIOMRS
MAYOR/CHA1RMAN
Approved to form and ! a fficiency:
By:
Date:
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EXHIBIT A
Hourly Rates for Creative Staff
Hourly Rate
Mechanical Artist $35.00
Traffic & Production Supervision $60.00
Computer Artist & Type $70.00
Internal Stats - $15.00 each.
Concept & Comprehensive layout $85.00
Senior Copywriter $75.00
Copywriter $60.00
Senior Art Direction & Supervision $85.00
Art Direction $70.00
Broadcast Supervision $60.00
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