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HomeMy WebLinkAboutAgenda - 09-04-2014 - 6g1 ORANGE COUNTY BOARD OF COMMISSIONERS ACTION AGENDA ITEM ABSTRACT Meeting Date: September 4, 2014 SUBJECT: Professional Services DEPARTMENT: EDC —Visitors Bureau Action Agenda Item No. 6 -g ent — Tourism Advertising by Clean Design PUBLIC HEARING: (Y /N) No ATTACHMENT(S): INFORMATION CONTACT: Contract with Exhibit A Laurie Paolicelli, 919 - 245 -4322 PURPOSE: To approve a professional services agreement for tourism marketing and advertising with Clean Design. BACKGROUND: At its January 24, 2012 regular meeting, the Board of Commissioners approved the original $350,000 contract between, Clean Design and Orange County, specifically the Chapel Hill /Orange County Visitors Bureau. This proposed agreement is a renewal for 12 months and is in accordance with the Bureau's board of directors' approval of the scope of services that was presented by Clean Design at the May 21, 2014 Visitors Bureau board meeting. The advertising scope includes creative development, on -line marketing and the use of paid advertising in newspaper, magazine and on -line sources. In addition to the consumer and group media plans implemented last year, this agreement will include new initiatives into the LGBT niche market, expanding on -line network sites with audience and keyword targeting, full page ads in Raleigh based, Walter Magazine, and expansion into the Virginia market. FINANCIAL IMPACT: A total of $450,000 in Visitors Bureau funds has been budgeted for 2014 -2015 Fiscal Year. RECOMMENDATION(S): The Manager recommends the Board approve and authorize the Chair to sign the proposed agreement, with funding to be encumbered out of 2014 -2015 Visitors Bureau budget. [Departmental Use Only] TITLE Clean Design FY 2014 -2015 NORTH CAROLINA SERVICES AGREEMENT OVER $90,000.00 RFP —WITH REIMBURSABLE EXPENSES ORANGE COUNTY This Services Agreement (hereinafter "Agreement "), made and entered into this 1st day of July, 2014, ( "Effective Date ") by and between Orange County, North Carolina a body politic and corporate of the State of North Carolina (hereinafter, the "County ") and Clean Design, (hereinafter, the "Provider "). WITNESSETH: That the County and Provider, for the consideration herein named, do hereby agree as follows: 1. Services a. Scope of Work. i) This Services Agreement ( "Agreement ") is for professional services to be rendered by Provider to County with respect to (insert type of project): Marketing Communications Management ii) By executing this Agreement, the Provider represents and agrees that Provider is qualified to perform and fully capable of performing and providing the services required or necessary under this Agreement in a fully competent, professional and timely manner. iii) Time is of the essence with respect to this Agreement. iv) The services to be performed under this Agreement consist of Basic Services, as described and designated in Section 3 hereof. Compensation to the Provider for Basic Services under this Agreement shall be as set forth herein. 2. Responsibilities of the Provider a. Services to be provided. The Provider shall provide the County with all services required in Section 3 to satisfactorily complete the Project within the time limitations set forth herein and in accordance with the highest professional standards. b. Standard of Care. i) The Provider shall exercise reasonable care and diligence in performing services under this Agreement in accordance with the highest generally accepted standards of this type of Provider practice throughout the United States and in accordance with applicable federal, state and local laws and regulations applicable to the Revised 9/13 1 K performance of these services. Provider is solely responsible for the professional quality, accuracy and timely completion and /or submission of all work related to the Basic Services. ii) Provider shall be responsible for all errors or omissions, in the performance of the Agreement. Provider shall correct any and all errors, omissions, discrepancies, ambiguities, mistakes or conflicts at no additional cost to the County. iii) The Provider shall not, except as otherwise provided for in this Agreement, subcontract the performance of any work under this Agreement without prior written permission of the County. No permission for subcontracting shall create, between the County and the subcontractor, any contract or any other relationship. iv) Provider is an independent contractor of County. Any and all employees of the Provider engaged by the Provider in the performance of any work or services required of the Provider under this Agreement, shall be considered employees or agents of the Provider only and not of the County, and any and all claims that may or might arise under any workers compensation or other law or contract on behalf of said employees while so engaged shall be the sole obligation and responsibility of the Provider. v) Provider agrees that Provider, its employees, agents and its subcontractors, if any, shall be required to comply with all federal, state and local antidiscrimination laws, regulations and policies that relate to the performance of Provider's services under this Agreement. vi) If activities related to the performance of this Agreement require specific licenses, certifications, or related credentials Provider represents that it and /or its employees, agents and subcontractors engaged in such activities possess such licenses, certifications, or credentials and that such licenses certifications, or credentials are current, active, and not in a state of suspension or revocation. 3. Basic Services a. Basic Services. i) The Provider shall perform as Basic Services the work and services described herein and as specified in the County's Request for Proposals (the "RFP ") "RFP Number 5177 for "Tourism Marketing " issued April 21, 2011, and the Provider's proposal, which are fully incorporated and integrated herein by reference together with Attachments A (Clean Design) (designate all attachments). In the event a term or condition in any document or attachment conflicts with a term or condition of this Agreement the term or condition in this Agreement shall control. Should such conflict arise the priority of documents shall be as follows: This Agreement, the County's RFP together with attachments, Provider's Proposal together with attachments. ii) The Basic Services will be performed by the Provider in accordance with the following schedule: (Insert task list and milestone dates) Revised 9/13 2 M Task Milestone Date 1. Media plan research /recommendation for media mix July1,2014 2. Development of Media plan July 1, 2014 3. Create graphic designs for annual publications throughout 2014 -15 4. Provide concepts for special promotions throughout 2014 -15 5. Provide updates to Visitor Bureau Board of Directors throughout 2014 -15 6. Produce or arrange for production of advertising throughout 2014 -15 7. Place and /or arrange placement of media mix throughout 2014 -15 8. Meet w /Orange County Rep on a mutally agreed basis throughout 2014 -15 9. Other services as described in Attachment A "Professional Services Agreement throughout 2014 -15 iii) Should County reasonably determine that Provider has not met the Milestone Dates established in Section 3(a)(ii), County shall notify Provider of the failure to meet the Milestone Date. The County, at its discretion may provide the Provider seven (7) days to cure the breach. County may withhold the accompanying payment without penalty until such time as Provider cures the breach. In the alternative, upon Provider's failure to meet any Milestone Date the County may modify the Milestone Date schedule. Should Provider or its representatives fail to cure the breach within seven (7) days, or fail to reasonably agree to such modified schedule, County may immediately terminate this Agreement in writing, without penalty or incurring further obligation to Provider. This section shall not be interpreted to limit the definition of breach to the failure to meet Milestone Dates. 4. Duration of Services a. Term. The term of this Agreement shall be from July 1, 2014 to June 30, 2015. b. Scheduling of Services i) The Provider shall schedule and perform its activities in a timely manner so as to meet the Milestone Dates listed in Section 3. ii) Should the County determine that the Provider is behind schedule, it may require the Provider to expedite and accelerate its efforts, including providing additional resources and working overtime, as necessary, to perform its services in accordance with the approved project schedule at no additional cost to the County. iii) The Commencement Date for the Provider's Basic Services shall be July 1, 2014. 5. Compensation a. Compensation for Basic Services. Compensation for Basic Services shall include all compensation due the Provider from the County for all services under this Agreement except reimbursable expenses as specified in section 5(c), below. The maximum amount payable for Basic Services is Four Hundred Fifty Thousand Dollars ($450,000). In the Revised 9/13 3 event the amount stated on an invoice is disputed by the County, the County may withhold payment of all or a portion of the amount stated on an invoice until the parties resolve the dispute. Payment for Basic Services shall become due and payable in direct proportion to satisfactory services performed and work accomplished and according to the terms described in Attachment A. Payments will be made as percentages of the whole as Project milestones as set out in Section 3(a)(ii) are achieved. (For example, if there are 10 Project Tasks with Milestone Dates then Provider may invoice for the first 10% of the whole upon County's acknowledgement of the satisfactory completion of Task one. Upon the County's acknowledgement that the second Task has been satisfactorily completed Provider may invoice for the next 10% of the whole.) b. Additional Services. County shall not be responsible for costs related to any services in addition to the Basic Services performed by Provider unless County requests such additional services in writing and such additional services are evidenced by a written amendment to this Agreement. c. Reimbursable Expenses Reimbursable expenses are in addition to the fees for Basic Services and are for the following expenditures to the extent reasonable and actually incurred by the Provider with respect to the Project: i) Actual expenditures for postage, reproductions, photography, and long distance telephone charges directly attributable to this Project. ii) The actual cost of reproduction of reports, plans and specifications excluding documents for exclusive use by the Provider. iii) The Provider shall not be entitled to any mark -up on actual expenses incurred except as described in Attachment A related to media commissions. iv) Reimbursable expenses shall be compensated by the County along with invoices for Basic Services provided by Provider. Payment of Reimbursable Expenses shall be subject to Provider's timely submission of valid receipts for any such expenses and approval by the County. Any additional charges not specified herein, must be mutually agreed to in advance by County and Provider and documented in writing with a letter signed by authorized representatives for County and Provider and, subject to budgeted funds. 6. Responsibilities of the County a. Cooperation and Coordination. The County has designated the (Chapel Hill /Orange County Visitors Bureau Executive Director) to act as the County's representative with respect to the Project and shall have the authority to render decisions within guidelines established by the County Manager and /or the County Board of Commissioners and shall be available during working hours as often as may be reasonably required to render decisions and to furnish information. 7. Insurance a. General Requirements. Provider shall obtain, at its sole expense, Commercial General Liability Insurance, Automobile Insurance, Workers' Compensation Insurance, and any additional insurance as may be required by Owner's Risk Manager as such insurance requirements are described in the Orange County Risk Transfer Policy and Orange Revised 9/13 4 County Minimum Insurance Coverage Requirements (each document is incorporated herein by reference and may be viewed at http://oran eg countync .gov/purchasing/contracts.asp). If Owner's Risk Manager determines additional insurance coverage is required such additional insurance shall consist of N/A (if no additional insurance required mark N/A as being not applicable). Provider shall not commence work until such insurance is in effect and certification thereof has been received by the Owner's Risk Manager. 8. Indemnity a. Indemnity. The Provider agrees to defend, indemnify and hold harmless the County from all loss, liability, claims or expense, including attorney's fees, arising out of or related to the Project and arising from bodily injury including death or property damage to any person or persons caused in whole or in part by the negligence or misconduct of the Provider except to the extent same are caused by the negligence or willful misconduct of the County. It is the intent of this provision to require the Provider to indemnify the County to the fullest extent permitted under North Carolina law. 9. Amendments to the Agreement a. Changes in Basic Services. Changes in the Basic Services and entitlement to additional compensation or a change in duration of this Agreement shall be made by a written Amendment to this Agreement executed by the County and the Provider. The Provider shall proceed to perform the Services required by the Amendment only after receiving a fully executed Amendment from the County. 10. Termination a. Termination for Convenience of the County. This Agreement may be terminated without cause by the County and for its convenience upon sixty (60) days prior written notice to the Provider. b. Other Termination. The Provider may terminate this Agreement based upon the County's material breach of this Agreement; provided, the County has not taken all reasonable actions to remedy the breach. The Provider shall give the County sixty (60) days' prior written notice of its intent to terminate this Agreement for cause. c. Compensation After Termination. i) In the event of termination, the Provider shall be paid that portion of the fees and expenses that it has earned to the date of termination, less any costs or expenses incurred or anticipated to be incurred by the County due to errors or omissions of the Provider. ii) Should this Agreement be terminated, the Provider shall deliver to the County within seven (7) days, at no additional cost, all deliverables including any electronic data or files relating to the Project. Revised 9/13 5 7 d. Waiver. The payment of any sums by the County under this Agreement or the failure of the County to require compliance by the Provider with any provisions of this Agreement or the waiver by the County of any breach of this Agreement shall not constitute a waiver of any claim for damages by the County for any breach of this Agreement or a waiver of any other required compliance with this Agreement. 11. Additional Provisions a. Limitation and Assignment. The County and the Provider each bind themselves, their successors, assigns and legal representatives to the terms of this Agreement. Neither the County nor the Provider shall assign or transfer its interest in this Agreement without the written consent of the other. b. Governing Law. This Agreement and the duties, responsibilities, obligations and rights of respective parties hereunder shall be governed by the laws of the State of North Carolina. c. Compliance with Laws. Provider shall at all times remain in compliance with all applicable local, state, and federal laws, rules, and regulations including but not limited to all anti - discrimination laws. Pursuant to the terms of North Carolina General Statute 153A- 449(b) no county may enter into a contract with a contractor unless the contractor and the contractor's subcontractors comply with the requirements of Article 2 of Chapter 64 of the North Carolina General Statutes. Where applicable, failure to maintain compliance with the requirements of Article 2 of Chapter 64 of the General Statutes constitutes Provider's breach of this Agreement. By executing this Agreement Provider affirms Provider is in compliance with Article 2 of Chapter 64 of the North Carolina General Statutes. d. Dispute Resolution. Any and all suits or actions to enforce, interpret or seek damages with respect to any provision of, or the performance or non - performance of, this Agreement shall be brought in the General Court of Justice of North Carolina sitting in Orange County, North Carolina. It is agreed by the parties that no other court shall have jurisdiction or venue with respect to such suits or actions. The Parties may agree to nonbinding mediation of any dispute prior to the bringing of such suit or action. e. Entire Agreement. This Agreement, together with the RFP and its attachments and the Proposal and its attachments, represents the entire and integrated agreement between the County and the Provider and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be amended only by written instrument signed by both parties. Modifications may be evidenced by facsimile signatures. f. Severability. If any provision of this Agreement is held as a matter of law to be unenforceable, the remainder of this Agreement shall be valid and binding upon the Parties. g. Ownership of Work Product. Should Provider's performance of this Agreement generate documents, items or things that are specific to this Project such documents, items or things shall become the property of the County and may be used on any other project Revised 9/13 6 without additional compensation to the Provider. The use of the documents, items or things by the County or by any person or entity for any purpose other than the Project as set forth in this Agreement shall be at the full risk of the County. h. Non - Appropriation. Provider acknowledges that County is a governmental entity, and the validity of this Agreement is based upon the availability of public funding under the authority of its statutory mandate. In the event that public funds are unavailable and not appropriated for the performance of County's obligations under this Agreement, then this Agreement shall automatically expire without penalty to County immediately upon written notice to Provider of the unavailability and non - appropriation of public funds. It is expressly agreed that County shall not activate this non - appropriation provision for its convenience or to circumvent the requirements of this Agreement, but only as an emergency fiscal measure during a substantial fiscal crisis. In the event of a change in the County's statutory authority, mandate and /or mandated functions, by state and /or federal legislative or regulatory action, which adversely affects County's authority to continue its obligations under this Agreement, then this Agreement shall automatically terminate without penalty to County upon written notice to Provider of such limitation or change in County's legal authority. Notices. Any notice required by this Agreement shall be in writing and delivered by certified or registered mail, return receipt requested to the following: Orange County Attention: Laurie Paolicelli P.O. Box 8181 Hillsborough, NC 27278 [SIGNATURE PAGE TO FOLLOW] Revised 9/13 Provider's Name & Address Clean Design 8081 Arco Coporate Drive Raleigh, NC 27617 9 IN WITNESS WHEREOF, the Parties, by and through their authorized agents, have hereunder set their hands and seal, all as of the day and year first above written. ORANGE COUNTY: PROVIDER: Barry Jacobs, Chair Orange County Board of Commissioners Printed Name and Title Attest: Donna Baker, Clerk to the Board [SEAL] This instrument has been approved as to technical content. Steve Brantley, Department Director This instrument has been pre- audited in the manner required by the Local Government Budget and Fiscal Control Act. Office of the Chief Financial Officer This instrument has been approved as to form and legal sufficiency. Office of the County Attorney Revised 9/13 ire Form 32 -A PROFESSIONAL SERVICES AGREEMENT - ATTACHMENT A - CLEAN DESIGN FOR MARKETING COMMUNICATIONS MANAGEMENT This Attachment, effective the first day of July 2014 and ending the last day of June 2015, provides further definition and description of the terms of the contract by and between Clean Design, Inc. and Orange County, North Carolina. WITNESSETH THAT: WHEREAS, Agency is in the business of providing professional services in the areas of marketing, advertising and other communications services and desires to perform such services for Client, and WHEREAS, Client desires to engage Agency to perform these communication services for Client, NOW, THEREFORE, the parties hereby agree and bind themselves as follows: ARTICLE I RETAINING AGENCY Client hereby retains Agency to serve as the Marketing Communications Agency for the product or service noted above and outlined in the RFP (Request for Proposal) that the CHOCVB issued, and Agency hereby accepts such relationship and agrees to carry out the communications function and to use its professional talent and expertise to promote Client's product or service to the best of its ability. ARTICLE II DUTIES OF AGENCY 2.01 Agency shall coordinate a Marketing Communications program on behalf of the Client. 2.02 Agency shall select or advise the client on the different kinds of advertising to use. 2.03 Agency shall be primarily responsible for developing the concept and design of advertising, web design and other marketing communications assignments. 2.04 Agency shall produce or arrange for the production of advertising. Agency shall cause the production to be completed in a finished and usable form for the media being employed and, in the case of collateral, the appropriate form for outside suppliers to complete. 2.05 Agency shall place, or arrange for the placement of, the advertising on radio or television stations or in newspapers, magazines or other media through an agency purchase of the time or space in the media to display the advertising. 2.06 As assigned, the Agency shall develop and implement social media strategy & support and conduct or coordinate market research on behalf of the Client. 2.07 Agency shall assign an Account Executive to service the Account. The Account Executive shall be available to the Client on a regular and reasonable basis for conferences. 11 2.08 Agency management shall meet with the Client on a basis deemed mutually agreeable by the Client and the Agency. ARTICLE III CLIENT DUTIES 3.01 Client shall make available to Agency the staff members and other resources necessary for Agency to fulfill its obligations on a reasonable basis. 3.02 Client shall review materials submitted by Agency in a timely manner and, upon approval, will sign off on all plans and materials. This written approval acknowledges that Client assumes final responsibility for content and proofing. ARTICLE IV AGENCY COMPENSATION 4.01 Agency is to be remunerated by Client by a combination of a monthly fee (AMF), media commissions and hourly charges. A fee of $6,000 per month shall be paid as the AMF. The monthly fee is billed at the beginning of each month for which the services are performed. The monthly fee is compensation for the overall management of the account; including strategic planning, documentation of activities, budget planning /monitoring, campaign creative concepts (both traditional and digital), campaign creative execution (design and copywriting), communications action plan and social media strategy /execution. 4.02 As to advertising production, public relations activities and market research, each job shall be the subject of a written estimate. Client may be invoiced upon estimate approval if the vendor requires a deposit. The balance is billed upon completion of the job. 4.03 Any development and /or provision of tangible personal property to Client by Agency will be the subject of separate agreement. 4.04 Media that is purchased on behalf of Client will be billed at Agency's cost with a 10% mark -up or commissions. Other outside expenses will be passed along to the client with NO mark -up, these may include but aren't limited to; purchase of printing services, custom and stock photography, free -lance illustration, broadcast/audio /video talent or. Agency shall be paid at cost for travel and other out -of- pocket expenses directly related to the Account Management and to individual jobs. 4.05 Any media wherein Agency is liable for the payment of same for Client's account shall be paid for by the Client in full prior to the closing date for such media. 4.06 Agency bills by invoice. A service charge of 1.5% per month (18% per annum) will be charged on amounts outstanding past 30 days. 12 ARTICLE V TERMINATION 5.01 Upon termination of this Agreement for any reason Client's files and property held by Agency shall be returned to Client provided Client has complied fully with Article IV herein. 5.02 Client may suspend or cancel any advertising space or time, mechanicals, sales promotions or merchandising job after preparation of same has begun by Agency, provided, however, that Client shall reimburse Agency for all completed stages of production and all cancellation charges which may be assessed Agency by the Media, such as short rate reflecting frequency discounts or printing preparation charges. Client shall also reimburse Agency for all labor charges expended in pursuit of authorized assignments not completed at the time of cancellation, including outside charges such as typesetting, photography, press time, etc.