HomeMy WebLinkAboutReso 2004-731
RESOLUTION NO. 2004- '1 ~ \
A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF SUNNY
ISLES BEACH, FLORIDA, APPROVING AN AGREEMENT BETWEEN
THE CITY OF SUNNY ISLES BEACH AND THE MIAMI HERAW
PUBLISHING COMPANY, FOR RETAIL ADVERTISING SERVICES, FOR
A TWO-YEAR PERIOD; PROVIDING THE MAYOR THE AUTHORITY TO
EXECUTE SAID AGREEMENT; PROVIDING THE CITY CLERK AND
THE CITY MANAGER WITH THE AUTHORITY TO DO ALL THINGS
NECESSARY TO EFFECTUATE THIS RESOLUTION; PROVIDING FOR
AN EFFECTIVE DATE.
WHEREAS, the Miami Herald is a major daily newspaper in South Florida that also
publishes the Neighbors section twice a week; and
WHEREAS, since the City's incorporation, we have complied with various State public
noticing requirements by placing legal notices as ads in either the Miami Herald, Neighbors or
Metro sections, and for the required Spanish language election notices, in El Nuevo Herald; and
WHEREAS, entering into a retail, annual volume contract rate to advertise in the Miami
Herald would allow the City to achieve a rate discount, for a two-year period; and
WHEREAS, the City believes that the Miami Herald will provide the City with a
publishing medium to legally comply with statutory obligations to inform our residents and
property owners regarding certain City Commission public hearings, and other related matters
regarding the City.
NOW THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE
CITY OF SUNNY ISLES BEACH, FLORIDA, AS FOLLOWS:
Section 1. Approval of Agreement. The Retail Advertising Agreement with The Miami
Herald Publishing Company for publishing certain legal public notices at a discounted retail,
annual volume contract rate attached hereto as Exhibit "A", for a two-year period, be and the
same, is hereby approved.
Section 2. Authorization of Mayor. The Mayor is hereby authorized to execute said
agreement.
Section 3. Authorization of City Clerk and City Manager. The City Clerk and the City
Manager are hereby authorized to do all things necessary to effectuate the terms of this
Resolution.
Section 4.
Effective Date. This Resolution will become effective upon adoption.
PASSED AND ADOPTED this 18th day of November, 2004.
R2004- Advertising Agmt wIThe Miami Herald
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Approved As to Form and
Legal Sufficiency:
Vote:
Mayor Edelcup
Vice Mayor Goodman
Commissioner Brezin
Commissioner Iglesias
Commissioner Thaler
Moved by:
Seconded by:
~(Yes)
~(Yes)
./ (Yes)
~(Yes)
~(Yes)
R2004- Advertising Agmt wrrhe Miami Herald
L?..omm ,.s~i one.....r Good th4 t'\
c.OMO\'~Sionu- l3re:z.in
_(No)
_(No)
_(No)
_(No)
_(No)
2
The Miami Herald Publishing Company
(referred to as "MHPC'')
A Division of Knight-Ridder, Inc.
One Herald Plaza, Miami, Florida 33132-1693
RETAIL ADVERTISING AGREEMENT
Advertiser: ~ r 1_ 12 _ rL "
Company: G or \Ui\hLA (Sit'S ~tAL.V\ Address: 670 CoL jVlS v-e.. te.. 2S0
j City/State/Zip: "- (t I /,e~ _~ (po
Term of Agreement. lit Run Date: 1st day of~.nfiO* !!! Date <t ~3 . : Contract End Date:
04 ,~ q ':DI .
RETAIL ADVERTISING IN THE MIAMI HERALD AND THE BROW ARD EDrliONS OF THE MIAMI HE 1>.7 '04$ ,
BULK LINEAGE (A UTOMAl1C ANNUAL RENEWALS)
Retail Bulk advertising in the MIAMI HERALD with a minimum of
Retail Bulk Advertising in EL NUEVO HERALD with a minimum of
Retail Bulk Advertising in the MIAMI HERALD/EL NUEVO HERALD COMBO with a minimum of
FREQUENCY (NOT SELF-RENEWING)
HERALD TV WEEK Publish advertising _ times within a maximum of weeks.
X NEIGHBORS Publish advertising ~ times within a maximum of 5::.0 weeks.
_HOMETOWN HERALD Publish advertising _ times within a maximum of weeks.
_BROW ARD LOCAL Publish advertising _ times within a maximum of weeks.
PREPRINT ADVERTISING Publish advertising _ times within a maximum of weeks.
_STREET-MIAMI Publish advertising _ times within a maximum of weeks.
_DOMINGO SOCIAUVIERNES Publish advertising _ times within a maximum of weeks.
_INTERNATIONAL EDmON Publish advertising _ times within a maximum of weeks.
_WEEKEND Publish advertising _ times within a maximum of weeks
01HER Publish advertising times within a maximum of weeks.
Payment Terms. All invoices (including applicable sales taxes) are due on the 20th of the month following insertion(s)and unot paid by
the 30th day of the month following the date of insertion(s) will be late (except for accounts designated by MHPC as weekly which are
due within 7 days of the invoice date). Late amounts will bear interest at the maximum rate allowed by law. Advertiser shall pay all
applicable taxes. If any invoice is not timely paid, then MHPC reserves the right to suspend its performance at any time and/or cancel this
Agreement without notice. In the event of such a cancellation, all charges for advertising since the 1st Run Date will be re-invoiced to
reflect the Corrected Rate, as descn'bed herein. All disputes of any kind must be reported in writing to MHPC no later than 30 days from
the date the invoice containing such disputed item or such item will be deemed correct and conclusively accepted by Advertiser.
Advertiser waives any claim after said 30-day period. Submission of a written dispute notice by Advertiser shall not relieve Advertiser of
its obligation to timely pay all undisputed amounts. Credits, refunds or payments must be used or claimed within 2 years from the date of
such credit, refund or payment or shall be deemed to have been earned and correctly applied or paid. Unless agreed in writing, multiple
discounts shall not apply for the same advertising purchase. MHPC is not obligated to extend credit to Advertiser unless in writing. If
Advertiser breaches this Agreement, Advertiser agrees to pay all ofMHPC's collection agency fees and expenses, investigation, court and
litigation expenses along with attorney fees equal to the greater of: (i) 25% of the amount owed, or (ii) the amount awarded by the court.
Sunday circulation and advertising rates will apply to the following holidays: New Year's Day, Independence Day, Labor Day,
Thanksgiving Day and Christmas Day.
Obligations of Advertiser. Advertiser agrees to indemnify MHPC for any and all costs, claims, damages, and/or liability claimed against
or incurred by MHPC as a result ofMHPC's publication of any ad copy submitted by Advertiser (or submitted on behalf of Advertiser) to
MHPC. Advertiser represents, warrants and guarantees that any ad copy so submitted to MHPC is accurate, truthful and in compliance
with all copyright laws and all other applicable laws and regulations.
Waiver or Jury Trial. In any action to enforce or interpret this Agreement, Advertiser and MHPC waive a trial by jury.
Additional Terms and Conditions. This Agreement is subject to: (i) the Advertising Terms and Conditions attached hereto; the
applicable MHPC rate card; and, (iii) MHPC's publication deadlines, policies and procedures, all as amended by MHPC from time to
time. Rates may be amended by MHPC upon 30 days' written notice to Advertiser.
Agreed and Accepted in Miami, Florida, to be effective as of the 1st Run Date set forth above.
A legible facsimile copy of this Agreem t when fuUy executed shall be considered an original copy of this Agreement
Adve . THE MIAMI HERALD PUBLISIllNG COMPANY
By'
(Must be sign by Principal of Firm)
Title: ~ " ~ MQl\ Cl~e..r
Print Name: Chr\ ~~~. Rv~SD
inches annually.
inches annually.
inches annually.
By:
Advertising Manager
APPROVED AS TO FORM AND LEGAL SUFFICIENCY
MHPC Internal Use Only:
Account No: ()5 <i? '7 q if I Or;
Agency:
Rev 4-7~
LYNN M. DANNHEISSER, CITY ATTORNEY
Sales Rep Name:
New Account EJJ Renewal ~
Exhibit " A"
ADVERTISING TERMS AND CONDITIONS
Contract Terms. Advertiser must consume and pay for the minimum space indicated herein within one year from the 1st Run Date (the "Minirnum
Amount"). Part-run lineage will be credited to full-run contract achievement at a ratio of 25%. El Nuevo Herald is credited on a 100"10 level for Real Estate,
and 25% level for Employment). If Advertiser fails to satisfy the Minimum Commitment, Advertiser shall not be entitled to the rates or discounts set forth
herein and will be retroactively billed for all advertising during the Term at the applicable then current standard published rate card rate (the "Corrected-
Rate", previously referred to as "SHORTRATE"). Advertiser will pay MHPC any such Corrected-Rate balance immediately. Advertiser agrees to pay this
Corrected-Rate in addition to all amounts paid or payable by Advertiser under this Agreement. Payment of any Corrected-Rate does not count toward the
Minimum Commitment.
Earned Rating/Agreement Review. Advertisers will be billed at the eamed rate for advertising purchased. Eamed Rate means the lineage or inch level
reached by Advertiser at the conclusion of the then expiring term of the Agreement. If an advertiser satisfies the lineage, revenue or frequency level required
of their c~n~ and qualifies for a lower eamed rat,e, they will be billed the lowt;,r earned rate beginning the next billing period. No advertiser will receive
an automatic rebate on past advertising purchases Solely by qualifying for a lower earned rate during the contract term. Bulk Lineage agreements are
automatically renewed for successive 12 month periods at the Earned Level unless (i) Advertiser failed to meet the lineage/frequency requirements in any 12
month period or, (ii) either party gives written notice of cancellation at least 30 days prior to the anniversary date of the Agreement. MHPC reserves the
right to review the volume of advertising placed on a quarterly basis and cancel this contract at its sole discretion, if advertising placed falls _ % or more
below the quarterly average of lineage or revenue needed to fulfill the twelve-month contract amount. Failure of MHPC to review the volume of advertising
or cancel the contract for any reason shall not be deemed a waiver ofthe right to cancel in the future or to impose any applicable rate adjustments.
Ownership of Ads. MHPC retains all rights of ownership in and to all advertisements designed or created by MHPC. Advertiser grants MHPC a non-
exclusive license to publish all camera-ready advertisements provided by Advertiser (or provided on Advertiser's behalf) to MHPC. MHPC is not obliged
to return ads or ad materials to Advertiser and MHPC is not responsible for any damage or loss to any ads, copy, drawings; art or any other materials
provided by Advertiser.
Copyrights. Advertiser hereby grants a non-exclusive license to MHPC for all copyrights and ownership rights in any advertisement of Advertiser
submitted for insertion in any publication of MHPC, including the right to publish, reproduce, display, adapt, transmit, or produce derivative works in any
medium, including any digital electronic medium. Advertiser authorizes MHPC to bring suit in MHPC's discretion and at MHPC's expense for any
unauthorized use, reproduction, display, distribution, or performance of advertisement as it appears in the Newspapers or for its unauthorized alteration.
AcceptancelRejection of Advertising. MHPC reserves the right to revise, alter or reject any advertisement for any reason whatsoever, or to omit ads
without notice. MHPC may cancel any ad at its sole discretion, even if previously accepted for publication. Advertising copy not timely submitted by
Advertiser will be excluded. Special position for advertising is not guaranteed but may be available for a premium and if agreed to in writing.
Publication Errors and Omissions. MHPC is not liable for any omission of all or any portion of any ad, nor is MHPC responsible for orders, cancellations
or corrections given by telephone, facsimile or telegraph. MHPC is also not liable for any error in a published ad unless an advertising proof is requested in
writing, Advertiser clearly marks any error in the advertising proof for corrections, and MHPC is notified of the error in sufficient time before publication,
, in which case Advertiser's sole remedy is an appropriate credit to the extent of the error up to the cost of the first insertion of the error (if there is more than
one incorrect insertion, credit shall be allowed only for the first incorrect insertion).
MmC's Rights Regarding Meehanical Specifications. The Newspaper reserves the right to alter any advertising material due to press/production
requirements. This reservation of right includes the Newspaper's right to reduce the size of any advertisement as long as the advertisement maintains the
same proportion of the entire page. Advertising will be billed based on the space reserved/ordered.
Unavoidable Nonperformance. MHPC is not liable for failure to publish ads or distribute its publications because of flood, fire, riots, strikes, terrorists,
storms, shortages of material, orders of government, failure of transportation, acts of God or other causes beyond MHPC's control. In such an event, this
Agreement will be extended for a period equal to the time during which such performance was not possible.
Miscellaneous. Florida law shall govern the enforcement and interpretation of this Agreement, without regard to any conflict of law principles. The parties
agree to submit to the exclusive jurisdiction of a court of competent jurisdiction located in Miami-Dade County, Florida This Agreement may be executed
in one or more counterparts, each of which shall constitute an original and all of which shall constitute one and the same document. A legible facsimile
copy of this Agreement when fully executed shall be considered an original copy of this Agreement. Advertiser represents and warrants to MHPC that: (i)
no additional consents, approvals or corporate actions are necessary for Advertiser to enter into this Agreement; (ii) execution of this Agreement by
Advertiser will not cause a breach or default in any other agreement to which Advertiser is a party; and, (iii) Advertiser is not insolvent. In the event of a
filing by or against Advertiser of a petition under the Bankruptcy Code, in its sole discretion, MHPC may (i) discontinue Advertiser's advertising; (ii)
demand advance payment; or, (iii) terminate all agreements with Advertiser. This Agreement and any exhibits attached hereto contain the entire
understanding between the parties and supersede any prior written or oral understandings, as well agreements, between them regarding the subject matter.
This Agreement shall not be modified except in writing signed by the parties. This Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective pennitted successor and assigns. The Agreement may not be assigned (by operation of law or otherwise) by Advertiser. In the
event that any provision contained in this Agreement or the application thereto to any circumstance is for any reason held to be invalid or unenforceable,
such provision shall be ineffective to the minimum extent of such invalidity or unenforceability and the remainder of this Agreement will remain valid and
enforceable according to its terms.
LIMITATION OF LIABILITY. IN THE EVENT OF ANY ALLEGED BREACH BY MHPC OF THE AGREEMENT OR ANY OTHER CLAIMS BY
ADVERTISER OR ANY OTIIER PARTY, MHPC SHALL IN NO EVENT BE LIABLE FOR SPECIAL OR CONSEQUENTIAL DAMAGES. UNDER
NO CIRCUMSTANCES SHALL MHPC BE LIABLE FOR DAMAGES IN EXCESS OF THE LESSER OF AN AMOUNT WHICH (I) EXCEEDS OF
THE COST OF THE ADVERTISEMENT; OR, (II) THE AMOUNT ACTUALLY PAID BY ADVERTISER TO MHPC. MHPC's PAYMENT OF SUCfI
AMOUNT SHALL BE ADVERTISER'S EXCLUSIVE REMEDY AND AGREED UPON LIQUIDATED DAMAGES. MHPC HEREBY DISCLAIM~
ANY WARRANTIES NOT SPECIFICALLY SET FORTH IN THIS AGREEMENT AND ADVERTISER WAIVES ALL OTHER ~PRESENTATION~
AND WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR ARISING BY COURSE OF DEALING OR PERFORMANCE, CUSTOM, USAGE JlI
THE TRADE OR OTHERWISE.
Initial
Rev 4-7-04
~1/Lb/2005 14:02
3058188203
THE MIAMI HERALD
PAGE 03
ADVERTISING TERMS AND CONDITIONS
Contract Terms. Advertiser must lonsume and pay for the minimum space indicated herein withi.n one year from the I a\ Run Date (the "Minimum
Amount"). ParNun lineage will be cr :dited tofutl-run contract achievement at a ratio of 25%. EI Nuevo Herald is credited on a 100% level for RCEll Estate,
and 25% level fur Employment). If i .dVE:rtiser fails to satisfy the Minimum COmmitmc:nt, Advertiser shall not be entitled Ie the rales or discounts set forth
herdn and will bc retroactively billee for all advertising during the Term at the applicable then cun-ent standard published rate card rate (the "Corrected-
Rate", previously rcfemd to as "SHO {TRATE"). Advertiser will pay Ml:TPC any slIch Corrected-Rare balance inuncdialely. Advertiser agrees to pay this
Com:cted-Rate in addition to all smo Ints paid or payable by Advertiser under this Agrccmtnl. Payment of any Gorrected-Rate does n.ot count toward the
Minimum Commitment. .
Earned ~ating/Agreement Review. Advenisers will be bi1\ed at the earned rate for advertisi"8 pureh~ed. Earned Rate means the lineage or inch level
reached by Advertiser at the eoncIusic , ofth~ then apiring term of thc Agreement. If an advcrtiser satisfies the lineage, revCIluc or frequency level required
of their contract and qualifies for a 10 ver e81ned rate, they will be billed the lower earned rate beginning tbe neltt billing period. No advertiser will receive
an automatic rebate on past advcrtisi 19 purchases solely by qualifying for a lower earned rate during the contract term. Bulk Lintage agreements are
automatically rcnewcq for successive 2 morlth periods at the Ean'led Level unless (i) Advertiser failed to meet the lineage/frequency requirements in any 12
month period or, (ii) either party giVI ~ written notice of cancellation at least 30 days prior to tbe anniversary date ofthc Agreement MHPC reserves the
right to review the volume of advcrti: ing plllCecl on a quarterly basis and cancel this cont1'llCl: at its sole discretion, if advertising placed falls _% or more
below the quarterly average oflincagE or revenue needed to n.llfill the twelvc-month contract amount. Failure ofMHPC to review the volume ofadve:rtising
or cancel the contract fur any reason s' lall nOl: be deemed a waiver of the right to cancel in the (unIrc or to impose any applicable rate adjustments.
Ownersbip of Ads. MHPC retains .11 righr.s of ownership in and to all adwrtisemenrs designed or created by MHPC, . Advertiser gr3Ilts MHPC Ii non-
exclusive license to publish all carner: .-ready advertisements provided by Advertiser (or provided on Advertiser's behalf) to MHPC. MHPC is not obliged
to return ads or ad materials to Advl rtiser llnd MHPC is not responsible for any damage or loss to any ads, copy, drawings, an 01' any other ma.terials
provided by Advertiser.
Copyrigbts. Advertiser hereby gt31 ts a non-exclusive license to MHPC for .all COP~ltS and ownership rights in any advertisement of Advmiser
submitted for insenion in any publiCll ion of MHPC, including the right to publish, reproduce, display, adapt, transmit, or produce derivative works in any
medium, including any digital elec:tr Inie mc:dium. Adveniser authorizes MHPC to bring suit in MHPC's discretion and at MHPC's expellse for any
unauthorized use:, reproduction, displa " distribution.. or performance of advertisement llll it appears in the Newspapers or for its unauthorized alteration.
AcceptancelRC!jectioD of Advertisin:. MHPC reserves the right to revise, alter or reject any advertisement for any reason wharsoever, or to omit ads
without notice. MHPC may cancel a IY ad l1t its sole discretion, even if previously accepted for publication. Advertising eopy not timely submitted by
Advertiser will be c:~cluded. Special p lsition for advertising is not guaranteed but may be available fOT a premium and if a.greed to in writing.
Publication Errors and Omissions. ~HPC is not liable for any omission of all or any portion of any ad, nor is MHPC responsible for orders, canecnations
or corrections given by telephone, facl imile or telegraph. MHPC is also not liable for any error in a published ad unle$s an advertising proof is requested in
writing, Advertiser clearly marks any =rror in the advertising proof for corrcc1:ions, and MHPC is notified of the error in sufficient time before publication,
in which case Advertiscr's sole remed , is an appropriate eredit to tile extent of the error up ro the cost of the first insertion of the error (if there is more than
one incorrect insertion, credit shall bc lIlowed only fat the first incomct insertion).
MHPC's Rtgbts Regarding Mecba lical SpeciliClltions. The Newspaper resenres the right' to alter any advertising marxmal due to press/production
requirements. This reservation of rigt. : includes the Newspaper's tight to reduce the size of any advertisement ItS long as the advertisement maintains the
same proponion oflhc entire plige. Ai. I/'ertising will be billed based on the space reserved/ordered.
Unavoidable Nonperformance. ME PC is not liable for failure to pub1ish ads or distribute its publications because of flood, fire, rio18, strikes, terTOrist5,
lltonns, shortages of material, orders I f government, failure oftransportBtion, acts of God or orher l::auses beyond MHPC's control. In such an evenr. this
Agreement will be extendccl for a peri, d cqual to the time dUring which such performance was not possible,
Misreltsneous. Florida law shall gove m the mforeement and interpretation oftbis Agreemept, witbout regard to any conflict oflaw principles. The parties
agrcc to submit to the e:ttc1usive juriad etion of a COUrt of competent jurisdiction located in Miami-Dad~ County, Florida This Agreement may be executed
in one or more counterparts, ellCh of' vbich :shall constitute an origina.1 and all of which shall constitute one and the same document. A legible facsimile
copy of this Agrectru:nt When fully ex lCuted llball be considered an original copy or this Agreement. Advertiser rt:presena; and warrants to MHPC that (i)
no additional consents, approvals or t:orporate actions are necessary for Advertiser to enter into this Agreement; (ii) execution of this Agreemmt by
Advertiser will not cauSc a breach or lcfault in BOy other agr~ernellt to whieh Advertiser is a party; and, (Hi) Advertiser is not insolvent. In the event of a
filing by or against Advertiser of a ~ :tition under the BanIauptcy Code, in its sole discretion. MHPC may (i) discontinue Advertiser's advenising; (ii)
demand advance payment; or, (iii) erminntc all agreements with Advertiser:' This Agreement and any exhibits attacbed hereto c:ontain the entire
understandins between the panies anc supersede any prior written or oral understandings, as well agreem.ents, between them regarding the subject matter.
This Agrccment shall :t:l.ot be modified except in writing signed by the parties. This Agreement shall be binding Upon and inure ro the benefit of the parties
hereto and thcir respective pcrrnjlted I ilCcc:sscr and assigns. The Agreement may not be assigned (by operation of law Or otherwise) by Advertiser. In thc
even,t that any provision contained in :bis Al~eement or the application thereto to any circumstance is for allY reason held to be invalid or unenforceable,
such provision shall be ineffective ro Ile minimum extent of such invalidity or unenforcenbility and the remainder of this Agreement will remain valid and
enforceable according to its terms.
LIMITATION OF LIABll..ITY. TN TIlE BVEN7 OF ANY ALLEGED BREACH BY MHPC OF mE AGREEMENT OR. ANY ornER CLAIMS BY
ADVERTISER OR ANY OTHER. P,A RTY, MHPC SliALL IN NO EVENT BE LIABl.E FOR SPECIAL OR CONSEQUENTIAL DAMAGES. UNDER
NO CIRCUM.STAN,.CES.SHALL MJ. PC BE LIABLE FOR DAMAGES IN EXCESS OT<TI1E.l.F.SSEILOF.AN~MDTri1)l':t...'N.tIlrW,m"RXr;;~ ilim
___1:'_... _ _t.'. .
C
NYIsrCiry Commission
e, City of Sunny Isles Beach David Samson,Mayor
_ti ,o 17070 Collins Avenue, Suite 250Norman S.Edekup,Viae Mayor
n Gerry Goodman,Commissioner
Sunny Isles Beach,Florida 33160 Danny Iglesias,Commissioner
tr • Lila Kauffman,Commissioner
(305) 947-0606 City HallChriabpher 1.Russo,Ciry Mamgrr
SS •` X3051947-2150 Building Department Lynn M.Damheissey city Arramey
PLOP (3051 949-3113 Fax Jane A.Hines,City Clerk
a, SUN e
MEMORANDUM
To: The Honorable Mayor and City Commission
From: Jane A. Hines�A ❑. (4,,City Clerk ��1 \\\�
Date: November 18, 2004
Re: Resolution Approving an Agreement with The Miami Herald for Advertising
Services
RECOMMENDATION:
It is recommended that the City Commission adopt the attached Resolution approving an
agreement with The Miami Herald for a two-year period,for advertising services.
REASONS:
The City has been under contract with The Miami Herald for several years as there are legal
obligations that require us to use The Miami Herald or Neighbors section for legal public
noticing. Additionally when Special City Commission Meetings are scheduled, we do not have
much flexibility to use other publications and still meet the noticing deadlines.
Given the fact that several times a year we will be required to use The Miami Herald, by signing
a volume contract rate Agreement we can achieve a discount in the advertising rates.
1
Agenda Item _ I 0.13
Date ( L — I8-04