AGREEMENT TO PROVIDE PROMOTIONAL SERVICESAGREEMENT BETWEEN CITY OF CLEARWATER AND
MICHELE SMITH INC.
This AGREEMENT is made and entered into on this ‘).11 day ofd, 2019, by and
between the CITY OF CLEARWATER, a Florida municipal corporation, O. Box 4748,
Clearwater, Florida 33758 (hereinafter referred to as "City") and Michele Smith Inc., a Florida
corporation, 6800 Gulfport Blvd. Suite 201 #700, St. Petersburg, FL 33707 (hereinafter referred
to as "MSI" or "Contractor").
WHEREAS, on March 17, 2016, City Council approved a three-year purchase order with MSI to
provide promotional services for women's fast -pitch softball tournaments and programs and also
act as a Parks and Recreation Department representative in promoting Clearwater as a premier
sports town. Michele Smith, Inc. was selected as a result of Request for Proposal #10-16 and
was the only respondent to the RFP.
WHEREAS, the City desires to continue offering high quality events and promoting the
Clearwater destination through the sports tourism industry.
WHEREAS, the Parties mutually desire to enter into a new agreement for said promotional
services.
WHEREAS, the qualifications and services are unique and non-competitive; therefore, the
contract will be awarded without solicitation in accordance with Code of Ordinance Section
2.564(e) Exceptions to Bid, non-competitive selection.
NOW, THEREFORE, it is hereby agreed by and between the Parties that the above terms,
recitals and representations are true and accurate and are incorporated herein by reference and
the Parties further agree as follows:
1 SCOPE OF PROJECT. Promote the Clearwater destination and enhance
Clearwater's sports tourism softball events; Offer 2-3 camps and clinics to young girls in the
Clearwater community; Assist City Staff with securing the USA National Team Training and
Try -Outs in Clearwater; Assist City Staff on scheduling USA National Team games in
Clearwater, in preparation for the 2020 Olympics; Work with the WBSC on attracting more
International business to the Clearwater area; Assist City Staff on recruiting teams for future
softball events; Provide major sponsor leads to help offset City expense; Continue to grow the
Clearwater partnership with ESPN and expand Clearwater's digital and linear platforms; Recruit
high level DI schools to participate in the St Pete Clearwater Elite Invitational Softball
Tournament in Clearwater, FL; Be a member of the Clearwater For Youth Board; and Provide a
5K Scholarship to a local Clearwater student athlete.
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2 TIME OF PERFORMANCE. This Agreement shall be for one (1) year with the
option of two (2) one (1) year renewals.
3 COMPENSATION. The City will pay MSI a sum not to exceed $5,000 per
month, inclusive of all reasonable and necessary direct expenses, if applicable. The City may,
from time to time, require changes to the Scope of Project hereunder. Such changes, including
any increase or decrease in the amount of MSI's compensation and changes in the terms of this
Agreement, must be mutually agreed upon by and between the City and MSI, and only effective
when incorporated in a written amendment to this Agreement.
4 METHOD OF PAYMENT. MSI's invoices shall be submitted to the City for
approval for payment on a Net 30 basis. The City agrees to pay only after approval under the
terms of the Florida Prompt Payment Act F.S. 218.70. The City's performance and obligation to
pay under this Contract is contingent upon an annual appropriation of the City's budget.
5 INDEPENDENT CONTRACTOR. It is expressly understood that the
relationship of Contractor to the City will be that of an independent contractor. Contractor and all
persons employed by Contractor, either directly or indirectly, are Contractor's employees, not
City employees. Accordingly, Contractor and Contractor's employees are not entitled to any
benefits provided to City employees including, but not limited to, health benefits, enrollment in a
retirement system, paid time off or other rights afforded City employees. Contractor employees
will not be regarded as City employees or agents for any purpose, including the payment of
unemployment or workers' compensation. If any Contractor employees or subcontractors assert
a claim for wages or other employment benefits against the City, Contractor will defend,
indemnify and hold harmless the City from all such claims.
6 SUBCONTRACTING. Contractor may not subcontract work under this Agreement
without the express written permission of the City. If Contractor has received authorization to
subcontract work, it is agreed that all subcontractors performing work under the Agreement must
comply with its provisions. Further, all agreements between Contractor and its subcontractors
must provide that the terms and conditions of this Agreement be incorporated therein.
7 ASSIGNMENT. This Agreement may not be assigned either in whole or in part
without first receiving the City's written consent. Any attempted assignment, either in whole or
in part, without such consent will be null and void and in such event the City will have the right
at its option to terminate the Agreement. No granting of consent to any assignment will relieve
Contractor from any of its obligations and liabilities under the Agreement.
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8 SUCCESSORS AND ASSIGNS, BINDING EFFECT. This Agreement will be
binding upon and inure to the benefit of the parties and their respective permitted successors and
assigns.
9 NO THIRD PARTY BENEFICIARIES. This Agreement is intended for the exclusive
benefit of the parties. Nothing set forth in this Agreement is intended to create, or will create, any
benefits, rights, or responsibilities in any third parties.
10 NON- EXCLUSIVITY. The City, in its sole discretion, reserves the right to request
the materials or services set forth herein from other sources when deemed necessary and
appropriate. No exclusive rights are encompassed through this Agreement.
11 AMENDMENTS. There will be no oral changes to this Agreement. This Agreement
can only be modified in writing signed by both parties. No charge for extra work or material will
be allowed unless approved in writing, in advance, by the City and Contractor.
12 TIME OF THE ESSENCE. Time is of the essence to the performance of the
parties' obligations under this Agreement.
13 COMPLIANCE WITH APPLICABLE LAWS.
a. General. Contractor must procure all permits and licenses, and pay all charges and
fees necessary and incidental to the lawful conduct of business. Contractor must stay
fully informed of existing and future federal, state, and local laws, ordinances, and
regulations that in any manner affect the fulfillment of this Agreement and must comply
with the same at its own expense. Contractor bears full responsibility for training, safety,
and providing necessary equipment for all Contractor personnel to achieve throughout the
term of the Agreement. Upon request, Contractor will demonstrate to the City's
satisfaction any programs, procedures, and other activities used to ensure compliance.
b. Drug -Free Workplace. Contractor is hereby advised that the City has adopted a
policy establishing a drug-free workplace for itself and those doing business with the City
to ensure the safety and health of all persons working on City contracts and projects.
Contractor will require a drug-free workplace for all Contractor personnel working under
this Agreement. Specifically, all Contractor personnel who are working under this
Agreement must be notified in writing by Contractor that they are prohibited from the
manufacture, distribution, dispensation, possession, or unlawful use of a controlled
substance in the workplace. Contractor agrees to prohibit the use of intoxicating
substances by all Contractor personnel, and will ensure that Contractor personnel do not
use or possess illegal drugs while in the course of performing their duties.
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c. Federal and State Immigration Laws. Contractor agrees to comply with the
Immigration Reform and Control Act of 1986 (IRCA) in performance under this
Agreement and to permit the City and its agents to inspect applicable personnel records to
verify such compliance as permitted by law. Contractor will ensure and keep appropriate
records to demonstrate that all Contractor personnel have a legal right to live and work in
the United States.
d. Nondiscrimination. Contractor represents and warrants that it does not discriminate
against any employee or applicant for employment or person to whom it provides
services because of race, color, religion, sex, national origin, or disability, and represents
and warrants that it complies with all applicable federal, state, and local laws and
executive orders regarding employment. Contractor and Contractor's personnel will
comply with applicable provisions of Title VII of the U.S. Civil Rights Act of 1964, as
amended, Section 504 of the Federal Rehabilitation Act, the Americans with Disabilities
Act (42 U.S.C. § 12101 et seq.), and applicable rules in performance under this
Agreement.
14 SALES/USE TAX, OTHER TAXES.
a. Contractor is responsible for the payment of all taxes including federal, state, and local
taxes related to or arising out of Contractor's services under this Agreement, including by
way of illustration but not limitation, federal and state income tax, Social Security tax,
unemployment insurance taxes, and any other taxes or business license fees as required.
b. The City is exempt from paying state and local sales/use taxes and certain federal
excise taxes and will furnish an exemption certificate upon request.
15 AMOUNTS DUE THE CITY. Contractor must be current and remain current in all
obligations due to the City during the performance of services under the Agreement. Payments to
Contractor may be offset by any delinquent amounts due the City or fees and charges owed to
the City.
16 AUDITS AND RECORDS. Contractor must preserve the records related to this
Agreement for five (5) years after completion of the Agreement. The City or its authorized agent
reserves the right to inspect any records related to the performance of work specified herein. In
addition, the City may inspect any and all payroll, billing or other relevant records kept by
Contractor in relation to the Agreement. Contractor will permit such inspections and audits
during normal business hours and upon reasonable notice by the City. The audit of records may
occur at Contractor's place of business or at City offices, as determined by the City.
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17 BACKGROUND CHECK. The City may conduct criminal, driver history, and all other
requested background checks of Contractor personnel who would perform services under the
Agreement or who will have access to the City's information, data, or facilities in accordance
with the City's current background check policies. Any officer, employee, or agent that fails the
background check must be replaced immediately for any reasonable cause not prohibited by law.
18 SECURITY CLEARANCE AND REMOVAL OF CONTRACTOR PERSONNEL.
The City will have final authority, based on security reasons: (i) to determine when
security clearance of Contractor personnel is required; (ii) to determine the nature of the security
clearance, up to and including fingerprinting Contractor personnel; and (iii) to determine whether
or not any individual or entity may provide services under this Agreement. If the City objects to
any Contractor personnel for any reasonable cause not prohibited by law, then Contractor will,
upon notice from the City, remove any such individual from performance of services under this
Agreement.
19 DEFAULT.
a. A party will be in default if that party:
(i) Is or becomes insolvent or is a party to any voluntary bankruptcy or
receivership proceeding, makes an assignment for a creditor, or there is any
similar action that affects Contractor's capability to perform under the
Agreement;
(ii) Is the subject of a petition for involuntary bankruptcy not removed within
sixty (60) calendar days;
(iii) Conducts business in an unethical manner or in an illegal manner; or
(iv) Fails to carry out any term, promise, or condition of the Agreement.
b. Contractor will be in default of this Agreement if Contractor is debarred from
participating in City procurements and solicitations in accordance with Section 27 of the
City's Purchasing and Procedures Manual.
c. Notice and Opportunity to Cure. In the event a party is in default then the other party
may, at its option and at any time, provide written notice to the defaulting party of the
default. The defaulting party will have thirty (30) days from receipt of the notice to cure
the default; the thirty (30) day cure period may be extended by mutual agreement of the
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parties, but no cure period may exceed ninety (90) days. A default notice will be deemed
to be sufficient if it is reasonably calculated to provide notice of the nature and extent of
such default. Failure of the non -defaulting party to provide notice of the default does not
waive any rights under the Agreement.
d. Anticipatory Repudiation. Whenever the City in good faith has reason to question
Contractor's intent or ability to perform, the City may demand that Contractor give a
written assurance of its intent and ability to perform. In the event that the demand is made
and no written assurance is given within five (5) calendar days, the City may treat this
failure as an anticipatory repudiation of the Agreement.
20 REMEDIES. The remedies set forth in this Agreement are not exclusive.
Election of one remedy will not preclude the use of other remedies. In the event of default:
a. The non -defaulting party may terminate the Agreement, and the termination will be
effective immediately or at such other date as specified by the terminating party.
b. The City may purchase the services required under the Agreement from the open
market, complete required work itself, or have it completed at the expense of Contractor.
If the cost of obtaining substitute services exceeds the contract price, the City may
recover the excess cost by: (i) requiring immediate reimbursement to the City; (ii)
deduction from an unpaid balance due to Contractor; (iii) collection against the proposal
and/or performance security, if any; (iv) collection against liquidated damages (if
applicable); or (v) a combination of the aforementioned remedies or other remedies as
provided by law. Costs includes any and all, fees, and expenses incurred in obtaining
substitute services and expended in obtaining reimbursement, including, but not limited
to, administrative expenses, attorneys' fees, and costs.
c. The non -defaulting party will have all other rights granted under this Agreement and
all rights at law or in equity that may be available to it.
d. Neither party will be liable for incidental, special, or consequential damages.
21 CONTINUATION DURING DISPUTES. Contractor agrees that during any
dispute between the parties, Contractor will continue to perform its obligations until the dispute
is settled, instructed to cease performance by the City, enjoined or prohibited by judicial action,
or otherwise required or obligated to cease performance by other provisions in this Agreement.
22 TERMINATION FOR CONVENIENCE. The City reserves the right to
terminate this Agreement in part or in whole upon thirty (30) calendar days' written notice.
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23 CONFLICT OF INTEREST. Pursuant to Florida Statute Section 112, the City
may cancel this Agreement after its execution, without penalty or further obligation, if any
person significantly involved in initiating, securing, drafting, or creating the Agreement for the
City becomes an employee or agent of Contractor.
24 TERMINATION FOR NON -APPROPRIATION AND MODIFICATION FOR
BUDGETARY CONSTRAINT. The City is a governmental agency which relies upon the
appropriation of funds by its governing body to satisfy its obligations. If the City reasonably
determines that it does not have funds to meet its obligations under this Agreement, the City will
have the right to terminate the Agreement without penalty on the last day of the fiscal period for
which funds were legally available. In the event of such termination, the City agrees to provide
written notice of its intent to terminate thirty (30) calendar days prior to the stated termination
date.
25 PAYMENT TO CONTRACTOR UPON TERMINATION. Upon termination of
this Agreement, Contractor will be entitled only to payment for those services performed up to
the date of termination, and any authorized expenses already incurred up to such date of
termination. The City will make final payment within thirty (30) calendar days after the City has
both completed its appraisal of the materials and services provided and received Contractor's
properly prepared final invoice.
26 NON -WAIVER OF RIGHTS. There will be no waiver of any provision of this
agreement unless approved in writing and signed by the waiving party. Failure or delay to
exercise any rights or remedies provided herein or by law or in equity, or the acceptance of, or
payment for, any services hereunder, will not release the other party of any of the warranties or
other obligations of the Agreement and will not be deemed a waiver of any such rights or
remedies.
27 INDEMNIFICATION/LIABILITY.
a. To the fullest extent permitted by law, Contractor agrees to defend, indemnify, and
hold the City, its officers, agents, and employees, harmless from and against any and all
liabilities, demands, claims, suits, losses, damages, causes of action, fines or judgments,
including costs, attorneys', witnesses', and expert witnesses' fees, and expenses incident
thereto, relating to, arising out of, or resulting from: (i) the services provided by
Contractor personnel under this Agreement; (ii) any negligent acts, errors, mistakes or
omissions by Contractor or Contractor personnel; and (iii) Contractor or Contractor
personnel's failure to comply with or fulfill the obligations established by this
Agreement.
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b. Contractor will update the City during the course of the litigation to timely notify the
City of any issues that may involve the independent negligence of the City that is not
covered by this indemnification.
c. The City assumes no liability for actions of Contractor and will not indemnify or hold
Contractor or any third party harmless for claims based on this Agreement or use of
Contractor -provided supplies or services.
28 INSURANCE.
a. Commercial General Liability Insurance coverage, including but not limited to,
premises operations, products/completed operations, products liability, contractual
liability, advertising injury, personal injury, death, and property damage in the
minimum amount of $1,000,000 (one million dollars) per occurrence and $2,000,000
(two million dollars) general aggregate.
b. Commercial Automobile Liability Insurance coverage for any owned, non -owned,
hired or borrowed automobile is required in the minimum amount of $1,000,000 (one
million dollars) combined single limit.
c. Unless waived by the State of Florida, statutory Workers' Compensation Insurance
coverage in accordance with the laws of the State of Florida, and Employer's
Liability Insurance in the minimum amount of $100,000 (one hundred thousand
dollars) each employee each accident, $100,000 (one hundred thousand dollars) each
employee by disease and $500,000 (five hundred thousand dollars) aggregate by
disease with benefits afforded under the laws of the State of Florida. Coverage
should include Voluntary Compensation, Jones Act, and U.S. Longshoremen's and
Harbor Worker's Act coverage where applicable. Coverage must be applicable to
employees, contractors, subcontractors, and volunteers, if any.
d. Professional Liability Insurance coverage appropriate for the type of business
engaged in by the Contractor with minimum limits of $1,000,000(one million dollars)
per occurrence. If a claims made form of coverage is provided, the retroactive date of
coverage shall be no later than the inception date of claims made coverage, unless
prior policy was extended indefinitely to cover prior acts. Coverage shall be extended
beyond the policy year either by a supplemental extended reporting period (ERP) of
as great a duration as available, and with no less coverage and with reinstated
aggregate limits, or by requiring that any new policy provide a retroactive date no
later than the inception date of claims made coverage.
29 THE CITY'S RIGHT TO RECOVER AGAINST THIRD PARTIES. Contractor
will do nothing to prejudice the City's right to recover against third parties for any loss,
destruction, or damage to City property, and will at the City's request and expense, furnish to the
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City reasonable assistance and cooperation, including assistance in the prosecution or defense of
suit and the execution of instruments of assignment in favor of the City in obtaining recovery.
30 USE OF NAME. Contractor will not use the name of the City of Clearwater in any
advertising or publicity without obtaining the prior written consent of the City.
31 PROHIBITED ACTS. Pursuant to Florida Constitution Article II Section 8, a
current or former public officer or employee within the last two (2) years shall not represent
another organization before the City on any matter for which the officer or employee was
directly concerned and personally participated in during their service or employment or over
which they had a substantial or material administrative discretion.
32 RISK OF LOSS. Contractor agrees to bear all risks of loss, injury, or destruction of
goods or equipment incidental to providing these services and such loss, injury, or destruction
will not release Contractor from any obligation hereunder.
33 SAFEGUARDING CITY PROPERTY. Contractor will be responsible for any
damage to City real property or damage or loss of City personal property when such property is
the responsibility of or in the custody of Contractor or its employees.
34 WARRANTY OF RIGHTS. Contractor warrants it has title to, or the right to
allow the City to use, the materials and services being provided and that the City may use same
without suit, trouble or hindrance from Contractor or third parties.
35 PROPRIETARY MATERIALS AND RIGHTS INDEMNIFICATION. Upon
termination of this Agreement, MSI shall transfer, assign and make available to City or its
representatives all property and materials in MSI's possession belonging to or paid for by the
City.
Without limiting the foregoing, Contractor will without limitation, at its expense defend the City
against all claims asserted by any person that anything provided by Contractor infringes a patent,
copyright, trade secret or other intellectual property right and must, without limitation, pay the
costs, damages and attorneys' fees awarded against the City in any such action, or pay any
settlement of such action or claim. Each party agrees to notify the other promptly of any matters
to which this provision may apply and to cooperate with each other in connection with such
defense or settlement. If a preliminary or final judgment is obtained against the City's use or
operation of the items provided by Contractor hereunder or any part thereof by reason of any
alleged infringement, Contractor will, at its expense and without limitation, either: (a) modify the
item so that it becomes non -infringing; (b) procure for the City the right to continue to use the
item; (c) substitute for the infringing item other item(s) having at least equivalent capability; or
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(d) refund to the City an amount equal to the price paid, less reasonable usage, from the time of
installation acceptance through cessation of use, which amount will be calculated on a useful life
not less than five (5) years, plus any additional costs the City may incur to acquire substitute
supplies or services.
36 FORCE MAJEURE. Failure by either party to perform its duties and obligations
will be excused by unforeseeable circumstances beyond its reasonable control, including acts of
nature, acts of the public enemy, riots, fire, explosion, legislation, and governmental regulation.
The party whose performance is so affected will within five (5) calendar days of the
unforeseeable circumstance notify the other party of all pertinent facts and identify the force
majeure event. The party whose performance is so affected must also take all reasonable steps,
promptly and diligently, to prevent such causes if it is feasible to do so, or to minimize or
eliminate the effect thereof. The delivery or performance date will be extended for a period equal
to the time lost by reason of delay, plus such additional time as may be reasonably necessary to
overcome the effect of the delay, provided however, under no circumstances will delays caused
by a force majeure extend beyond one hundred -twenty (120) calendar days from the scheduled
delivery or completion date of a task unless agreed upon by the parties.
37 FUEL CHARGES AND PRICE INCREASES. No fuel surcharges will be accepted.
No price increases will be accepted without proper request by Contractor and response by the
City's Purchasing Division.
38 NOTICES. All notices to be given pursuant to this Agreement must be delivered to
the parties at their respective addresses. Notices may be (i) personally delivered; (ii) sent via
certified or registered mail, postage prepaid; (iii) sent via overnight courier; or (iv) sent via
facsimile. If provided by personal delivery, receipt will be deemed effective upon delivery. If
sent via certified or registered mail, receipt will be deemed effective three (3) calendar days after
being deposited in the United States mail. If sent via overnight courier or facsimile, receipt will
be deemed effective two (2) calendar days after the sending thereof.
39 GOVERNING LAW, VENUE. This Agreement is governed by the laws of the State
of Florida. The exclusive venue selected for any proceeding or suit in law or equity arising from
or incident to this Agreement will be Pinellas County, Florida.
40 INTEGRATION CLAUSE. This Agreement, including all attachments and
exhibits hereto, supersede all prior oral or written agreements, if any, between the parties and
constitutes the entire agreement between the parties with respect to the work to be performed.
41 PROVISIONS REQUIRED BY LAW. Any provision required by law to be in this
Agreement is a part of this Agreement as if fully stated in it.
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42 SEVERABILITY. If any provision of this Agreement is declared void or
unenforceable, such provision will be severed from this Agreement, which will otherwise remain
in full force and effect. The parties will negotiate diligently in good faith for such amendment(s)
of this Agreement as may be necessary to achieve the original intent of this Agreement,
notwithstanding such invalidity or unenforceability.
43 SURVIVING PROVISIONS. Notwithstanding any completion, termination, or
other expiration of this Agreement, all provisions which, by the terms of reasonable
interpretation thereof, set forth rights and obligations that extend beyond completion,
termination, or other expiration of this Agreement, will survive and remain in full force and
effect. Except as specifically provided in this Agreement, completion, termination, or other
expiration of this Agreement will not release any party from any liability or obligation arising
prior to the date of termination.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals this ,21 I
, 2019.
MICHF SMITH, LL
Michele Smith
CITY OF CLEARWATER, FLORIDA
eta°<tizt\c tko3
George N. Cretekos William B. Horne II
Mayor City Manager
(10.444„.. Ufrytt-
Appved as to form:
Owen Kohler
Assistant City Attorney
Attest:
Rosemarie Call
City Clerk
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