R-1845 - 01/14/2020 - AGREEMENTS - Resolutions Supporting DocumentsREVIEW OF CONT RACTS
Awarding Agency: Village of OakBrook Type of Contract: Marketing Services
Department: Administration 1`
Program/Account Number: 171-13600
Awarded Contract Price: $54,000 Budgeted Amount: $419,216
Under $20,000 C] $500,001 - $11000,000
20,000 - $500,000 l Over $1,000,000
NOTE
2020 Hotels of Oak Brook Marketing Plan/Services
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DEPARTMIRECTOR SIGNATURE p
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Three (3) Originals signed by other party Date/Initial
Original provided to staff member for other party Date/Initial 'r 7
Original provided to Official Files Date/Initial ` 1
Village of Oak Brook I Approved by Board of Trustees- Date/Initials:
Exhibit A
AGREEMENT FOR ADVERTISING &MARKETING
RETAINER FEE" SERVICES
BETWEEN THE VILLAGE OF OAK BROOK AND
POINT B COMMUNICATIONS
This agreement("Agreement") is made as of this 14th day of January 2020 by and between the
Village of Oak Brook ("Village")and Point B Communications("Agency").
WHEREAS,the Village contains a large number of hotels, restaurants, entertainment venues and
retail sales facilities (collectively the "Attractions"); and
WHEREAS, the Village desires to advertise, market and promote the Attractions to the general
public; and
WHEREAS, the Village desires to engage the Agency and the Agency desires to be engaged by
the Village to advertise, market and promote the Attractions pursuant to the terms of this
Agreement; and
NOW THEREFORE in consideration of the mutual covenants and conditions contained herein
and other good and valuable consideration, the receipt of sufficiency of which are hereby
acknowledged, the Parties agree as follows:
1. The foregoing preambles are restated and incorporated herein by reference as though
fully set forth herein.
2. Term of Agreement: This Agreement shall be in effect for twelve months beginning
January 1, 2020. This Agreement is subject to termination as outlined in this Agreement.
3. Fees.
a Monthly Retainer: The following monthly retainer fees shall apply for the Village
under this Agreement for the Agency Services (as defined in Section 4 of this
Agreement): $4,500 for Agency Services (as planned) per month beginning
January 1, 2020 through December 31, 2020. The Agency shall submit monthly
invoices to the Village in an approved format for the Monthly Retainer for the prior
month. The Village shall pay to the Agency the amount billed within 30 days after
its receipt and approval of such an invoice unless the retainer fees are disputed.
The Agency shall not bill the Village for, and the Village shall not pay or reimburse
the Agency for, any costs and expenses incurred by the Agency in providingAgencyServiceswithoutthepriorwrittenauthorizationoftheVillageManager.
b. Expenses: Notwithstanding anything in Section 2.a of this Agreement to the
contrary, the Village shall reimburse the Agency for its out-of-pocket expenses
Expenses") such as printing, postage, lettershop, illustrations, photography,
shipping, color and digital outputs, messenger service, supplies and materials,
presentation boards and travel provided that: (i)the Agency obtains prior approval
from the Village of a plan of the type of expenses it will incur during the Term of the
Agreement; and (ii) the total Expenses reimbursed by the Village do not exceed
419,216.00 (as planned). The Village shall pay to the Agency the amount billed
for Expenses within 30 days after its receipt and approval of such an invoice unless
the Expenses are disputed.
C Taxes, Benefits, and Royalties: All amounts billed by the Agency, including the
retainer amount, includes all applicable federal,state, and local taxes of every kind
and nature applicable to the Agency Services as well as all taxes, contributions,
and premiums for unemployment insurance, old age or retirement benefits,
pensions, annuities,or similar benefits and all costs, royalties and fees arising from
the use on, or the incorporation into, the Agency Services, of patented or
copyrighted equipment, materials,supplies,tools, appliances, devices,processes,
or inventions. Any claim or right to claim additional compensation by reason of the
payment of any such tax, contribution, premium, costs, royalties, or fees is hereby
waived and released by the Agency.
d Records: The Agency shall maintain records showing the actual time devoted,
Expenses, and costs incurred to provide the Agency Services, and shall permit the
Village to inspect and audit all data and records of the Agency for work done
pursuant to this Agreement. The records shall be made available to the Village at
reasonable times during the term of this Agreement, and for one year after
termination of the Agreement.
e. Additional Services: The Agency acknowledges and agrees that the Village shall
not be liable for any costs incurred by the Agency in connection with any services
provided by the Agency that are outside the scope of this Agreement ("Additional
Services"), regardless of whether such Additional Services are requested or
directed by the Village, except upon the prior written consent of the Village.
4. Agency Services: The following are the services to be provided by the Agency pursuant
to the terms of this Agreement(collectively, "Agency Services"):
a Account Management Services: The Agency shall provide a designated team of
marketing professionals("Account Team")to ensure sound strategic direction and
general account management including on-going research (not including the
utilization of outside research firm), planning, strategy, consultation, monitoring of
business conditions and competitive set as well as the development of an
Integrated marketing communication plan and overall budget monitoring forecast.
Account management services include continual evaluation of marketing
initiatives, preparation of a semi-annual findings report plus modifying plans based
on the findings report, as well as needs and market condition changes. The
Account Team shall also serve as the Village's primary day-to-day liaison to the
Agency for all communication and reporting from meetings, conference calls as
well as weekly and/or monthly status reports. In addition, the Account Team shall
provide coordination of files and miscellaneous requests from Hotels of Oak Brook
partners. The Account Team personnel shall be primarily responsible for carrying
out the Agency Services on behalf of the Agency. The Account Team personnel
shall not be changed without the Village's prior written approval. The Agency shall
provide all personnel necessary to complete the Agency Services. The Agency
shall notify the Village as soon as practicable prior to terminating the employment
of, reassigning, or receiving notice of the resignation of, any Account Team
personnel. The Agency shall have no claim for damages and shall not bill the
Village for additional time and materials charges as the result of any portion of the
Agency Services which must be duplicated or redone due to such termination or
for any delay or extension of the time of performance as a result of any such
termination, reassignment, or resignation.
b. Analyses and Assessment: The Agency shall thoroughly familiarize itself with the
Village's products and/or services,their respective markets,competitors, business
environment, overall marketing evaluation and Village needs assessment.
G Research and Strategic Planning: The Agency shall devote sufficient time and
attention to properly evaluate the Village's needs,determine strategic direction and
to summarize and convey findings and recommendations to the Village. The
Agency shall also determine market penetration, segment reach and distribution
vehicles. This does not include the utilization of outside research firms, if required,
or requested by the Village. Advance written approval shall be obtained from the
Village before using any outside research support resources
d Media Management:
i Research: All media research fees for all retainer fee agreements are
waived and considered fee inclusive. Research results for all media
evaluations are reported by summary report that includes the Agency's
recommendation. Media research Is available for all primary market
segments and other niche markets.
i.Planning: The Agency shall develop a comprehensive annual media plan
for the Village and update the plan on an ongoing basis. All media plans
shall be designed to conform to the budget of the Village as outlined .. All
media selected for purchase shall be negotiated at the lowest possible rate
for each participating project.
i Call Screening: The Agency shall accept media calls on behalf of the
Village and report any qualified media opportunities on a regular basis.
e. Accounting:The Agency shall provide accounting services for retainer, project and
media billing and reconciliation. The Agency shall serve as a liaison between
media and production vendors for accurate billing. This includes fielding vendor
inquiries and any Village billing questions.
f Executive Staff Consultation: The Agency's Principal and Executive Creative
Director shall provide time as necessary for planning and strategic creative
development in collaboration with the Account Team and the Village.
g Media Placement: The Agency shall execute media placement for the Village at
the lowest available net rates.
5. Subcontractors:
a Approval and Use of Subcontractors: The Agency shall perform the Agency
Services with its own personnel and under the management, supervision, and
control of its own organization unless otherwise approved in advance by the Village
in writing. All subcontractors and subcontracts used by the Agency shall be
acceptable to, and approved in advance by,the Village. The Village's approval of
any subcontractor or subcontract shall not relieve the Agency of full
responsibility and liability for the provision, performance, and completion of the
Agency Services as required by this Agreement. All Agency Services performed
under any subcontract shall be subject to all of the provisions of this Agreement in
the same manner as if performed by employees of the Agency. For purposes of
this Agreement, the term "Agency" shall be deemed also to refer to all
subcontractors of the Agency, and every subcontract shall include a provision
binding the subcontractor to all provisions of this Agreement.
b Removal of Personnel and Subcontractors: If any personnel or subcontractor fails
to perform the Agency Services in a manner satisfactory to the Village and
consistent with commonly accepted professional practices, the Agency shall
immediately upon notice from the Village remove and replace such personnel or
subcontractor. The Agency shall have no claim for damages,for compensation in
excess of the amount contained in this Agreement, or for a delay or extension of
the time of performance as a result of any such removal or replacement.
6. Confidentiality:
a Confidential Information: The term "Confidential Information" shall mean
information in the possession or under the control of the Village relating to the
technical, business, or corporate affairs of the Village; Village property; user
information, including,without limitation, any information pertaining to usage of the
Village's computer system, including and without limitation, any information
obtained from server logs or other records of electronic or machine readable form;
the Village's customers, methods of operation, and marketing plan; and the
existence of, and terms and conditions of, this Agreement. Village Confidential
Information shall not include information that can be demonstrated: (1) to have
been rightfully in the possession of the Agency from a source other than the Village
prior to the time of disclosure of such information to the Agency pursuant to this
Agreement ("Time of Disclosure"); (2) to have been in the public domain prior to
the Time of Disclosure;(3)to have become part of the public domain after the Time
of Disclosure by a publication or by any other means except an unauthorized act
or omission or breach of this Agreement on the part of the Agency or the Village;
or (4) to have been supplied to the Agency after the Time of Disclosure without
restriction by a third party who is under no obligation to the Village to maintain such
information in confidence.
b. No Disclosure of Confidential Information by the Agency: The Agency
acknowledges that it shall, in performing the Agency Services for the Village under
this Agreement, have access, or be directly or indirectly exposed, to Confidential
Information. The Agency shall hold confidential all Confidential Information and
shall not disclose or use such Confidential Information without the express prior
written consent of the Village. The Agency shall use reasonable measures at least
as strict as those the Agency uses to protect its own confidential information. Such
measures shall include,without limitation, requiring employees and subcontractors
of the Agency to execute a non- disclosure agreement before obtaining access to
Confidential Information.
7. Standard of Services and Indemnification:
a Representation and Certification of Services: The Agency represents and certifies
that the Agency Services shall be performed in accordance with the standards of
professional practice, care, and diligence practiced by recognized consulting firms
in performing services of a similar nature in existence at the time
of performance. The representations and certifications expressed shall be in
addition to any other representations and certifications expressed in this
Agreement, or expressed or implied by law, which are hereby reserved unto the
Village.
b. Indemnification: The Agency shall, and does hereby agree to indemnify and save
harmless the Village against all damages, liability, claims, losses, and expenses
including attorneys'fees)that may arise, or be alleged to have arisen, out of or in
connection with the Agency's performance of, or failure to perform, the Agency
Services or any part thereof, or any failure to meet the representations and
certifications set forth in Section 7.a of this Agreement.
C. Insurance: The Agency acknowledges and agrees that the Agency shall provide
certificates of insurance evidencing the minimum insurance coverages and limits
set forth in Exhibit A attached to this Agreement within 10 days following the
Village's acceptance of this Agreement. Such policies shall be in form, and from
companies, acceptable to the Village. The insurance coverages and limits set forth
Exhibit A shall be deemed to be minimum coverages and limits and shall not be
construed in any way as a limitation on the Agency's duty to carry adequate
insurance or on Contractor's liability for losses or damages under this Contract.
The minimum insurance coverages and limits that shall be maintained at all times
while providing, performing, or completing the Agency Services.
d No Personal Liability. No elected or appointed official or employee of the Village
shall be personally liable, in law or in contract, to the Agency as the result of the
execution of this Agreement.
8. Ownership of Materials: All materials produced by the Agency or commissioned by the
Village under this Agreement, shall be the property of the Village and the Village shall
have exclusive ownership of those materials. It is understood that work commissioned by
the Agency from third party vendors including, but not limited to, photographers and
Illustrators, may subject to different ownership and usage rights which shall be determined
on a case-by-case basis. Notwithstanding the foregoing, work commissioned by the
Agency from third party vendors for the Village shall provide the Village, at a minimum, a
perpetual, irrevocable non-exclusive right and license to use such work for Village
purposes.
9. Consultant Agreement General Provisions:
a Relationship of the Parties: The Agency shall act as an independent contractor in
providing and performing the Agency Services. Nothing in, nor done pursuant to,
this Agreement shall be construed: (1) to create the relationship of principal and
agent, employer and employee, partners, or joint venturers between the Village
and the Agency; or (2) to create any relationship between the Village and any
subcontractor of the Agency.
b. Conflict of Interest: The Agency represents and certifies that, to the best of its
knowledge: (1) no elected or appointed Village official, employee or agent has a
personal financial interest in the business of the Agency or in this Agreement, or
has personally received payment or other consideration for this Agreement; (2)as
of the date of this Agreement, neither the Agency nor any person employed or
associated with the Agency has any interest that would conflict in any manner or
degree with the performance of the obligations under this Agreement; and (3)
neither the Agency nor any person employed by or associated with the Agency
shall at any time during the term of this Agreement obtain or acquire any interestthatwouldconflictinanymannerordegreewiththeperformanceoftheobligationsunderthisAgreement.
G No Collusion: The Agency represents and certifies that the Agency is not barredfromcontractingwithaunitofstateorlocalgovernmentasaresultof: (1) adelinquencyinthepaymentofanytaxadministeredbytheIllinoisDepartmentofRevenue, unless the Agency is contesting, in accordance with the procedures
established by the appropriate revenue act, its liability for the tax or the amount ofthetax, as set forth in Section 1142.1-1 et seq. of the Illinois Municipal Code, 65ILCS5/1142.1-1 et seq.; or(2)a violation of either Section 33E-3 or Section 33E-4 of Article 33E of the Criminal Code of 1961, 720 ILCS 5/33E-1 et seq. TheAgencyrepresentsthattheonlypersons, firms, or corporations interested in thisAgreementasprincipalsarethosedisclosedtotheVillagepriortotheexecution
of this Agreement,and that this Agreement is made without collusion with any otherperson, firm, or corporation. If at any time it shall be found that the Agency has, inprocuringthisAgreement,colluded with any other person,firm,or corporation,then
the Agency shall be liable to the Village for all loss or damage that the Village maysuffer, and this Agreement shall, at the Village's option, be null and void.
d Termination: Notwithstanding any other provision hereof, either party mayterminatethisAgreementforanyreasonthree (3) months after the effective startdateandupon60dayswrittennoticefromonepartytotheotherparty. In the eventthatthisAgreementissoterminated,the Agency shall be paid for Agency Services
actually performed and reimbursable expenses actually incurred, if any, prior totermination, not exceeding the value of the Agency Services completed, whichshallbedeterminedonpro-rata basis.
e Compliance with Laws and Grants:
i Compliance with Laws: The Agency shall give all notices, pay all fees, and
take all other action that may be necessary to ensure that the AgencyServicesareprovided, performed, and completed in accordance with allrequiredgovernmentalpermits, licenses, or other approvals and
authorizations that may be required in connection with providing,Performing, and completing the Agency Services, and with all applicable
statutes, ordinances, rules, and regulations, including, without limitation:
any applicable prevailing wage laws; the Fair Labor Standards Act; anystatutesregardingqualificationtodobusiness; any statutes requiringpreferencetolaborersofspeckedclasses; any statutes prohibitingdiscriminationbecauseof, or requiring affirmative action based on, race,
creed, color, national origin, age, sex, or other prohibited classification,including, without limitation, the Americans with Disabilities Act of 1990, 42U.S.C. §§ 12101 et seq., and the Illinois Human Rights Act, 775 ILCS 5/1-101 et seq. The Agency shall also comply with all conditions of any federal,state, or local grant received by the Village or the Agency with respect to
this Agreement or the Agency Services. Further, the Agency shall have a
written sexual harassment policy in compliance with Section 2-105 of theIllinoisHumanRightsAct.
i Liability for Noncompliance: The Agency shall be solely liable for any finesorcivilpenaltiesthatareimposedbyanygovernmentalorquasi-governmental agency or body that may arise, or be alleged to have
arisen, out of or in connection with the Agency's, or any of its
subcontractors, performance of, or failure to perform,the Agency Services
or any part thereof.
i.Required Provisions: Every provision of law required by law to be inserted
into this Agreement shall be deemed to be inserted herein.
f.Default: If it should appear at any time that the Agency has failed or refused to
prosecute,or has delayed in the prosecution of,the Agency Services with diligence
at a rate that assures completion of the Agency Services in full compliance with
the requirements of this Agreement, or has otherwise failed, refused, or delayed
to perform or satisfy the Agency Services or any other requirement of this
Agreement ("Event of Default"), and fails to cure any such Event of Default within
ten business days after the Agency's receipt of written notice of such Event of
Default from the Village, then the Village shall have the right, without prejudice to
any other remedies provided by law or equity, to pursue any one or more of the
following remedies:
i Cure by Agency: The Village may require the Agency,within a reasonable
time, to complete or correct all or any part of the Agency Services that are
the subject of the Event of Default; and to take any or all other action
necessary to bring the Agency and the Agency Services into compliance
with this Agreement.
i Termination of Agreement by Village: The Village may terminate this
Agreement without liability for further payment of amounts due or to
become due under this Agreement after the effective date of termination.
i Withholding of Payment by Village: The Village may withhold from any
payment, whether or not previously approved, or may recover from the
Agency, any and all costs, including attorneys' fees and administrative
expenses, incurred by the Village as the result of any Event of Default by
the Agency or as a result of actions taken by the Village in response to anyEventofDefaultbytheAgency.
g No Additional Obligation: The Parties acknowledge and agree that the Village is
under no obligation under this Agreement or otherwise to negotiate or enter into
any other or additional contracts or agreements with the Agency or with any vendor
solicited or recommended by the Agency
h Village Authority: Notwithstanding any provision of this Agreement, any
negotiations or agreements with, or representations by the Agency to, vendors
shall be subject to the approval of the Village. For purposes of this Section 9.H,
vendors" shall mean entities engaged in subcontracts for the provision of
additional services directly to the Village. The Village shall not be liable to any
vendor or third party for any agreements made by the Agency without the
knowledge and approval of the Village.
I Mutual Cooperation: The Village agrees to cooperate with the Agency in the
performance of the Agency Services, including meeting with the Agency and
providing the Agency with such non-confidential information that the Village may
have that may be relevant and helpful to the Agency's performance of the Agency
Services.The Agency agrees to cooperate with the Village in the performance and
completion of the Agency Services and with any other consultants engaged by the
Village.
j News Releases: The Agency shall not issue any news releases, advertisements,
or other public statements regarding the Agency Services without the priorwritten
consent of the Village Manager.
10. General Provisions:
a Amendment. No amendment or modification to this Agreement shall be effective
until it is reduced to writing and approved and executed by the Village and the
Agency in accordance with all applicable statutory procedures.
d Assignment.This Agreement may not be assigned by the Village or by the Agency
without the prior written consent of the other party.
c Binding Effect. The terms of this Agreement shall bind and inure to the benefit of
the Village, the Agency, and their agents, successors, and assigns.
d Notice. All notices required or permitted to be given under this Agreement shall be
in writing and shall be delivered (1)personally,(2)by a reputable overnight courier,
or by (3) by certified mail, return receipt requested, and deposited in the
U.S. Mail, postage prepaid. Unless otherwise expressly provided in this
Agreement, notices shall be deemed received upon the earlier of: (a) actual
receipt; (b)one business day after deposit with an overnight courier, as evidenced
by a receipt of deposit; or(c)four business days following deposit in the U.S. mail,
as evidenced by a return receipt. By notice complying with the requirements of this
Section 8.D, each party shall have the right to change the address or the
addressee, or both, for all future notices and communications to the other party,
but no notice of a change of addressee or address shall be effective until actually
received.
Notices and communications shall be addressed to, and delivered at,the
following address:
To Village: Village of Oak Brook
Attn: Village Manager
1200 Oak Brook Road
Oak Brook, Illinois 60523
Fax: 630-360-5027
To the Agency: Point B Communications
600 W. Fulton, Suite 710
Chicago, Illinois 60661
Fax: 312-867-7751
e Third Party Beneficiary. No claim as a third party beneficiary under this Agreement
by any person, firm, or corporation shall be made or be valid against the Village.
f.Provisions Severable. If any term, covenant, condition, or provision of this
Agreement is held by a court of competent jurisdiction to be invalid, void, or
unenforceable, the remainder of the provisions shall remain in full force and effect
and shall in no way be affected, impaired, or invalidated.
g Time. Time is of the essence in the performance of all terms and provisions of this
Agreement.
h Calendar Days and Time. Unless otherwise provided in this Agreement, any
reference in this Agreement to "day" or"days" shall mean calendar days and not
business days. If the date for giving of any notice required to be given, or the
performance of any obligation, under this Agreement falls on a Saturday, Sunday,
or federal holiday, then the notice or obligation may be given or performed on the
next business day after that Saturday, Sunday, or federal holiday.
i Governing Laws. This Agreement shall be governed by,construed and enforced in
accordance with the internal laws, but not the conflicts of laws rules, of the State
of Illinois; venue for any action related to this Agreement will be in the Circuit Court
of DuPage County, Illinois.
Authority to Execute.
1. The Village. The Village hereby warrants and represents to the Agency that
the persons executing this Agreement on its behalf have been properly
authorized to do so by its corporate authorities.
2. The Agency. The Agency hereby warrants and represents to the Village
that the persons executing this Agreement on its behalf have the full and
complete right, power, and authority to enter into this Agreement and to
agree to the terms, provisions, and conditions set forth in this Agreement
and that all legal actions needed to authorize the execution, delivery, and
performance of this Agreement have been taken.
k Entire Agreement, This Agreement constitutes the entire agreement between the
parties to this Agreement and supersedes all prior agreements and negotiations
between the parties, whether written or oral, relating to the subject matter of thisAgreement.
L Waiver. Neither the Village nor the Agency shall be under any obligation to
exercise any of the rights granted to them in this Agreement except as it shall
determine to be in its best interest from time to time. The failure of the Village or
the Agency to exercise at any time any such rights shall not be deemed or
construed as a waiver of that right, nor shall the failure void or affect the Village's
or the Agency's right to enforce such rights or any other rights.
M. Consents. Unless otherwise provided in this Agreement, whenever the consent,
permission, authorization, approval, acknowledgement, or similar indication of
assent of any party to this Agreement,or of any duly authorized officer, employee,
agent, or representative of any party to this Agreement, is required in this
Agreement, the consent, permission, authorization, approval, acknowledgement,
or similar indication of assent shall be in writing.
n Grammatical Usage and Construction. In construing this Agreement, pronouns
include all genders and the plural includes the singular and vice versa.
o. Interpretation. This Agreement shall be construed without regard to the identity ofthepartywhodraftedthevariousprovisionsofthisAgreement. Moreover, each
and every provision of this Agreement shall be construed as though all parties to
this Agreement participated equally in the drafting of this Agreement. As a result
of the foregoing, any rule or construction that a document is to be construed
against the drafting party shall not be applicable to this Agreement.
p Headings. The headings,titles,and captions in this Agreement have been inserted
only for convenience and in no way define, limit, extend, or describe the scope or
intent of this Agreement.
4 Rights Cumulative. Unless expressly provided to the contrary in this Agreement,
each and every one of the rights, remedies, and benefits provided by this
Agreement shall be cumulative and shall not be exclusive of any other rights,
remedies, and benefits allowed by law.
SIGNATURE PAGE FOLLOWS]
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