Legal Committee

LEGAL COMMITTEE MEETING AGENDA Thursday, June 28, 2018 at 4:00PM City Hall Conference Room 425 N. Richardson, Roswell, NM 88201 Chair: Judy Stubbs, Ward 3 Vice Chair: Barry Foster, Ward 5 Members: George Peterson, Ward 4 Savino Sanchez, Ward 4 Staff Liason: Aaron Holloman CALL TO ORDER ROLL CALL APPROVAL OF AGENDA APPROVAL OF MINUTES Approval of the minutes from the Legal Committee meeting on May 31, 2018. (page 3) REGULAR ITEMS 1. RIAC Leases - To recommend to full Council that the following RIAC agreements to existing leases be placed on the Consent agenda for approval: (page 1) (A) New Cingular Wireless PCS, LLC - Consider approval to authorize New Cingular Wireless PCS, LLC a Delaware Corporation, to amend their current lease agreement on a parcel of land. (page 8) (B) J&S Mechanical, LLC - Consider approval to authorize J&S Mechanical, LLC, a New Mexico Corporation, a new lease agreement on Building No. 61. (page 10) 2. Resolution 18-47 - Recommend to City Council the adoption of Resolution 18-43, honoring the memory of Army Sgt. Christopher Sanders and requesting that the New Mexico Department of Transportation undertake the dedication of a pedestrian overpass on North Main adjacent to the east side of the New Mexico Military Institute as a memorial to Sgt. Sanders. (page 12) 3. Cubic, Inc. Contract - Consider recommending that City Council approve the contract for advertising and marketing services with Cubic, Inc. (page 15) [continued on following page] 06/28/18 - Legal Committee --1-- City of Roswell, NM CHAIR COMMENTS, REPORTS, ANNOUNCEMENTS PUBLIC PARTICIPATION ADJOURN Notice of this meeting has been given to the public in compliance with Sections 10-15-1 through 10-15-4 NMSA 1978 and Resolution 17-49. NOTICE OF POTENTIAL QUORUM – A quorum of the City Council may or may not attend, but there will not be debate by the City Council. The Council, acting as attendees to an informational presentation, will not be discussing public business and no action will be taken. If you are an individual with a disability who is in need of a reader, amplifier, qualified sign language interpreter, or any other form of auxiliary aid or service to attend or participate in the hearing or meeting, please contact Human Resources at 575-624-6700 at least one week prior to the meeting or as soon as possible. Public documents including the agenda and minutes can be provided in various accessible formats. Please contact the City Clerk at 575-624-6700 if a summary or other type of accessible format is needed. Printed and posted: Friday, June 22, 2018 06/28/18 - Legal Committee --2-- City of Roswell, NM Regular Meeting of the Legal Committee Held in the Conference Room at City Hall May 31, 2018 Notice of this meeting was given to the public in compliance with Section 10-15-1 through 10-15-4 NMSA and Resolution 17-49. ROLL CALL The meeting convened at 4:04 p.m. with Chair Stubbs presiding and Councilors Peterson, Sanchez present. Councilor Foster was absent. Staff present: Scott Stark, Aaron Hollman, Bill Bartlett, Devin Graham, Ana Nieto, Lupita Everett, and Parker Patterson. Guests present: Larry Connolly and Alison Penn. APPROVAL OF AGENDA Councilor Sanchez moved to approve the May 31, 2018, 2018, Legal Committee meeting agenda, removing item number 1A, NM DOT lease, under regular items and item number 7 Award ITB 18-004. Councilor Peterson was the second. A voice vote was 3-0, and the motion passed. APPROVAL OF MINUTES Councilor Peterson moved to approve the April 30, 2018 Legal Committee minutes with the corrections. Councilor Sanchez was the second. A voice vote was 3-0, and the motion passed. REGULAR ITEMS 1. RIAC agreements- (A) Veterinarians Outlet of NM, Inc. - Mr. Stark stated that Veterinarians Outlet of NM, Inc. leases a portion of the building for the purpose of soaps, sanitizers, and detergents associated with the dairy industry. New rent amount is $1,567 monthly; $18,804 annually. Rent adjustment is 2.53%. Veterinarians Outlet of NM, Inc. has been customer since June 2006. Councilor Sanchez moved to send to full Council on consent agenda recommending approval of Veterinarians Out of NM, Inc. to renew his lease agreement on building no. 112A subject to all terms and conditions of the lease. Councilor Peterson was the second. A voice vote was 3-0, and the motion passed. (B) Walker Aviation Museum Fdn. - Mr. Stark stated that Walker Aviation Museum Foundation leases the office space for operating a museum associated with the former Walker Air Force Base. Rent amount is $154 monthly; $1,848 annually. Rent adjustment is 2.67%. Walker Aviation Museum Foundation has been a customer since July 2010. Councilor Peterson moved to send to full Council on consent agenda recommending approval of Walker Aviation Museum Foundation to renew their lease agreement in building no. 1 subject to all terms and conditions 06/28/18 - Legal Committee --3-- City of Roswell, NM  of the lease. Councilor Sanchez was the second. A voice vote was 3-0, and the motion passed. (C) Partain - Mr. Stark stated Partain leases the building for the purpose of aircraft storage and maintenance. Rent amount is $188 monthly; $2,256 annually. Rent adjustment is 2.17%. David L. Partain has been a customer since July 2002. Councilor Sanchez moved to send to full Council on consent agenda recommending approval of Partain renew their lease agreement on “T” Hangar No. 120 space 1 subject to all terms and conditions of the lease. Councilor Peterson was the second. A voice vote was 3-0, and the motion passed. 2. Resolution 18-32-Federal Aviation Administration - Mr. Stark discussed that Resolution 18-32 is to authorize the Mayor to accept funding assistance from the Federal Aviation Administration on behalf of the City of Roswell. Mr. Stark stated that the City made an application to the FAA for grant of federal funds for project development at the RIAC, has approved projects for airport development at the RIAC, and that it is the intent of the governing body to accept the grant offer made by the FAA. Councilor Sanchez moved to send to full City Council to authorize the Mayor to accept funding from Federal Aviation Administration. Councilor Peterson was second. A voice vote was 3-0, and the motion passed 3. Resolution 18-33- Authorizing Manager to accept NM Aviation Funds.- Mr. Stark discussed Resolution 18-33 authorizing the City Manager to apply for, accept and execute Grant Agreements for all funding assistance from the State of New Mexico Aviation Division on behalf of the City of Roswell for project development at the Roswell International Air Center. Mr. Stark stated the grant of state funds is for project development at the RIAC. The State of NM has approved projects for airport development at the RIAC and it is the intent of the governing body to accept the grant offers made by the State of NM through its Aviation Division. Councilor Peterson moved to send to full City Council to authorize the City Manager to apply and accept funding from NM Aviation. Councilor Sanchez was second. A voice vote was 3-0, and the motion passed 4. Award of RFP 18-008 – Fleet Management and Maintenance – Ms. Everett discussed the RFP-18-008 Fleet Management and Maintenance Service and authorization for City Manager to enter into contract negotiations with First Vehicle Services. Ms. Everett stated that this RFP was posted and four proposals were received on April 24, 2018. Three proposals were rejected as not responsive and the evaluation committee reviewed one. Councilor Sanchez moved to send to full City Council on the recommendation to award RFP 18-008 Fleet Management and Maintenance and Councilor Peterson was the second. A voice vote was 3-0, and the motion passed. 5. Reject Award of RFP 18-014 - Ms. Everett discussed that this RFP was posted and two proposals were received on April 24, 2018. One proposal was rejected and one was evaluated. Ms. Everett stated that the Evaluation Committee’s recommendation was to reject proposals and to terminate RFP-18-014 Fire Apparatus Preventive 06/28/18 - Legal Committee --4-- City of Roswell, NM  Maintenance and Repair Services. Councilor Sanchez moved to send to full City Council on the recommendation to reject award of RFP 18-014. Councilor Peterson was the second. A voice vote was 3-0, and the motion passed. For the Record: During the discussion of the Fire Apparatus Maintenance RFP, the Committee considered long term development of in house personnel that can service and maintain these vehicles for the Department. 6. Reissue RFP 18-014 - Fire Preventive Maintenance & Repair Services – Ms. Everett discussed that staff was requesting that the revised RFP-18-014 (2nd Posting) Fire Preventive Maintenance & Repair Services to be approved for reissuance including the amended scope of services. Ms. Everett stated since RFP has so many rejection they will clarify the proposals better. Councilor Sanchez moved to send to full City Council on the recommendation to reissue RFP 18-014. Councilor Peterson was the second. A voice vote was 3-0, and the motion passed. 7. Proposed Ordinance 18-04 - Mr. Holloman discussed the advertisement for a public hearing of proposed Ordinance 18-04 amending Sec. 2-96 of the Roswell City Code pertaining to definitions and applicability of the ordinance governing boards and commissions. Mr. Holloman stated the ordinance specifies that if there need to be any changes to the structure of a board or commission they can be outlined in the originating document without creating a conflict in the laws. Councilor Stubbs moved to send to full Council a recommendation to approve Proposed Ordinance 18-04 updating definitions for boards and commissions and to advertise for a public hearing in July. Councilor Peterson was second. A voice vote was 3-0, and the motion passed. CHAIR COMMENTS, REPORTS, ANNOUNCEMENTS In revisiting non-action items from previous meetings: (1) The Mayor is reviewing the City Manager evaluation. (2) The City Manager is outlining plans for a review of financial policies and procedures. (3) Eighth and Sycamore Street project is still moving forward with the appraisal and survey of the property in question needed to make it a square intersection. PUBLIC PARTICIPATION None ADJOURN The meeting adjourned at 5:20 pm. 06/28/18 - Legal Committee --5-- City of Roswell, NM  AGENDA ITEM NO. 1– ABSTRACT LEGAL COMMITTEE MEETING Thursday, June 28, 2018 at 4:00PM City Hall Conference Room 425 N. Richardson, Roswell, NM 88201 RIAC LEASES: (A) New Cingular Wireless PCS, LLC (B) J&S Mechanical, LLC ACTION REQUESTED: (A) Consider approval to authorize New Cingular Wireless PCS, LLC a Delaware Corporation, to amend their current lease agreement on a parcel of land. (B) Consider approval to authorize J&S Mechanical, LLC, a New Mexico Corporation, a new lease agreement on Building No. 61. BACKGROUND: (A) New Cingular Wireless PCS, LLC, leases a parcel of land for the purpose of transmitting and receiving telecommunications signals. 144 square feet. New rent amount is $1,246 monthly; $14,952 annually. Rent adjustment is 3.49%. New Cingular Wireless PCS, LLC has been a customer since August 2002. (B) J&S Mechanical LLC, request to lease Building No. 61 for the purpose of storage. 1,425 square feet. Rent amount is $260 monthly; $3,120 annually. New lease agreement August 2018. FINANCIAL CONSIDERATION: (A) New Cingular Wireless PCS, LLC, new rent amount is $1,246 monthly; $14,952 annually. Rent adjustment is 3.49%. Term: August 1, 2018 through July 31, 2023. (B) J&S Mechanical LLC, new lease in the amount of, $260 monthly; $3,120 annually. Term: August 1, 2018 through July 31, 2019. LEGAL REVIEW: The City Attorney has reviewed the lease and amendment. BOARD and/or The Legal Committee is scheduled to meet on Thursday, June COMMITTEE ACTION: 28, 2018. [continued on following page] 06/28/18 - Legal Committee --6-- City of Roswell, NM STAFF (A) Consider approval of an addendum to the lease RECOMMENDATION: agreement with New Cingular Wireless PCS, LLC to amend their current lease agreement by modify the term of the lease to last from August 1, 2018 to July 31, 2023, updating the notice provisions, and subject to all other terms and conditions of the lease. (B) Consider approval of a one year lease with J&S Mechanical of Building No. 61 consisting of 1,425 sq. ft. at the RIAC, for $3,120 payable in 12 monthly installments of $260, to be placed on the consent agenda subject to all other terms and conditions of the lease. 06/28/18 - Legal Committee --7-- City of Roswell, NM  THE CITY OF ROSWELL, NEW MEXICO, a municipal corporation, hereinafter called "Landlord" and NEW CINGULAR WIRELESS PCS, LLC, a Delaware corporation hereinafter “Tenant”, hereby agree to the following amendment to that certain Lease Agreement dated December 12, 2013. WHEREAS, Tenant wishes to exercise its option to lease for an additional five (5) year period; and WHEREAS, Tenant wishes to update its contact information; NOW, THEREFORE, the following changes are effective with City Council approval July 12, 2018: 1. Paragraph 2. TERM is deleted and replaced with the following: “2. TERM The Lease term is for five (5) years, commencing on August 1, 2018 and ending July 31, 2023 unless sooner terminated by provision hereof.” 2. Paragraph 26. b. is deleted and replaced with the following: “b. All notices, requests or other communications to Tenant shall be given by regular and certified mail addressed to the following: “If to Tenant: New Cingular Wireless PCS, LLC Attn: Network Real Estate Administration Re: Cell Site #: NMALU0740 ; Cell Site Name: MIDWAY (NM) Fixed Asset No.: 10139189 575 Morosgo Drive Atlanta, GA 30324 With a copy to: New Cingular Wireless PCS, LLC AT&T Legal Department- Network Attn: Network Counsel Re: Cell Site #: NMALU0740 ; Cell Site Name: MIDWAY (NM) Fixed Asset No.: 10139189 208 S. Akard Street Dallas, Texas, 75202-4206 Billing Address: 06/28/18 - Legal Committee --8-- City of Roswell, NM  AT&T Network Real Estate Administration 575 Morosgo Drive Atlanta, GA 303234 REleaseadmin@att.com 1-877-231-5447 With a copy to Local Contact: New Cingular Wireless PCS, LLC AZ/NM Property Manager 1355 W. University Drive Mesa, AZ 85201” 3. Except as amended herein, the Lease shall continue without change, except as modified above, and in full force and effect as originally executed. IN WITNESS WHEREOF, this First Addendum to Lease Agreement is done and executed in Roswell, New Mexico this ______ day of July 2018. CITY SEAL LANDLORD: CITY OF ROSWELL, NEW MEXICO ______________________ Dennis J. Kintigh, Mayor ______________________ Sharon Coll, City Clerk TENANT: New Cingular Wireless PCS, LLC a Delaware limited liability company By: AT&T Mobility Corporation Its: Manager By: Name: __ Its: Area Manager Date: 06/28/18 - Legal Committee --9-- City of Roswell, NM THIS LEASE executed in Roswell, New Mexico on this 12th day of July, 2018 by and between the CITY OF ROSWELL, NEW MEXICO, a municipal corporation, hereinafter designated “Landlord”, and J & S MECHANICAL, A New Mexico Limited Liability Corporation, hereinafter designated as “Tenant”. WHEREAS Landlord has agreed to lease to Tenant the real property described below, together with the improvements thereon, in Chaves County New Mexico, and Tenant has agreed to lease said real property and improvements from Landlord; NOW THEREFORE, in consideration of the mutual covenants and agreements contained herein, the parties agree as follows Building No. 61 consisting of 1425 square feet, more or less and the fenced area surrounding the building, located at the Roswell International Air Center, identified on a plat attached hereto and made a part hereof, identified and listed as Exhibit "A" (Premises). 1. GRANTING CLAUSE AND PREMISES. For the term, at the rent and otherwise upon the terms, provisions and conditions contained herein, Landlord hereby lets and leases unto Tenant the surface only to the following real property, together with all improvements located thereon: 2. TERM. The Lease term is for one (1) year, commencing on August 1, 2018 and ending July 31, 2019 unless sooner terminated by provision hereof. 3. RENT. Tenant agrees to pay to Landlord as rent the sum of Three Thousand One Hundred Twenty Dollars and No Cents ($3,120.00), payable in 12 monthly installments of $260.00. Rent and other fees are due on the first day of each month. If Tenant fails to pay all rent and other fees due for any month by the tenth calendar day of the month that said rent and fees are due, Tenant shall pay to Landlord an additional 2% finance charge, as a penalty, each month until the full amount of that month’s rent is paid. This penalty shall be immediately payable without limiting Landlord in the exercise of any other right or remedy to which it may be entitled by reason of Tenant’s failure to pay rent when due. All rent shall be paid to Landlord without abatement, reduction or set off of any kind except as herein specifically provided. 4. SECURITY DEPOSIT. Tenant shall pay $260.00 in advance as security for Tenant’s full and faithful performance of all terms of this lease. This amount shall be used by Landlord at the termination of this Lease Agreement toward a. payment for rent or penalties due Landlord, b. reimbursement of the costs of cleaning and repairing damages (beyond normal wear and tear) to the Premises and c. the cost of removal of any hazardous material not properly disposed of by Tenant. Landlord shall be the sole and reasonable judge of all cleaning and repairs required for the Premises and the amounts needed for these purposes. Upon termination or expiration of this Lease the security deposit shall first be applied to necessary cleaning and removal, repairs and the remaining balance, if any, may then be applied to rentals and penalties then owing to Landlord. Any refund of the security deposit due Tenant will be delivered or mailed in accordance with Paragraph 26 of this Agreement within 60 days after the termination of this Lease Agreement. 5. CONDITION OF PREMISES. Tenant has inspected Premises and accepts the Premises in its present condition “as is”. Tenant acknowledges that any requirements for accessibility and/or public accommodation(s) are Tenant’s responsibility. Tenant agrees that the Premises is in good repair and condition except as noted herein. 06/28/18 - Legal Committee --10-- City of Roswell, NM  EXHIBIT “A” Premises: Building No. 61 consisting of 1,425 square feet ± and the fenced area surrounding the building. 510 East Challenger EXHIBIT “A” 06/28/18 - Legal Committee --11-- City of Roswell, NM  AGENDA ITEM NO. 2 – ABSTRACT LEGAL COMMITTEE MEETING Thursday June 28, 2018 at 4:00 pm City Hall Conference Room 425 N. Richardson, Roswell, NM 88201 Res. 18-43 – A Resolution Honoring the Memory of Army Sergeant Christopher A. Sanders ACTION REQUESTED: Recommend to City Council the adoption of Resolution 18-43, honoring the memory of Army Sgt. Christopher Sanders and requesting that the New Mexico Department of Transportation undertake the dedication of a pedestrian overpass on North Main adjacent to the east side of the New Mexico Military Institute as a memorial to Sgt. Sanders. BACKGROUND: Sgt. Christopher Sanders was a Roswell native who joined the U.S. Army in 2004 and served with tremendous distinction in two tours in Iraq. He was killed in action, along with five other soldiers and their interpreter, on January 9th, 2008 in Sinsil, Iraq. Sgt. Sander’s family has proposed dedication of a pedestrian overpass on North Main adjacent to the east side of the New Mexico Military Institute. This Resolution would recognize the service and sacrifice of Sgt. Sanders and his family, and request that NM DOT undertake the dedication of the pedestrian overpass in his memory. FINANCIAL CONSIDERATION: n/a LEGAL REVIEW: The City Attorney has reviewed the proposed resolution BOARD and/or The Legal Committee is scheduled to meet on Thursday, June COMMITTEE ACTION: 28, 2018. STAFF Recommend adoption by the City Council of Resolution 18-43 - RECOMMENDATION: A Resolution Honoring the Memory of Army Sergeant Christopher A. Sanders, recognizing the service and sacrifice of Sgt. Sanders and his family, and requesting that NM DOT undertake the dedication of a pedestrian overpass on North Main adjacent to the east side of the New Mexico Military Institute as a memorial to Sgt. Sanders. 06/28/18 - Legal Committee --12-- City of Roswell, NM  RESOLUTION 18-43 A RESOLUTION HONORING THE MEMORY OF ARMY SERGEANT CHRISTOPHER A. SANDERS WHEREAS, the men and women who serve in the United States armed forces are to be commended for their heroic service in defense of our country and in the spread of freedom and democracy throughout the world; WHEREAS, the family of Army Sgt. Christopher Sander has proposed dedicating a pedestrian overpass in the City of Roswell, on North Main adjacent to the east side of the New Mexico Military Institute (“NMMI”); WHEREAS, Sgt. Sanders was born on April 30th 1985 in Roswell, New Mexico, and wanted, from the age of 9 years old, to join NMMI as a cadet; WHEREAS, Sgt. Sanders graduated high school from NMMI, Class of 2004, and enlisted in the Army in February, 2004; WHEREAS, Sgt. Sanders had intended to attend college and become a military officer, however, the terrorist attacks on the World Trade Center and the Pentagon persuaded him to join the military as soon as he could; WHEREAS, after advanced training, Sgt. Sanders served two tours in Iraq, first from September 2004 to October 2005 with the 1st Battalion, 24th Infantry Regiment, and then from 2005 until 2008 with the 3rd Squadron, Second Stryker Calvary Regiment, 1st Armored Division, known as the “Wolf Pack”; WHEREAS, Sgt. Christopher Sanders was tragically killed in action, along with five other soldiers and their interpreter, on January 9th, 2008 in Sinsil, Iraq; WHEREAS, Sgt. Christopher Sanders and his fallen comrades will be forever known as the “Sinsil 7”; WHEREAS, during his distinguished service, Sgt. Sanders received following medals; Bronze Star with Valor, Purple Heart, Army Commendation Metal 1st award, Army Commendation Medal 2nd award, Expert Infantry Badge, Combat Infantry Badge, Army Good Contact Medal, National Defense Medal, Iraqi Campaign Medal, Global War on Terrorism Expeditionary Medal, and Overseas Service Medal; WHEREAS, Sgt. Sanders was a dedicated father, husband, and service man, who loved life and, above all, his family; and WHEREAS, Sgt. Sanders is entitled to the respect, recognition and remembrance of the City of Roswell for his service and sacrifice to this nation. 06/28/18 - Legal Committee --13-- City of Roswell, NM  NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL AS THE GOVERNING BODY OF THE CITY OF ROSWELL, NEW MEXICO, that: 1. The City of Roswell hereby recognizes the exemplary service and sacrifice of Army Sgt. Christopher Sanders; 2. The City of Roswell further extends its condolences to the family, friends and loved ones of Sgt, Sanders; 3. Dedication of the pedestrian overpass on N. Main on the east side of New Mexico Military Institute in the City of Roswell would constitute a fitting and appropriate memorial to the memory of Sgt. Sanders; and 4. The City of Rowell encourages and requests that the New Mexico Department of Transportation undertake the dedication of the pedestrian overpass as a memorial for Sgt. Sanders. PASSED, ADOPTED, SIGNED and APPROVED the ___ day of July, 2018. _____________________________ Dennis Kintigh, Mayor ATTEST: ______________________ Sharon Coll, City Clerk 06/28/18 - Legal Committee --14-- City of Roswell, NM  AGENDA ITEM NO. 3– ABSTRACT LEGAL COMMITTEE MEETING Thursday, June 28, 2018 at 4:00PM City Hall Conference Room 425 N. Richardson, Roswell, NM 88201 Cubic Inc. contract for advertising and marketing services ACTION REQUESTED: Consider recommending that City Council approve the contract for advertising and marketing services with Cubic, Inc. BACKGROUND: The City recently sought proposals for marketing and advertising services in RFP //no. On //date, Council, following the Evaluation Committee’s recommendation, selected Cubic, Inc. This agreement is the final result of negotiations between City staff and Cubic, Inc. FINANCIAL CONSIDERATION: As per the conditions of the RFP the one year budget for these services is $355,000, which includes media placement and contractor compensation. LEGAL REVIEW: The City Attorney has reviewed the agreement. BOARD and/or The Legal Committee is scheduled to meet on Thursday, June COMMITTEE ACTION: 28, 2018. STAFF Consider recommending that City Council approve the contract RECOMMENDATION: for advertising and marketing services with Cubic, Inc. 06/28/18 - Legal Committee --15-- City of Roswell, NM  CONTRACT FOR ADVERTISING AND MARKETING SERVICES THIS AGREEMENT is made and entered into on , by and between the City of Roswell, New Mexico (“the City”) and Cubic, Inc. (“the Agency”). Wherefore, the City desires the services of an advertising agency to assist in developing the City of Roswell brand, promote tourism initiatives, and assist with public awareness campaigns; and Wherefore, the Agency was selected pursuant to the Roswell City Council’s vote on May 10, 2018 adopting the recommendation of the Evaluation Committee for RFP-18-011 (2ND POSTING). NOW, THEREFORE, for and in consideration of the covenants and conditions set forth herein, and the obligations to be fulfilled hereunder, the parties hereto agree as follows: 1. Term: This Agreement shall be from JULY 1, 2018, until JUNE 30, 2019 with up to three (3) one (1) year extensions based upon mutual written agreement of both parties. 2. Incorporation: All terms, conditions, rights and obligations of the parties as set forth in RFP-18-011 (2ND POSTING) and in Contractor’s response to RFP-18-011 (2ND POSTING) are incorporated herein as if set out fully. 3. Agency’s Services to be Performed: The Agency agrees to perform all necessary and related services required to accomplish the City’s advertising program and goals as set out in RFP-18-011 (2ND POSTING), Section 9.3, Scope of Services, attached hereto as Exhibit A. 4. Scope of Agency’s Authority: The Agency will make no commitment for the City’s account without your prior written authorization. 5. Compensation: a. This is a non-commission account and the Agency agrees to waive media commissions and to seek non-profit or remnant prices on ad placements whenever practicable. b. The total due to the Agency under this Agreement, not including gross receipts tax but including expenses, shall not exceed $355,000 for those services actually provided, subject to the appropriate spending according to budget categories outlined in Section (5)(c). c. Both parties agree that the Agency will submit a budget for the expenditure of the $355,000 throughout the term of the Agreement for approval by the City. The breakout of this budget for FY 19 shall be as follows, subject to final approval by City Council: 1. $200,000 for Tourism, 2. $100,000 for Fly Roswell, 3. $30,000 for City branding, and 06/28/18 - Legal Committee --16-- City of Roswell, NM  4. $25,000 for Roswell Police Department recruitment campaign for FY 19 only. d. The New Mexico gross receipts tax levied on the amounts payable under this Agreement shall be paid by the City to the Agency unless the City provides the Agency with a valid New Mexico NTTC. Payment is subject to any negotiations between the parties from year to year pursuant to Paragraph 1, Scope of Work as set forth in RFP 18-011 (2ND POSTING) and approval by the City. e. Payment is provided when service is rendered and accepted. Invoices are normally sent and dated the last day of the month that the milestone is delivered. Invoices are "Due on Receipt” and must be paid within thirty (30) days of the date of the invoice or as provided in Section (5)(f) below, unless other arrangements have been made. Interest on past due accounts will accrue at the rate of 18% annually. The City has the option to make payments via VISA, MasterCard, Discover Card, and AMEX subject to an agreed upon convenience fees as follows: 3% for VISA, MasterCard, Discover Card and 3.5% for AMEX. The grant of any license or right of copyright is conditioned on receipt of full payment. f. The Agency will submit a detailed statement that accounts for all services performed and expenses incurred each month. If the City finds that the services are not acceptable, within fifteen (15) days after the date of receipt of written notice from the Agency that payment is requested, it shall provide the Agency with a letter of exception explaining the defect or objection to the services and outlining steps the Agency may take to provide remedial action. Upon certification by the City that the services have been received and accepted, payment shall be tendered to the Agency within thirty (30) days. If payment is made by mail, the payment shall be deemed tendered on the date it is postmarked. 6. Media Billing - Due to varying media vendor payment terms and in order to take advantage of all available cash discounts, rebates or vendor add-ons, Agency will invoice the City based on the following schedule for contracted and pre-planned media. The City agrees that all media will be invoiced separately from all other Cubic services, but shall still conform to the budget requirements of Section (5)(c). a. Invoices - Agency will invoice the City for media billing one month in advance of the campaign’s scheduled run. b. Unplanned Media Invoices - If the City requests a new media placement that will run during the current or following month, Agency will immediately send an invoice to cover the costs of the unplanned media placement. Payment will be due upon certification in Paragraph (5)(f). c. Special Situations – There are some situations and vendor requirements that may require City payment prior to placing media with a vendor. In these cases, Agency reserves the right to request payment from the City prior to scheduling the media run. In these cases, Agency will not schedule the media until payment is received. 06/28/18 - Legal Committee --17-- City of Roswell, NM  d. Additional Fees - Late payment fees and/or cancellation fees will be the responsibility of the City to the extent the imposition of the fees is directly attributable to the City’s action or failure to act in a timely fashion. 7. Third-party Fees - Quoted prices in this scope of work include all of Cubic's services plus any third-party costs indicated in the quote. While we do not anticipate any costs outside those in the quote, items not included are photography (stock or custom), travel, photocopies, file storage/devices, express mail, other courier services, third-party fees, etc., unless specifically indicated as a line item in this quote. All work outside of this scope will require an approved estimate before work begins. 8. Stock Photography and Video - In cases where the City does not have access to original photography or video or is not contracted with Agency for photography or video services, Agency may use stock photography or video as placeholders in order to present design concepts. If the City decides to use the stock photography in a finished work, whether online or offline, the City agrees to pay Agency $75 for each image used in digital final files and $150 for printed final files. Stock video costs will be quoted separately. 9. Fonts - Agency is licensed to use a number of different fonts in its completed works. However, Agency cannot transfer the license of these fonts to its clients. If the City would like to use any font that was used in a finished work, the City agrees to purchase the font for its own use. The City may purchase the font directly or Agency may purchase the font and bill for it separately. 10. Delays & Holds – If any action directly attributable to the City’s action or failure to act in a timely manner results in a delay of more than 2 business days of any planned project timelines, Agency reserves the right to modify the timeline of deliverables, but will employ its best efforts to adhere to the original timelines. Agency will notify the client of the new timeline. If the City places a project on hold, Agency will invoice for the work completed based on the deliverables already made plus the percentage of work completed on the current deliverable. If the City opts to restart the project, Agency will deliver an updated timeline to the City with a proposed restart date. 11. Cancellations - In the event that the City requests to cancel a media plan, for any reason including but not limited to a termination of this Agreement, Agency will make every attempt to cancel the contracted media runs with the media vendors. Should Agency be unable to cancel these plans per terms of a vendor agreement or other legally binding obligation, the City will be responsible to pay all invoices related to media placements that cannot be cancelled regardless of the date of any such placement. 12. Local Services – To the extent commercially reasonable, Agency agrees to use services of vendors located, first, in Roswell, New Mexico, or, if unavailable or uncompetitive then within the State of New Mexico. 13. Confidential Information: The Agency will protect the City’s confidential information and business secrets. The Agency agrees that any information deemed confidential provided to the Agency or developed in the scope of the Agency’s work outlined in RFP-18-011 (2ND POSTING) shall be keep confidential and shall not be made available to any individual or organization at any time without the prior written approval of the City Manager. 06/28/18 - Legal Committee --18-- City of Roswell, NM  14. Maintenance and Examination of Records: a. The City may examine the Agency’s billing records and supporting documents at any time during this Agreement, after giving reasonable notice. The Agency agrees to maintain detailed records which indicate activity related to task performance and the nature of services rendered per corresponding expenditures. Such records include but are not limited to click-throughs, impressions, audience shares, and web analytics and states. The Agency agrees to submit these records to the appropriate committee(s) of the City and City’s staff. The Agency agrees to submit reports to the Roswell City Council on a quarterly basis, or more frequently upon the request by the City. b. The Agency shall maintain detailed financial records consistent with generally accepted accounting principles and submit a year-end financial report to the City. 15. Termination: a. This Agreement may be terminated by either of the parties hereto upon written notice delivered to the other party with at least sixty (60) days’ notice. Upon termination, the City agrees to pay for all authorized work-in-progress, and to pay all of those costs which were authorized under the Plan and purchased by the Agency for the account. In the event of the termination of the agreement as allowed hereunder, any fees to be paid under the agreement shall be prorated for the applicable percentage of work completed by Agency prior to termination or paid at such rate as specified in the agreement, prorated through the date of termination. b. In the event that one party breaches any material obligation under this agreement, the other party may terminate this agreement by providing thirty (30) days' written notice of termination to the breaching party. The right of Agency and the City to terminate in any such case shall be in addition to any other rights and remedies each party may have at law or in equity. Any subsequent breach shall be subject to immediate termination, to be effective upon written notice. 16. Intellectual and Personal Property Right: All materials developed or acquired by the Agency under RFP-18-011 (2ND POSTING) shall become the property of the City and shall be delivered to the City no later than the termination date of this Agreement. The City retains all rights, title, interest, and ownership of all approved final artwork, in any media, including but not limited to digital files. Nothing produced in whole or part by the Agency shall be the subject of an application for copyright by or on behalf of the Agency. All intellectual, creative or personal property prepared for the City but not accepted and/or not used by the Agency for the City remains the property of the Agency. Stock image rights only apply to this project designed and developed by Cubic and are not transferrable to other media or future versions. 17. Indemnification and Insurance: The Agency shall indemnify and hold harmless the City from and against any and all claims, liabilities or damages which arise: (a) from dealings between the Agency and third parties; and (b) the preparation or presentation of advertising. This indemnification shall include the costs of litigation and counsel fees. However, the Agency shall not be liable to the City as a result of any default of suppliers of materials and services or owners of media or other persons who are not agents or employees of the Agency. The Agency agrees to keep in force, at its own cost and 06/28/18 - Legal Committee --19-- City of Roswell, NM  expense, liability insurance for the benefit of the City in the minimum amount sufficient to cover a claim under the Tort Claims Act, NMSA 1978, § 41-4-1, et seq. or such other amounts as authorized in writing by the City. 18. Merger: All representations and agreements, whether oral or written, are merged into this Agreement, and no representation, whether oral or written, shall be introduced which contradicts the terms of the Agreement. 19. Conflict of Laws: The validity, interpretation, enforceability of all rights and obligations under this Agreement shall be governed by, constructed and enforced in accordance with the laws of the State of New Mexico. Any action or proceeding to enforce the provisions of this Contract Agreement shall be commenced in the New Mexico District Court, Chaves County. 20. Compliance with Law: The Agency agrees to abide by all Federal and State laws, rules, regulations and executive orders by the Governor of the State of New Mexico, and all policies, procedures and ordinances of the City of Roswell. 21. Subcontractors: In the event the Agency uses subcontractors for the performance of this contract, the Agency shall be liable for the contractual performance of the subcontractors. 22. Notices: All invoices and notices shall be sent to each party at the following addresses: City of Roswell, NM Cubic Inc. c/o City Manager & Public Affairs Director Billy Kulkin, President PO Box 1838 1643 S Boston Ave Roswell, NM 88202 Tulsa, OK, 74119 23. Severability: If any clause or provision of this contract is held to be illegal, invalid or unenforceable, then it is the intention of the parties that the remainder of the contract shall remain in full force and effect. However, in the event that either party to the contract can no longer reasonably perform pursuant to the remainder of the contract terms, or if the purpose for the contract can no longer be carried out by either party, the contract is void, and no damages shall accrue to either party. 24. Non-Appropriation: The City’s obligation to make payment under the terms of this Agreement is contingent upon its appropriation of sufficient funds to make those payments. If the City does not appropriate funds for the continuation of this Agreement, this Agreement will terminate upon written notice of that effect to the Agency. The City’s determination that sufficient funds have not been appropriated is firm, binding, and not subject to review. [signatures on following page] 06/28/18 - Legal Committee --20-- City of Roswell, NM This Agreement is executed by the parties on the day indicated above. CITY OF ROSWELL CUBIC, INC. _________________________________ ____________________________________ By: City Manager By: CITY SEAL _________________________________ Sharon Coll, City Clerk Approved as to form: _________________________________ Aaron Holloman, City Attorney 06/28/18 - Legal Committee --21-- City of Roswell, NM  Exhibit A Scope of Services Strategic Partnership: Work in collaboration with the Public Affairs department to determine effectiveness of ad concepts based on engagement and experiences, integrated, brand attributed to service, quality and innovation that will support the City of Roswell’s economic development, tourism and brand identity. Support the City of Roswell and aid in grant applications, events and co-operative programs. Executing and tracking results while exemplifying financial integrity of the City of Roswell funds. Marketing, Promotional and Advertising Planning: Develop recommendations for a Marketing and Advertising Plan that supports the strategies set forth by the City of Roswell’s Public Affairs department. Includes strategic direction, creative strategy, brand development and stewardship, media plan and cooperative plan. Media Planning, Buying & Placement: Buy and execute the media plan presented in the Marketing and Advertising Plan and approved by the Public Affairs department. Execution includes placement, optimization, cancellations and auditing. The Public Affairs director will sign all advertisement agreements/insertion orders, handle billing and payment. Concept Development/Production: Concept creative materials/campaign elements (print, online, digital, etc.) as described in the Marketing and Advertising Plan. Once approved, produce and bring to final form the approved advertising materials to run on behalf of the City of Roswell. Research and Analytics: Provide an overview of Campaign successes and opportunities. Reports and trends in the market place and competitors. Provide analytical tools or services that will be useful to information to plan and report back to the City of Roswell. 06/28/18 - Legal Committee --22-- City of Roswell, NM