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HomeMy WebLinkAboutExhibitCAUSE MARKETING PROGRAM AGREEMENT BETWEEN CITY OF MIAMI, OFFICE OF SUSTAINABLE INITIATIVES (MSI) AND AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY, INC. AGREEMENT made as of this 9th day of June, 2008 ("Effective Date") by and between American Express Travel Related Services Company, inc., a New York corporation with its principal office located at 200 Vesey Street, New York, New York 10285 ("American Express "), and City of Miami, Office of Sustainable Initiatives (MSI), with offices located at 444 SW 2nd Avenue, 5th Floor, Miami, FL 33130 ("Organization"). WHEREAS, American Express and participating merchants ("Merchants") located within eight (8) major cities ("Participating City or Cities") are joining together in a marketing program to support tree planting efforts in each Participating City ("Program"); WHEREAS, under the Program a share of a one million ($1,000,000) dollar grant ("grant") from American Express will be given to a local organization to plant trees in each of the Participating Cities; WHEREAS, American Express has selected the Organization to receive a share of the grant for its Participating City and the Organization agrees to receive and utilize such grant in accordance with the Project Information Form attached as Exhibit A to this Agreement ("Project Plan") which sets forth, in brief, the Organization's urban tree renewal planting project ("Project"); and, WHEREAS, the Organization and American Express wish to confirm and memorialize the terms under which American Express will conduct the Program described below to benefit the Organization. NOW, THEREFORE, the parties agree as follows: 1. Program. Merchants located within Participating Cities are joining with American Express in the Program to receive a share of the one million ($1,000,000) dollar grant from American Express to be given to a local organization to plant trees in its city. Each participating organization within a Participating City will receive a grant of one hundred thousand ($100,000) dollars; however, the Participating City with the greatest number of eligible American Express® Card transactions ("vote(s)") at the end of the Program will receive an additional grant of two hundred thousand ($200,000) dollars. American Express Cardmembers will be casting a vote for the Participating City each time s/he completes an in-store transaction by making a charge with an American Express Card at a Merchant. 2. Program Term. The Program term, the period within which transactions will be counted as votes, shall be from September 22, 2008 through October 31, 2008. 3. Organization Participation. In consideration of the Organization's receipt of the grant from American Express, the Organization agrees that: 1) American Express has the Organization's unrestricted permission to reproduce and publish the Organization's name, logo, other marks, photograph and likeness ("Organization Information") in marketing materials and promotional copy ("Materials") in promotional channels including, but not limited to, local media, radio, street teams, the Program website and in direct communications to American Express® Cardmembers including American Express email and statement channels; 2) the Organization will place Materials at the Organization's physical locations, if possible, and feature the Materials on Organization's website and in its member communication channels as appropriate, e.q., member newsletter, and, 3) the grant shall be used solely by the Organization to fund the Project described in Exhibit A, which Project will be completed on or before June 30, 2009. In addition to any rights and remedies American Express may have, any failure by the Organization to use -the -grant in accordance with the Project Plan may be considered a breach by the Organization of the terms and conditions of this Agreement. 4. Promotion by American Express. American Express is responsible for conducting the Program and for paying for all costs related to the development of the Program Materials and promotion of the Program. Any additional marketing activities undertaken by the Organization will be at the Organization's cost and shall be subject to American Express's prior written approval. 5. Marketing Material You further agree that 1) all the Materials developed in connection with the Program shall be the property of American Express and shall bear the American Express copyright notice and 2) American Express is hereby released from any liability in connection with such use. 6. Grant Payment and Acknowledgement. Organization shall notify American Express within sixty (60) days prior to the date that Project planting is projected to begin. American Express shall make the grant payment to Organization in the amount of one hundred thousand ($100,000) dollars within thirty (30) days of its receipt of such written notice from Organization, but no earlier than February 1, 2009. American Express will notify the Organization entitled to receive the additional two hundred thousand ($200,000) dollar grant payment in writing by December 15, 2008, and such grant payment shall be made on or before March 30, 2009. American Express may at its discretion modify the $100,000 payment to an earlier date. Organization agrees to publicly acknowledge American Express's donation in a mutually agreeable method which may include featuring American Express as a donor on the Organization's website or on a plaque at the tree planting site. 7. Term. The term of this Agreement shall commence on the Effective Date and shall expire on the date American Express is notified of and accepts Project completion or June 30, 2009 whichever is earlier (the "Term") unless either 1) terminated earlier in accordance with the terms of this Agreement or 2) extended by a subsequent written agreement signed by both parties. Notwithstanding the foregoing, paragraphs 8-12 shall survive the expiration of the Term. 8. Termination. This Agreement may only be terminated by American Express in the event the Organization defaults under the terms hereof. 9. Trademark License. The Organization hereby grants American Express a limited, non-exclusive, royalty -free license to use Organization Information for the purpose of promoting the Program. . 10. Governing Law. This Agreement shall be governed by the laws of the State of New York applicable to contracts negotiated, executed and performed entirely within the State of New York. 11. Force Majeure. Neither party shall be liable for failure to perform hereunder due to acts of war, of public enemy, of government, or any person engaged in subversive activity, riot or sabotage; due to Acts of God, including but not limited to fire, flood, storm, accident, explosion or other catastrophe, casualties, epidemic or quarantine restrictions; due to strikes or other labor stoppages, slowdowns or disputes; or due to delays by suppliers of material or services, inability to obtain transportation, or any other cause beyond the party's reasonable control whether similar or dissimilar to any cause listed herein. 12. Compliance with Laws. Each party shall be responsible for complying, at its own expense, with all requirements imposed by law or regulation on each of them individually as a result of their respective roles in the Program. 13. No Assignment or Third -Party Rights. Neither American Express nor the Organization shall assign this Agreement without prior written approval of the other party except that American Express may assign this Agreement and/or any of its rights and/or obligations hereunder to its parent company and/or to any subsidiary or affiliated companies, without the Organization's consent. This Agreement is for the sole benefit of the parties hereto and their successors and permitted assigns and nothing herein express or implied shall give or be construed to give any person other than the parties hereto any legal or equitable rights hereunder. Any unauthorized assignment is null and void. 14. Alternative Dispute Resolution. A. Procedures: The Parties agree that any and all disputes, claims or controversies arising out of or related to this Agreement, including any claims under any statute or regulation ("Disputes"), shall be submitted first to non- binding mediation. If the Disputes are not resolved through mediation, the Disputes then shall be submitted for binding arbitration. Unless the parties agree otherwise, any mediation and/or arbitration shall take place in the State of New York, New York County, and shall be administered by, and pursuant to the rules of, the American Arbitration Association ("AAA"). B. Restrictions on Arbitration: Disputes shall be arbitrated on an individual basis. There shall be no right or authority for any Disputes to be arbitrated on a class action basis or in a purported representative capacity on behalf of the general public or other persons or entities similarly situated. The arbitrator's authority to resolve Disputes and to make awards is limited to Disputes between the parties to this Agreement alone, and is subject to the Limitations of Liability set forth in this Agreement. Furthermore, Disputes brought by eitherparty-to this Agreement against the -other -may -not be joined or consolidated in arbitration with Disputes brought by or against any third party, unless agreed to in writing by all parties. No arbitration award or decision on any Disputes shall be given preclusive effect as to issues or claims in any dispute with anyone who is not a party to the arbitration. Should any portion of Section B of this Alternative Dispute Resolution paragraph be stricken from this Agreement or deemed otherwise unenforceable, then this entire Alternative Dispute Resolution paragraph shall be stricken from this Agreement. C. Enforcement: The provisions of this Alternative Dispute Resolution paragraph -may be enforced in a court of competent jurisdiction, and the party seeking enforcement shall be entitled to an award of all costs, fees and expenses (including attorney fees) incurred in obtaining the enforcement of this provision, to be paid by the party against whom enforcement is ordered. IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective Date. CITY OF MIAMI, OFFICE OF SUSTAINABLE INITIATIVES (MSI) By: Print Name: Title: Date: AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY, INC. By: Print Name: Title: _Date - CAUSE MARKETING PROGRAM AGREEMENT BETWEEN CITY OF MIAMI, OFFICE OF SUSTAINABLE INITIATIVES (MSI) AND AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY, INC. EXHIBIT A 1. Project Name: Green Miami Campaign: Citywide Tree Planting 2. Project Summary: Briefly describe the purpose and scope of the project, the proposed planting site(s) and plant species selection. This would be based on project funding of $100,000. Please describe scalability of project if you receive the larger donation amount. The City seeks to increase the citywide tree canopy to 30% in the next ten years through tree plantings and extensive public education; the City's current tree canopy coverage is approximately 21%. Based on cost estimates from the City's most recent large-scale tree planting (Arbor Day 2008), MSI would use $100,000 in funding from American Express to plant and maintain 285 street trees citywide. The plantings would target neighborhoods with the lowest tree canopy cover, which also tend to be the lowest income, most disadvantaged neighborhoods. All trees selected will be appropriate for street tree and urban landscaping in terms of size and type as designated within the City's Tree Master Plan. This project could easily be scaled to accommodate the larger donation amount. If the City is eligible for the $300,000 donation, the City would be able to triple the number of plantings to 855 trees. The additional plantings would continue to target neighborhoods with the lowest tree canopy cover; the increased funding would allow for more environmental benefits and larger impact citywide. The City and partner organizations have repeatedly demonstrated the capacity to plant and maintain large numbers of trees while exemplifying civic pride and making Miami a better place to live. 3. Comprehensive Planting Plan: Include a plant schedule indicating the quantity of trees, common and scientific names of trees, size of the tree caliper (measured six inches above ground level) and any comments specific to tree selection. Trees will be planted in partnership with local community -based organizations (CBOs). Beginning in November 2008, partner organizations will target neighborhoods to develop specific site locations for tree plantings and build community support for volunteering during tree planting days. Tree plantings will begin in April 2009, towards the start of the south Florida rainy season and be completed by June 2009. Native tree selection will come from the City Master Plan list of appropriate type (those typically grown in the City of Miami) and size of street trees (those which normally mature to a height of at least twenty (20) feet). Such species include: Copperpod (Peltophorum pterocarpum), Geiger tree (Cordia sebestena), Green buttonwood (Conocarpus erectus), Gumbo limbo (Bursera simaruba), Jacaranda (Jacaranda mimosifolia), Lancepod (Lonchocarpus violaceous), Lignum vitae (Guaiacum sanctum), Live oak (Quercus virginiana), Pigeon plum (Coccoloba diversifolia), Queen's Crepe Myrtle (Lagerstroemia speciosa), Red maple (Acer rubrum), Silver buttonwood (Conocarpus erectus), Spanish stopper (Eugenia foetida), and Vera wood (Bulneisa arborea). At time of planting the 285 street trees will, in accordance with the City Master Plan, have a dear trunk of four (4) feet, an overall height of twelve (12) feet, and a minimum caliper of two (2) inches. In addition, they will be provided along roadways at a maximum average spacing of thirty-five (35) feet on center. Native trees and plants often require less water, maintenance, and fertilizers than exotics. Native plants are also resistant to pests and diseases in Florida because they have evolved under constant exposure to these organisms. 4. Long Term Maintenance Plan: Include a maintenance schedule that outlines the work to be performed, the frequency of work and the organization or department that will carry out the work. The City of Miami Public Works Department will maintain the trees for the first two (2) months of watering, staking, and mulching. Trees will be watered at least every other day for the first month, and at least twice per week for the second month. Staking and mulching will be maintained as needed. Stakes for newly planted trees will be driven into the ground around the tree (away from the root ball). Rubber ties will be loosely placed around the trunk to allow for growth. A ring of mulch will be maintained, at least 3 feet in diameter and 3 inches deep around the base. Following the first 60 days and through the first year after the tree planting, the CBO partners will manage the Tong -term maintenance of the trees either through the signing of a maintenance agreement with the adjacent homeowner or directly with the City of Miami. Maintenance could include preventive pruning for storm resistance, structural pruning, and tree fertilization to extend the life expectancy of street tree investments. No pruning will take place during the first year; in addition, at no time will more than 25% of the tree be cut. Watering will occur as needed. 5. Project Timeline: Describe when the project will begin through completion, e.g. trees planted. Plantings must begin no earlier than November, 2008 and must be completed by June, 2009. From November 2008 through February 2009, the City will work with the CBOs to solicit public input and provide education opportunities. Tree plantings will occur from March through June 2009 in preparation for the south Florida rainy season, with maintenance thereafter.