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HomeMy WebLinkAboutM-89-0957FRom: H. Odi City Manager RECOMMENDATION: To: Honorable Mayor and Members of the City Commission CITY OF MIAMI, FLORIDA INTEROFFICE MEMORANDUM DATE : OCT ;; 1989 FILE SUBJECT: Request for Proposals - Citywide Bus Benches REFERENCES: ENCLOSURES: It is respectfully recommended that the City Commission authorize the release for advertisement of the Request for Proposals relating to the Citywide Bus Bench contract. BACKGROUND: Attached please find a complete set of documents relating to the bus bench project. These include the Request for Proposals, the Proposal Documents, and the Contract. These items have been discussed with the City Attorney's office, and are ready to be put out for advertisement. The following items attempt to condense the contents: 1. Payment of fees will be on benches which are available for advertisement, not just for benches which carry actual advertising. This will provide a guaranteed minimum figure to the City, independent of the amount of advertising sold by the vendor. 2. A 1% additional fee on gross revenues will provide the City with an edge against inflation. This contract may extend for up to 15 years (City Code Sec. 54). The fixed "per unit per year" fee guaranteed on the proposal does not address any increases in revenues that the vendor may be able to secure over the life of the contract. The percentage figure is in line with the last bus bench contract under which the City operated. 3. Consideration for selection will be based on the following criteria: a) The recommendation of the City Manager; b) the amount of guaranteed fee to the City (excluding the 1 %, which is not a guaranteed figure); c) the proposer's experience and expertise in the business; d) total return based on 15 year revenue; and e) minority participation. 60 40 -/ Honorable Mayor and Members of the City Commission Page 2 4. Total benches installed will be 1,500 of which 1,000 will be available for advertising, and 500 will have no advertising. A minimum of 1,200 benches to be installed within the first ninety (90) days of the contract. 5. Term of contract is to be for 5 years, with two renewable options of 5 years each. 6. Permits and approvals shall be the responsibility of the vendor, including a one time inspection fee to the City of $15 per unit. This fee will cover review of proposed and field locations for all benches. 7. Minority participation and expertise shall indicate the proposer to have a minimum of 33% minority involvement in the enterprise. Additionally, at least one of the principals of the company shall have a minimum of two years prior experience in the manufacturing, installation, maintenance of bus benches, and the sales of advertising thereon. This requirement will not be satisfied by the cumulative experience of any partners. Advertisement of the RFP will be scheduled as soon as Commission authorization has been secured. Encl. R.F.P. 88 -89 -127 PUBLIC NOTICE REQUEST FOR PROPOSALS: CITYWIDE BUS BENCHES The City of Miami is seeking qualified proposers for the award of an agreement for the installation of Bus Benches within the City. The successful proposer will be required to furnish, install, maintain, 1500 benches with commercial advertising on approximately 1000 benches. The agreement will have a five (5) year term, and provide for two (2) five (5) year renewable options. In determining the highest, most responsible & responsive Proposal the City shall consider revenues for all years (including the two renewal terms) proposed. The Request for Proposal packets may be obtained from the City of Miami, Department of Public Works, Construction Office, 275 N.W. 2 Street, Third Floor, Miami, Florida 33128, weekdays between 8:30 a.m. and 4:00 p.m., telephone (305) 579 -6874. This document contains detailed and specific information about the scope of services, submission requirements and selection procedures. Prospective proposers are alerted to the provisions of City of Miami Ordinance No. 10062 as amended. The City Manager has designated thirty -three percent (33 %) of this project for participation by Black, Hispanic and Women owned firms and /or joint ventures with the goal of equal participation for each. Each proposing team will he graded by the City for Minority /Women participation, and this grade will be considered as a factor in determining ranking during the selection process. Preregistration of Minority /Women firms is required prior to submittal of , proposals. Please contact the City's Minority Procurement Coordinator Adrienne Macbeth for instructions, (305)579 -3366. Questions pertaining to this Request for Proposals shall be directed to Eugene M. Pei aer, P. E: , of the Department of Public Works at (30b) 5l9- b6 /'#. Submissions packages must be delivered to the Department of Public Works, Construction Office, at the address above, no later than - ,-1989--at 5:00 P.M.. Proposals submitted past such aeaaiine, or to any other location will be rejected. The City of Miami expressly reserves the right to cancel this Request for Proposals before the opening of same, to accept any proposal deemed to be in the best interest of the City, to waive any irregularities in any proposal, and /or to reject any and /or all proposals and to re- advertise, at the Citys' sole discretion. (8 -2941, Req. 5538). Cesar H. Odio City Manager 3 REnUEST FOR BUS RENCH•PROPOSAE PAYMENT OF FEES. The company shall submit a minimum bid in excess of the amount in Article III, Chapter 54 entitled Bus Benches of the City of Miami Code of Ordinances as amended copies are set forth in the City Clerk's Office. In consideration of the right granted for the use of City property, the use of the sidewalks, and in exchange for other specific property uses allowed by the City, the Company shall pay to the City, a bus bench fee Generated from the sign placed upon the bench by the Company during the terms of the contract which shall be executed subsequent to the award of this proposal by the City. All monies shall be paid to the City of Miami in the form of fees and shall be paid in the following manner: The Company shall pay to the City for each bench installed which is available for advertising the following guaranteed fees Year 1 thru 5 $ - • - - per unit per year plus ( +) 1 (one) b percent of gross receipts. Option Years 6 thru 10 S-- ---per unit per year plus ( +) 1 (one) % percent of gross receipts. 11 thru 15 $ -ner unit per year plus ( +) 1 (one) % percent gross receipts. NOTE: All proposals must submit consideration based on a per unit Fee. • Mote: The stated percentage of gross receipts is fixed and not subject to variation. Per unit fee will be for benches which are available for advertising. Met fee will be on advertising revenue generated from all benches covered by this Agreement. 411 payments to the City will be made by the 25th day of each month, including one twelfth of the minimum annual fee and the percent ( %) of the net adverti sing revenue payable to the City in the preceding month. PAYMENTS The payment of the percentage ( %) of gross receipts shall be accompanied by detailed financial reports of all revenues derived by this lease by virtue of the contract including, without limitation, an independent Florida licensed certified financial statement for each preceding quarter, bank statements, and such other records as Certified Public Accountant reasonably needs to examine or verify the net advertising revenue payments. Annual reports of receipts for the preceding year shall be submitted to the City on each anniversary date of the contract, these reports will be prepared by a certified public accountant and attested to by him stating he has examined all books, state sales and federal income sales P use tax returns of the company and that the statements are prepared in accordance with generally accepted accounting practices and represents the receipts of each year. All payments, financial statements and reports shall he promptly submitted to the City of Miami Finance nirector c/o Treasury management Division, 3006 Aviation Avenue, Miami, Florida ?3133, (or to such other address as the City 'manager may designate in writing) with copies to the Department of Public Works. - 2 - • - 3 - Any unpaid balance of net advertising revenue shall be Promptly remitted to the City as soon as such unpaid balance is discovered and an interest charge of eighteen (18 %) percent per annum shall be added automatically to any delinquent payment made. If the City must bring an action to collect delinquent payments it shall be entitled to receive and recover a reasonable attorneys' fees. The Company shall submit to the City "with each - - anniversary payment a list of bus benches locations and a financial statement showing net advertising revenue for the previous year. The financial statement shall be certified to a Florida licensed Certified Public Accountant. At the time of the execution hereof by the Company, it shall pay over to the City a security deposit in the amount of Five Thousand Dollars ($5,000) as against its full and faithful performance of the terms hereof. The City will retain such security deposit throughout the term of the agreement (as amended) and for 90 days after its expiration. The City shall hold the security deposit on Five Thousand Dollars ($5,000) in escrow, provided that at the City's discretion, it may invest such money in an interest - hearing account and it may commingle such monies with other funds of the City. Any interest earned on such funds shall be the property of the City and the Company waives any and all claims thereto. If at any time during the term hereof the Company shall fail to make any nayrents required and hereunder allow the default to continue to exist for a period of thirty (30) days after notice of the existence of such default, the City shall have the absolute right to liquidate such security deposit, provided that such action shall not be deemed exclusive as to any other remedies, which the City may have hereunder or according to law. The security deposit, exclusive of interest, will be returned 90 days after the conclusion of the contract, if all terms of the contract are satisfied, providing, however, that the City will be entitled to retain the security deposit for a period of ninety (90) days following the conclusion or cancellation of the contract and apply such monies to any consideration found to he due to the City under the terms of the contract at its' cancellation or its' expiration, as applicable. The Company shall furnish a detailed accounting of the revenues upon which each monthly payment is figured in such form as is agreed upon between the Company and the City. CONSIDERATION FOR In selecting the most responsible and responsive proposer with the highest return to the City the City Commission will consider, among other factors, the following criteria: 1. The recommendation of the City 'tanager. 2. The amount of guaranteed fee to the City.. Highest return to the City will be based ONLY on the per unit per year fixed revenue figure, and will not include the additional 1% on gross receipts. 3. The Firm's experience and expertise in the manufacturing, installation, maintenance of Sus Renches and sales of Advertisements thereon. 4 4. Return to City will be based on the total 15 years of Revenue. 5. Minority participation. The successful proposer must have as an entity and /or at minimum, at least one (1) of its' managing general partners (if a partnership) or at least one (1) of its' principal corporate officers (president or vice president only) a minimum of two years prior experience in the manufacturing, installation, maintenance of bus benches and the sales of advertisement on bus benches. The satisfaction of this requirement will not be considered as the cumulative experience of the partners or joint venture members but will only he considered in the manner specified above. The proposer must also have a 33% minority (black, hispanic or women) involvement in the manufacturing, installation, maintenance, sales of advertising, etc. The undersigned person and /or persons hereby certifies that the above information in true and correct. ATTEST: corporate secretary 5 OW r'ame of rirm, Company, Partnership, or Corporation stanature /intue signature ( sea i u n ti e (Seal) ..... _ ..._. -..... - • (Seal) signatu re/ iitie CITY OF MIAMI BUS BENCH CONTRACT CONTRACT* THIS CONTRACT is made and entered into this day of 1989, by and between THE CITY OF MIAMI, a municipal corporation organized and existing under the laws of the State of Florida (hereinafter referred to as the "City "), and 1 a corporation /a partnership ( as applicable) authorized to do business in the State of Florida (the "Company "). "NOW, THEREFORE, IN CONSIDERATION OF THE PROMISES AND OF THE MUTUAL COVENANTS AND UNDERTAKINGS HEREINAFTER CONTAINED BY THE PARTIES HERETO, TO BE OBSERVED AND PERFORMED, AND OTHER GOOD AND VALUABLE CONSIDERATION, THE PARTIES HERETO DO MIND THEMSELVES HEREBY AND AGREE AS FOLLOWS, TO WIT: "Section 1. The CITY OF MIAMI, herein referred to as the 'CITY' grants to hereinafter referred to as the 'COMPANY' the right to install bus benches and /or bus shelters approved by the CITY at bus stops identified by the CITY as requiring bus benches and /or bus shelters for the convenience of the traveling public, subject to the provisions hereof, and further subject to the provisions of all sections of Article III, 'Bus Benches', of Chanter 54, 'Streets and Sidewalks', of the Code of the City of Miami, Fl nri da, as well as the provisions of all applicable state statutes. This contract shall commence on and expire on "Section 2. Bus benches and /or bus shelters shall he placed at all legal bus stops as designated by MTA (Metropolitan Transit • Authority) subject to the CITY's criteria and requirements for the location of bus henches and /or shelters within the public rights -of -way. Rus benches and /or bus shelters will be removed by the COMPANY upon being notified that they do not meet the CITY's criteria and requirements. The COMPANY will ray to the CITY an annual fee as specified herein for the life of this contract or as long as such bus bench and /or bus shelter remains in such location; provided that no fees paid to the CITY pursuant to this agreement shall be refunded in the event that (a) the permission to allow the bus bench and /or bus shelter to remain at its location is revoked or (b) the COMPANY voluntarily removes any bus bench and /or bus shelter from an approved location. "Section 3. The COMPANY will continuously comply with all provisions of federal law concerning the regulation of the herein subject matter including, but not limited to, Dade County Ordinance No. 62 -40 and Ordi n'ance Mo. 63 -18, as the same may be amended from time to time, and which are now codified as part of Chapter 3, Sections 3 -1 through 3 -12 of the trade County Code which includes the special provisions involving rights -of -way designated as Federal Aid Projects as determined by the Florida Department of Transportation. "Section 4. The COMPANY agrees that advertising messages will only be carried on bus benches and /or bus shelters located on public rights -of -way or public easements abutting property zoned C -1, C -1A, C -2A, C -4, C -4A, C -5, I -1, I -2, W -I and along 4- lane arterials abutting property zoned residential except for R- 1, !t -1A, R-113 and R -2 areas; however, such locations shall not - 2 - • include CITY public property or property used by the CITY for public purposes. No advertising shall be allowed on bus benches and /or bus shelters located on any street or sidewalk area abuts any property owned or utilized for municipal or public purposes. "Section 5. The COMPANY agrees that no bus bench and /or bus shelter at the proposed site or location will tend to unreasonably obstruct passage along any public rights -of -way or create an undue hazard or is otherwise detrimental to public safety. The COMPANY will, upon being given permission to use abutting private property, as an alternate location to placing the bus bench and /or bus shelter in the public right -of -way, secure written permission from the affected property owner, and submit such written evidence of having gained permission to install the bus bench and /or bus shelter on private property adjacent to the public right -of -way prior to the CITY'S approval for the location of such hus bench and /or bus shelter. "Section 6. For all bus bench and /or bus shelter locations designated by the CITY, the said COMPANY will pay to the CITY a sum as hereinafter provided each year during the life of this contract. No bus bench and /or bus shelter shall be installed at a location designated and identified as a satisfactory location by the CITY until and unless such bus bench and /or bus shelter shall have been first approved by the CITY. "Section 7. Detailed plans and specifications of each existing and /or propose' bench and /or shelter shall be supplied by the COMPANY of said plans and specifications shall be rude at COMPANY expense if such modification is renuired by the city. - 3 - successful proposer. • • (Code 1 °57, 54 -42; Ord. No. 8843, 1, 9- 14 -78; Ord. ilo. 9190, 1, 10- 30 -80) "Section P. The term of agreement for benches and shelters shall be five (5) years from the date of the agreement subject to two (2) periods of renewal of five (5) years each." (Code 1967, 54 -411; Ord. No. 8843, 1, 9- 14 -78; Ord. No. 10402, 1, 3- 24 -88) 1. GRA-NT OF RIGHT. The City hereby grants to the Company for the term hereinafter described the exclusive right to construct, erect, install, repair and maintain benches at bus stop locations throughout the City, subject to the City Manager and the Company mutually agreeing to each said location. For purposes of this agreement, the City Manager shall mean the Chief Executive Administrator of the City and /or his authorized designee to act on his behalf. The right is intended to include both existing bus stop locations and those created by the City or by the Metro Dade Transportation Administration within the corporate limits of the City or on land owned by the City anywhere within Dade County, Florida, at any time during the term hereof. Moreover, such right shall pertain to and include all bus stop locations within the City, whether on land owned or leased by the City, on land over which the City has obtained *Such terms contained herein as are prescribed by Chanter 54, Article III, City Code (Bus Benches), other applicable laws, the R.F.°. and such other terms as the City Manager shall insist upon a firm; Non- material Terms may be negotiated with the - 4 - ownership or easement or use rights, or at other locations approved by law. However, where the right to install benches is governed by County, State or Federal regulations with reference to right -of -way considerations outside the jurisdiction of the City, the Company shall be solely responsible for obtaining any and all permits, clearances and approvals required for placement of benches at such locations other than locations on a state road, in which event the City by law shall be the responsible party, provided the Company pays the costs of obtaining such clearances. 2. RNS-BENCH FEES PAYABLE CITY. In consideration of the right granted for the use of City property, the use of the sidewalks, and other specific property uses allowed by the City, the Company shall pay to the City, a bus bench fee as provided in Section o during the tern (including the two renewal periods) of this Contract. 3. IHTIES AN OBLIGATIONS OF THE COMPANY. The Company shall comply with all terms and conditions of this Contract and will undertake each of the following at its sole expense with respect to the placement of benches at various bus top locations throughout the City of Miami: (A) TECHNICAL CODES To install such benches in conformance with the South Florida Building Code, City of Miami Code, and other applicable technical codes and to use the types of materials and in accordance with the plans and specifications set forth in Schedule 1 attached hereto 5 • and made a hart thereof. Schedule 1 may be amended by the Company from time to time, subject to the prior written authorization and concurrence of the City Manager or the Director of the Department of Public Works. (B) INSPECTION To inspect, clean, repair and otherwise maintain the benches every two weeks. Failure to maintain a bench may result in the City taking action to maintain the bus benches and /or cancel the contract and /or charge the Company for verified expenses. (C) INSURANCE To obtain and keep in force during the term hereof a policy of public liability insurance naming the Company as the insured and the City as an additional insured, providing said parties with insurance against public liability of all kinds in connection with the benches in question in the amount of One Million Dollars ($1,000,000). The Company will provide the City Insurance Manager with certificate(s) of such insurance and including any material modifications renewals, addendurns and riders to such policies, all of which shall he subject to the review, comment and concurrence of the Citys' Insurance Manager. Prior to the installation of bus benches, the Company shall provide original certificates of insurance to the City's Insurance Manager and evidence that payment has - 5 - V been duly made. The City's Insurance Manager will have the right to prior revision and approval of all Policies. The Company will obtain any other insurance coverages not expressly provided for herein which in the professional discretion of the City's insurance manager are prudently required. The Company shall provide the City Insurance Manager with ten days prior notice of any material modification, lapse, or change of insurance coverage. All insurance shall be issued by companies authorized to do husiness in Florida and rated A, Class or better per A.M. Bests Key Rating Guide, latest edition, unless otherwise approved by the City's Insurance Manager. The insurance mentioned herein shall he kept in operative force and effect throughout the term of this Contract, as it may be extended, and shall not be allowed to lapse or be materially modified. (D) ADVERTISING (Any time hereinafter that the words City is used, unless otherwise stated, that word shall be construed to mean the City acting by and through its City Manager and /or Public Works Director.) To solicit and obtain suitable advertising clients who desire to advertise products or services throuah signs on the benches in question. The City Manager and the Director of Public Works shall have a right to require the Company to remove any advertising material that it believes to be offensive, not suitable or in such a - 7 Ib • state of disrepair as to be aesthetically offensive to the City, provided that the Company shall have a right to substitute other advertising material which is not offensive to the City Manager and /or Public Works Director. The City Administrators shall exercise judgment in a reasonable manner. The Company shall have forty -eight (48) hours after receipt of a written demand from the City Manager or Public Works Director to remove such offensive advertising material. In the event of a dispute as to the City's demand(s), the Company such demand while the dispute - 8 • the reasonableness of shall promptly follow is being resolved. Furthermore, in the event that the Company shall have failed to remove the objectionable advertising within said forty -eight (48) hour period, the City shall have an absolute right to cause such advertisement to be removed, and /or to cancel the contract and the City shall not be responsible for any damages in connection therewith. (E) SURFACE RESTORATIOM The Company shall repair or replace all structures or facilities on public or private property, which may have been damaged! 'urine the installation operation. The Company further agrees to repair or replace public or private property in a manner accentable to the Director of Public Works. All repairs and replacements shall incorporate materials and methods similar to those used 17 in the original structure, unless otherwise specified. 4. INDEMNIFICATION. The Company shall defend, indemnify and save the City, its officials and employees harmless from and against any and all claims, liabilities, losses, actions, damages, and causes of action including interest, costs, damages and reasonable attorney's fees, and will on account of and on behalf of the City its officials and employees defend any and all claims, actions, demands, and suits, which may arise out of Company's activities under this contract, whether in contract or in tort, in law or in equity, including all other acts or omissions to act on the part of the Company, including any person acting or on the Company's behalf. The successful company shall further indemnify, hold harmless and defend the City and its officials in the same manner required herein for any protests, claims, actions, suits or proceedings arising or accruing by virtue of the City selecting the Company as the successful proposer. The Company shall pay all claims and losses of any nature whatsoever in connection with its activities, operations and uses under this Contract and shall defend all suits in the name of the City, its officials and /or'employees and shall pay all costs and judgments which may issue thereon. The limit of this indemnity by the Company shall be One Million Dollars (51,000,000). 5. INSTALLATION BENCHES. Unless agreed to in writing by the City Manager or the Director of the Department of Public Works, the Company agrees to install no more than one thousand five hundred (1,500) benches during the first five (5) year term 9 )gi o in the original structure, unless otherwise specified. 4. INDEMNIFICATION. The Company shall defend, indemnify and save the City, its officials and employees harmless from and against any and all claims, liabilities, losses, actions, damages, and causes of action including interest, costs, damages and reasonable attorney's fees, and will on account of and on behalf of the City its officials and employees defend any and all claims, actions, demands, and suits, which may arise out of Company's activities under this contract, whether in contract or in tort, in law or in equity, including all other acts or omissions to act on the part of the Company, including any person acting or on the Company's behalf. The successful company shall further indemnify, hold harmless and defend the City and its officials in the same manner required herein for any protests, claims, actions, suits or proceedings arising or accruing by virtue of the City selecting the Company as the successful proposer. The Company shall pay all claims and losses of any nature whatsoever in connection with its activities, operations and uses under this Contract and shall defend all suits in the name of the City, its officials and /or employees and shall pay all costs and judgments which may issue thereon. The limit of this indemnity by the Company shall be One Million Dollars ($1,000,000). 5. INSTALLATION BENCHES. Unless agreed to in writing by the City Manager or the Director of the Department of Public Works, the Company agrees to install no more than one thousand five hundred (1,500) benches during the first five (5) year term I- - 10 - of this Contract. A minimum. of 400 benches will be installed monthly during the first three (3) month period this agreement is in operative force and effect and shall remain in place for the duration of the agreement. The Company agrees to install during the first two (2) year term of this agreement a minimum of five hundred (500) bus benches without advertising at bus stop locations designated by the City. The City manager and /or °ublic Works Director further reserves the right to withhold its approval as to the installation of benches at particular locations, and if the City should determine in its sole discretion, that the proposed locations are unsuitable, then the parties shall mutually agree upon an alternative location(s) and the Comnany shall install bus benches at such location(s). The City shall be deemed to have approved the locations for bus benches if the City does not disapprove, in writing, such locations within 45 days of City's receipt of Company's written declaration of such locations. mothinq contained in this Section 5 or in any other provisions of this Contract shall be construed so as to require the Comnany to construct and install more than one thousand five hundred (1,500) benches in the City during the term hereof. The approved bus bench locations shall be at Metro Dade Transportation Administration and /or City - authorized bus stops. All bus benches installed during the term of the Contract and any extension shall be installed and maintained in accordance with the requirement of the South Florida Building Code the City Code and Charter, and other applicable laws and technical codes, lei • and shall remain in place for the duration of the agreement, as it may be extended by the two renewal options of five (5) years each. 6. CONTINUING- ►'A•IN-TEMA+1 - CE - OBLIGATION. The Company shall maintain all the benches which it installs in good repair. The Company shall clean six (6) feet away from each side of the bench all trash and debris within the public right -of -way including curh and gutter. Said trash and debris shall be removed every two weeks from the public right -of -way unless conditions warrant more frequent cleaning. curther, the Company shall be responsible for the cleaning, repairing, or replacement of all bus bench parts, including advertising, signs, placed upon the benches. However, the Company shall not be responsible for the maintenance or repair of any sidewalks, walkways or curbs on which the benches are resting, unless such sidewalks, walkways, or curbs shall have been damaged throuah the acts or omission of the Company, its agents, servants, subcontractors, or employees. In the event a bench is not maintained in good repair and in clean condition as determined by the City 'tanager or the Director of the Department of Public Works, the City shall so notify the Company, If the conditions is not corrected to the City's satisfaction within five (5) working days after the date of notice, the City shall have the right and privilege to remove said bench and charge the company for the costs of such removal (inclusive of personnel expense, labor and materials) and /or assess a $50.n0 -oer -day default fee as a liquidated damage and not as a penalty, starting on the 6th day until the condition is. corrected. 7. RIGHT OF -COMPANY - TOE *E 1QVE• INDIVIDUAL RENCHES. Except as provided for in this Section, the Company shall not remove any benches installed at a hus stop location during the term of this Contract without first having obtained written consent of the Department of Public Works. It is agreed, however, that the Company shall have the right to remove individual benches (after ten (10) days written notice to the City and failing to receive an objection from City within such ten days) without seeking prior apnroval from the City in the event that such benches have been subjected to "chronic vandalism." For purposes hereof, the phrase "chronic vandalism" shall be defined as damages inflicted on a frequent basis to an individual shelter during any twelve (12) consecutive month period which require expenditures in the immediate preceding twelve (12) month period for replacements and repair that exceed $500 for that bench. R. RELOCATION OF BENCHES. In the event of a change in bus stop or other transportation system designations, changes in street design or rights -of -way, changes the City Manager or the Director of the nepartment of Public Works deem necessary for the public health, safety, welfare and convenience, or changes in 'iemogranhics which materially affect the pedestrian and vehicular, traffic flow at or near benches established in connection herewith, the Company, at the City's written request, shall relocate a designated bench to another location mutually agreed to by the City and the Company. The expense in connection with such relocation shall be borne by the Company, and the Company shall act expeditiously (not to exceed one (1) month) in order to - 12 - relocate such benches, and in the event that a change of street design or right -of -way location shall require the relocation of a bench, the Company shall coordinate its work with the contractors or other personnel performing labor in connection with the change of street design or right -of -way location in order to accomplish the relocation expeditiously and without interference to the work in connection with the relocation of streets or right -of -way. Q. PAYMENT OF FEES. All monies to he paid to the City of Miami in the form of fees shall be paid in the following manner: A. For each bench installed the Company will pay the following guaranteed fees to the City: (excluding 500 benches provided at City request without advertising). Year 1 thru 5 5-• -- - -per unit oer year plus ( +) 1 (one) % percent of gross receipts. Option-Years 6 thru 10 S per unit per year plus ( +) 1 (one) % percent of gross receipts. 11 thru 15 S -• - -per unit per year plus ( +) 1 (one) % percent of gross receipts. Note: Per unit fee will be for benches which are available for advertising. All payments to the City will be made by the 25th day of each month, including one twelfth of the minimum annual fee and the percent ( %1 of the gross receipts oayable to the City in the preceding month. "Gross Receipts" is herein defined to mean all moneys, whether in cash or by - 13 - check, credit card, note or any other means of payment received, or due and payable, from any person or business entity from the sale or approval, permission or allowance of advertising on bus benches allowed by virtue of this agreement inclusive of commissions, interest, late charges and similar charges and excluding, only, taxes imposed by law. B. PAYMENTS All payments to the City will be made in advance of the anniversary date of the installation of said hench. This date is defined as the date the hench is installed. 1. All payments shall he promptly submitted to the City of Miami Finance Director c/o Treasury Management Division, 3306 Aviation Avenue, Miami, Florida 33133, with copies to Department of Public Works and shall designate this Contract and the particulars of the payment. 2. The Company shall submit to the City with each anniversary payment a list of bench locations. 3. Any unpaid balance of fees not paid when due shall bear an interest charge of eighteen (19A) percent per annum until paid. if the City must bring an action to recover unpaid fees it shall be entitled to collect a reasonable attorneys fee. Prior to the execution hereof, the Comoany has paid to the City a security deposit in the amount of Five Thousand Dollars (S5,000) as against its full and faithful performance of the terms hereof. The City shall Doilars(S5,000) in escrow, provided that, at the City's discretion, hold the security deposit of Five Thousand - 14 - 4 I it may invest such money in an interest- bearing account and it may commingle such monies with other funds of the City. Any interest earned on such funds shall be the property of the City and the Company waives any and all claims thereto. If at any time during the term hereof the Company shall fail to make any payments required and hereunder allow the default to continue to exist for a period of thirty (30) days after existence of such default, the City shall have the to liquidate such security deposit, cancel the shall, at the passage of said thirty (30) days - 15 - shall notice of the absolute right contract which be terminated, null and void and that such action shall not be deemed exclusive as to any other remedies which the City may have hereunder or according to law. The security deposit, exclusive of interest, will be returned at o0 days following the conclusion of the Contract if all terms of the Contract are satisfied, providing, however, that the City will be entitled to retain the security deposit for a oeriod of ninety ( days following the conclusion or cancellation of the Contract and apply such monies to any consideration found to he due to the City under the terms of the Contract. 10. COMMUNITY SERVICE. The Company advertising panels for legitimate public service provide messages on up to 10a of the bus henches in locations to he determined by the City Manager or the Director of the Department of Public Works provided that no oayina customer be removed from an advertising panel that the City Manager or the Director of the Department of Public Works wants to utilize for public service unless the, Company is unable to provide a suitable alternative location. The Company shall not he responsible for paying for public service message materials. The Company, however, will install at no cost to the City, such public service advertisements. 11. TERM THE COPiTRACT. This Contract shall become effective upon execution by the parties hereto and shall remain in full force and effect for a period of five (5) years and may he renewed for two (2) additional five (5) year periods, if the Company is not in nefaul t, as such term is defined in Section 13 of this Contract. The company will request such renewal, in writing, at least 90 days prior to the expiration of the preceding term by furnishing a written request to the City Manager. The City Manager will respond in 30 days to the request for renewal and will not unreasonably withhold his consent to such renewal(s) unless the company is in default in which case the City Manager in his sole discretion, may refuse the renewal. In the event that the Company does wish to renew this Contract for an additional renewal period, then Company shall notify the City Manager, in writing, of the same more than ninety (90) days hefore the expiration of the then present term. If the Company fails to so notify the City Manager within the prescribed time period, it waives all right to renewals and in such case the contract will expire, lapse and end with that term. The contract if renewed, will be upon substantially the same terms and conditions as are here in contained for the additional five (5) year renewal periods, as limited by Section 54 -59, City Code. 12. TERMINATION RIGHT OF CITY. Notwithstanding anything contained elsewhere herein, the City by and through its City • - 16 - 23 • uPJFI _ t....,, Manager shall have the unilateral right to cancel and terminate this Contract in the event that the Company becomes insolvent or if the Company commits an act of bankruptcy, makes a general assignment for the benefit of creditors, or if there is filed by or against the Company a voluntary or involuntary petition in bankruptcy or for the appointment of a receiver, or if there commences proceedings under any law relating to bankruptcy, insolvency, reorganization, or relief for the Company's relief or for composition, extension, arrangement or adjustment of any Company's obligations and which proceedings are not withdrawn or dismissed within ninety (90) days after commencement or if the Company dissolves itself, or assigns, sells or transfers this Contract or any interest there in any portion thereof without the City Commission's prior approval and consent as more specifically described herein. A sale or other transfer of a majority of the company's stock or partnership shares (as applicable) is an assignment for purposes of this Section. In any such event, the Company shall have the absolute right and responsibility to remove the existing benches located within the City pursuant to the provisions of Section 3(E) hereof. 13. TERMINATION—PH—CAUSE. Subject to the force majeure provision set forth herein, the City Manager may terminate or cancel this contact, if there is a Material nefault by the Company. For purposes of this Contract, a Material Default shall be any monetary default not cured by the Company within fifteen (15) days of receipt of notice from the City and any non - monetary default, including, without limitation, failure to comply with , - 17 - any stipulation, condition or commitment by the Company under this contract, and /or assignment or sale of this contract without City Commission approval, not cured by the Company within thirty (30) days of receipt of notice from the City unless such default is attributable to an event of force majeure or unless it is not reasonably possible for the Company to cure the default within thirty (10) days of receipt of notice of such default, in which case the Company shall have such amount of time as is reasonably necessary to cure such default provided, however, that such time shall he as stated in writing by the City Manager and shall not exceed ninety (Q0) days. If the default is not cured within thirty (30) days of the Citys' default notice (or ninety (90) days if the City Manager grants an extension), the Contract shall be automatically cancelled and terminated at such time. P'either narty shall he obligated to nerform and neither shall be deemed to he in 'Material nefault hereunder if performance of a non - monetary obligation is prevented by the occurrence of any of the following (herein called "force majeure or event of force majeure") acts of God, strikes, lockouts, other industrial disturbances, acts of the public enemy, laws, rules and regulations of applicable governmental bodies, wars or warlike action (whether actual, impending, or expected and whether de lure or de facto) , arrest or other restraint of government (civil or military), blockades, insurrections, riots, epidemics, landslides, lightning, earthquakes, Fires hurricanes, storms, Floods, washouts, civil disturbances, explosions, nuclear reaction or radiation, radioactive contamination, or any other - 13 - 1 7 causes, whether for the kind herein enumerated or otherwise, that are not reasonably within the control of the party claiming the right to delay performance on account of such occurrence. The termination of this Contract may become effective, at the discretion of the City, thirty (30) days from the required date, as more specifically described herein, for the default to be cured. 14. ASSIGNMENT. This Contract shall not be assigned or sold without the prior written consent of the City Commission, which consent shall not he unreasonably withheld. A sale of 51% or more of the shares of corporate common stocks or partnership shares as applicable shall be deemed an assignment for purposes of this section. It is understood and agreed that the City is relying on the unique and specialized knowledge and expertise of the company in performing their work and services under this agreement. 15. OBTAINING NECESSARY APPROVALS. The Company shall obtain any and all necessary City, County, State or Federal approvals of licenses or permits of any kind that might he required as a condition of installing the proposed henches at hus stop locations within the City. Provided, however, the City shall obtain any and all necessary County, State or Federal approvals of licenses or permits of any kind that might be required as a condition of installing the proposed benches at bus stop locations on State roads. The cost of obtaining any such permits or licenses shall be horne by the Company, including a one (1) time fifteen dollar ($15) inspection fee per hench. 1i. CONFLICT 0E The Company is aware of _the conflict of interest laws of the City of Miami (Miami City Code Chapter 2, Article V), Dade County, Florida ((lade County Code, Section 2 -11.1) and the Florida Statutes, and agrees that they will fully comply in all respects with the terms of said laws. The Company covenants that no person under the City's employ who presently exercises any functions or responsibilities in connection with this Contract has any personal financial interests, direct or indirect, in this Contract. The Company further covenants that, in the performance of this Contract, no person having such conflicting interest shall he employed. Any such interests on the part of the Company or its employees must he disclosed in writing to the City. The Company, in the performance of this Contract, shall be subject to the more restrictive law and /or guidelines regarding conflict of interest promulgated by federal, state or local government. 17. INDEPENDENT COMTRACTOR. The Company and its employees and agents shall be deemed to he an independent contractor, and not an agent or employee of the City, and shall not attain any rights or benefits under the Civil Service or Pension Ordinance of the City, or any rights generally afforded classified or unclassified employees; further, the Company's employees and agents shall not be deemed entitled to Florida Worker's Compensation benefits as employees of the City. 11. AWARR-nF CONTRACT. The Company warrants that they have not employed or retained any company or persons to solicit or secure this Contract and that they have not offered to pay, paid - 20 - or agreed to pay any person or company any fee, commission, percentage, brokerage fee or gifts or any kind contingent upon or resulting from the award of this Contract. 19. AUDIT RIGHTS. The CITY reserves the right to audit the records of the Company at any time during the performance of this Contract and for a period of two years after final payment is made under this Contract. The company shall maintain its' hooks and records relative to this contract situated with Dade County and have such books and records available for auriitina, inspection, and review by the City or its' representatives. 20. SUCCESSORS AND • ASSIGNS . This Contract shall be binding upon the parties herein, their heirs, executors, legal representatives, successors and authorized assigns. 21. NOTICES. Any and all notices required under this Contract shall be deemed to have been given when placed in the United States mail, certified, return receipt requested, addressed as follows: FOR CITY: Director, Department of Public Works 275 N. W. 2 Street Miami, Florida 33129 cc: FOR COMPANY: City Manager 3500 Pan American Drive Miami, Florida 33133 or to such other addressees as the parties may, in writing, designate from to time. 22. ENTIRE- CONTRACT; INCOPRORATIOM 9Y- REFERENCE OF RFP. This Contract, and the RFP for City Wide Rus 3enches, and the - 21 - 30 - 22 - Company's response thereto, are all deemed as being expressly incorporated by reference in this agreement as if set forth in full herein, and contain all the terms and conditions agreed upon by the parties hereto, and no other document or contract, oral or otherwise, regarding the subject matter shall he deemed to exist to bind either of the parties hereto. Moreover, this Contract may not be modified or amended except by a writing signed by both parties. Any and all modifications shall require the prior written approval of the City manager, for the City. 23. GOVERNING LAW. The parties hereto agree that this Contract shall he construed and enforced according to the law of the State of Florida, and venue shall he in the City of Miami, Dade County, Florida. 24. COMPLIANCE WITH• LAWS. The Company in its operations hereunder shall comply with the City of Miami Charter and Code of Ordinances, including without limitation, Chapter 54, Article III of the City Code, the Zoning Ordinance, the South Florida Building Code, The Dade County Code insofar as it is applicable, and all other applicable codes or laws, as they may be amended from time to time. 25. PERFORMANCE AND PAYN.FNT BOND. A performance and payment bond will be required in the minimum amount of Twenty Five T'"ousand nollars 0:25,OOO) in substantially the same for^± as set forth in Section 25F.n5, Florida Statutes, subject to the anoroval of the City Attorney as to form, guaranteeing the successful parties full, faithful and punctual performance of all terms and conditions of the Contract, including its duty to make- payments to the City and to comply with all provisions of the Contract documents. This bond must be posted within thirty (30) days of execution of the Contract and remain in effect for the entire contractual period (including any renewals). 26. OWNERSHIP OP BENCHES. The bus benches shall remain the sole property of the Company and must be removed within sixty (50) days of termination by the Company of this Contract and the Company shall restore the property upon which the bus benches were located to their original condition (as such conditions existed at the commencement of this Contract) or to the satisfaction of the Department of public Works. At the end of this Contract, the Company shall no longer possess the rights to maintain, operate or install bus benches on City -owned land. 27. L IOU IDATED DAMAGES. The Company shall pay to the City 6250.00 per day in liquidated damages for any non - monetary Material Default not cured within the required time frame set forth in Section 13 of this Contract. This liquidated damages provision shall not apply to the Company's failure to pay fees as required by Section q hereunder. The liquidated damages shall accrue and be payable on a per diem basis until the Material Default is corrected. The imposition of liquidated damages is based on the inability of the parties to ascertain the losses the City will suffer because of this non - monetary breach. 28. MINORITY PARTICIPATION. The Company must have a - 23 - combined thirty -three percent (33 %) minority (black, hispanic, women) involvement in the installation, maintenance, and sales of advertising for the bus henches. 2Q. ATTORNEY'S FEES. The City shall be entitled in any litigation arising from the Contract shall be entitled to reasonable attorneys' fees and costs. If the City must institute a collection action to recover any unpaid fees arising under this contract the City shall be entitled to recover a reasonable attorneys' fee from the Company. 30. AF-FI-Rfi1-ATIOM COMPANY. The Company affirms that it meets all requirements of this RFP including, without limitation that the Company, or its' Corporate President or Vice President; or if a partnership, its' managing general partner have at least two (2) years prior experience in the manufacturing, installation, and maintenance of bus benches and sales of advertising thereon. 31. ' OF JURY TRIAL. To the extent allowed by law the parties waive their right to Jury trial for any claims or actions between them arising out of this contract. IH '4ITMESS WHEREOF, the parties hereto have executed this contract on the date and year first above mentioned and have agreed to bound hereby. - 24 - CITY OF MIAMI, F1_OPIOA Lesar n. ualo, Lity manager Attest - • - - - - -. _.. _.. catty Hirai, Lity t,1erK fra (Seal) Attest BUS BENCH COMPANY (NAME) By • Nresinent Loroorate secretary Approved as to form and Approved as to Insurance Correctness: Requirements: By Jorge L. rernanaez City Attorney Anoroved as to Departmental Requirements: - B By ..----- ._._.. Luis A. Prieto - Mortar, Pn'.P., P.E. Director, Department of Public Works egunno Perez, Insurance manager 1. Standards The successful bidder shall nrovide bus henches in accordance with the descriptions and specifications contained herein: The henches shall meet all applicable provisions of the South Florida Building Code, City of Miami Zoning Ordinance, Charter and Code. 2. Bus Bench Construction SCHEDULE 1 TECHNICAL SPECIFICATION A. The bus bench shall not he more than forty -two (42) inches high, or more than two (2) feet six (6) inches wide, or more than seven (7) feet long, unless the City 'tanager expressly authorize a deviation from these requirements. B. All hench ends shall he made of steel reinforced 2000 pound test concrete and weight 185 pounds each. C. All hench back cony space shall not overhang the bench ends by more than six inches and be two feet high. Advertising cony is printed directly on exterior plywood backrest. 0. Seat Boards are of 2x4 select fir and shall not overhang the bench ends by more than six (6) inches, with eased edges. They are finished with three coats of the finest synthetics available. E. No benches shall he placed so that the angle of its long dimension in relation to the curbing, shall be greater than thirty (30) degrees. F. All bus benches placed on sidewalks shall leave at least two and one -half (2 1/2) feet of clearance for pedestrian traffic. G. All benches shall he placed on level, stable ground or concrete slabs. These technical specifications are hereby made a part of this contract. They are dimensional and material guidelines to be .adhered to. The City reserves the sole right to evaluate and either accent or reject any proposed deviation or alteration to these specifications. The approval of any and all substitutions shall he at the sole discretion of the City.