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HomeMy WebLinkAboutExhibit 7AGREEMENT between THE CITY OF MIAMI and SARMIENTO ADVERTISING GROUP, L.L.C. for BUS BENCH DESIGN, INSTALLATION AND MAINTENANCE AGREEMENT BETWEEN THE CITY OF MIAMI AND SARMIENTO ADVERTISING GROUP, L.L.C. FOR BUS BENCH DESIGN, INSTALLATION AND MAINTENANCE This Agreement is made and entered into by and between: THE CITY OF MIAMI, a municipal corporation of the State of Florida, hereinafter referred to as "CITY" and SARMIENTO ADVERTISING GROUP, L.L.C., a Florida limited liability company, hereinafter referred to as "CONTRACTOR." WHEREAS, the CITY desires to provide bus benches for use by the general public within the City; and WHEREAS, CONTRACTOR is in the business of designing, installing, and maintaining bus benches for use by the general public and placing advertising on such bus benches; NOW, THEREFORE, in consideration of the mutual terms, conditions, promises, covenants and payments hereinafter set forth, the CITY and CONTRACTOR agree as follows: ARTICLE I DEFINITIONS AND IDENTIFICATIONS 1.1 Advertising Bus Bench = shall mean a bus bench with an Illuminated Panel attached to it. 1.2 Agreement — shall mean this document, Articles I through X, inclusive. Other terms and conditions are included in the exhibits and documents that are expressly incorporated by reference. 1.3 Bus Benches shall mean both the Advertising Bus Benches and the Non - Advertising Bus Benches. When written in small caps, as "bus bench(s)", the term shall mean a seat designed for seating two or more persons, placed along transit bus routes or other authorized locations, upon which advertising may be displayed. 1.4 City Illuminated Panel - shall mean one or more of 100 free-standing Illuminated Panels to be installed exclusively for CITY use. Page I of 21 1.5 City Plasma Panel - shall mean one or more of 10 freestanding plasma panels to be installed exclusively for CITY use. 1.6 City Panel — shall mean the City Illuminated Panels and City Plasma Panels referred to in sections 1.4 and 1.5 above. 1.7 Code - shall mean the Code of the City of Miami. Contract Administrator — shall mean the Director of Public Works or his/her 1.8 designee. 1.9 County - shall mean Miami -Dade County, a political subdivision of the State of Florida. 1.10 Gross Revenue - shall mean all revenue derived in any mariner whatsoever by CONTRACTOR from the Bus Benches including, but not limited to, the sale of advertising thereon. In -kind payments shall be included in Gross Revenue at one hundred percent (100%) of their full cash value. 1.11 Illuminated Panel - shall mean a back -lit, double-faced, rectangular panel, upon whose faces static, display advertising may be placed. 1.12 Initial Term - shall mean the initial term of this Agreement as set forth in Article III, section 3.1 of this Agreement. 1.13 Net Revenue - shall mean Gross Revenue reduced for in -kind payments as provided in Article IV, section 4.5 of the Agreement, and further reduced by an amount, not to exceed fifteen percent (15%) of Gross Revenue, actually paid as commissions to third parties for the sale, placement, or procurement of advertising on Advertising Bus Benches. 1.14 Non -Advertising Bus Bench - shall mean a bus bench without an attached Illuminated Panel and without any advertising. 1.15 Option Period(s) - shall mean the two optional fve (5) year renewal periods as set forth in Article III, section 3.2 of the Agreement, 1.16 Percentage Revenue Payment — Shall mean an cdditional;quarterly payment to the CITY equal to twenty-five percent (25%) of Net Revenue for the quarter minus the Quarterly Guaranteed Payment. Provided, however, that solely for the purpose of calculating the Percentage Revenue Payment in years four (4) and five (5), the Percentage Revenue Payment shall be calculated using a Quarterly Guaranteed Payment based on a guaranteed minimum yearly rate per bench of $1200.00, even though the Quarterly Guaranteed Payments actually paid to CITY in years four (4) and five (5) are based on a rate of $1400.00 and $1600.00 respectively. 1.17 Project - The Project consists of the services described in Article II. Page 2of21 1.18 Quarterly Guaranteed Payment — shall mean a quarterly guaranteed minimum payment to the City, which amount shall be calculated as the product of the -greater, of the total number of Advertising Bus Benches actually installed, or the total number of Advertising Bus Benches required to have been installed at the minimum rates specified in section 1.6 of Exhibit A, times one-fourth (VA) of the yearly guaranteed minimum payment per Advertising Bus Bench set forth in Exhibit B. Notwithstanding the foregoing, the first Quarterly Guaranteed Payment shall be Sixteen Thousand Dollars ($16,000.00); and thereafter, the Quarterly Guaranteed Payment shall never be less than Twenty -Four Thousand Dollars ($24,000.00). 1.19 State - shall mean the State of Florida. ARTICLE II GRANT OF RIGHT AND SCOPE OF SERVICES 2.1 Grant. The CITY hereby grants to the CONTRACTOR, for the term hereinafter described, the exclusive right to construct, erect, install, repair and maintain Bus Benches at designated locations throughout the CITY, subject to the provisions of this Agreement, the Code, and all Federal, State and County laws, codes, ordinances, and regulations. This grant of right shall not include bus shelters. 2.2 Scope, CONTRACTOR shall install and maintain the Bus Benches, and City Panels and perform all other work reflected in Exhibit A attached hereto. 2.3 Increase in Numbers. CITY and CONTRACTOR may mutually agree, without the necessity of additional CITY COMMISSION approval, to increase the number of Bus Benches and City Panels contemplated by this Agreement. In such event, all terms and conditions contained herein, including the compensation formulas contained in Article IV, shall apply to the additional Bus Benches and City Panels. 2.4 Existing Restrictions. The CONTRACTOR acknowledges that current Federal, State, County, or CITY laws, codes, ordinances, or regulations may not permit the installation of Bus Benches, or City Panels within certain public rights -of -way (ROW) within the CITY. The CONTRACTOR, at its sole discretion and expense, may undertake efforts to modify or amend any such laws, codes, ordinances, or regulations to permit the installation of' Bus Benches and City Panels within those ROWs and the CITY agrees that it will use its best efforts and due diligence to assist CONTRACTOR in such efforts. CONTRACTOR'S inability to install Bus Benches or City Panels on ROWs affected by such laws, codes, ordinances, or regulations shall not affect CONTRACTOR'S rights or obligations under this Agreement, including CONTRACTOR'S obligation to make payments to the CITY. 2.5 Availability. The provisions of this agreement, shall be made available to all units of local government who desire to implement a transit bus bench program within their respective municipality. CONTRACTOR agrees to accept this Agreement for these government entities. Page 3 of 21 ARTICLE III TERM AND TIME OF PERFORMANCE 3.1 Initial Term. The Initial Term of this Agreement shall be five (5) years beginning on the date this Agreement is fully executed by both parties. This Agreement may be renewed for two additional five (5) year periods as provided in section 3.2 below. 3.2 Exercise of First and Second Five -Year Option Periods. No earlier than eighteen (18) months prior to the expiration of the Initial Term of this Agreement, or of the First Five -Year Option Period, and only if the CONTRACTOR is not in default under any provision of this Agreement, CONTRACTOR shall have the absolute right to renew this Agreement, without the necessity of CITY consent, approval, or ratification, for an additional five (5) years. CONTRACTOR shall exercise these options to renew by delivering a written request for renewal to the City Manager no later than 180 days prior to the expiration of the then current term. If the CONTRACTOR fails to notify the City Manager within the prescribed time period, CONTRACTOR waives all right to renewals and the contract will expire, lapse and end at the expiration of the then current term. The Agreement, if renewed, shall be upon the same terms and conditions as the Initial Tenn. 3.3 Time. Time shall be deemed to be of the essence in performing the duties, obligations and responsibilities required by this Agreement. ARTICLE IV COMPENSATION 4.1 Compensation. In consideration of the right, privilege, and license to display advertising on the Advertising Bus Benches, CONTRACTOR agrees to pay the CITY, the Quarterly Guaranteed Payment, together with the Percentage Revenue Payment. 4.2 More Favorable Terms. Notwithstanding the foregoing, in the event CONTRACTOR enters into an agreement with any entity within Miami -Dade County, Broward County, or Palm Beach County which pays that entity a higher percentage of revenues, or a greater guaranteed minimum payment per bench, CONTRACTOR shall immediately notify CITY and shall, from the effective date of that agreement, pay CITY at a rate at least as favorable as that set forth in that agreement, but in no event shall the rates be lower than that required by Article IV, section 4.1. 4.3 Effect of Collection. CONTRACTOR shall at all times be responsible for, and shall apply its best efforts to, collection of all money or other compensation paid, or agreed upon, for use of the Bus Benches. The amounts owed the CITY as the Quarterly Guaranteed Payment shall be due even in the event such revenues have not been collected by CONTRACTOR. The amount owed the CITY, if any, as the Percentage Revenue Payment shall be due when such revenue is actually received by CONTRACTOR. 4.4 Timing and Payment. CONTRACTOR shall pay the CITY on a quarterly basis in accordance with the City's fiscal year. The first quarter shall begin on January 1, 2002 and end on March 31, 2002. Payment for newly installed Advertising Bus Benches shall begin thirty (30) Page 4of21 days after CONTRACTOR receives a Certificate of Completion from the City of Miami Building Department, or on the date the Advertising Bus Bench begins to generate revenue, whichever is earlier. Payment for newly installed Advertising Bus Benches shall be prorated to the date of the next quarterly payment. Quarterly Guaranteed Payments shall be due and payable no later than 15 calendar days after the last day of each quarter. Percentage Revenue Payments shall be due and payable no later than 30 calendar days after the last day of each quarter. All payments to the CITY are to be made without demand and in bank draft, cashier's check, or company check only. No in -kind payments or trade agreements will be acceptable as payment of compensation owed to the CITY. Payments more than ten days late shall accrue interest at the rate of one percent (1.0%) per month. 4.5 In -kind Payments. CONTRACTOR may accept in -kind payments from .advertisers provided that the full cash value of such payments is reflected in Gross Revenue. When calculating Net Revenue, CONTRACTOR may deduct up to 25% of the full cash value of such in - kind payments from Gross Revenue, provided that the amount of in -kind payments upon which the deduction is taken shall not exceed 10% of Gross Revenue, and further provided, that in -kind payments received from entities affiliated or related to CONTRACTOR shall not be eligible for the deduction. CONTRACTOR shall advise the CITY each quarter of any in -kind or other non - cash compensation received from advertisers relative to this Agreement. 4.6 Ownership of Bus Benches. Upon expiration of this Agreement, the CITY at its sole option, and without cost, may take ownership of the Bus Benches and/or City Panels installed by CONTRACTOR or may require CONTRACTOR to remove same at no cost to the CITY. 4.7 Finance Department. Payments shall be made to the City of Miami Department of Financ e. 4.8 No Deduction. Any charges made against CONTRACTOR by the CITY shall not be deducted by the CONTRACTOR from required quarterly payments. Charges that may be assessed against CONTRACTOR include, but are not limited to, the following: 4.8.1 Repairs. Cost of repairs to any Bus Bench, CITY Panel, or any CITY facility or equipment resulting from the negligent action or inaction of CONTRACTOR's representative or employee; 4.8.2 Interest. Any interest, penalty, late charge, or cost of collection assessed against the CONTRACTOR for CONTRACTOR's failure to comply with the payment requirements of this Agreement. 4.9 Reporting. Within thirty (30) days after the end of each quarter CONTRACTOR shall provide the CITY with a report detailing gross revenues and collections for the preceding quarter broken down by month, as well for the year-to-date. At the same time CONTRACTOR shall also report each advertising account name, the billing period, the gross billings, the net billings, the amount collected, the amount owed, and advertising expiration dates. Advertising contracts for reduced fee and free (donated) services to non-profit, tax-exempt organizations shall be similarly detailed in each report. CONTRACTOR shall provide such further reports and allow access to such documents as requested by the CITY's auditors. Page 5 of 21 ARTICLE V CHANGES IN SCOPE OF SERVICES 5.1 Changes in Scope. Any change to the Scope of Services must be accomplished by a written amendment, executed by the parties in accordance with Article X, section 10.20. ARTICLE VI INDEMNIFICATION 6.1 Indemnification. CONTRACTOR shall at all times hereafter indemnify, defend, and hold harmless CITY, its officers, agents, servants, and employees against any and all claims, losses, liabilities, and.expenditures of any kind whatsoever, including attorney's fees, court costs, and expenses caused by: 1) the negligent act or omission of CONTRACTOR, its employees, agents, servants, or officers; or 2) accruing, resulting from, or in any manner related to the subject matter of this Agreement including, without limitation, any and all claims, demands, or causes of action of any nature whatsoever, including actions for declaratory judgment or other relief, resulting from the award of this Agreement or other injuries or damages allegedly sustained by any person or property. The provisions of this section shall survive the expiration or earlier termination of this Agreement. To the extent considered necessary by the CITY any sums due CONTRACTOR under this Agreement may be retained by the CITY until all of the CITY's claims for indemnification pursuant to this Agreement have been settled or otherwise resolved; and any amount so withheld shall not be subject to payment of interest by the CITY. Any attorney retained by CONTRACTOR to defend CITY shall be retained only after CITY' s consultation and approval. ARTICLE VII EXISTING LITIGATION 7.1 CONTRACTOR'S Assumption of Lawsuit. At the CITY's request and sole discretion CONTRACTOR shall assume, prosecute, and defend that certain lawsuit entitled THE CITY OF MIAMI v. BENCH ADS AMERICA, INC., Case No.: 01-14785 CA (32), fried in The Circuit Court Of The 11'h Judicial Circuit In And For Miami -Dade County, Florida, (hereinafter referred to as the "Bench Ads Lawsuit") and seeking a Declaratory Judegm#nt on the he CITY and validity li i Miami that certain contract for bus benches entered into on June 4, 1990 between e Bus Joint Venture, d/b/a Bus Bench Co. Upon the request of CITY, CONTRACTOR shall assume all costs associated with the defense, final disposition and/or settlement of the Bench Ads Lawsuit. 7.2 Final Disposition of Lawsuit and Credit to CONTRACTOR. In the event the Bench Ads Lawsuit is assumed by the CONTRACTOR pursuant to the CITY's request and said suit is terminated or disposed of in a way which requires the payment of monies andlor other considerations to Bench Ads of America, Inc., their successors andlor assigns, CONTRACTOR shall pay such monies and/or considerations of value, including attorneys fees and costs, if any, and receive a credit for 100% of such monies and/or considerations, actually disbursed by CONTRACTOR, including CONTRACTOR'S attorney's fees and/or costs, including on appeal, Page 6 of 21 and any other costs and expenses associated with CONTRACTOR'S assumption of the Bench Ads Lawsuit, from the next and most immediate payments due the CITY under Article IV of this Agreement, and shall continue to apply said credits until the total amount of the credit is extinguished. The City Manager and CONTRACTOR shall mutually approve, in writing, any settlement and/or final disposition of the Bench Ads Lawsuit which requires payment of monies and/or other considerations of value to Bench Ads of America, Inc. Any resolution or final disposition of the Bench Ads Lawsuit shall contain a full and complete release of liability in favor of the CITY and CONTRACTOR. In the event the CITY reassumes control and responsibility of the Bench Ads Lawsuit at any time after CONTRACTOR'S involvement the same credit formula shall apply to any and all costs and expenses incurred by CONTRACTOR in CONTRACTOR'S assumption of the Bench Ads Lawsuit, including attorneys fees and legal costs, including on appeal. 7.3 Waiver. CONTRACTOR acknowledges that the DefendantiCounterpiaintiff in the Bench Ads Lawsuit or others may dispute the CITY's right to award this Agreement to CONTRACTOR and waives all claims and causes of action of any nature whatsoever it may have against CITY should the award of this Agreement to CONTRACTOR be deemed improper by a court. ARTICLE VIII INSURANCE/PERFORMANCE BOND REQUIRED 8.1 Insurance. In order to insure the indemnification obligation contained above CONTRACTOR shall provide, pay for, and maintain in force at all times during the term of this Agreement, the insurance coverages set forth in sections 8.3, 8.4, and 8.5. 8.2 Form. Such policy or policies shall be without any deductible amount and shall be issued by approved companies aut d �_'4 o business in the State of Florida, rated at least "A - as to management and at least "C�ass.D(' s to financial strength in the latest edition of Best's Insurance Guide, published by Alfred M. Best Co., Inc., Fulton Street, New York, New York, and having agents upon whom service of process may be made in the City of Miami, Florida. CONTRACTOR shall specifically protect the CITY and its City Commission by naming the CITY and the City Commissioners as additional insureds under the Comprehensive General Liability Policy. 8.3 Comprehensive General Liability Insurance. A Comprehensive General Liability Insurance Policy shall be provided which shall contain minimum limits of One Million Dollars ($1,000,000.00) per occurrence combined single limit for bodily injury liability and property damage liability. Said minimum limit may be increased upon review by the CITY's Risk Manager, but any such increase shall be reasonably related to the risk insured under this Agreement. Coverage must be afforded on a form no more restrictive than the latest edition of the Comprehensive General Liability Policy, without restrictive endorsements, as filed by the Insurance Services Office and must include: Premises and/or operations. Independent contractors. Page 7 of 21 Products and/or Completed Operations for. contracts. Broad Form Contractual Coverage applicable to this specific Contract, including any hold harmless and/or indemnification agreement. Personal Injury Coverage with Employee and Contractual Exclusions removed, with minimum limits of coverage equal to those required for Bodily Injury Liability and Property Damage Liability. 8.4 Business Automobile Liability. Business Automobile Liability with minimum limits of Three Hundred Thousand Dollars ($300,000.00) per occurrence, combined single limit for Bodily Injury Liability and Property Damage Liability. Coverage must be afforded on a form no more restrictive than the latest edition of the Business Automobile Liability policy, without restrictive endorsements, as filed by the Insurance Services Office, and must include: Owned Vehicles. Hired and Non -Owned Vehicles. 8.5 Workers' Compensation Insurance. Workers' compensation insurance shall apply to all employees in compliance with the "Workers' Compensation Law" of the State of Florida and all applicable federal laws. In addition, the policy(ies) must include: Employers' liability with a limit of One Hundred Thousand Dollars ($100,000.00) each accident. 8.6 Certificate Required. CONTRACTOR shall furnish to the Contract Administrator Certificates of Insurance or endorsements evidencing the insurance coverages specified by this Article prior to beginning performance of work under this Agreement. 8.7 Cancellation Restricted. Coverage is not to cease and is to remain in force (subject to cancellation notice) until all performance required of CONTRACTOR is completed. All policies must be endorsed to provide the CITY with at least thirty (30) days' notice of cancellation and/or restriction. If any of the insurance coverages will expire prior to the completion of the work, copies of renewal policies shall be furnished at least thirty (30) days prior to the date of their expiration. 8.9 Performance Bond. CONTRACTOR shall provide, pay for, and maintain in force at all times during the life of this Agreement, a bond, in a form acceptable to the CITY, in the amount of Two -Hundred and Fifty Thousand Dollars ($250,000.00). Such bond shall cover the proper construction and maintenance of the Bus Benches and City Panels and their removal and restoration of the public rights -of -way, if such is required by the CITY. 8.10 Pa en maintain in force at all times payment bond or letter of credit in Such payment bond or letter of c to the CITY under Article and or Letter of Credit. CONTRACTOR shall provide, pay for and s Agreement, in a form acceptable to the CITY, a ount of Five Hundred Thousand Dollars ($500,000.00). it sh• over CONTRACTOR's obligation to make payments of this Agreem In the event of a default by CONTRACTOR �4,4 6kIliioa- Page 8 of 21 under Article IV, and in the event sa efault is not cured within the notice and grace periods contained in Article IX, the CI s a have t e ght to exercise its rights under said payment bond or letter of credit, t. 4111V i o ARTICLE IX TERMINATION 9.1 Monetary Default. The City Manager may terminate or cancel this Agreement, if there is a monetary default not cured by the CONTRACTOR within thirty (30) days after receipt of written notice from the CITY. 9.2 Non -Monetary Default. The City Manager may terminate or cancel this Agreement, if there is a non -monetary default including, without limitation, failure to comply with any covenant, or obligation of the CONTRACTOR under this Agreement, which is not cured by the CONTRACTOR within thirty (30) days after receipt of notice from the CITY. Provided, however, that the CONTRACTOR, within thirty (30) days following receipt of notice of such non - monetary default, may request that the City Manager grant an extension of the time in which to cure such non -monetary default. The granting of any such extension shall be at the sole discretion of the City Manager, shall be required to be in writing, and shall not exceed thirty (30) days. This Agreement may also be terminated by the Contract Administrator upon such notice as the Contract Administrator deems appropriate under the circumstances, in the event the Contract Administrator determines that termination is necessary to protect the public health, safety, or welfare. 9.3 Insolvency. The City Manager shall have the unilateral right to cancel and terminate this Agreement in the event that the CONTRACTOR becomes insolvent or commits an act of bankruptcy, makes a general assignment for the benefit of creditors, or if there is filed by or against the CONTRACTOR 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 for the CONTRACTOR's relief from or for composition, extension, arrangement or adjustment of any of CONTRACTOR's obligations and which proceedings are not withdrawn or dismissed within ninety (90) days after commencement or if the CONTRACTOR dissolves itself, or assigns, sells or transfers this Agreement 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 CONTRACTOR's stock or partnership shares (as applicable) is an assignment for the purposes of this section. Notwithstanding anything contained elsewhere herein, the CONTRACTOR shall have the right to make an assignment of its right to receive the proceeds under this Agreement, subject to the CITY's rights to receive compensation under Article IV, to a financial institution as collateral to secure the indebtedness of CONTRACTOR. 9.4 Notice Of Termination. Notice of termination shall be provided in accordance with the Article X, section 10.7 of this Agreement except that notice of termination by the Contract Administrator which the Contract Administrator deems necessary to protect the public health, safety, or welfare may be verbal notice which shall be promptly confirmed in writing in accordance with Article X, section 10.7 of this Agreement. Page 9 of 21 ARTICLE X MISCELLANEOUS 10.1 Ownership Of Documents. Any and all reports, photographs, surveys, and other data and documents provided or created in connection with this Agreement are and shall remain the property of the CITY. In the event of termination of this Agreement, any reports, photographs, surveys, and other data and documents prepared by CONTRACTOR, whether finished or unfinished, shall become the property of the CITY and shall be delivered by CONTRACTOR to the Contract Administrator within seven (7) days of termination of this Agreement by either party. Any compensation due to CONTRACTOR shall be withheld until all documents are received as provided herein. 10.2 Audit Right And Retention Of Records. The CITY shall have the right to audit the books, records, and accounts of CONTRACTOR that are related to this Project. CONTRACTOR shall keep such books, records, and accounts as may be necessary in order to record complete and correct entries related to the Project. CONTRACTOR shall preserve and make available at reasonable times for examination and audit by the CITY, all financial records, supporting documents, statistical records, and . any other documents pertinent to this Agreement for the required retention period of the Florida Public Records Act (Chapter 119, Fla. Stat.), if applicable, or, if the Florida Public Records Act is not applicable, for a minimum period of three (3) years after termination of this Agreement. If any audit has been initiated and audit findings have riot been resolved at the end of the retention period or three (3) years, whichever is longer, the books, records, and accounts shall be retained until resolution of the audit findings. If the Florida Public Records Act is determined by the CITY to be applicable to CONTRACTOR'S records, CONTRACTOR shall comply with all requirements thereof; however, no confidentiality or non- disclosure requirement of either federal or state law shall be violated by CONTRACTOR. Any incomplete or incorrect entry in such books, records, and accounts shall be a basis for the CITY's disallowance and recovery of any payment upon such entry. All records shall be made available within the city limits of the City of Miami. 10.3 Special Audit Report Requirement. On an annual basis, CONTRACTOR, at its sole cost, shall provide to the CITY a special report that covers all gross collections from the CONTRACTOR's operations and the operations of any subcontractors or management companies of CONTRACTOR, if applicable. The special audit report shall be prepared by a Certified Public Accountant in accordance with the provisions of the Codifications of Statements on Auditing Standards. The special report shall be delivered to the Contract Administrator within ninety (90) calendar days after the end of each year and within (90) calendar days following the expiration or any termination of this Agreement. The special report shall include the following: • (1) A schedule of all revenue by category, by month; (2) A schedule of revenues by category upon which the monthly payments to the CITY are computed and a list of the payments to the CITY for the year; (3) A calculation and statement indicating whether the payments made to the CITY are in accordance with the agreement; and Page 10 of 21 (4) A summary of the procedures agreed upon between the CONTRACTOR and the Certified Public Accountant for the preparation of the annual special audit report. 10.4 Titles. Title and paragraph headings are for convenient reference and are not a part of this Agreement. 10.5 Independent Contractor. CONTRACTOR is an independent contractor under this Agreement. Services provided by CONTRACTOR pursuant to this Agreement shall be subject to the supervision of CONTRACTOR. In providing such services, neither CONTRACTOR nor its agents shall act as officers, employees, or agents of the CITY. This Agreement shall not constitute or make the parties a partnership or joint venture. 10.6 Third Party Beneficiaries. Neither CONTRACTOR nor the CITY intends to directly or substantially benefit a third party by this Agreement. Therefore, the parties agree that there are no third party beneficiaries to this Agreement and that no third party shall be entitled to assert a claim against either of them based upon this Agreement. The parties expressly acknowledge that it is not their intent to create any rights or obligations in any third person or entity under this Agreement. 10.7 Notices: All notices or other communications required under this Agreement shall be in writing and shall be given by hand -delivery or by registered or certified U.S. Mail, return receipt requested, addressed to the other party at the address indicated herein or to such other address as a party may designate by notice given as herein provided. Notice shall be deemed given on the day on which personally delivered; or, if by mail, on the fifth day after being posted or the date of actual receipt, whichever is earlier. FOR THE CITY OF MIAMI: City Manager 444 S.W. 2 Avenue 10th Floor Miami, Florida 33130-1910 with a copy to: Director, Public Works 444 S.W. 2 Avenue 8th Floor Miami, Florida 33130-1910 FOR CONTRACTOR: Sarmiento Advertising Group, L.L.C. 1221 Brickell Avenue Miami, Florida 33131 10.8 Assignment and Performance. Neither this Agreement nor any interest herein shall be assigned, transferred, or encumbered by either party, except as provided in Article IX, section 9.3 herein. In addition, CONTRACTOR shall not subcontract any portion of the work required by this Agreement without prior written approvalof the Contract Administrator. CONTRACTOR represents that all persons delivering the services required by this Agreement have the knowledge and skills, either by training, experience, education, or a combination thereof, to adequately and competently perform the duties, obligations, and services set forth in the Scope of Services and to Page 11 of 21 provide and perform such services to the CITY's satisfaction for the agreed compensation. CONTRACTOR shall perform its duties, obligations, and services under this Agreement in a skillful and reasonable manner. The quality of CONTRACTOR' s performance and all interim and final product(s) provided to or on behalf of the CITY shall be comparable to the best local and national standards. 10.9 Conflicts. Neither CONTRACTOR nor its employees shall have or hold any continuing or frequently recurring employment or contractual relationship that is substantially antagonistic or incompatible with CONTRACTOR'S loyal and conscientious exercise of judgment related to its performance under this Agreement. 10.9.1 Expert Testimony. CONTRACTOR agrees that none of its officers or employees shall, during the term of this Agreement, serve as an expert witness against the CITY in any legal or administrative proceeding in which he or she is not a party, unless compelled by court process. Further, CONTRACTOR agrees that such persons shall not give sworn testimony or issue a report or writing, as an expression of his or her expert opinion, which is adverse or prejudicial to the interests of the CITY in connection with any such pending or threatened legal or administrative proceeding. The limitations of this section shall not preclude CONTRACTOR or any 'other persons from representing themselves in any action or in any administrative or legal proceeding. 10.9.2 Subcontractors. In the event CONTRACTOR is permitted to utilize subcontractors to perform any services required by this Agreement, CONTRACTOR agrees to prohibit such subcontractors, by written contract, from having any conflicts within the meaning of this section. 10.10 Contingency Fee. CONTRACTOR warrants that it has not employed or retained any company or person, other than a bona fide employee working solely for CONTRACTOR, to solicit or secure this Agreement and that it has not paid or agreed to pay any person, company, corporation, individual or firm, other than a bona fide employee working solely for CONTRACTOR, any fee, commission, percentage, gift, or other consideration contingent upon or resulting from the award or making of this Agreement. For a breach or violation of this provision, the CITY shall have the right to terminate this Agreement without liability at its discretion, or to deduct from the Agreement price or otherwise recover the full amount of such fee, commission, percentage, gift or consideration. 10.11 Materiality and Waiver of Breach. The CITY and CONTRACTOR agree that each requirement, duty, and obligation set forth herein is substantial and important to the formation of this Agreement and, therefore, is a material term hereof. The CITY's failure to enforce any provision of this Agreement shall not be deemed a waiver of such provision or modification of this Agreement. A waiver of any breach of a provision of this Agreement shall not be deemed a waiver of any subsequent breach and shall not be construed to be a modification of the terms of this Agreement. 10.12 Certification: By signing this Agreement Consultant certifies that Consultant has familiarized itself with section 18-102 of the Code of the City of Miami, Florida and that neither Provider nor any of its principal owners or personnel have been convicted of an offense that would Page 12 of 21 be cause for debarment under section 18-102 of the Code of the City of Miami, Florida or debarred or suspended by any federal, state or other governmental entity. 10.13 Nondiscrimination. CONTRACTOR represents and warrants to the CITY that CONTRACTOR does not and will not engage in discriminatory practices and that there shall be no discrimination in connection with CONTRACTOR'S performance under this Agreement on account of race, color, sex, religion, age, handicap, marital status or national origin. CONTRACTOR further covenants that no otherwise qualified individual shall, solely by reason of his/her race, color, sex, religion, age, handicap, marital status or national origin, be excluded from participation in, be denied services, or be subject to discrimination under any provision of this Agreement. 10.14 Minority and Women Business Affairs and Procurement Program. The CITY has established a Minority and Women Business Affairs and Procurement Program (the "M/WBE Program") designed to increase the volume of CITY procurement and contracts with Blacks, Hispanic and Women -owned business. The M/WBE Program is found in Ordinance No. 10062, a copy of which has been delivered to, and receipt of which is hereby acknowledged by, CONTRACTOR. CONTRACTOR understands and agrees that the CITY shall have the right to terminate and cancel this Agreement, without notice or penalty to the CITY, and to eliminate CONTRACTOR from consideration and participation in future CITY contracts if CONTRACTOR, in the preparation and/or submission of the Proposal, submitted false of misleading information as to its status as Black, Hispanic and/or Women owned business and/or the quality and/or type of minority or women owned business participation. 10.15 Compliance With Laws. CONTRACTOR shall comply with all federal, state, and local laws, codes, ordinances, rules, and regulations in performing its duties, responsibilities, and obligations pursuant to this Agreement. 10.16 Severance. In the event a portion of this Agreement is found by a court of competent jurisdiction to be invalid, the remaining provisions shall continue to be effective unless the CITY or CONTRACTOR elects to terminate this Agreement. An election to terminate this Agreement based upon this provision shall be made within seven (7) days after the finding by the court becomes final. 10.17 Joint Preparation. The parties acknowledge that they have sought and received whatever competent advice and counsel as was necessary for them to form a full and complete understanding of all rights and obligations herein and that the preparation of this Agreement has been their joint effort. The language agreed to expresses their mutual intent and the resulting document shall not, solely as a rr r of judicial construction, be construed more severely against one of the parties,tha th8-them. 10.18 Priority Of Provisions. If there is a conflict or inconsistency between any term, statement, requirement, or provision of any exhibit attached hereto, any document or events referred to herein, or any document incorporated into this Agreement by reference and a term, statement, requirement, or provision of this Agreement, the term, statement, requirement, or provision contained in Articles I through IX of this Agreement shall prevail and be given effect. Page 13 of 21 10.19 Applicable Law And Venue. This Agreement shall be governed and construed under the laws of the State of Florida. Any action involving the enforcement or interpretation of any rights hereunder shall be submitted to the jurisdiction of the state courts of the Eleventh Judicial Circuit in and for Miami -Dade County, Florida. By entering into this Agreement, CONTRACTOR and the CITY hereby expressly waive any right either party may have to a trial by jury of any civil litigation between them related to, or arising out of, the this Agreement. 10.20 Amendments. No modification, amendment, or alteration in the terms or conditions contained herein shall be effective unless contained in a written document prepared with the same or similar formality as this Agreement and executed by the City Manager and CONTRACTOR. 10.21 Prior Agreements. This document incorporates and includes all prior negotiations, correspondence, conversations, agreements, and understandings applicable to the matters contained herein and the parties agree that there are no commitments, agreements or understandings concerning the subject matter of this Agreement that are not contained in this document. Accordingly, the parties agree that no deviation from the terms hereof shall be predicated upon any prior representations or agreements, whether oral or written. 10.22 Incorporation By Reference. The truth and accuracy of each "Whereas" clause set forth above is acknowledged by the parties. The attached Exhibits A, and B are incorporated into and made a part of this Agreement, 10.23 Multiple Originals. This Agreement may be fully executed in four (4) copies by all parties, each of which, bearing anginal signatures, shall have the force and effect of an original document. IN WITNESS WHEREOF, the parties hereto have made and executed this Agreement on this lBttlayof April ,2002. ATTEST: By: PISCILLA A. THMPSN CITY CLERK THE CITY OF MIAMI, a municipal corporation of the of the State of Florida "CITY" Bv: Page 14 of21 Car i.s A. imene City Manager APPROVED AS TO AND CORREC r' ilarello y Attorney B: By: Sr 'J 4ek-a 3'9 Print Name & Title APPROVED AS TO INSURANCE REQUIREMENTS By: Mario Soldevilla, Administrat/2 o Risk Management SARMIENTO ADVERTISING GROUP, L.L.C., a Flo '• • limited liability company "CONTRACT•'" By: 01jr111[1 arc. s Guillermo Victoria o • : ate xecutive Vice -President, Publici • • • Sarmiento of South Florida, Inc., Managing Partner, Sarmiento Advertising Group, L.L.C. Page 15 of 21 AGREEMENT BETWEEN THE CITY OF MIAMI AND SARMIENTO ADVERTISING GROUP, L.L.C. FOR BUS BENCH DESIGN, INSTALLATION AND MAINTENANCE EXHIBIT "A" SCOPE OF SERVICES This Exhibit "A" supplements the Agreement between Sarmiento Advertising Group, L.L.C. ("CONTRACTOR") and the City of Miami, Florida ("CITY"). I. INSTALLATION OF BUS BENCHES AND ILLUMINATED PANELS 1.1 CONTRACTOR shall install and maintain at no cost to the CITY 1500 Bus Benches at designated locations throughout the CITY. Of the 1500 total, 900 bus benches shall be Advertising Bus Benches and 600 shall be Non -Advertising Bus Benches. 1.2 In addition, CONTRACTOR shall install and maintain, at no cost to the CITY, 100 City Illuminated Panels and 10 City Plasma Panels for the exclusive use of the CITY. The CITY shall have the right to display both advertising and non -advertising material on the CITY Panels. In the event the CITY desires to sell commercial advertising on its panels, the CITY shall use CONTRACTOR as its agent for placement; and CONTRACTOR shall offer to place such advertising at its most favorable rates and for its standard commission. 1.3 The specifications for the Advertising Bus Benches, Non -Advertising Bus Benches, City Illuminated Panels and City Plasma Panels will be as approved by the Contract Administrator. 1.4 At the CITY'S request, and at CONTRACTOR'S sole expense, CONTRACTOR shall remove and dispose of the existing bus benches installed by Bench Ads America, Inc. Adve ne rate oft@8-Non- 1. ha11 be instal lzd at a h ate--e-f---10— .Adve s Rg-B-us--Benehes-per- 4er the first 12-monthrcorromrcring orf AFrr1--1-; 2002,-and-ata-. `minimmm-rate--ef-4 ertisng Bus ist ehes-pe-r-month trhexeafter.,--u' .the.. -totals rlPscr bed- r--- r ciI'bl' 1.7 The City Illuminated Panels and City Plasma Panels shall be installed when requested by the CITY. 1.8 If the CONTRACTOR is unable to commence, proceed or complete the above services because of delays caused by factors outside the control of CONTRACTOR, the CITY may, but shall not be required to, grant an extension of time for commencement, delivery or completion of the services. It shall be the responsibility of CONTRACTOR to notify the CITY Page 16 of 21 promptly in writing whenever a delay in approval by a governmental agency is anticipated or experienced, and to inform the CITY of all facts and details related to the delay. 1.9 CONTRACTOR shall solicit input from the CITY when designing Bus Benches and City Panels. CONTRACTOR shall propose one or more Bus Bench and City Panel designs to the Contract Administrator for consideration and selection by the CITY. The Contract Administrator may request additional designs until fully satisfied with the final products. In selecting a design, the Contract Administrator may consider the character of the community where the Bus Bench or City Panel is to be located, the needs of public, aesthetics, safety, utility, and existing laws, codes, rules and regulations. All Bus Bench and City Panel installations shall be. performed in accordance with the approved designs and permitted drawings. 1.10 The Contract Administrator, with the assistance of CONTRACTOR, shall identify and prioritize the locations for installation. Thz decision of the CITY with respect to the installation and maintenance of the Bus Benches and City Panels shall be final. The risk of obtaining the contemplated number of locations is bom solely by the CONTRACTOR. 1.11 CONTRACTOR, at its sole expense, shall obtain all permits, and licenses, and pay all applicable fees. CONTRACTOR shall be solely responsible for payment of all taxes, fees or surcharges imposed by any governmental body, other than a direct tax on Bus Benches first imposed after the execution of this Agreement by the CITY, arising from CONTRACTOR'S performance of this Agreement. The foregoing notwithstanding nothing in this Agreement shall preclude the CITY from receiving a portion of any taxes or fees imposed upon CONTRACTOR by an entity other than the CITY. 1.12 A copy of each building permit and each permit to use the land on which each Bus Bench or City Panel will be installed shall be furnished by CONTRACTOR to the CONTRACT ADMINISTRATOR no later than one (1) week prior to the installation of the Bus Bench or City Panel. Upon completion CONTRACTOR shall furnish the CONTRACT ADMINISTRATOR with a copy of each Certificate of completion. II. MAINTENANCE, REPLACEMENT AND REMOVAL OF BUS BENCHES AND ILLUMINATED PANELS; SAFETY CONSIDERATIONS 2.1 Construction, installation and maintenance of Bus Benches and/or Illuminated Panels shall be in accordance with all applicable building codes and standards, Special accommodations shall be provided to meet all ADA requirements for access to public transportation facilities. In addition to those set forth by law, the following minimum standards shall be complied with when installing and replacing Bus Benches and/or Illuminated Panels pursuant to this Agreement: a) Bus Benches and City Panels may be installed only at bus stops or other locations designated by the CITY; b) Bus Benches and/or City Panels are prohibited in medians and on limited access facilities; Page 17 of 21 c) Bus Benches and/or City Panels may not be located within fifteen (15) feet of any fire hydrant or handicapped parking space; d) Bus Benches and/or City Panels shall not obstruct any sidewalk, bike path, pedestrian path, driveway, drainage structure, or ditch, and shall provide at least three (3) feet of clearance for pedestrian traffic; e) Prior to the installation of Bus Benches and/or City Panels, the impacted utility companies must be notified to determine location of the utilities and prevent conflicts; f) All utility connections for Bus Benches and/or City Panels shall be as per the permitted drawings. 2.2 CONTRACTOR shall submit a[typicaI drawing (of each type or model Bus Bench and/or City Panel to be utilizedin the. Project. The drawings shall include all configurations, dimensions, connections, panels, method of installation, lighting and wiring diagrams for each type or model. s 2.3 The name and emergency (1-800) telephone number of theSONTRACTOR along _ with a unique number assigned by Contract Administrator, showing location: and date installed • { , shall be placed along the leading edge of each Bus Benches and City Panel in bold, black letters FJ and numbers two (2) inches in height on a light-colored background. 2.4 CONTRACTOR shall preserve all existing utilities. CONTRACTOR shall repair or caused to be repaired at CONTRACTOR's sole expense any damage caused to any utilities by installation of Bus Benches or City Panels. V 2.5 All Advertising Bus Benches and City Panels shall be powered with underground or solar electrical service at CONTRACTOR's expense. Overhead electrical lines or transformers are not permitted. 2.6 Upon installation of a Bus Bench or City Panel, CONTRACTOR shall prepare an updated inventory sheet indicating the number and location of each Bus Bench and City Panel,' including the unique number assigned to it by the Contract Administrator. 2,7 CONTRACTOR shall timely provide Contract Administrator with a Certificate of Completion for each Bus Bench and/or Illuminated Panel installed pursuant to this Agreement. 2.8 Bus Benches and City Panels shall be removed and relocated, at CONTRACTOR's sole expense, due to private development, public works projects, public convenience, Mass Transit Division route or stop changes, repeated vandalism. In the event that any Bus Benches and/or Illuminated Panels have been an object to excessive and continuous vandalism ("continuous vandalism" shall mean damages which have been incurred over a twelve-month period for which repair costs in the period exceed one-third of Bus Benches and/or Illuminated Panels installation value) the CITY agrees that CONTRACTOR may, at its option, remove such Bus Bench and/or Page 18 of 21 Illuminated Panel from such location and install it at another mutually agreed upon location within The City of Miami. Any Bus Bench and/or Illuminated Panel required to be removed by CONTRACTOR in case of deletion of an authorized bus stop or vandalism, shall be removed within fifteen (15) business days of receiving written request from the CITY. For purposes of the compensation formulas described in Article IV of the agreement, a Bus Bench and/or Illuminated Panel deleted under this section shall not be counted as an "installed" Bus Bench and/or Illuminated Panel until it is re -installed in a new location. 2.9 The Contract Administrator may, for reasonable cause, request the CONTRACTOR to remove or transfer Bus Benches or City Panels from any location, when it appears that: a) A traffic hazard exists or may be created; b) Public safety may be endangered; c) The Bus Bench or City Panel is improperly placed; d) The Bus Bench or City Pane is incompatible with the surrounding community. e) When bus stops are eliminated due to permanent bus route change. 2.10 If a Bus Bench or City Panel is damaged to the extent that it creates a hazardous condition, the CONTRACTOR shall repair, replace or remove the Bus Bench or City Panel and restore a safe pedestrian/rider environment within forty-eight (48) hours of notification by the Contract Administrator, or sooner if the CONTRACTOR knows or has reason to know of such condition. If a Bus Bench or City Panel presents a life safety problem, the CONTRACTOR shall immediately repair, remove, or replace the unit within twenty-four (24). hours of notification by the Contract Administrator, or sooner if the CONTRACTOR knows tir has reason to know of such safety related problem. CONTRACTOR shall pay CITY the sum of Fifty Dollars ($50.00) per day for each day after notification that a Bus Bench or City Panel remains in an uncorrecTed condition. III. CLEANING AND MAINTENANCE STANDARDS 3.1 CONTRACTOR shall, at its own expense, maintain the Bus Benches and City Panels in a clean and serviceable condition. CONTRACTOR shall provide a minimum once per week cleaning and maintenance service of Bus Benches and City Panels including the removal of debris, rubbish, foreign matter and graffiti from the area around each Bus Bench and City Panel. 3.2 CONTRACTOR shall provide maintenance and repair services to Bus Benches and City Panels within forty-eight (48) hours of verbal or written notification by the Contract Administrator. 3.3 In the event the CONTRACTOR fails or refuses to remove or correct any defective work or to make any necessary repairs in an acceptable and expeditious manner this Agreement, within forty-eight (48) hours from receipt of written request by the Contract Administrator, the Contract Aamintstratur Yliay remove or cause to be removed the unacceptable or defective work or make such repairs as may be necessary. Any expense incurred by the CITY in making these removals, or repairs, shall be charged to the CONTRACTOR. Page 19 of 21 IV. ADVERTISING ON BUS BENCHES AND ILLUMINATED PANELS 4.1 In order to engage in the business of outdoor advertising. CONTRACTOR shall comply with Section 337.408 ~Florida Statutes. 4.2 CONTRACTOR may sell and display advertising only on the Adverttsin_ Bus Bench's Illuminated Panel. All advertising revenues shall be payable to the CONTRACTOR, subject to Article IV of the Agreement. The CITY may reasonably object to any advertisement placed in or on any Bus Bench or City Panel and CONTRACTOR shall remove such advertisement immediately upon request from the CITY. V. PROJECT MANAGEMENT 5.1 CONTRACTOR shall designate a project manager and a maintenance manager and provide the names of these managers to the CITY. The project manager and the maintenance manager shall be available to the Contract Administrator at all reasonable times for discussions regarding this Ageement. 5.2 CONTRACTOR shall maintain a local office in the City of Miami at all times during the term of this Agreement. CONTRACTOR's project manager shall be available at all times during this Agreement for immediate response to any request for the CITY or the Contract Administrator. Time is deemed of the essence to any emergency situation and it is the intent of the parties that the CONTRACTOR be available and prepared to respond to the situation ma timely and effective manner. 5.3 In addition to the reports required under in Article IV of this Agreement, upon request. CONTRACTOR shall furnish to the Contract Administrator a detailed accounting of the revenues upon which payment is figured. in such form as is agreed upon by the CONTRACTOR and Contract Administrator. 5.4 CONTRACTOR shall provide personnel having management, operation, project management. and maintenance expertise necessary to operate the project which shall include: a) Providing day-to-day operational supervision of the Project; b) Providing Bus Benches and/or Illuminated Panels per the required design unless an alternative is approved by the CITY; c) Ensuring the advertising on Bus Benches and/or Illuminated Panels is in accordance with the CITY's printed advertising policies; d) Operating an effective advertising sales operation sufficient to support the capital and operating expenses of the Project; e) Assisting the CITY in identifying appropriate locations for the placement of Bus Benches and/or Illuminated Panels. Page 20 of 21 AGREEMENT BETWEEN THE CITY OF MIAMI A.ND SARMIENTO ADVERTISING GROUP. L.L.C. FOR BUS BENCH DESIGN. INSTALLATION AND MAINTENANCE Year cd0. 1 2 ..y a 3 fob d 4 5 boa 7 6 aab ,,aa 8 as4 9 ,9-c' it 10 .47 0, 11 10 12��ryr 13 „I. a if 14 t'1%,, 15 EXHIBIT "B" YEARLY GUARANTEED MINIMUM PAYMENT PER BLTS BENCH Payment Per Bus Bench S 80.0.00/2 S 1.000.00 S1.200.00 S 1,400.00 S 1,600.00 S1.200.00 S 1,200.00 S1.200.00 S1.200.00 S1.200.00 S1.200.00 S1.200.00 S1.200.00 S 1.200.00 S1.200.00 Page 21 of 21