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HomeMy WebLinkAboutExhibitAGREEMENT , BETWEEN THE CITY OF MIAMI, FUEL MIAM1, LLC, AND FUEL OUTDOOR HOLDINGS, LLC FOR BUS BENCH AND BUS SHELTER DESIGN, INSTALLATION AND MAINTENANCE This Agreement for Bus Bench and Bus Shelter Design, Installation and Maintenance (this "Agreement") is entered into this of , 2007, by and between THE CITY OF MIAMI, a municipal corporation of the State of Florida, whose address is 3500 Pan American Drive, Miami, Florida 33133 (hereinafter referred to as "CITY") and FUEL Miami, LLC, a Delaware limited liability company, whose local address is 2610 N. Miami Avenue, Miami, Florida 33127 and whose principal address is 149 Fifth Avenue, Eleventh Floor, New York, New York 10010 (hereinafter referred to as "FUEL" or "CONTRACTOR") and FUEL's parent company FUEL Outdoor Holdings, LLC., a .Delaware limited liability company, whose address is 149 Fifth Avenue, Eleventh Floor, New York, New York 10010 (hereinafter referred to as "FUEL Outdoor") and acknowledged by SARMIENTO ADVERTISING GROUP, LLC, a Florida limited liability company, whose address is 2610 N. Miami Avenue, Miami, Florida 33127 (hereinafter referred to as "Sarmiento") for the purposes and upon such terms and conditions as set forth hereinafter. RECITALS: WHEREAS, CITY and Sarmiento previously entered into that certain agreement for Bus Bench design, installation and maintenance (the "Original Agreement") on April 18, 2002, Said Original Agreement was subsequently amended on September 18, 2002 ("Amendment 1"), and on February 27, 2003 ("Amendment 2"), and on April 10, 2003 ("Amendment 3"), and on July 20, 2004 ("Amendment 4"), (collectively referred to as "Amendments"); and WHEREAS, in addition to the Original Agreement and Amendments regarding Bus Benches, CITY and Sarmiento previously entered into, a Professional Services Agreement ("PSA") on July 28, 2004, for the maintenance of City Bus Shelters; and WHEREAS, in accordance with Paragraph 10.8 of the Original Agreement, CITY has approved by City Commission Resolution No. 06-0665 passed and adopted on November 9, 2006 and attached hereto as Exhibit "A", the transfer of a majority of shares of stock of Sarmiento to FUEL pursuant to the terms outlined in correspondence to the City Manager, dated October 29, 2006 attached as Exhibit "B" and in Resolution No. 06-0665; and r tic —t`' 4_ 1 Draft of 02/26/07 with highlights cleared WHEREAS, in accordance with Resolution No. 06-0665, the CITY, Sarmiento, FUEL, and FUEL Outdoor entered into an Assignment and Assumption Agreement regarding the Original Agreement, the Amendments, and the PSA and the City Commission on January 1 I, 2007 approved by Resolution No. 07-0029 attached hereto as Exhibit "C"; and WHEREAS, after a duly advertised public hearing on February 8, 2007, the City Commission repealed Sections 54-86 through 54-94 of the Code of the City of Miami, as amended (the "Code") Ordinance No. 12888 attached hereto as Exhibit "D", and WHEREAS, in accordance with Section 18-85(a) of the Code of the City of Miami, as amended, the City Commission on March 8, 2007 conducted the required advertised public hearing and by a 4/5ths affirmative vote, approved Resolution No. attached here to as Exhibit "E" and authorized the City Manager to enter into this Agreement with CONTRACTOR upon the terms and conditions provided herein; WHEREAS, the respective necessary limited liability company authorizations of FUEL and FUEL Outdoor and acknowledgement by Sarmiento are attached hereto as composite Exhibit F; and WHEREAS, Fuel Outdoor is the guarantor for CONTRACTOR in the event that CONTRACTOR fails to perform in accordance with the terms herein. Fuel Outdoor will guarantee the complete performance by CONTRACTOR. WHEREAS, this Agreement reserves and incorporates all rights, approvals and authorities vested in the Original Agreement, Amendments and PSA as originally approved by the City Commission and pursuant to the Code of the City of Miami at such applicable times. WHEREAS, this Agreement is entered into in accordance with Florida Statutes Section 337.408 in order to consolidate the Original Agreement, Amendments and PSA, which provides for the installation and maintenance of Bus Benches and Illuminated Panels, as well the addition in the Agreement for the installation and maintenance of Bus Shelters and to provide for Trash Receptacles. WHEREAS, CITY and CONTRACTOR have determined that they are desirous of entering into this Agreement; and NOW THEREFORE, in consideration of the premises and mutual covenants contained herein, the parties hereby covenant and agree as follows: ARTICLE I Draft of 02/26/07 with highlights cleared 2 INCORPORATION OF RECITALS, EXHIBITS, AND ATTACHMENTS; DEFINITIONS AND IDENTIFICATIONS A. Incorporation: The Recitals and all statements contained therein and all Exhibits and Attachments hereto, are true and correct and are hereby expressly incorporated into and made a part of this Agreement. B. Definitions and Identifications: 1.1 Advertising Bus Bench - shall mean a bus bench with an Illuminated Panel attached to it. 1.2 Advertising Bus Shelter; shall mean a bus shelter with an Illuminated Panel attached to it, upon which advertising may be displayed. 1.3 Agreement — shall mean this Agreement as the same shall be amended from time to time by the parties hereto. Other terms and conditions which are included in the exhibits, attachments, resolutions, ordinances, and documents that are expressly incorporated by reference shall become a part of this Agreement. 1.4 Bus Benches shall mean both the Advertising Bus Benches and the Non -Advertising Bus Benches. When written in small caps, as "bus benches)", the term shall mean a seat designed for seating two or more persons, placed along transit bus routes or other authorized locations, upon or attached to which advertising may be displayed. 3.5 Bus Shelters shall mean both the Advertising Bus Shelters and the Non -Advertising Bus Shelters. When written in small caps, as "bus shelter(s)", the term shall mean an open structure providing protections from precipitation, wind, and sun with a seat designed for seating two or more persons, placed along transit bus routes. 1.6 Code - shall mean the Code of the City of Miami, as amended. 1.7 Contract Administrator — shall mean the Director of Public Works or his/her designee. 1.8 County - shall mean Miami -Dade County, a political subdivision of the State of Florida. 1.9 Gross Revenue — shall mean all moneys paid or payable to the CONTRACTOR for sales made and for services rendered at or from advertising on those Illuminated Panels number 601 to 750 regardless of when or where, on cash or credit basis; provided, however, that the term "gross revenue" shall be reduced by the following: Draft of 02/26/07 with highlights cleared 3 1.9(a) Advertising agency commissions actually paid (excluding CONTRACTOR and its agents); 1.9(b) Any taxes imposed by law, which are separately stated to and paid by the customer and directly payable by the CONTRACTOR to a taxing authority; 1.9(c) Insurance proceeds, other than business interruption insurance and/or other reimbursement for lost revenues; 1.9(d) Refunds to third party clients that the CONTRACTOR provides according to sound business judgment and that are the result of "arms length" transactions. This credit shall not include any refunds to political candidates or political campaigns; and 1.9(e) All direct payments made to any private property owner(s) for use of their property to install any bus shelter when the shelter is partially installed on public property and private property. 1.10 Illuminated Panel - shall mean a back -lit, double-faced, rectangular panel, upon whose faces display advertising may be placed, which shall include but not be limited to digital panels with images changing no greater than every 8 seconds. In no event shall Illuminated Panels include full motion video. 1.11 Non -Advertising Bus Bench - shall mean a bus bench without an attached Illuminated Panel and without any advertising. 1.12 Non -Advertising Bus Shelter - shall mean a bus shelter without an attached Illuminated Panel and without any advertising. 1.13 Project - The Project consists of the services described in Article I1. 1.14 Regular Maintenance — shall mean the performance of such tasks and undertakings as set forth in Attachment "A" entitled, Scope of Services, specifically Clause II and Clause III thereof. 1.15 State - shall mean the State of Florida. 1.16. Trash Receptacle — shall mean a trash receptacle of design approved by the CITY included as Attachment `B " or other as approved by Contract Administrator, without any advertising and having a cost of no more than six hundred seventy four dollars ($674) per trash receptacle. Draft of 02/26/07 with highlights cleared 4 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 design, construct, erect, install, repair, replace, relocate and maintain one thousand, five hundred (1500) Bus Benches and six hundred (600) Bus Shelters, and install six hundred (600) Trash Receptacles 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. 2.2 Scope. CONTRACTOR shall design, construct, erect, install, repair, replace, relocate and maintain the Bus Benches and Bus Shelters and perform all other work reflected in attached Attachment "A". Furthermore, the locations for the Bus Benches and Bus Shelters shall be as set forth by the CITY and CONTRACTOR in attached Attachment C, which may be amended from time to time upon the agreernent of CITY and CONTRACTOR, 2.3 Increases in Numbers. CITY and CONTRACTOR may mutually agree, without the necessity of additional CITY COMMISSION approval, to increase the number of Bus Benches and Bus Shelters contemplated by this Agreement within the existing contract term in consideration of periodic changes to the number of transit stops within the CITY limits. 2.3(a) After CONTRACTOR has placed all six hundred (600) Illuminated Panels, the City Manager may approve up to one -hundred and fifty (150) additional locations for Illuminated Panels with compensation to the City therefore as indicated in Section 4.1 below. 2.3(b) Any decrease in the number of Bus Benches and Bus Shelters placed would require City Commission approval. 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 and Bus Shelters 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 Bus Shelters within those ROWs and the CITY agrees that it will not oppose these efforts with exception of streetcar stops. Any decrease in the number of units placed due to changes above would require additional City Commission approval. Approval of additional locations due to these efforts would require an increase in the number of units placed over the existing contract requirements. 2.5 Trash Receptacles. CONTRACTOR shall provide and place free of charge to the CITY one (1) Trash Receptacle for each of the six hundred (600) Bus Shelter locations at no cost to the CITY. CONTRACTOR shall accept the design provided by the CITY and said Trash Receptacle shall have a cost of no more than six hundred seventy - Draft of 02/26/07 with highlights cleared 5 four dollars ($674) per Trash Receptacle. CONTRACTOR understands and agrees that the Trash Receptacles shall not have any advertising. CONTRACTOR and the CITY understand and agree that the maintenance, hauling of trash, and replacement of damaged "Trash Receptacles shall be the full responsibility of the CITY. 2.6 Availability. The provisions of this Agreement, shall be made available to all units of local government who desire to implement a transit bus bench or bus shelter program within their respective municipality. CONTRACTOR, at his sole discretion, may agree to accept this Agreement for these government entities. ARTICLE III TERM AND TIME OF PERFORMANCE 3.1 Term. The Term of this Agreement shall be twenty (20) years beginning on the date this Agreement is fully executed by all parties. 3.2 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 CONTRACTOR'S agreement for the design, construction, erection, installation, repair, replacement, relocation, and maintenance of the Bus Benches and Bus Shelters and installation of Trash Receptacles pursuant to the terms herein, the CITY will not be receiving from CONTRACTOR any compensation generated by the Bus Benches and Bus Shelters for the first six hundred (600) Illuminated Panels on Bus Benches and Bus Shelters. However, for any additional advertising panels approved by the City Manager pursuant to Section 2.3 above, more specifically for Illuminated Panels numbered from 601 to 750, the CITY shall receive from CONTRACTOR the higher amount of either of the two options below: 4.1(a) One Thousand, Three Hundred Fifty Dollars and No Cents ($1350.00) per Illuminated Panel, per year with a two percent (2%) escalation through (i) the end of this Agreement and any renewals hereof of Illuminated Panels 601 to 750, or (ii) the removal of the Illuminated Panel, or 4.1(b) Thirty percent (30%) of CONTRACTOR's earned monthly Gross Revenues arising solely from Illuminated Panels numbered 601 to 750. 4.2 Finance Department: All payments shall be made by CONTRACTOR on a quarterly basis to the City of Miami Department of Finance. 4.3 Contractor Compensation. In consideration for the design, Draft of 02/26/07 with highlights cleared 6 construction, erection, installation, repair, replacement, relocation, and management of the Bus Benches and Bus Shelters, the CONTRACTOR will not be receiving compensation for the maintenance of the Bus Benches and Bus Shelters pursuant to the PSA upon the commencement of this Agreement pursuant to Article III, Section 3.1. 4.4 No Deductions, Any charges made against CONTRACTOR by the City shall not be deducted by the CONTRACTOR from the quarterly payments for increased advertising panels from 601 to 750 pursuant to Section 4.1 above. Charges that may be assessed against CONTRACTOR include, but are not limited to the following: 4.4(a) Repairs: Cost of repairs to any Bus Bench, Bus Shelter, Illuminated Panel, or any CITY facility or equipment resulting from the negligent action or any inaction or omission of CONTRACTOR's representative or employee or from acts of vandalism, weather or Acts of God or resulting from any actions that are not the direct fault of the .CITY; 4.4(b) Interest: Any interest, penalty, late charge, or cost of collection assessed against CONTRACTOR for CONTRACTOR's failure to comply with the payment requirements of this Agreement. 4.5 Ownership of Bus Benches, Bus Shelters, Illuminated Panels, and Trash Receptacles: Upon expiration of this Agreement, the CITY at its sole option, and without cost, may take ownership of the Bus Benches, Bus Shelters, Illuminated Panels and Trash Receptacles installed by CONTRACTOR or may require CONTRACTOR to remove the same at no cost to the CITY. 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 IX, Section 9.20. ARTICLE VI INDEMNIFICATION AND WAIVER 6.1 Indemnification. CONTRACTOR shall at all times hereafter indemnify, defend, release, 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 7 Drafi of 02/26/07 with highlights cleared 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 or the applicable statute of limitations period provided for in the Florida Statutes. Any attorney retained by CONTRACTOR to defend CITY shall be retained only after CITY's consultation and approval; such approval shall not be unreasonably withheld, conditional or delayed. 6.1(a) CONTRACTOR expressly agrees to indemnify, defend, release, and hold harmless the Indemnitees, or any of them, from and against all liabilities which may be asserted by an employee or former employee of CONTRACTOR, or any of its subcontractors, as provided above, for which the CONTRACTOR's liability to such employee or former employee would otherwise be limited to payments under state Workers' Compensation or similar laws. 6.1(b) CONTRACTOR further agrees to indemnify, defend, release, and hold harmless the Indemnitees from and against (i) any and all Liabilities imposed on account of the violation of any law, ordinance, order, rule, regulation, condition, ar requirement, related directly or indirectly to CONTRACTOR's performance under this Agreement, compliance with which is left by this Agreement to CONTRACTOR, and (ii) any and all claims, and/or suits for labor and materials furnished by CONTRACTOR or utilized in the performance of this Agreement or otherwise. 6,1(c) CONTRACTOR further specifically agrees to indemnify, defend, release, and hold harmless the Indemnitees from all claims and suits for any liability, including, but not limited to, injury, death, or damage to any person or property whatsoever, caused by, arising from, incident to, connected with, or growing out of the performance or non-performance of this Agreement which is, or is alleged to be, caused in part (whether joint, concurrent, or contributing) or in whole by any act, omission, default, ar negligence (whether active or passive) or the Indemnities. The foregoing indemnity shall also include liability imposed by any doctrine of strict liability. 6.1(d) CONTRACTOR shall hold harmless, defend, release, and indemnify the CITY for any errors in the provision of services and for any fines which may result from the fault of CONTRACTOR, its employees, agents, or subcontractors. 6,1(e) CONTRACTOR's obligations to indemnify, defend, release, and hold harmless the Indemnitees shall survive the termination of this Agreement or the applicable statute of limitations period provided for in the Florida Statutes.. 6.1(0 CONTRACTOR understands and agrees that any and all liabilities regarding the use of any subcontractor for Services related to this Agreement shall be borne solely by CONTRACTOR throughout the duration of this Agreement and that this provision shall survive the termination of this Agreement or the applicable statute of limitations period provided for in the Florida Statutes. Draft of 02/26/07 with highlights cleared 8 6.2 Waiver. CONTRACTOR acknowledges that others may dispute the CITY's right to award this Agreement to CONTRACTOR and CONTRACTOR waives all claims and causes of action of any nature whatsoever that it may have against the CITY should the award of this Agreement to CONTRACTOR be deemed improper by a court. ARTICLE VII INSURANCE AND PERFORMANCE BOND/IRREVOCABLE LETTER OF CREDIT REQUIRED 7.1 INSURANCE: 7.1. (a). CONTRACTOR shall, at all times during the term hereof, maintain such insurance coverage(s) as may be required by the CITY. The insurance coverage(s) required as of the Effective Date of this Agreement are attached hereto as Exhibit G and incorporated herein by this reference. The CONTRACTOR shall add the City of Miami as an additional named insured to its commercial general liability and auto policies and as a named certificate holder on all policies. CONTRACTOR shall correct any insurance certificates as requested by the City's Risk Management Director. All' such insurance, including renewals, shall be subject to the approval of the CITY for adequacy of protection and evidence of such coverage(s) shall be furnished to the City Risk Management Director on Certificates of Insurance indicating such insurance to be in force and effect and providing that it will not be canceled, modified, or changed during the performance of the Services under this Agreement without thirty (30) calendar days prior written notice to the City Risk Management Director. Completed Certificates of Insurance shall be filed with the CITY prior to the performance of Services hereunder, provided, however, that CONTRACTOR shall at any time upon request file duplicate copies of the policies of such insurance with the CITY. 7.1. (b). If, in the reasonable judgment of the CITY, upon any extension of this Agreement or any additions to the Scope of Services warrant the provision by CONTRACTOR of up to an additional One Million Dollars ($1,000,000) of liability insurance coverage, the CITY reserves the right to require the provision by CONTRACTOR of up to such additional amount of liability coverage, and shall afford written notice of such change in requirements thirty (30) days prior to the date on which the requirements shall take effect. Should the CONTRACTOR fail or refuse to satisfy the requirement of additional coverage within thirty (30) days following the CITY's written notice, this Agreement shall be considered suspended, until such time as the new certificate is received and acceptable in form to the City's Risk Management Director. Draft of 02/26/07 with highlights cleared 9 7.I . (c). CONTRACTOR understands and agrees that any and all liabilities regarding the use of any of CONTRACTOR's employees or any of CONTRACTOR's subcontractors for Services related to this Agreement .shall be borne solely by CONTRACTOR throughout the term of this Agreement and that this provision shall survive the termination of this Agreement for the applicable statute of limitations period provided for in the Florida Statutes. CONTRACTOR further understands and agrees that worker's compensation insurance for each employee of CONTRACTOR and each subcontractor providing Services related to this Agreement shall be maintained in good standing and approved by the City Risk Management Director the duration of this Agreement. 7.1(d) CONTRACTOR shall be responsible for assuring that the insurance certificates required under this Agreement remain in full force and effect for the duration of this Agreement, including any extensions hereof. If insurance certificates are scheduled to expire during the term of this Agreement and any extension hereof, CONTRACTOR shall be responsible for submitting new or renewed insurance certificates to the City's Risk Management Director at a minimum of thirty (30) calendar days in advance of such expiration. In the event that expired certificates are not replaced, with new or renewed certificates which cover the term of this Agreement and any extension thereof, it shall be considered a Non -Monetary Default in accordance with Section 8.2 hereof 7.2 Performance Bond or Irrevocable Letter of Credit. CONTRACTOR shall provide, pay for, and maintain in force from the date of the commencement of this Agreement a performance bond or irrevocable letter of credit, in a form acceptable to the CITY, in the amount of One Million Dollars ($1,000,000). The performance bond or irrevocable letter of credit required herein shall then be reduced to Five Hundred Thousand Dollars ($500,000) upon completion of the installation of the six hundredth (600) Bus Shelter. Such performance bond or irrevocable letter of credit shall cover the proper design, erection, installation, construction and maintenance of the Bus Benches, Bus Shelters and Illuminated Panels and their removal, repair, relocation, and restoration of the public -right-of-way, if such is required by the CITY. 7.3 Payment Bond or Irrevocable Letter of Credit, Commencing at the time of the installation of the 601 Illuminated Panel, and in connection with the compensation options under Section 4.1 above, CONTRACTOR shall provide, pay for, and maintain in force at all times for advertising panels numbered from 601 to 750, a payment bond or irrevocable letter of credit, in form acceptable to the CITY, in an amount equal to the number of panels over six hundred (600) at .the rate of one thousand, three hundred and fifty dollars ($1,350) per panel per year or portion thereof. Such payment bond or irrevocable letter of credit shall cover the compensation to the City for Illuminated Panels numbered 601 to 750. Draft of 02/26/07 with highlights cleared I0 ARTICLE VIII TERMINATION 8.1 Monetary Default. The City Manager may terminate or cancel this Agreement, if there is a monetary default of Article IV, Section 4.1 not cured by CONTRACTOR within thirty (30) days after receipt by CONTRACTOR of written notice from the CITY. 8.2 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 an additional thirty (30) days. 8.3 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 and must comply with Article IX, Section 9.8. 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 for the options under Article IV for Illuminated Panels 601 to 750, to a financial institution as collateral to secure the indebtedness of CONTRACTOR. 8.4 Notice of Termination. Notice of termination shall be provided in accordance with Article IX, Section 9.7 of this Agreement. 8.5 Termination for Default. In the event of termination in whole or in part due to the default of the CONTRACTOR, the Bus Benches, Bus Shelters, Illuminated 11 Draft of 02/26/07 with highlights cleared Panels, and Trash Receptacles shall become the property of the CITY without any compensation to the CONTRACTOR. Alternatively, the CITY may direct the CONTRACTOR to remove any or all of the Bus Benches, Bus Shelters, Illuminated Panels, and Trash Receptacles and restore their sites to their original condition, which removal and restoration shall be at the CONTRACTOR'S sole expense. ARTICLE IX MISCELLANEOUS 9.1 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. The Letter of Credit or performance bond and/or payment bond shall be withheld from Contractor and shall not be lowered until all documents are received as provided herein. 9.2 Audit and Inspection Rights and Retention of Records. The CITY shall have the rights to audit and to inspect the books, records, and accounts of CONTRACTOR that are related to the revenue generating portion of this Project as provided in Article IV, Section 4.1. CONTRACTOR shall keep such books, records, and accounts as may be necessary in order to record complete and correct entries related to this Agreement. 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 Article IV, Section 4.1 of 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 not 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. 9.3 Special Audit Report Requirement for Additional Illuminated Panels In Excess of the Six Hundredth (600) Illuminated Panel. This special audit shall only be required upon the installation of more than six hundred (600) Illuminated Panels. Until such time, this special report will not be required. Once required, on an annual basis, CONTRACTOR, at its sole cost, shall provide to the CITY a special report that covers all Draft nf02/26/07 with highlights cleared 12 Gross Revenue 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 an Auditing Standards or other applicable equivalent requirement at such time. 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: 9.3(a) A schedule of all Gross Revenue by category, by month; 9.3(b) A schedule of revenues by category upon which the quarterly payments to the CITY are computed and a list of the payments to the CITY for the year; 9.3(c) A calculation and statement indicating whether the payments made to the CITY are in accordance with this Agreement; and 9.3(d) A summary of the procedures agreed upon between the CONTRACTOR and the Certified Public Accountant for the preparation of the annual special audit report. 9.4 Titles: Title and paragraph headings are for convenient reference and are not a part of this Agreement. 9.5 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 employees, or its agents shall act as officers, employees, or agents of the City. This Agreement shall not constitute or make the parties a partnership or a joint venture. 9.6 No Third Party Beneficiaries. Neither CONTRACTOR nor the CITY intends to directly, indirectly, 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 is 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 party or entity under this Agreement. 9.7 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. Draft of02/26/07 with highlights cleared 13 FOR THE CITY OF MIAMI: City Manager 444 S.W. 2 Avenue 1011i Floor Miami, Florida 33130-1910 With a copy to: Director, Public Works 444 S.W. 2 Avenue 8th Floor Miami, Florida 33130-1910 City Attorney 444 S.W. 2 Avenue 9th Floor Miami, Florida 33130-1910 FOR CONTRACTOR: Fuel Miami LLC c/o Sarmiento Advertising Group, L.L.C. 2610 N. Miami Avenue Miami, Florida 33131 With copy to: Fuel Outdoor Holdings LLC 149 5th Avenue, 11 `h Floor New York, NY 10010 9.8 Assignment and Performance. Neither this Agreement nor any interest herein shall be assigned, transferred, or encumbered by either party, except as provided in Article VIII, section 8.3 herein. In addition, CONTRACTOR shall not subcontract any portion of the work required by this Agreement without prior written approval of 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 completely perform the duties, obligations, and services set forth in the Scope of Services and to 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 the 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. Draft of 02/26/07 with highlights cleared 14 9.9 Conflicts. Neither CONTRACTOR nor its employees shall have or hold any continuing ar 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. 9.9. (a) 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 the 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 ar any other persons from representing themselves in any action or in any administrative or legal proceeding. 9.9. (b) 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. 9.10 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 otherwise recover the full amount of such fee, commission, percentage, gift or consideration. 9.11 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 other or subsequent breach and 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. Any waiver by the City must be given in writing by the City Manager. 9.12 Certification. By signing this Agreement, CONTRACTOR certifies that CONTRACTOR has familiarized itself with the debarment provisions of Code of the City of Miami, Florida, and that neither CONTRACTOR nor any of its principal owners or personnel have been convicted of an offense that would be cause for debarment under Draft of 02/26/07 with highlights cleared 15 the Code of the City of Miami, Florida, nor have any of them been previously debarred or suspended by any federal, state or other governmental entity. 9.13 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, disability, marital status, sexual orientation or national origin. CONTRACTOR further covenants that no otherwise qualified individual shall, solely by reason of his/her race, color, sex, religion, age, disability, marital status, sexual orientation, or national origin, be excluded from participation in, be denied services, or be subject to discrimination under any provision of this Agreement. 9.14 Minority and Women Business Affairs and Procurement Program. The CITY has established a Minority and Women Business Affairs Procurement Program (the "M/WBE Program") designed to increase the volume of CITY procurement and contracts with Blacks, Hispanic and Women -owned businesses. 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 or 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. 9.15 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. 9.16 Severance. In the event a portion of this Agreement is found by a court of competent jurisdiction to be invalid, the invalid provision(s) shall be deemed severed from this Agreement and 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. 9.17 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 effort. The language agreed to express their mutual intent and the resulting document shall not, solely as a matter of judicial construction, be construed more severely against one of the parties. 9.18 Priority of Provisions. If there is a conflict or inconsistency between any term, statement, requirement, or provision of any exhibit attached hereto, any document Draft of 02/26/07 with highlights cleared 16 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. 9.19 Applicable Law and Venue. This Agreement shall be governed and construed under the laws of the State of Florida. Any action involving the enforcement and 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, the 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, this Agreement. 9.20 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 the CONTRACTOR. 9.21 Prior Agreements. This document incorporates and includes all prior negotiations, correspondence, conversations, agreements, and understandings applicable to the matters contained herein and the parties agreed that there are no commitments, agreements or understandings, concerning the subject matter of this Agreement that are not contained in this document or incorporated by reference. Accordingly, the parties agree that no deviation from the terms hereof shall be predicated upon any prior representations or agreements, whether oral or written. 9.22 Incorporation By Reference, The truth and accuracy of each "Whereas" clause set forth above are acknowledged by the parties. The parties agree that all the Attached Exhibits and Attachments referenced throughout this Agreement and Scope of Services are incorporated into and made a part of this Agreement. 9.23 Multiple Counterparts, This Agreement may be fully executed in four (4) counterpart originals by all parties, each of which, bearing original signatures, shall have the force and effect of an original document. IN WITNESS WHEREOF, the parties hereto have executed this Agreement between the CITY and CONTRACTOR on the clay and year first above written. "CONTRACTOR" Witness: By: By: FUEL MIAMI, LLC Print Name: A Delaware limited liability company Witness: By: By: Print Name: Michael A. Freedman Chief Executive Officer Draft of02/26/d7 with highlights cleared 17 Witness: By: By; FUEL OUTDOOR HOLDINGS, LLC Print Name: A Delaware limited liability company Witness: By: By: Print Name: Michael A. Freedman Chief Executive Officer ACKNOWLEDGED BY: SARMIENTO ADVERTISING GROUP, LLC A Florida limited liability company Witness: By: By: Print Name: Name: Michael A. Freedman Witness: Title: Managing Member By: Print Name: CITY OF MIAMI, a Florida municipal corporation Attest: By: By: Priscilla A. Thompson Pedro G. Hernandez City Clerk City Manager APPROVED AS TO FORM APPROVED AS TO INSURANCE AND CORRECTNESS REQUIREMENTS By: BY: Jorge L. Fernandez LeeAnn Brehm City Attorney Risk Management Director Draft of 02/26/07 with highlights cleared 18