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HomeMy WebLinkAboutExhibit1INSTALLATION AND MAINTENANCE OF MARQUEE SIGN AGREEMENT THIS AGREEMENT made this day of , 2006, by and between the Bayfront Park Management Trust, a limited agency and instrumentality of the City of Miami, (the "Trust") and Animated Display Systems Inc., a Florida corporation d/b/a AD Systems ("Provider"). RECITALS A. The Trust issued a Request for Letters of Interest ("RFLI") No. 04-05-098 on August 2, 2005 to seek a qualified provider for the purchase, installation, operation and maintenance of an upgraded outdoor electronic Marquee Sign (the "Services") at the Mildred & Claude Pepper Bayfront Park ("Park") located in downtown Miami, Florida (the "Project") and Provider submitted the most qualified response ("Proposal") and was selected for the provision of the Services. The RFLI and the Proposal are sometimes referred to herein, collectively, as the Solicitation Documents, and are by this reference expressly incorporated into and made a part of this Agreement as if set forth in full. B. The Trust, at its board meeting of November 7, 2005, approved, by Motion No. 05-065.1, the selection of the Provider and authorized the Trust's Executive Director (the "Executive Director") to enter into negotiations with the Provider for an agreement. C. The City Commission, pursuant to Resolution No. 06- adopted , 2006 has approved the selection of the Provider and has authorized the Executive Director to execute this Agreement. NOW, THEREFORE, in consideration of the mutual covenants and promises herein contained, Provider and the Trust agree as follows: ijA4 a id 6 ors:Document August 11 2006 Marquee Agreement w-Training2.doc TERMS 1. RECITALS: The recitals are true and correct and are hereby incorporated into and made a part of this Agreement. 2. TERM AND OPTION TO EXTEND: The term of this Agreement shall be five (5) years commencing on the date on which the Marquee, as defined in Section 3. A. shall become operational or two hundred and seventy (270) calendar days after the execution of this Agreement, whichever occurs first (the "Initial Term"). In the event the permits are not issued within 180 days after the date of this Agreement, due to delays caused by Provider, or by Provider's failure to comply with permit requirements, then the Trust may terminate this Agreement and Provider shall be responsible for the Trust's cost of re -bidding the Project in the event the Trust and the second highest proposer fail to reach an agreement for the provision of the Services. Provider shall complete and submit to the appropriate authorities, all permit applications within thirty (30) calendar days after full execution of this Agreement. Within one hundred eighty (180) calendar days of execution of this agreement Provider will obtain and provide to the Trust sponsorship agreements. Within sixty (60) calendar days of obtaining and providing to the Trust the sponsorship agreements, Provider shall have completed the construction of the marquee and it will be fully operational. The Trust shall have two (2) options to extend the term hereof for a period of two (2) years each (each, an "Option Term"). To exercise each option, the Executive Director must give Provider written notice thereof at lease sixty (60) days prior to the expiration of the then current term. The Initial Term and the Option Terms are herein referred to, collectively, as the "Term". ors:Document August 1 1 2006 Marquee Agreement w-Training2.doc In the event the Marquee is not operational for a period of seven (7) consecutive days due to events beyond the reasonable control of the Provider, such as an event of force majeure, then the Term shall be extended by the number of days that the Marquee was not operational.. 3. SCOPE OF SERVICE: A. The Services consist of: (i) The acquisition, on behalf and in the name of the Trust, at no cost to the Trust or the City, of an outdoor electronic Marquee sign (the "Marquee") in accordance with the drawings and specifications attached hereto as Exhibit 1, which by this reference is incorporated into and made a part of this Agreement. Provider represents and warrants that title to the Marquee shall vest in the Trust, free and clear of all encumbrances. (ii) The installation (the "Installation"), and the operation and maintenance ("Maintenance") of the Marquee. The Installation portion of the Services is described, in detail, in Attachment "A" hereto. The Maintenance and Management portion of the Services is described in detail in Attachment "B" hereto. Provider agrees to provide the Services as specifically described, and under the terms and conditions set forth in Attachments "A" and "B", which by this reference are incorporated into and made a part of this Agreement. (iii) The procurement of sponsorship and/or advertising for placement on the Marquee, as more specifically described in Paragraph 4 below. ors:Document August 11 2006 Marquee Agreement w-Training2.doc B. Provider represents and warrants to the Trust that: (i) it possesses all qualifications, licenses and expertise required under the Solicitation Documents for the performance of the Services; (ii) it is not delinquent in the payment of any sums due the Trust or the City, including payment of permit fees, occupational licenses, etc., nor in the performance of any obligations to the City; (iii) all personnel assigned to perform the Services are and shall be, at all times during the term hereof, fully qualified and trained to perform the tasks assigned to each; and (iv) the Services will be performed in the manner described in Attachment "A." C. Provider agrees to provide Trust with: (i) hardware and software to allow the Trust to program the Marquee from the Trust offices; and, (ii) training and training documents necessary to allow designated Trust employee(s) to perform programming of the Marquee from the Trust offices. D. Provider agrees that nothing contained in this Agreement precludes the Trust from soliciting or accepting an amphitheater sponsor, whose sponsorship shall be acknowledged on the Marquee. 4. ADVERTISING OR SPONSORSHIP RIGHTS: As part of the Services, Provider shall solicit sponsorship and advertising for placement on the Marquee. Provider shall secure, and execute an agreement with, at least one (1) sponsor or advertiser ("Sponsor") prior to the installation of the Marquee. All agreements between Provider and Sponsors ("Sponsorship Agreements") and the line of business of each proposed Sponsor, shall be subject to the approval of the Executive Director, which shall not be unreasonably withheld. A portion of the revenue derived ors:Document August 11 2006 Marquee Agreement w-Training2.doc from the Sponsorship Agreements shall constitute the sole source of Provider's compensation for the provision of Services hereunder. Provider shall have the right to pledge its portion of revenues from the Sponsorship Agreements as collateral for the extension of commercial financing to the Provider directly related to the provision of the Services; provided, however, that the term of the pledge shall not exceed the Initial Term of this Agreement. The Trust shall not drape or cover the display of the Sponsors, except in the event where the draping of the display is necessary to ensure public health and safety. The Trust shall give each Sponsors one (1) message in each message rotation of fifteen (15). The Trust shall not display advertising competitive to Sponsors' products, except for products or services sold in the Park. The Trust shall pay for any costs associated with ongoing power. Provider warrants that all advertisement and/or sponsorship placed on the Marquee will not infringe upon any trademark or copyright, nor will they violate any state or federal law, and agrees to defend, indemnify and hold the City and the Trust harmless from any and all claims relating thereto. 5. COMPENSATION: In consideration of the Services, and for the right to place sponsorship and advertising on the Marquee, during the Initial Term Provider shall have the right to retain 85% of the Net Sponsorship Revenue and shall remit the balance to the Trust; provided, however, that in no event shall the Trust receive less than $3,000 per month (the "Trust's Share"). During each Option Term, if any, the compensation to Provider shall be reduced to 50% of all Sponsorship Revenues, less agency fees, sales commissions, ors:Document August 1 12006 Marquee Agreement w-Training2.dac maintenance and programming; provided, however, that in no event shall the Trust's Share be less than $8,500 per month. Provider agrees to pay to the Trust the Trust's Share, as herein stipulated, not later than the l5th day of each month, commencing on the date the sign becomes operational. Provider's obligation to pay to the Trust the Trust's Share is not contingent upon Provider's receipt of Net Sponsorship Revenues. For purposes of this section "Net Sponsorship Revenues" shall mean all Sponsorship Revenues less the cost of sale of sponsorship or advertising rights, acquisition cost of the Marquee (amortized over 5 years), and the cost of operation, programming and maintenance of the Marquee, all of which costs shall be itemized and pre -approved by the Trust. 6. OWNERSHIP OF DOCUMENTS: Provider understands and agrees that any information, document, report or any other material whatsoever which is given by the Trust to Provider or which is otherwise obtained or prepared by Provider pursuant to or under the terms of this Agreement is and shall at all times remain the property of the Trust. Provider agrees not to use any such information, document, report or material for any other purpose whatsoever without the written consent of Trust, which may be withheld or conditioned by the Trust in its sole discretion. 7. AUDIT AND INSPECTION RIGHTS: A. The Trust or the City may, at reasonable times, and for a period of up to three (3) years following the date of final payment by the Provider to the Trust under this Agreement, audit, or cause to be audited, those books and records of Provider which are related to Provider's performance under this Agreement. Provider agrees to maintain all ors:Document August 11 2006 Marquee Agreement w-Training2.doc such books and records at its principal place of business for a period of three (3) years after final payment is made under this Agreement. B. The Trust or the City may, at reasonable times during the term hereof, inspect Provider's facilities and perform such tests, as the Trust or the City deems reasonably necessary, to determine whether the goods or services required to be provided by Provider under this Agreement conform to the terms hereof and/or the terms of the Solicitation Documents, if applicable. Provider shall make available to the Trust or the City all reasonable facilities and assistance to facilitate the performance of tests or inspections by Trust or City representatives. All tests and inspections shall be subject to, and made in accordance with, the provisions of Section 18-55.2 of the Code of the City of Miami, Florida, as same may be amended or supplemented, from time to time. 8. AWARD OF AGREEMENT: Provider represents and warrants to the Trust that it has not employed or retained any person or company employed by the Trust to solicit or secure this Agreement and that it has not offered to pay, paid, or agreed to pay any person any fee, commission, percentage, brokerage fee, or gift of any kind contingent upon or in connection with, the award of this Agreement. 9. PUBLIC RECORDS: Provider understands that the public shall have access, at all reasonable times, to all documents and information pertaining to Trust contracts, subject to the provisions of Chapter 119, Florida Statutes, and agrees to allow access by the Trust and the public to all documents subject to disclosure under applicable law. Provider's failure or refusal to comply with the provisions of this section shall result in the immediate cancellation of this Agreement by the Trust. ors:Document August 11 2006 Marquee Agreement w-Training2.doc 10. COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS: Provider agrees to comply with and observe all applicable laws, codes and ordinances, as the may be amended from time to time, applicable to the installation, operation, maintenance and placement of sponsorship or advertising on the Marquee. 11. INDEMNIFICATION: Provider shall indemnify, defend and hold harmless the Trust and its officials, employees and agents (collectively referred to as "Indemnities") and each of them from and against all loss, costs, penalties, fines, damages, claims, liabilities or expenses, including attorney's fees (collectively referred to as "Liabilities") arising out of, resulting from, or in connection with (i) the performance or non-performance of the services contemplated by this Agreement which is or is alleged to be directly or indirectly caused, in whole or in part, by any act, omission, default or negligence (whether active or passive) of Provider or its employees, agents or subcontractors (collectively referred to as "Provider"), or (ii) the failure of the Provider to comply with any of the paragraphs herein, or (iii) the failure of the Provider to conform to statutes, ordinances, or other regulations or requirements of any governmental authority, federal or state, in connection with the performance of this Agreement, or (iv) the failure of any representations or warranties of Provider hereunder. Provider expressly agrees to indemnify and hold harmless the Indemnities, or any of them, from and against all liabilities which may be asserted by an employee or former employee of Provider, or any of its subcontractors, as provided above, for which the Provider's liability to such employee or former employee would otherwise be limited to payments under state Workers' Compensation or similar laws. ors:Document August 11 2006 Marquee Agreement w-Training2.doc 12. DEFAULT: If Provider fails to comply with any term or condition of this Agreement, or fails to perform any of its obligations hereunder, then Provider shall be in default. Upon the occurrence of a default hereunder, which is not cured within 30 days after written notice thereof, the Trust, in addition to all remedies available to it by law, may immediately, upon written notice to Provider, terminate this Agreement and instruct the Sponsor to submit all Sponsorship Revenues directly to the Trust. Provider's agreement with the sponsor shall contain a provision directing the Sponsor to pay the Sponsorship Revenue to the Trust upon the Trust's presentation of a certificate, signed by the Executive Director, stating that Provider is in default under this Agreement. Provider understands and agrees that termination of this Agreement under this section shall not release Provider from any obligation accruing prior to the effective date of termination. Should Provider be unable or unwilling to commence to perform the Services within the time provided or contemplated herein, then, in addition to the foregoing, Provider shall be liable to the Trust for all expenses incurred by the Trust in preparation and negotiation of this Agreement, as well as all costs and expenses incurred by the Trust in the re -procurement of the Services, including consequential and incidental. damages. In the event of a default by Provider, the Trust may, at its sole discretion, continue purchasing maintenance, programming or other services from the provider at the rates and charges provided under this Agreement. 13. TRUST'S TERMINATION RIGHTS: A. The Trust shall have the right to terminate this Agreement, in its sole discretion, at any time, by giving written notice to Provider at least five (5) business days prior to the effective date of such termination. In the event the Trust terminates this ors:Document August ! ] 2006 Marquee Agreement w-Training2.doc Agreement without cause during the Initial Term, then the Trust shall pay to the Provider and amount equal to 85% of the average monthly Net Sponsorship Revenues received by the Provider during the twelve (12) month period immediately preceding the date of termination (or a shorter period if the election to terminate is made during the first year of the Term) multiplied by the number of months remaining in the initial Term. B. The Trust shall have the right to terminate this Agreement, without notice to Provider, upon the occurrence of an event of default which is not cured within the time set forth in paragraph 13 above. In such event, the Trust shall not be obligated to pay any amounts to Provider and Provider shall reimburse to the Trust all amounts received while Provider was in default under this Agreement. 14. INSURANCE: The Trust shall obtain and maintain throughout the agreement property insurance on the marquee. Provider shall, at all times during the term hereof, maintain such insurance coverage as may be required by the City. All such insurance, including renewals, shall be subject to the approval of the City for adequacy of protection and evidence of such coverage shall be furnished to the Trust on Certificates of Insurance indicating such insurance to be in force and effect and providing that it will not be canceled during the performance of the services under this Agreement without thirty (30) calendar days prior written notice to the City and the Trust. Completed Certificates of Insurance shall be filed with the City and the Trust prior to the performance of services hereunder, provided, however, that Provider shall at any time upon request file duplicate copies of the policies of such insurance with the City. ors:Document August 1 12006 Marquee Agreement w-Training2.doc If, in the judgment of the City, prevailing conditions warrant the provision by Provider of additional liability insurance coverage or coverage which is different in kind, the City reserves the right to require the provision by Provider of an amount of coverage different from the amounts or kind previously required 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 Provider fail or refuse to satisfy the requirement of changed coverage within thirty (30) days following the Trust's written notice, Provider shall be deemed to have defaulted, and this Agreement shall be considered terminated on the date that the required change in policy coverage would otherwise take effect. 15. CONFLICT OF INTEREST: A. Provider is aware of the conflict of interest laws of the City of Miami (Miami City Code Chapter 2, Article V), Dade County, Florida (Dade County Code, Section 2-11.1 et. seq.) and of the State of Florida as set forth in the Florida Statutes, and agrees that it will fully comply in all respects with the terms of said laws and any future amendments thereto. B. Provider covenants that no person or entity under its employ, presently exercising any functions or responsibilities in connection with this Agreement, has any personal financial interests, direct or indirect, with the City or the Trust. Provider further covenants that, in the performance of this Agreement, no person or entity having such conflicting interest shall be utilized in respect to services provided hereunder. Any such conflict of interest(s) on the part of Provider, its employees or associated persons, or entities must be disclosed in writing to the Trust. ors:Document August 11 2006 Marquee Agreement w-Training2.doc 16. NONDISCRIMINATION: Provider represents and warrants to the Trust and City that Provider does not and will not engage in discriminatory practices and that there shall be no discrimination in connection with Provider's performance under this Agreement on account of race, color, sex, religion, age, handicap, marital status or national origin. Provider 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. 17. ASSIGNMENT: This Agreement shall not be assigned by Provider, in whole or in part, without the prior written consent of the Trust, which may be withheld or conditioned, in the Trust's sole discretion. 18. 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. TO PROVIDER: Jim Thomas President AD Systems, Inc. 10030 Amberwood Road #9 Fort Myers, Florida 33913 TO THE CITY: Jorge L. Fernandez City Attorney City of Miami 444 SW 2nd Avenue, 9th Floor Miami, Florida 33132 ors:Document August 11 2006 Marquee Agreement w-Training2.doc TO THE TRUST: Timothy F. Schmand Executive Director Bayfront Park Management Trust 301 N. Biscayne Blvd. Miami, Florida 33132 19. MISCELLANEOUS PROVISIONS: A. This Agreement shall be construed and enforced according to the laws of the State of Florida. B. Title and paragraph headings are for convenient reference and are not a part of this Agreement. C. No waiver or breach of any provision of this Agreement shall constitute a waiver of any subsequent breach of the same or any other provision hereof, and no waiver shall be effective unless made in writing. D. Should any provision, paragraph, sentence, word or phrase contained in this Agreement be determined by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable under the laws of the State of Florida or the City of Miami, such provision, paragraph, sentence, word or phrase shall be deemed modified to the extent necessary in order to conform with such laws, or if not modifiable, then same shall be deemed severable, and in either event, the remaining terms and provisions of this Agreement shall remain unmodified and in full force and effect or limitation of its use. E. This Agreement constitutes the sole and entire agreement between the parties hereto. 20. SUCCESSORS AND ASSIGNS: This Agreement shall be binding upon the parties hereto, their heirs, executors, legal representatives, successors, or assigns. ors:Document August 11 2006 Marquee Agreement w-Training2.doc 21. INDEPENDENT CONTRACTOR: Provider has been procured and is being engaged to provide services to the Trust as an independent contractor, and not as an agent or employee of the Trust or City. Accordingly, Provider shall not attain, nor be entitled to, any rights or benefits under the Civil Service or Pension Ordinances of the City, nor any rights generally afforded classified or unclassified employees. Provider further understands that Florida Workers' Compensation benefits available to employees of the Trust or City are not available to Provider, and agrees to provide workers' compensation insurance for any employee or agent of Provider rendering services to the Trust under this Agreement. 22. CONTINGENCY CLAUSE: Funding for this Agreement is contingent upon the availability of funds and continued authorization for program activities and the Agreement is subject to amendment or termination due to lack of funds, reduction of funds and/or change in regulations, upon thirty (30) days notice. 23.. REAFFIRMATION OF REPRESENTATIONS: Provider hereby reaffirms all of the representations contained in the Solicitation Documents. 24. ENTIRE AGREEMENT: This instrument and its attachments constitute the sole and only agreement of the parties relating to the subject matter hereof and correctly set forth the rights, duties, and obligations of each to the other as of its date. Any prior agreements, promises, negotiations, or representations not expressly set forth in this Agreement are of no force or effect. 25. COUNTERPARTS: This Agreement may be executed in two or more counterparts, each of which shall constitute an original but all of which, when taken together, shall constitute one and the same agreement. ors:Document August 11 2006 Marquee Agreement w-Training2.doc IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed by their respective officials thereunto duly authorized, this the day and year above written. ATTEST: Witness, Print name: "Trust" BAYFRONT PARK MANAGEMENT TRUST, a limited agency and instrumentality of the City of Miami By: Timothy F. Schmand, Executive Director "Provider" ATTEST: Animated Display Systems, Inc., d/b/a AD Systems, Inc., a Florida for -profit corporation Print Name: Title: Corporate Secretary By: Jim Thomas Title: President APPROVED AS TO FORM AND APPROVED AS TO INSURANCE CORRECTNESS: REQUIREMENTS: Jorge L. Fernandez Administrator City Attorney Risk Management ors:Document August 11 2006 Marquee Agreement w-Training2.doc