Loading...
HomeMy WebLinkAboutExhibit - AgreementSTARS OF CALLE OCHO AGREEMENT BETWEEN THE CITY OF MIAMI AND THIS STARS OF CALLE OCHO AGREEMENT ("Agreement") , is entered into this day of , 2015, by and between The City of Miami, a municipal corporation of the State of Florida, in the County of Miami - Dade, (hereinafter the "City") and Kiwanis of Little Havana Foundation , a Florida Not for Profit corporation, (hereinafter "Kiwanis "). RECITALS WHEREAS, _Kiwanis, has requested permission from the City for the placement, replacement, repair, relocation, maintenance and upkeep of existing and future marble plaques (hereinafter the "Stars") and the contiguous sidewalk area within the dedicated public right-of-way of Southwest Eighth Street from Southwest Twelfth Avenue to Southwest Twenty -Seventh Avenue (hereinafter the "Sidewalk Area"); and WHEREAS, the Stars will recognize entertainment professionals in the fields of motion pictures, television, live theater, arts, radio and recording and who have made a significant contribution to our city and the South Florida community. WHEREAS, the Sidewalk Area is under the maintenance jurisdiction of the City; and WHEREAS, the City has required the execution of this Agreement as a condition precedent to the granting of Kiwanis 's request for a license for the placement, replacement, repair, relocation, maintenance and upkeep of existing and future Stars within the Sidewalk Area.; and Page 1 of 1 WHEREAS, this Agreement confers no rights or privileges except as expressly granted herein, and, except as otherwise provided herein as to the placement, replacement, repair, relocation, maintenance and upkeep of existing and future Stars, is independent of and distinct from any prior contracts the City of Miami has entered into with other individuals or entities for placement of memorial or commemorative stars on Calle Ocho, and Whereas, it is the goal that any nominee who receives a Star will fund the original installation, whenever possible, and that the Kiwanis be responsible for the replacement, repair, relocation, maintenance and upkeep of existing and future Stars, NOW, THEREFORE, in consideration of the mutual covenants and promises contained herein, the City and Kiwanis agree as follows: TERMS 1. RECITALS: The foregoing recitals are true and correct and are hereby incorporated into and made a part of this Agreement. 2. TERM: The term of this Agreement shall be for a period of five (5) years commencing upon execution of this Agreement. The City Manager (hereinafter the "Manager"), who may seek the consent of the City Commission (hereinafter the "Commission"), shall have the option to extend the term of this Agreement for an additional five (5) year period. Any subsequent renewals or extensions shall be renegotiated by the Manager and brought before the Commission for approval. 3. SCOPE: (A) STARS: The City agrees to grant Kiwanis a revocable and nonexclusive, licensefor the placement, replacement, repair, relocation, maintenance and upkeep of existing and future Stars within the Sidewalk Area at Kiwanis 's sole cost and expense, in accordance with the Page 2 of 2 terms of this Agreement, and the requirements of applicable governmental codes, laws, rules, regulations and approvals of any agency who has jurisdiction over this Sidewalk, which consists of the City and the Florida Department of Transportation ("FDOT"). The placement, replacement, repair, relocation, maintenance and upkeep of existing and future Stars shall be subject to the approval of the City's Director of the Department of Public Works or his/her designee and to the FDOT District Six Secretary or his/her designee. The aesthetics of the Stars shall be subject to the approval of the City's Director of Planning and Zoning prior to any placement, replacement and repair. Upon expiration or termination of this Agreement title to the Stars shall immediately pass to the City. (B) PERMITS: Kiwanis shall obtain all permits and pay all fees required for placement, replacement, repair, relocation, maintenance and upkeep of existing and futureStars. (C) DISRUPTION: The placement, replacement, repair, relocation, maintenance and upkeep of existing and future Stars shall cause the least amount of disruption possible. Kiwanis shall coordinate the placement, replacement, repair, relocation, maintenance and upkeep of existing and future Stars with surrounding property owners. In the event that the installation of the Stars requires the re-routing or protection of pedestrian, automobile, or retail traffic, the costs for any such rerouting or protective measures shall be the sole and complete responsibility of Kiwanis. (D) NOMINATING COMMITTEE: The Stars of Calle Ocho Walk of Fame Celebrity and Community Recognition Advisory Committee (hereinafter the "Committee") will be established as an advisory committee in Chapter 2 of the Code of the City of Miami. The Committee will oversee the placement, replacement, repair, relocation, maintenance and upkeep of existing and future Stars in order to defray and/or pass on the costs of installation to the nominee and placement, replacement, repair, relocation, maintenance and upkeep of existing and Page 3 of 3 future Stars to the Kiwanis. The Committee may solicit unrestricted and unconditional funds, subject to the acceptance of the Manager or Commission, as applicable per Section 18-115, of the City Code, to be used for the placement, replacement, repair, relocation, maintenance and upkeep of existing and future Stars and the contiguous sidewalk they are in. The Committee may accept nominations from any person, entity or group, as to proposed honorees who the nominator(s) think has made an outstanding contribution to the fields of motion pictures, television, live theater, arts, radio and recording and who has made a significant contribution to the City and the South Florida community that merits the inclusion of that honoree among the Stars. The Committee will review and advise the Commission of their choice(s) for inclusion among the Stars and the Commission will select the nominee. There will be no more than one new Star placed per year, unless there is a unanimous vote of the Commission. (E) NOTICE TO PUBLIC: Kiwanis shall, prior to the placement, replacement, repair, relocation, maintenance and upkeep of existing and future Stars, inform the public by publishing notice of same in one (1) daily newspaper registered with the City of Miami Clerkr. Publication shall commence no more than thirty (30) and no less than seven (7) days prior to the Committee or the Commission agenda that is set to address the item. Publication shall occur for five (5) consecutive days. The notice shall indicate the proposed location of the Star, the nominee, the name to be placed on the Star, and the date that the Committee or the Commission will consider the installation of the Star. Page 4 of 4 (F) MAINTENANCE:Kiwanis, at its sole expense, shall maintain the Stars in a good, safe and attractive condition so that they do not become a hazard to the health, welfare, or safety of the general public. Kiwanis, at its sole expense, shall clean each Star on a bi-monthly basis. The requirements of this paragraph shall survive the term of this Agreement and shall continue for the duration of the Star's existence. EXISTING STARS: Kiwanis shall maintain all of the Stars previously installed within the Sidewalk Area in the manner described in subparagraph "3(F)" above except that this obligation shall not begin until one hundred twenty (120) days after the execution of this Agreement. Kiwanis will not be able to relocate any Stars previously installed within the Sidewalk Area without prior approval of the City's Director of the Department of Public Works. FAILURE TO MAINTAIN: If in the sole discretion of the City's Director of the Department of Public Works, Kiwanis, fails to maintain the Stars or the existing Stars as provided in subparagraph "3(F)" above, the City shall give Kiwanis written notice of such failure. Kiwanis shall within ten (10) days from receipt of such notice, and at no cost to the City, either (i) clean or repair the Stars including the existing Stars to the satisfaction of the City's Director of Public Works, or (ii) remove the Stars including the existing Stars and restore the Sidewalk Area to City standards, if so requested by the Director of Public Works. (H) FAILURE TO COMPLY: If ten (10) days after receipt of the notice described in subparagraph "3(H)" above, Kiwanis has failed to clean or repair the Stars, including the existing Stars, to the satisfaction of the City's Director of the Department of Public Works, or remove the Stars, including the existing stars, and restore the Sidewalk -Area, the City may at its sole discretion, remove the Stars including the existing Stars, charge Kiwanis for the cost of restoring the Sidewalk Area, and deny the issuance of future Star permits; or City may clean or repair the Stars including Page 5 of 5 the existing Stars, charge Kiwanis for all costs and deny the issuance of future Star permits. Kiwanis hereby waives all recourse against the City as to any damage consequential or otherwise resulting from the removal of the Stars from the Sidewalk Area and/or the denial of Star permits. (I) FAILURE TO INSTALL: If during any eighteen (18) month period Honoree (or Kiwanis) fails to install a Star in the Sidewalk area, City's Director of the Department of Public Works may inquire as to the reasons no Stars have been installed and, if in the Director's sole discretion such action is warranted, may terminate this Agreement. Prior to installation, said Star shall be reviewed for aesthetics by the Director of Planning and Zoning. Page 6 of 6 4. INSURANCE: Throughout the term of this Agreement and any extensions thereof, Kiwanis shall, at its sole expense, purchase and maintain insurance of such type, form, and amount, as the City's Director of the Department of Risk Management shall, in his/her sole discretion, deem adequate. Kiwanis acknowledges that City may require that City be named as an additional insured; that any change, cancellation, or non -renewal not be effective until thirty (30) days has elapsed after City's actual receipt of notice thereof; and that City will requireKiwanis to furnish certificates of insurance evidencing compliance with City's requirements prior to performance of this Agreement. As a minimum requirement, and in addition to any further requirements imposed by City's Department of Risk Management, Kiwanis shall, at its sole expense, purchase and maintain a comprehensive general liability insurance policy with at least One Million Dollars ($1,000,000.00) combined single limits for bodily injury and property damage issued by an insurance company authorized to do business under the laws of the State of Florida. The issuing company shall be rated no less than "B" as to management, and no less than "Class V" as to financial strength, by the latest edition of Best's Key Rating Insurance Guide or hold a valid Certificate of Authority issued by the Florida Department of Insurance, and be a member of the Florida Insurance Guarantee Fund. The policy shall include products and completed operations, contractual liability, and explosion, collapse and underground liability coverage. The effective date of the policy shall be the effective date of this Agreement, and the policy shall remain in effect throughout the term of this Agreement and any extensions or renewals thereof. City shall be named as an additional insured under the policy. Proof of insurance satisfactory to City shall be provided prior to the issuance of any permits. A certificate of insurance naming City as an additional insured shall not relieve Kiwanis of the Page 7 of 7 obligation to actually add City as an additional insured under the insurance policy. The insurance policy shall provide that City be given at least thirty (30) days advance written notice of any change, cancellation, or non -renewal. In the event of such change, cancellation, or non -renewal, Kiwanis shall immediately replace said policy with another policy satisfactory to the City, and provide City with a certificate of insurance evidencing coverage, at least ten (10) days prior to the effective date of the change, cancellation, or non -renewal. 5. PERFORMANCE BOND: Kiwanis shall, at its sole expense, furnish a combined payment/performance bond, issued by a Florida licensed surety company, in favor of the City, and subject to City's approval, in an amount equal to Fifty Thousand Dollars ($50,000.00) per Star installed, unless installed by Honoree. Said bonds shall remain in force and effect throughout the entirety of the construction and for a period of two (2) years after the installation of the Star. The payment performance bond shall be in a form which complies with Section 255.05, Florida Statutes, be subject to the approval of the Director of Risk Management, and ensure compliance with the following: proper maintenance of the Stars, proper installation of the Stars, proper removal of the Stars, if necessary, and any and all other provisions of this Agreement. Page 8 of 8 6. INDEMNIFICATION: (A) Kiwanis shall indemnify, defend, at its own cost, and hold harmless the City and its officials, employees and agents (hereinafter collectively referred to as "Indemnitees") and each of them from and against all loss, costs, penalties, fines, damages, claims, expenses (including attomey's fees) or liabilities (hereinafter collectively referred to as "Liabilities") by reason of any injury to or death of any person or damage to or destruction or loss of any real and/or tangible personal property arising out of, resulting from, or in connection with (i) the performance or non- performance of the services contemplated by this Agreement, which is directly or indirectly caused, in whole or in part, by any act, omission, default or negligence (whether active or passive) of Kiwanis or its employees, agents or subcontractors (collectively referred to as " Agents "), or (ii) the failure of Kiwanis or Agents to comply with any of the paragraphs herein or the failure of the Kiwanis or Agents to conform to statutes, ordinances, codes, or other regulations or requirements of any governmental authority, federal or state, in connection with the performance of this Agreement. Kiwanis 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 Kiwanis or Agents, or any of its subcontractors, as provided above, for which Kiwanis or Agents 's liability to such employee or former employee would otherwise be limited to payment under state Workers' Compensation or similar laws. Page 9 of 9 (B) The provisions of this section are intended to apply in all circumstances, regardless of the grounds or nature of any claim asserted (including contract, statute, any form of negligence, whether of City, Kiwanis , or others, tort, strict liability or otherwise) and whether or not the party seeking indemnification was advised of the possibility of the damage or loss asserted, to the extent not contrary to applicable law. 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 United States Mail, return receipt requested, addressed to the other party at the following address or such other address as the party may designate by notice given in accordance with this paragraph. 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. _Kiwanis _Miami, FL Attention: President Henry Jimenez CITY: CITY MANAGER 444 S.W. 2nd Avenue, 10th Floor. Miami, FL 33130 DIRECTOR OF PUBLIC WORKS 444 S.W. 2nd Avenue, 8th Floor Miami, FL 33130 Page 10 of 10 With a copy to: CITY ATTORNEY 444 S.W. 2nd Avenue, Suite 945 Miami, FL 33130 8. RETENTION OF TITLE: Any information, writings, maps, contract documents, reports or any other matter whatsoever which is given by the City to Kiwanis pursuant to this Agreement shall at all times remain the property of the CITY and shall not be used by Kiwanis for any other purpose whatsoever without the written consent of QTY. 9. ASSIGNMENT, LIENS, ETC: Kiwanis shall not assign, sublease or otherwise transfer any of its rights, duties, or obligations under this Agreement, in whole or in part, without prior written consent of the City Commission. The transfer of ownership or control of Kiwanis, or change of Kiwanis 's nonprofit status shall be deemed a breach of this paragraph. Kiwanis shall not allow any lien or encumbrance to lie against any of the Stars or the Sidewalk Area by virtue of this Agreement. Kiwanis shall not pledge this Agreement or use it as collateral for any loan. 10. INDEPENDENT CONTRACTOR: Kiwanis agrees that, its officers, agents and employees in performance of this Agreement shall act in the capacity of an independent contractor and not as an officer, employee or agent of the City and shall not attain any rights or benefits including retirement, insurance, fringe benefits, emoluments, and any other rights or privileges under the Civil Service or Pension Ordinances of the City, or any rights generally afforded classified or unclassified employees; further, he/she shall not be deemed entitled to Florida Workers' Compensation benefits as an employee of the City. The City is not a guarantor of any commercial obligation or duty of Kiwanis _, which shall be the sole responsibility of Kiwanis. Page 11 of 11 11. AUDIT RIGHTS: Kiwanis shall submit bi-annually to the City a financial statement prepared bya Certified Public Accountant licensed in the State of Florida, and shall annually submit to the City statements of the accounts and finances of all activities associated with Kiwanis 's performance under this Agreement. The City may, at reasonable times, and for a period of up to three (3) years following the term of this Agreement, audit or cause to be audited Kiwanis 's books and records related to this Agreement. Kiwanis agrees to maintain all such books and records at its principal place of business for a period of three (3) years after the term of this Agreement or until all claims or audit findings have been resolved. Kiwanis shall keep monies for the placement, replacement, repair, relocation, maintenance and upkeep of existing and future Stars in a separate account and shall give reports to the at as may be required by ordinance 12. TERMINATION RIGHTS: (A) Upon the majority vote of the Commission, the City may, at its sole and unfettered discretion, and with no liability toKiwanis , terminate this Agreement without cause by giving Kiwanis thirty (30) days written notice. (B) The Manager or the Director of the Public Works Department as his/her authorized designee, may, 'without liability to Kiwanis, terminate this Agreement for failure of Kiwanis to fulfill its obligations under this Agreement. Satisfaction of obligations by Kiwanis shall be determined by the City Commission. The Manager or the Director of the Public Works Department shall provide Kiwanis a written notice of default letter. Kiwanis shall have fifteen (15) calendar days to fully cure the default. If the default is not cured by Kiwanis within the stated period, the Manager or the Director of the Public Works Department shall terminate this Agreement at such time without the necessity of any additional notice or action being required. Notice shall be sufficient if it is delivered to Kiwanis personally or mailed to its specified address. There shall be no recourse against the City, its officials or employees for a termination effectuated under Sections 12 (A) or 12 (B) herein. Page 12 of 12 (B) 13. NONWAIVER OF DEFAULT: No delay or omission to exercise any right, power or remedy accruing to the City upon breach or default by Kiwanis under this Agreement, shall impair any such right, power or remedy of City; nor shall such delay or omission be construed as a waiver of any such breach or default, or any similar breach or default. 14. PUBLIC RECORDS: Kiwanis agrees that all documents maintained pursuant to this Agreement shall be subject to the provisions of the Public Records Act, Chapter 119, Florida Statutes, as amended, including without limitation Section 119.0701, Florida Statutes. Kiwanis understands that the public shall have access, at all reasonable times, to all documents and information pertaining to City contracts, subject to the provisions of Chapter 119, Florida Statutes, and agrees to allow access by the City and the public to all documents subject to disclosure under applicable law. Kiwanis 's failure or refusal to comply with the provisions of this section shall result in the immediate cancellation of this Agreement by the City. 15. COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS: Kiwanis understands that agreements between private entities and local governments are subject to certain laws and regulations, including laws pertaining to public records, conflict of interest, record keeping, etc. The City and Kiwanis agree to comply with all applicable federal, state, and local laws, rules, regulations, codes and ordinances, as they may be amended from time to time. Kiwanis is aware of the conflict of interest laws of the City of Miami (City of Miami Code Chapter 2, Article V), Miami - Dade County, Florida. (Miami -Dade County Code Section 2-11.1) and the State of Florida, and agrees that it shall fully comply in all respects with the terms of said laws. Kiwanis shall also comply with any applicable provisions of the Dade County Public Works Manual and any requirements of FDOT, if any, relative to placement of the Stars. Page 13 of 13 16. NONDISCRIMINATION: Kiwanis represents and warrants to the City that Kiwanis does not and will not engage in discriminatory practices and that there shall be no discrimination in connection with Kiwanis 's performance under this Agreement on account of race, color, sex, religion, age, handicap, marital status or national origin. Kiwanis 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. AWARD OF AGREEMENT: Kiwanis represents and warrants to the City that it has not employed or retained any person or company employed by the City 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. 18. CERTIFICATION: By signing this Agreement Provider certifies that Provider has familiarized itself with Section 18-107 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 be cause for debarment under Section 18-107 of the Code of the City of Miami, Florida or debarred or suspended by any federal, state or other governmental entity. 19. GOVERNING LAW AND VENUE: This Agreement is executed and entered into in the State of Florida, and shall be construed, performed, and enforced in all respects in accordance with the laws and rules of the State of Florida. Any suit or action brought by any party, concerning this Agreement, or arising out of this Agreement, shall be brought in Miami -Dade County, Florida. Each party shall bear its own attorneys fees except in actions arising out of the duties to indemnify the City under Section 6 herein this Agreement. Page 14 of 14 20. INTERPRETATION: Should the provisions of this Agreement require judicial or arbitral interpretation, it is agreed that the judicial or arbitral body interpreting or construing the same shall not apply the assumption that the terms hereof shall be more strictly construed against one party by reason of the rule of construction that an instrument is to be construed more strictly against the party which itself or through its agents prepared same, it being agreed that the agents of both parties have equally participated in the preparation of this Agreement. 21. PARTIAL INVALIDITY: If any term or provision of this Agreement is found to be illegal and/or unenforceable, the remainder of this Agreement shall remain in full force and effect and such term or provision shall be deemed stricken. 22. ENTIRE AGREEMENT: This Agreement and its attachments constitute the sole and only Agreement of the parties hereto and correctly set forth the rights, duties, and obligations of each to the other as of this date. Any prior agreements, promises, negotiations, or representations not expressly set forth in this Agreement are of no force or effect. No amendments to this Agreement shall be binding on either party unless in writing and signed by both parties. Page 15 of 15 IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed by their respective duly authorized officials the day and year above written. ATTEST: CITY OF MIAMI, a municipal corporation of the State of Florida ("City") By: By: Todd B. Hannon City Clerk Daniel J. Alfonso City Manager APPROVED AS TO LEGAL FORM APPROVED AS TO INSURANCE AND CORRECTNESS: REQUIREMENTS: By: By: Victoria Mendez City Attorney Ann -Marie Sharpe, Director Department of Risk Management WITNESS: a Florida Not -for -Profit Corporation, By: By: Print Name: By: Print Name: Print Name: Print Title: Page 16 of 16