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HomeMy WebLinkAboutPre-LegislationCity of Miami Legislation Resolution: R-1 3-050'1 City Hall 3500 Pan American Drive Miami, FL 33133 www.miamigov.com File Number: 13-01227 Final Action Date: 12/12/2013 A RESOLUTION OF THE MIAMI CITY COMMISSION, WITH ATTACHMENT(S), ACCEPTING THE RECOMMENDATION OF THE CITY MANAGER APPROVING THE FINDINGS OF THE EVALUATION COMMITTEE, PURSUANT TO REQUEST FOR PROPOSALS ("RFP") NO. 272271, THAT VAN WAGNER MIAMI, LLC IS RESPONSIVE TO THE RFP FOR THE PROVISION OF TROLLEY ADVERTISEMENT PROGRAM SERVICES; AUTHORIZING THE CITY MANAGER TO NEGOTIATE AND EXECUTE A PROFESSIONAL SERVICES AGREEMENT, IN SUBSTANTIALLY THE ATTACHED FORM, WITH VAN WAGNER MIAMI, LLC, FOR SAID PURPOSE, FOR A PERIOD OF TWO (2) YEARS, WITH OPTIONS TO RENEW FOR FOUR (4) ADDITIONAL ONE (1) YEAR PERIODS, SUBJECT TO CITY COMMISSION APPROVAL. BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. The recommendation of the City Manager approving the findings of the Evaluation Committee pursuant to Request for Proposals ("RFP") No. 272271, that Van Wagner Miami, LLC is responsive to the RFP for the provision of Trolley Advertisement Program Services, is accepted. Section 2. The City Manager is authorized{1} to negotiate and execute a Professional Services Agreement, in substantially the attached form, with Van Wagner Miami, LLC, for said purpose, for a period of two (2) years, with options to renew for four (4) additional one (1) year periods, subject to City Commission approval. Section 3. This Resolution shall become effective immediately upon its adoption and signature of the Mayor. {2} Footnotes: {1} The herein authorization is further subject to compliance with all requirements that may be imposed by the City Attorney, including but not limited to those prescribed by applicable City Charter and Code provisions. {2} If the Mayor does not sign this Resolution, it shall become effective at the end of ten calendar days from the date it was passed and adopted. If the Mayor vetoes this Resolution, it shall become effective immediately upon override of the veto by the City Commission. City of Miami Page 1 of 1 File Id: 13-01227 (Version: 2) Printed On: 4/4/2016 THIS DOCUMENT IS A SUBSTITUTION TO ORIGINAL, BACKUP ORIGINAL CAN BE SEEN AT THE END OF THIS DOCUMENT. PROFESSIONAL SERVICES AGREEMENT FOR TROLLEY ADVERTISEMENT PROGRAM SERVICES FOR TIIE CITY OF MIAMI This Professional Services Agreement ("Agreement") entered into this day of 2014 (the "Effective Date"), by and between the City of Miami, Florida, ("City"), a municipal corporation organized and existing under and by virtue of the laws of the State of Florida, 444 SW 2 Avenue, Miami, Florida 33130 and, Van Wagner Miami, LLC, ("Firm(s)"), FBI Number 205053402, a foreign limited liability company, having its principal place of business at 800 Third Avenue, 28th Floor, New York, NY 10022, RECITALS: WHEREAS, the City requires the services of a Firm(s) to provide management services for trolley advertising products the City wishes to pursue currently and in the future (the "Services"); and WHEREAS, the City, on August 18, 2011, issued Request for Proposals 272271 ("REP"), a copy of which in its final amended form is attached as Exhibit "A" hereto and made a part hereof, to engage the services of a professional firm(s) with adequate staff and experience to perform the Services; and WHEREAS, Firm(s)' response to RFP 272271,9, as amended, a copy of which is attached as Exhibit "B" ("Proposal"), was selected as the most qualified proposal for the provision of the Services; and WHEREAS, the Agreement, plus Exhibit "A", plus Exhibit "B" comprise the "Agreement Documents"; and WHEREAS, the Miami City Commission, by Resolution No. R-13-0501, passed and adopted on December 12, 2013, approved the selection of Firm(s) for the provision of the Services, and authorized the City Manager to execute a management agreement, under the terms and conditions set forth herein; NOW, THEREFORE, in consideration of the mutual covenants and obligations herein contained, and subject to the terms and conditions hereinafter stated, the parties hereto understand and agree as follows: I, DEFINITIONS 1,0 "Advertising/Advertisement Program" shall mean category 6 (Trolley Advertising) as described in Section 3 of REP 272271 and any amendments or addendurns thereto relating to advertising on the City -owned trolleys (the "Trolleys"). 1,1 "City Commission" shall mean the local legislative body of the City of Miami, 1.2 "City Manager" shall mean the chief administrator of the City of Miami." "Assistant City Manager" shall mean the Chief of Infrastructure/ Operations who will serve as the City Manager's principal designee for this Agreement. References in this Agreement to the "City" without further designation or definition shall mean the City Manager, 1.3 "Director" shall mean the Assistant City Manager, 1,4 "Third Party Businesses/Advertisers" shall mean those businesses or advertisers who wish to enter into an agreement with the Firm(s), to promote its goods or services for sale or rent, on the Trolleys, II, INITIAL TERM AND RENEWAL OPTIONS The term of this agreement shall be two (2) years of operation of service commencing on the Effective Date of this Agreement, The City Commission retains the option to extend this Contract for four (4) additional one (1) year periods, Each renewal of this Contract is subject to the continued satisfactory performance and compliance with the specifications, terms and conditions, as established in the RFP as determined by the City in its reasonable discretion, All activities as described in the Scope of Services which are applicable to this Agreement shall be undertaken, performed and completed within the term provided herein, This Agreement will be in effect during the term indicated below. III. PRIORITY OF PROVISIONS 3,0 If there is a conflict with this Agreement and the RFP, this Agreement shall prevail, If there is a conflict with this Agreement and the Proposal, this Agreement shall prevail. If there is a conflict with the RFP and the Proposal, the RFP shall prevail. Any conflicts between the Agreement and the RFP and the Proposal will be resolved as set forth in this Article III. The City reserves the right to resolve any contradictions and to correct any errors contained in its proposal documents, provided such corrections do not adversely affect the Firm(s)'s rights hereunder, Any conflicts between the Request for Proposals and Addenda shall be resolved in favor of the provisions of this Agreement, If there is a conflict or inconsistency between any term, statement, requirement, or provision of any exhibit attached hereto, any document or events referred to herein, or any document incorporated into the Agreement Documents by reference, and any term, statement, requirement, or provision of the Agreement Documents, the following order of precedence shall apply: 3.1 In the event of conflicts in the Agreement Documents the priorities stated below shall govern; • Revisions (Amendments) to the Agreement which are executed by each of the City and the Firm(s) shall govern over the Agreement, • The Agreement shall govern over any Addendum to the RFP, the RFP, and the Proposal, IV. SCOPE OF AGREEMENT Awarded Category 6: Trolley Advertising. Smaller wraps, to include: (1) the middle section of both sides of the trolley(s) while maintaining the branding on both the left and right sections of each side; and (2) the full back side of the trolley(s), as shown on Exhibit "C" attached hereto, The Firm(s)'s obligations shall include the Scope of Services outlined in Section 3.1, Category 6, of the RFP and in the Firm(s)`s response to the RFP, the terms of which are incorporated by reference herein. In the event of any conflict, the terms of this Agreement shall prevail. In addition to th.e aforementioned responsibilities, the Firm(s)'s obligations shall include, but are not limited to the following: CO General Responsibilities a, Marketing city -owned properties for the Advertisement Program. b, Negotiating the highest return to the City. c. Review of all existing and potential codes, laws, other requirements of governmental agencies having jurisdiction over advertising and outdoor advertising, applicable policies, and procedures as they may relate to the City's Advertisement Program. d. Providing ongoing management services, including auditing, inspections as prescribed by Sections 18-100 through 18-102 of the City Code, which is deemed as being incorporated by reference herein, and contract compliance and enforcement. e, The Firm(s) shall be under the supervision of the Assistant City Manager/Chief of Infrastructure to accomplish the Scope of Services and present its findings and recommendations to the City Commission, if necessary. f. As may be directed by the City Manager, the Firm(s) is expected to cooperate and fulfill requests for information that pertain to the work. g. The Firm(s) shall provide its own personnel, office, telecommunications, anci office/ work space, except as necessary during meetings or presentations held on City -owned properties. 4.1 .Marketing and Solicitation Tasks a. Market the Trolleys by doing the following, upon request from the City: b. Collect and research all information concerning the Trolleys available for the Advertisement Program. c. Prepare a comprehensive report with findings, conclusions and recommendations, including a comprehensive timeline for complete analysis and marketing for advertising in or on the Trolleys. d. Prepare a marketing campaign that will be disseminated to the appropriate third party businesses/advertisers. e. Distribute marketing information to advertisers through e-mail, flyers and/or other acceptable means, to include the following: i. Overview/introductory letter, ii. Firm(s)' detailed description of the City's offers for advertising opportunities. 4.2 Contract Administration Tasks a. Evaluate current and future revenue potential of the City's Advertisement Program; b. Develop and recommend a plan ("Plan") for optimizing advertising opportunities and increasing revenue to the City; c, Implement the Plan upon the City's approval; d. Provide ongoing management of the City's Advertisement Program; e. Track and manage all issues and requests concerning the operation of the City's Advertisement Program. f, Coordinate the installation and/ or removal of advertising equipment under the City's Advertisement Program including notification to all applicable City departments. g. For City sponsorships or Public Service Announcements (PSAs), assist with the printing, installation and removal of advertising materials on the inside of the Trolleys, each at the sole cost and expense of the City; h, Prevent any additional costs not contemplated under this Agreement to the City; I, Prepare specifications for bidding and/or agreements; j. Provide all personnel, equipment, and other resources necessary to operate the City's Advertisement Program k. Coordinate all necessary requirements pursuant all other City Departments including but not limited to Building, Planning & Zoning, Risk Management, and Finance Departments. I, The Firm(s) will be required to maintain separate books and accounting records each category of advertising covered under the agreement. Such books and records shall include any revenues, costs, or other financial items associated with the management and operation of the City's Advertisement Program in a form and manner reasonably satisfactory to the City. These books and records shall be open to inspection and audit by a City representative at all times during regular business hours at the Firm(s) upon reasonable prior notice. Reference is made to the audit and inspection provisions provided in §18-100 through §18-102 of the City Code, which are deemed as being incorporated by reference herein. 4,3 Monitoring & Inspection Services a. Monitor all Trolleys where the City's Advertisement Program exists, Once advertising equipment is installed, erected or mounted on a Trolley, with the exception of normal maintenance or repair and copy changes, the structure may not be altered without prior written approval by the City Manager, which may not be unreasonably withheld. b, Conduct scheduled inspections to ensure that with the City's Advertisement Program is being managed and operated to the City's satisfaction. The Firm(s) shall provide documentation of inspection activities performed at each location on an annual basis upon request, c, Maintain an emergency response plan to address graffiti, major structural defects and other conditions that, in the opinion of the City, requires immediate attention, V. GRANT OF LICENSING RIGHTS The City hereby grants to the Firm(s) during the term of this Agreement the exclusive authority to market, negotiate, manage, inspect and sell advertising on the Trolleys where the Advertisement Program exists, and to negotiate and execute agreements with Third Party Businesses/Advertisers with respect to advertisements on the Trolleys in connection with the City's Advertisement Program. The Firm(s) and/or the Third Party Businesses/Advertisers will retain ownership of any personal property, trade fixtures, equipment and other temporary installations where advertising is deemed to be installed, erected or affixed thereto. However, the Firm(s) shall be required remove the same upon the expiration of this Agreement. Furthermore, the Firm(s) shall be required to repair all damage to the Trolleys caused by such installation and removal, at the Firm(s)'s and/or the communications operators' expense, normal wear and tear accepted. At all times during the term of this Agreement and/or any other agreement with the City concerning the Advertisement Program, the Firm(s) and the Third Party Businesses/Advertisers shall not destroy, deface, damage, impair, or remove any part of the Trolleys therein belonging to the City, nor permit any person under its control to do so, 5.1 Nothing herein contained shall be construed as an intention to grant, or as a grant of, any rights of an exclusive nature or paramount to any rights, permits or licenses heretofore or hereinafter granted or conveyed by the City, except for the exclusivity of the rights granted in the foregoing paragraph. This Agreement shall not be assigned, nor shall any of Firm(s)' duties be delegated or subcontracted to any third -party without the City Manager's express written consent, in the City Manager's sole and absolute discretion, provided, however, the City's consent shall not be required for an assignment by the Firm(s) to (i) to an entity controlling, controlled by, or under common control with, the Firm(s), (ii) 'in connection with a sale by the Firm(s) of all or substantially all of its business or assets (regardless of the form of transaction through which such result is achieved), and (iii) as a collateral assignment to its senior secured lenders. Notwithstanding the foregoing, and as specified in this Agreement, Firm(s) shall be entitled to market, solicit, negotiate, and prepare agreements with Third Party Businesses/Advertisers for the installation of advertising in or on the Trolleys and :to administer such agreements, as provided in this Agreement. However, the City Manager shall review and approve or disapprove the advertising copy sent by Third Party Businesses/Advertisers to be posted on the Trolleys, in its reasonable discretion. The Firm(s) shall provide the City with a copy of such advertising copy for review and the City shall have three (3)' business days from receipt to either approve or disapprove such advertising copy. If the City does not respond within such three (3) business day period, the advertising copy provided shall be deemed approved by the City, The City may only withhold its approval of a proposed advertising copy if, in the City's reasonable discretion, the proposed advertisement is pornographic, obscene, lewd, indecent or otherwise offensive or objectionable to public morals. 5,2 In the event that any agreement with any Third Party Business(es)/Advertiser(s) is terminated prior to the expiration of its initial terns or option periods for any of the Trolleys, the Firm(s) shall use its commercially reasonable efforts to replace the previous Third Party Business/Advertiser with a new Third Pasty Business/Advertiser. The term of the agreements with the new Third Party Business(es)/Advertiser(s) shall be determined by the Firm(s) in its reasonable discretion, 5.3 Firm(s) shall not be liable to the City for the monetary default by a Third Party Business/Advertiser of its obligations under its advertising agreement with the Firms(s). However, in the event of a termination or default by any Third Party Business/Advertiser, the Firm(s) shall use commercially reasonable efforts to find a replacement advertiser on the Trolley. VI, CONDITION OF PROPERTIES Any City owned Trolleys that are offered by the City for the Advertisement Program will be offered in their present "as is" condition and state of repair and without any representation by or on behalf of the City. Furthermore, the City shall not be liable for any latent, patent or other defects on its properties. VII. COMPENSATION The Firm shall pay to the City as revenue earned 52.5% of gross receipts on a monthly basis, payable within thirty (30) days following the end of each month with respect to the previous month. Gross receipts shall be reduced by: (i) Independent third party agency commissions; and (ii) amount of any sales or excise tax levied upon any sales, rentals, and/or services rendered and payable to the appropriate governmental authority; The City shall not be responsible to pay any expenditures under this Agreement, VIII. CHANGES TO THE PROPERTIES AND/OR INSTALLATION OF ADDITIONAL EQUIPMENT The City reserves the right at any time and from time to time to reasonably: (i) make or permit changes or revisions in its plans for its properties, including additions to, subtractions from, rearrangements of, alterations of, modifications of or supplements to the building areas, walkways, parking areas, or driveways, (ii) construct other buildings or improvements on any of its properties and to make alterations thereof or additions thereto. Furthermore, during the term of the Agreement, the City will retain the exclusive right to install and maintain any other equipment unrelated to the Advertisement Program on its facilities, structures, or properties. In the event that other unrelated equipment is installed on City -owned properties, the Firm(s) will cooperate with the City regarding scheduling and other logistics, to facilitate the installation of other unrelated equipment, to the extent applicable. IX. COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS The Firm(s) shall comply with all applieable permits and approval requirements of governments having jurisdiction over advertising or the Advertisement Program, laws, ordinances, codes, rules and regulations of federal, state and local governments, including the City. The Firm(s) shall additionally comply with the provisions of Section 119,0701, Florida Statutes, regarding public records. X. LABOR STANDARDS The Firm(s) shall assume any and all liability and responsibility under this Agreement for compliance with all applicable labor standards, rules, requirements and laws relative to their employees and personnel, XI. GENERAL CONDITIONS All notices or other communications which shall or may be given pursuant to this Agreement shall be in writing and shall be delivered by personal service, overnight courier or by registered mail addressed to the other party at the address indicated herein or as the same may be changed from time to time. Such notice shall be deemed given upon actual receipt or refusal thereof, CITY Johnny Martinez, P.E., City Manager City of Miami 3500 Pan American Drive Miami, Florida 33133 XII. OWNERSIJIP OF DOCUMENTS FIRM Pablo Cremaschi Van Wagner Miami, LLC 2610 N Miami Avenue Miami, Florida 33127 (305) 400-7355 With a copy to: Steven S. Pretsfelder, Esq. Van Wagner Miami, LLC 800 Third Avenue, 28Th Floor New York, New York 10022 Upon written request, all documents developed in relation to the performance of the work done under this Agreement by the Firm(s) shall be delivered to the City upon completion of the services required and shall become the property of City, without restriction or limitation of its use, The Firm(s) agrees that all documents maintained and generated hereto shall be subject to the applicable provisions of the Public Records Law, Chapter 119, and Florida Statutes, XIII, AWARD OF AGREEMENT The Firm(s) warrants that it has not employed or retained any person 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 employed by the City any fee, commission, percentage, brokerage fee, or gift of any kind contingent upon or resulting from the award of this Agreement, XIV. CONSTRUCTION OF AGREEMENT This Agreement shall be construed and enforced according to the laws of the State of Florida. XV, SUCCESSORS AND ASSIGNS This Agreement shall be binding upon the parties herein, their heirs, executors, legal representatives, successors and assigns. XVI. INDEMNIFICATION Firm(s) shall indemnify and hold harmless City, its officers, agents, directors, and employees, from liabilities, damages, losses, judgments, and costs, including, but not limited to reasonable attorney's fees, to the extent caused by the negligence, recklessness, negligent act or omission, or intentional wrongful misconduct of Firm(s) and persons employed or utilized by Firm(s) in the performance of this Contract. Firm(s) shall, further, hold the City, its officials and employees, harmless for, and defend the City, its officials and/or employees against, any civil actions, statutory or similar claims, injuries or damages arising or resulting from the permitted work, except to the extent the City, its officials and/or employees were negligent or due to the City's willful misconduct, These indemnifications shall survive the term of this Contract, In the event that any action or proceeding is brought against City by reason of any such claim or demand, Firm(s) shall, upon written notice from City, resist and defend such action or proceeding by counsel satisfactory to City. The Firm(s) expressly understands and agrees that any insurance protection required by this Contractor otherwise provided by Firm(s) shall in no way limit the responsibility to indemnify, keep and save harmless and defend the City or its officers, employees, agents and instrumentalities as herein provided. The indemnification provided above shall obligate Firm(s) to defend, at its own expense, to and through appellate, supplemental or bankruptcy proceeding, any and all claims of liability and all suits and actions of every name and description which may be brought against City in connection with this Agreement, as required above, whether performed by Firm(s), or persons employed or utilized by Firrn(s). This indemnity will survive the cancellation or expiration of the Contract. This indemnity will be interpreted under the laws of the State of Florida, including without limitation and interpretation, which conforms to the limitations of §725.06 and/or §725.08, Fla, Statutes, as amended and as applicable. The Firm(s) agrees and recognizes that the City shall not be held liable or responsible for any claims which may result from any actions or omissions of the Firm(s) in which the City participated either through review or concurrence of the Firm(s)' actions. In reviewing, approving or rejecting any submissions by the Firm(s) or other acts of the Firm(s), the City in no way assumes or shares any responsibility or liability of the Firm(s) or Sub-Firm(s), under this Agreement. Ten dollars ($10) ofthe payments made by the City constitute separate, distinct, and independent consideration for the granting of this Indemnification, the receipt and sufficiency of which is acknowledged by the Firm(s). XVII, CONFLICT OF INTEREST 17,1 The Firm(s) covenants that no person under its employ who presently exercises any functions or responsibilities on behalf of the City in connection with this Agreement has any personal financial interests, direct or indirect, with the Firm(s). The Firm(s) further covenants that, in the performance of the Agreement, no person having such conflicting interest shall be employed. Any such interest on the part of the Firm(s) or its employees must be disclosed in writing to the City. 17,2 The Firm(s) is aware of the conflict of interest laws of the City, Miami City Code §2-611, Miami -Dade County, Florida, Miami -Dade County Code § 2-11.1; and the State of Florida, Chapter 112, Part III, Florida Statutes, as amended, and agrees that it shall fully comply in all respects with the terms of said laws. XVIII. INDEPENDENT FIRM(S) The Firm(s), its employees, agents or representatives, shall be deemed to be independent Firm(s)s and not agents or employees of the City and shall not attain any rights or benefits under the civil service or pension ordinances of the City, or any rights generally afforded classified or unclassified employees. Firm(s), its employees, agents or representatives, shall not be entitled to Florida Workers' Compensation benefits as an employee of the City, XIX. FIRM(S)' PERSONNEL The Firm(s) agrees that the personnel identified on Exhibit "D" of this Agreement will be those individuals that are assigned to the Project, and that the assignment of such individuals is a material term of this Agreement, Firm(s) agrees to promptly notify the City in writing of the identity of any individuals that it desires to assign to perform the Services as a replacement for, or in addition to the individuals named and listed in the Proposal. The Firm(s) shall require the designated manager to remain in charge and available during scheduled activities. The Firm(s) manager must be available to take telephone calls during scheduled activities. XX. INSURANCE Within ten (10) days after receipt of the Notice to Proceed, the Firm(s) shall furnish Evidence of Insurance to the Purchasing Department, if applicable. Submitted evidence of coverage shall demonstrate strict compliance to all requirements listed on the Special Conditions entitled "Insurance Requirements." The City shall be listed as an "Additional Insured." Issuance of a Purchase Order is contingent upon the receipt of proper insurance documents, If the insurance certificate is received within the specified time frame but not in the manner prescribed in this Agreement the Firm(s) shall be notified in writing of such deficiency and shall have an additional five (5) calendar days to submit a corrected certificate to the City. If the Firm(s) fails to submit the required insurance documents in the manner prescribed in this Agreement within fifteen (15) calendar days after receipt Notice to Proceed, the Firm(s) shall be in default of the contractual terms and conditions and shall not be awarded the contract. The Firm(s) shall furnish to the City of Miami c/o Risk Management, 444 SW 2 Avenue, 9 Floor, Miami FL, 33130, Certificate(s) of Insurance which indicate that insurance coverage has been obtained which meet the requirements as outlined below: I. CommercialGeneral Liability A. Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence $1,000,000 General Aggregate Limit $ 2,000,000 Products/Completed Operations S 1,000,000 Personal and Advertising Injury $1,000,000 Endorsements Required City of Miami included as an additional insured Contingent Liability & Contractual Liability Primary Insurance Clause Premises & Operations Liability II. Business Automobile Liability A, Limits of Liability Bodily Injury and Property Damage Liability Combined Single Limit Any Auto/Owned Autos/Scheduled Including Hired, Borrowed or Non -Owned Autos Any One Accident $ 1,000,000 B, Endorsements Required City of Miami included as an Additional Insured III. Worker's Compensation A. Limits of Liability Statutory -State of Florida Waiver of subrogation Employer's Liability Limits of Liability $500,000 for bodily injury caused by an accident, each accident, $500,000 for bodily injury caused by disease, each employee $500,000 for bodily injury caused by disease, policy limit IV. Excess Liability (Excess Follow Form) A. Limits of Liability Each Occurrence $1,000,000 Policy Aggregate $1,000,000 City of Miami listed as an additional insured V, Professional Liability/Error's & Omissions A. Limits of Liability Bodily Injury and Property Damage Liability Each Claim $1,000,000 Aggregate $1,000,000 The above policies shall provide the City of Miami with written notice of cancellation or material change from the insurer not less than (30) days prior to any such cancellation or material change, or in accordance to policy provisions. Companies authorized to do business in the State of Florida, with the following qualifications, shall issue all insurance policies required above: The company must be rated no less than "A-" as to management, and no less than "Class V" as to Financial Strength, by the latest edition of Best's Insurance Guide, published by A.M. Best Company, Oldwick, New Jersey, or its equivalent. All policies and /or certificates of insurance are subject to review and verification by Risk Management prior to insurance approval. XXI. TERMINATION The City Manager on behalf of the City of Miami reserves the right to terminate this contract by written notice to the Firm(s) effective the date specified in the notice should any one of the following apply: 21.1, The Firm(s) is determined by the City to be in breach of any of the terms and conditions of the Agreement and such breach is not cured within thirty (30) days of receipt of written notice thereof (or if such default is of the type that it cannot reasonably be cured within such thirty (30) day period, so long as the Firm(s) has diligently commenced to cure such default, such additional period of time required to cure such default not to exceed an additional thirty (30) days) or of any other Agreement the Firm(s) has with a Florida public agency beyond any applicable notice and cure period; 21.2. The City Manager has determined that such termination will be in the best interest of the City to terminate the Agreement for its own convenience; 21. 3, Funds are not available or allocated to cover the cost of the goods and/or services reduction of funds or a change in applicable laws or regulations. The City's obligation is contingent upon the availability and allocation of appropriate funds and applicable regulations. 21.4, The Firm(s) is debarred by the City or by another Florida public agency, 21,5 In the event of a Termination by the City the Firm(s) shall have no recourse against the City other than payment of fees due the Firm(s) prior to the effective date of Cancellation. Neither the City nor the Firm(s) will be liable for lost profits, direct, indirect, special or other damages or for claims for loss of business, business or contract relations or any other claims or actions other than payment of fees due under the Agreement throughout the date of termination. XXII. NONDISCRIMINATION The Firm(s) agrees as indicated in the RFP (Section 1.54, Nondiscrimination) that it shall not discriminate as to race, color, creed, national origin, religion, age or disability in connection with its performance hereunder. XXIII. DEFAULT If the Firm(s) fails to comply with the terms and conditions of this Agreement, or fails to perform hereunder beyond any applicable notice and cure period, or files for bankruptcy or provides assignment or transfer to creditors, then the City, at its sole option upon written notice, may cancel and terminate this Agreement, and all payments, advances, or other compensation paid to the Firm(s). XXIV. FORCE MAJEURE Neither party shall be liable for failure or delay in performing obligations set forth in this Agreement, and neither party shall be deemed in breach of its obligations, if such failure to delay is due to national disasters, strike, lock -out, or other industrial or transportation disturbances, law, regulation or ordinance, or any causes reasonably beyond the control of such party, XXV. APPLICABLE LAW AND VENUE This Agreement shall be interpreted and construed in accordance with and governed by the laws of the state of Florida. Venue shall be in Miami -Dade County, Florida, Each party shall bear its own attorney's fees (except if the City must bring a claim to enforce the provisions of Article XIII, Indemnification against the Firm(s).) The parties knowingly, voluntarily and consensually waive the right to a jury trial or to file permissive counterclaims in any dispute between them arising out of this Agreement, XXVI. AUDIT AND INSPECTIONS The Firm(s) shall maintain all project records as requested by the City. All project records prepared by the Firm(s) shall be owned by the City and shall be made available to the City at no additional charge, The Firm(s) shall maintain all books, records, documents, accounting ledgers, and similar materials relating to work performed for the City under this Agreement on file for at least four years following the date of final payment to the Firm(s) by the City. The above records retention requirement shall include daily driver logs, medical examinations, as well as all other books, records, and documents, as applicableand maintained by the Firm(s) in accordance with its normal business practices. Any duly authorized representative of the City shall have access to such records for the purpose of inspection, audit, and copying at reasonable times during the Firm(s)'s usual and customary business hours and upon reasonable prior notice. The Firm(s) shall report in-service hours to the City within twenty-four hours of a written request, unless otherwise specified, The Firm(s) will develop annual financial reports with respect to the services performed under this Agreement for distribution to the City. At any time during normal business hours, upon reasonable prior written notice, and as often as the City may deem necessary, there shall be made available to the City and/or representatives of the City to audit, examine, and make audits of all contracts, invoices, materials, payrolls, records of personnel, conditions of employment and other data relating to all matters related to this Agreement. It is further understood that all records and supporting documents pertaining to this Agreement shall be maintained for a minimum period of four years. The retention and access period starts from the date of the submission of the annual performance and evaluation report in which the specific activity is reported for the final time. The Firm(s) must request approval from the City before disposing of any records under this Agreement prior to the expiration of such four (4) year period, If any litigation, claim, negotiation, audit or other action involving the records has been started before the expiration of the four year period, the records must be retained until completion of the action and resolution of all issues which arise from it or until the end of the four year period, whichever is later, The Firm(s) must maintain records necessary to document compliance with the provisions of the Agreement. The Firm(s) acknowledges that additionally the City has the audit and inspection rights set forth in § 18-100 to §18-102, City Code, as amended, XXVII. ENTIRE AGREEMENT This Agreement and its attachments and exhibits constitute the sole and only Agreement of the parties and accurately set forth the rights, duties, and obligations of each to the other. Any prior Agreements, promises, negotiations, or representations not expressly set forth in this Agreement are of no force and effect, XXVIII. AMENDMENT No amendments to this Agreement shall be binding on either party unless in writing and signed by both parties. XXIX. MISCELLANEOUS 29.0 Captions, title and paragraph headings are for convenient reference and are not a part of this Agreement, Such captions, title or paragraph headings shall not be deemed in any manner to modify, explain, enlarge or restrict any of the provisions contained in this Agreement. 29,1 Subject to the provision of Article III, in the event of conflict between the terms of this Agreement and any terms or conditions in any attached document; the terms in this Agreement shall prevail. 29.2 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. 29,3 Should any provisions, paragraph, sentence, work 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 provisions, paragraphs, sentences, words or phrases shall be deemed modified to the extent necessary in order to conform with such laws (provided there is no adverse effect to the Firm(s)), or if not modifiable to conform with such laws, 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. 29.4 Further Assurances. All parties hereto upon the written request of any other party shall execute such further instruments or documents as may be reasonably required by the requesting party to implement the terms, conditions and provisions of this Agreement. 29.5 Third Party Beneficiary. Firm(s) and the City agree that it is not intended that any provision of this Agreement establishes a third party beneficiary giving or allowing any elaim or right of action whatsoever by any third party under this Agreement, 29,6 Performance Evaluations, The City conducts performance evaluations during and after completion of agreements with the Firm(s), which are used as a basis for the awarding of future work as well advising the Firm(s) of its performance. 29,7 Discretion of the Director. Any matter not expressly provided for herein or in the Agreement Documents, Proposal or kFP dealing with the City or decisions of the City shall be within the exercise of the reasonable professional discretion of the Director or the Director's authorized designee. 29.8 Public Records. Firm shall comply with the provisions of Section 119,0701, Florida Statutes, Firm(s) has been procured and is being engaged to provide Services to the City as an independent Firm(s), and not as an agent or employee of the City. Accordingly, Firm(s) 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, Firm(s) further understands that Florida Workers' Compensation benefits available to employees of the City are not available to Firm(s), and agrees to provide workers' compensation insurance for any employee or agent of Firm(s) rendering services to the City under this Agreement, IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed by the respective officials thereunto duly authorized, this the day and year first above written. Attest: Todd Hannon City Clerk (SEAL) CITY OF MIAMI, a municipal Corporation of the State of Florida Johnny Martinez, RE, City Manager Approved as to Insurance: Approved as to Legal Form: Calvin Ellis Risk Management Director Attest: Corporate (SEAL) (Corporate Secretary) Victoria Mendez City Attorney VAN WAGNER MIAMI, LLC Signature Firm Representative Firm Representative's Title (Must be Authorized Corporate Officer) Exhibit A "Request for Proposals No. 272271,9"