20170301 AM3c6D
MIAAAI BEACH
City Commission Meeting
ADDENDUM MATERIAL 3 (2t2812017)
City Hall, Commission Chambers, 3'd Ftoor,lTOO Convention Center Drive
March 1,2017
Mayor Philip Levine
Commissioner John Elizabeth Alem6n
Commissioner Ricky Arriola
Commissioner Michael Grieco
Commissioner Joy Malakoff
Comm issioner Kristen Rosen Gonzalez
Com missioner Micky Steinberg
City Manager Jimmy L. Morales
City Attorney Raul J. Aguila
City Clerk Rafael E. Granado
Visff us at www.miamibeachfl.gov for agendas and video "streaming" of City Commission Meetings
ATTENTION ALL LOBBYISTS
Chapter 2, Article Vll, Division 3 of the City Gode of Miami Beach entitled "Lobbyists" requires the
registration of atl lobbyists with the City Clerk prior to engaging in any lobbying activity with the City
Commission, any City Board or Gommittee, or any personnel as defined in the subject Code
sections. Copies of the City Code sections on lobbyists laws are available in the Gity Clerk's office.
Questions regarding the provisions of the Ordinance should be directed to the Office of the City
Attorney.
ADDENDUM AGENDA
G6 - Commission Gommittee Reports
REPORT OF THE FEBRUARY 17,2017 FINANCE AND CITWVIDE PROJECTS COMMITTEE
MEETING: 1. DISCUSSION REGARDING THE EXCHANGE OF PROPERTYWITH THE OWNER
OF 5860 NORTH BAY ROAD LN ORDER TO RESOLVE THE EXISTING BOUNDARY LINES, AND
THE LOCATION OF A FUTURE CITY PUMP STATION AND SEWER LINE. 2. DISCUSS
ENGAGING THE WESTAVENUE NEJGHBORHOOD IN A PILOT PARTICIPATORY BUDGETING
PROCESS USING THE FUNDS FROM THE ALTON COURT VACATION. 3. DISCUSSION
REGARDING IMPLEMENTING THE SAFER COMPASS PROGRAM IN THE CITY OF MIAMI
BEACH TO REVIEW THE ANALYSIS. 4. DISCUSS FUNDING FOR ADDED SECURITY ON OCEAN
DRIVE AS PER THE TEN POINT PLAN. 5. DISCUSSION REGARDING RECOMMENDED TRAFFIC
CALMING IMPROVEMENTS IN CENTRAL BAYSHORE NEIGHBORHOOD.6. DISCUSS ADDING
ILLUMINATED CROSSWALKS OR RAPID RECTANGULAR FLASHING BEACONS ON WEST
AVENUE. 7. DISCUSSION REGARDING THE CREATION OF A POCKET PARK ON 2OTH STREET
AND ALTON ROAD. 8. DISCUSSION REGARDING A NEW LEASE AGREEMENT (AGREEMENT)
BETWEEN THE CTTYOF MtAMt BEACH (LANDLORD)AND COLONYTHEATER CAFE, lNC. D/B/A
SEGAFREDO (TENANT) FOR THE USE OF APPROXTMATELY 1,371 SQUARE FEET OF CITY-
OWNED PROPERTY, LOCATED AT 1O4O LINCOLN ROAD, MIAMI BEACH, FLORIDA
(PREMISES). FOR A PERTOD OF THREE (3) YEARS, COMMENCING NOVEMBER 1, 2017 AND
EXptRtNG OCTOBER 31,2020, W|TH TWO (2) RENEWAL OPTTONS FOR THREE (3) YEARS
1
Addendum 3, March I,2017
EACH, AT THE CITY MANAGER'S SOLE DISCRETION. 9. DISCUSS A RESOLUTION OF THE
MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, APPROVING THE
ASSTGNMENT OF TNTEREST OF COCA-COLA REFRESHMENTS USA, tNC. (BOTTLER) TO
cocA-colA BEVERAGES FLOR|DA, LLC (ASStGNEE), tN CONNECTTON WtTH THAT CERTATN
AGREEMENT BETWEEN THE CITY, BOTTLER AND COCA-COLA NORTH AMERICA, A DIVISION
OF THE COCA-COLA COMPANY, DATED MARCH 14, 2012; SAID ASSIGNMENT BEING
SUBJECT TO ASSIGNEE ASSUMING ALL OF BOTTLER'S OBLIGATIONS UNDER THE
AGREEMENT AND THE EXECUTION BY BOTTLER AND ASSIGNEE OF AN ASSIGNMENT
DOCUMENT IN THE FORM ACCEPTABLE TO THE CITY ATTORNEY; AND FURTHER
AUTHORIZING THE CITY MANAGER TO EXECUTE ANY NECESSARY DOCUMENTS TO
EFFECTUATE THE ASSIGNMENT OF THE AGREEMENT. 10. DISCUSSION REGARDING
PROPOSED TNTERCEPTOR GARAGE AT 1623 WEST AVENUE (LOT NO. P23).11. DTSCUSSTON
ON CREATION OF ECONOMIC DEVELOPMENT GOALS AND OBJECTIVES AND A CITYWIDE
ECONOMIC DEVELOPMENT STRATEGY PLAN. 12. DISCUSSION REGARDING FUTURE USES
OR THE POTENTIAL SALE OF VACANT CITY-OWNED LAND LOCATED AT 226 87TH TERRACE.
13. DISCUSSION REGARDING A SKATE PARI</PARKING STRUCTURE AT 72ND STREET
PARKTNG LOT (P92). 14. DTSCUSSTON REGARDTNG THE MATNTENANCE OF PUBLTC
BATHROOMS CITYWIDE.
Finance
Addendum added on 212812017
C7 - Resolutions
C7 Q A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH,
FLORIDA, STRONGLY OPPOSING THE LETTER ISSUED BY THE U.S. DEPARTMENT OF
JUSTICE AND THE U.S. DEPARTMENT OF EDUCATION ON FEBRUARY 22, 2017
WITHDRAWING AND RESCINDING POLICY GUIDANCE THAT WAS ISSUED BY THE OBAMA
ADMINISTRATION THAT REQUIRED SCHOOLS TO ALLOW TRANSGENDER STUDENTS
ACCESS TO SEX-SEGREGATED FACILITIES AND ACTIVITIES BASED ON THEIR GENDER
IDENTITY.
Office of the City Attorney
Vice-Mayor Kristen Rosen Gonzalez
Addendum added on 212812017
R7 - Resolutions
R7 V A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH,
FLORIDA, STRONGLY SUPPORTING A FREE PRESS AND ACKNOWLEDGING ITS VITAL ROLE
IN A FREE AND DEMOCRATIC SOCIETY; AND, FURTHER, DIRECTING THE CITY CLERK TO
TRANSMIT A COPY OF THIS RESOLUTION TO PRESIDENT DONALD TRUMP AND SENATOR
MARCO RUBIO.
Office of the City Attorney
Vice-Mayor Kristen Rosen Gonzalez
Addendum added on 212812017
2
Addendum 3, March 1,2017
R7 W A RESOLUTION OF MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA,
APPROVING AND AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE,
SUBSTANTIALLY IN THE FORM ATTACHED TO THIS RESOLUTION, AN AGREEMENT WITH BIG
BELLY SOLAR, INC., FOR A TERM OF
-
YEARS; SAID AGREEMENT EXTENDING THE
TERM OF THE TWENTY-FOUR (24) EX|ST|NG SMARTBELLY TRASH CAN STATIONS, WHICH
WERE THE SUBJECT OF A ONE YEAR PILOT PROGRAM, AND ADDING
-
ADDITIONAL
SMARTBELLY TRASH CAN STATIONS, ALL TO BE LOCATED ALONG WASHINGTON AVENUE,
BETWEEN sTH STREET AND 17TH STREET, IN THE TOTAL AMOUNT NOT TO EXCEED
$99,OOO ANNUALLY.
Public Works
Deferred from February 8, 2017 - C7 R
Addendum added on 212812017
3
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4
Commission Committee Reports - CG D
MIAMI BEACH
TO:
FROM:
DATE:
COMMISSION MENORANDUM
Honorable Mayor and Members of the City Commission
Jirnmy L. Morales, City Manager
March 1,2017
SUBJECT: REPORT OF THE FEBRUARY 17,2A17 FINANCE AND CITYWIDE PROJECTS
COMMITTEE MEETING: 1. DISCUSSION REGARDING THE EXCHANGE OF
PROPERTY WITH THE OWNER OF 5860 NORTH BAY ROAD LN ORDER TO
RESOLVE THE EXISTING BOUNDARY LINES, AND THE LOCATION OF A
FUTURE CITY PUMP STATION AND SEWER LINE. 2. DISCUSS ENGAGING THE
WEST AVENUE NEIGHBORHOOD IN A PILOT PARTICIPATORY BUDGETING
PROCESS USING THE FUNDS FROM THE ALTON COURT VACATION. 3.
DISCUSSION REGARDING IMPLEMENTING THE SAFER COMPASS PROGRAM
IN THE CITY OF MIAMI BEACH TO REVIEW THE ANALYSIS.4. DISCUSS
FUNDING FORADDED SECUR]TY ON OCEAN DRIVE AS PER THE TEN POINT
PLAN. 5. DISCUSSION REGARDING RECOMMENDED TRAFFIC CALMING
IMPROVEMENTS IN CENTRAL BAYSHORE NEIGHBORHOOD. 6. DISCUSS
ADDING ILLUMIMTED CROSSWALKS OR RAPID RECTANGULAR FLASHING
BEACONS ON WEST AVENUE. 7. DISCUSSION REGARDING THE CREATION
OF A POCKET PARK ON 2OTH STREET AND ALTON ROAD. 8. DISCUSSION
REGARDING A NEW LEASE AGREEMENT (AGREEMENT) BETWEEN THE CITY
oF MtAMt BEACH (LANDLORD) AND COLONY THEATER CAFE, INC. D/B/A
SEGAFREDO (TENANT) FOR THE USE OF APPROXII\IATELY 1,371 SQUARE
FEET OF CITY-OWNED PROPERry, LOCATEDAT 1O4O LINCOLN ROAD, MIAMI
BEACH, FLORTDA (PREMTSES). FOR A PERTOD OF THREE (3) YEARS,
COMMENCING NOVEMBER 1,2A17 AND EXPIRING OCTOBER 31,2020, WITH
TWO (2) RENEWAL OPTIONS FOR THREE (3) YEARS EACH, AT THE C|TY
MANAGER'S SOLE DISCRETION. 9. DISCUSS A RESOLUTION OF THE I\4AYOR
AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA,
APPROVING THE ASSIGNMENT OF INTEREST OF COCA-COLA
REFRESHMENTS USA, rNC. (BOTTLER) TO COCA-COLA BEVERAGES
FLOR|DA, LLC (ASS|GNEE), tN CONNECTTON W|TH THAT CERTATN
AGREEMENT BETWEEN THE CIry BOTTLER AND COCA.COLA NORTH
AMERTCA, A DTVISTON OF THE COCA-COLA COMPANY DATED MARCH 14,
2012; SAID ASSIGNMENT BEING SUBJECT TO ASSIGNEE ASSUMING ALL OF
BOTTLER'S OBLIGATIONS UNDER THE AGREEMENT AND THE EXECUTION
BY BOTTLER AND ASSIGNEE OF AN ASSIGNMENT DOCUMENT IN THE FORM
ACCEPTABLE TO THE CITY ATTORNEY AND FURTHER AUTHOR]ZING THE
CITY MANAGER TO EXECUTE ANY NECESSARY DOCUMENTS TO
EFFECTUATE THE ASSIGNMENT OF THE AGREEMENT. 10. DISCUSSION
REGARDING PROPOSED INTERCEPTOR GARAGE AT 1623 WEST AVENUE
Page 183 ol 1127
5
(LOT NO. p23).11. DTSCUSSTON ON CREATTON OF ECONOMTC
DEVELOPMENT GOALS AND OBJECTIVES AND A CITYWIDE ECONOMIC
DEVELOPMENT STRATEGY PLAN. 12. DISCUSSION REGARDING FUTURE
USES OR THE POTENTIAL SALE OF VACANT CITY.OWNED LAND LOCATED
AT 226 87TH TERRACE. 13. DISCUSSION REGARDING A SKATE
PARI(PARK|NG STRUCTURE AT 72ND STREET PARKTNG LOT (P92). 14.
DISCUSSION REGARDING THE MAINTENANCE OF PUBLIC BATHROOMS
clT\ryvlDE.
Legislative Tracking
Finance
AfiACHMENTS:
Description
o Minutes
Page 184 of 1127
6
Jtrii*liuriRtdef*$GJ t \iJ \J V ltLs#$,*J th*"d$ {
Cify of Miomi Beoch, I700 Convention Center Drive, Miomi Beoch, Florido 331 39, www.miomibeochfl.gov
COMMISSION MEMORANDUM
To: Mayor Philip Levine and Members of the City Commission
FRoM: Jimmy L. Morales, City Manager
DATE: March 1,2017
SUBJECT: REPORT OF THE FINANCE AND ClryWlDE PROJECTS
coMMtTTEE (F|NANCE) MEETTNG ON FEBRUARY 17,2017
The agenda is as follows:
1. Discussion Regarding The Exchange Of Property With The Owner Of 5860 North
Bay Road ln Order To Resolve The Existing Boundary Lines, And The Location Of
A Future City Pump Station And Sewer Line (June 8, 2016 Commission ltem C4F)
ACTION
The Committee recommended moving this item to full Commission to accept
administration's recommendation of proceeding with the exchange of the property with
consideration of including the seawall remediating costs in the calculations. Staff was
directed to provide a visual concept plan when the item is presented to City Commission.
2. Discuss Engaging The West Avenue Neighborhood ln A Pilot Participatory
Budgeting Process Using The Funds From The Alton Court Vacation (December
14,2016 Commission ltem C4E)
ACTION
The Committee recommended moving this item to full Commission to direct $500,000 of
the $600,000 anticipated to be received from the Alton Court Vacation towards the
above ground improvements in the West Avenue neighborhood with the remaining
$100,000 being held in the interim for potential funding of North Shore Park rangers
pending the completion of a budgetary analysis to find funding sources available for the
park ranger program for North Beach.
3. Discussion Regarding Implementing The Safer Compass Program ln The City Of
Miami Beach To Review The Analysis (November 9, 2016 Commission ltem R9K)
ACTION
Discussion held. No further action was needed for this item.
Page 185 of 1127
7
Page 2 of 4
4. Discuss Funding For Added Security On Ocean Drive As Per The Ten Point Plan
{December 14,2016 Commission ltem C4W
ACTION
Discussion held. The Committee and staff discussed that funding was already approved
for the additional officers. No further action was needed for this item.
5. Discussion Regarding Recommended Traffic Calming lmprovements ln Central
Bayshore Neighborhood (January 11,2017 Commission ltem C4E)
ACTION
The Committee recommended not moving forward with the additional priority two
unfunded projects until a surplus of funds is available.
6. Discuss Adding llluminated Crosswalks Or Rapid Rectangular Flashing Beacons
On West Avenue (December 14, 2016 Commission ltem C4F)
ACTION
The Committee recommended moving this item to full Commission to proceed with
implementing the illuminated crosswalks at the locations recommended by staff. Staff
was directed to include the Harding Avenue & 87th Street and the Sunset Harbor
neighborhood along 20th Street as additional locations.
7. Discussion Regarding The Greation Of A Pocket Park On 20rH Street And Alton
Road (IVovember 9,2416 Commission ltem R9r)
ACTION
The Committee recommended moving this item to full Commission to add the project to
the FY 2018 Capital Budget subject to funding availability, with consideration of adding a
dog park to the scope.
8. Discussion Regarding A New Lease Agreement (Agreement) Between The City Of
Miami Beach (Landlord) And Golony Theater Cafe, lnc. D/B/A Segafredo (Tenant)
For The Use Of Approximately 1,371 Square Feet Of City-Owned Property, Located
At 1040 Lincoln Road, Miami Beach, Florida (Premises). For A Period Of Three (3)
Years, Commencing November 1,2017 And Expiring October 31, 2020, With Two
(2) Renewal Options For Three (3) Years Each, At The City Manager's Sole
Discretion (February 10, 2017)
ACTION
The Committee recommended moving this item to full Commission to execute the new
lease agreement with an amendment to waive and reduce the Minimum Guarantee for
up to four (4) months with the City Manager's discretion to extend it month by month.
Page 186 of 1127
8
Page 3 of 4
9. Discuss A Resolution Of The Mayor And City Commission Of The City Of Miami
Beach, Florida, Approving The Assignment Of lnterest Of Coca-Cola
Refreshments USA, !nc. (Bottler) To Coca-Cola Beverages Florida, LLC
(Assignee), ln Connection With That Certain Agreement Between The City, Bottler
And Coca-Cola North America, A Division Of The Coca-Cola Gompany, Dated
March 14,2012; Said Assignment Being Subject To Assignee Assuming All Of
Bottler's Obligations Under The Agreement And The Execution By Bottler And
Assignee Of An Assignment Document ln The Form Acceptable To The City
Attorney; And Further Authorizing The City Manager To Execute Any Necessary
Documents To Effectuate The Assignment Of The Agreemenl (February 8, 2017
Commission ltem CTVI
ACTION
The Committee recommended not moving forward with approving the assignment.
10. Discussion Regarding Proposed lnterceptor Garage At 1623 West Avenue (Lot No.
P23). (September 27, 2016 Commission ltem R9E)(Continued From September 14,
2016 Commissron ltem R9AA)
ACTION
Item not heard. No action was taken.
11. Discussion On Creation Of Economic Development Goals And Objectives And A
Citywide Economic Development Strategy Plan (December 14, 2016 Commission
Item C4B)
ACTION
Item not heard. No action was taken.
12. Discussion Regarding Future Uses Or The Potential Sale Of Vacant City-Owned
Land Located At 226 87th Terrace (October 19, 2016 Commission ltem Ca$puly
13,2016 Commission ltem C4J
ACTION
Item not heard. No action was taken.
13. Discussion Regarding A Skate Park/Parking Structure At 72nd Street Parking Lot
(P921(February 8,2017 Commission ltem C4B)
ACTION
Item not heard. No action was taken.
Page 187 of 1127
9
Page 4 of 4
14. Discussion Regarding The Maintenance Of Public Bathrooms Cityride (February
8,2017 Commission ltem C4N)
ACTION
Item not heard. No action was taken.
Page 188 of 1127
10
Resolutions - C7 Q
AAIAMI BEACH
COMMISS ION ME I'JIORAN DU M
TO: Honorable Mayor and Members of the City Commission
FROM: Raul J. Aguila, CityAttorney
DATE: March 1,2417
SUBJECT: A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, STRONGLY OPPOSING THE LETTER ISSUED BY
THE U.S. DEPARTMENT OF JUSTICE AND THE U.S. DEPARTMENT OF
EDUCATION ON FEBRUARY 22, 2017 WITHDRAWING AND RESCINDING
POLICY GUIDANCE THAT WAS ISSUED BY THE OBAMA ADMINISTRATION
THAT REQUIRED SCHOOLS TO ALLOW TRANSGENDER STUDENTS ACCESS
TO SEX-SEGREGATED FACILITIES AND ACTIVITIES BASED ON THEIR
GENDER IDENTIW.
RECOMMENDATION
Pursuant to the request of Vice-Mayor Kristen Rosen Gonzalee the attached Resolution is submitted
for consideration by the Mayor and City Commission at the March 1,2017 Commission meeting.
Leoislative Trackino
ffiice of the CityAttomey
Sponsor
Vice-Mayor Kristen Rosen Gomalez
ATTACHMENTS:
Description
u RESO Opposing Transgender Policy Change F.A" 2.28.2417
Page 446 of 1 136
11
RESOLUTION NO.
A RESOLUTION OF THE MAYOR AND CIry COMMISSION OF THE
CIry OF MIAMI BEACH, FLORIDA, STRONGLY OPPOSING THE
LETTER ISSUED BY THE U.S. DEPARTMENT OF JUSTICE AND
THE U.S. DEPARTMENT OF EDUCATION ON FEBRUARY 22,2017
WITHDRAWING AND RESCINDING POLICY GUIDANCE THAT WAS
ISSUED BY THE OBAMA ADMINISTRATION THAT REQUIRED
SCHOOLS TO ALLOW TRANSGENDER STUDENTS ACCESS TO
SEX.SEGREGATED FAGILITIES AND ACTIVITIES BASED ON
THEIR GENDER IDENTITY.
WHEREAS, on May 1 3,.2016, the U.S. Department of Justice and the U.S.
Department of Administration issued a Dear Colleague Letter on transgender students
(Obama Administration's Letter) which provided information and guidance for schools
relative to their obligations regarding transgender students and how recipients of
Federal financial assistance would be evaluated for compliance with Federal anti-
discrimination laws; and
WHEREAS, the Obama Administration's Letter stated that Title lX of the
Education Amendments of 1972 (Title lX), and its implementing regulations, prohibit sex
discrimination in educational programs and activities and that prohibition encompasses
discrimination based on a student's gender identity; and
WHEREAS, the Obama Administration's Letter also stated that schools "have a
responsibility to provide a safe and nondiscriminatory environment for all students,
including transgender students" and that "a school must treat students consistent with
their gender identity even if their education records or identification documents indicate
a different sex" and, in addition, when "a school provides sex-segregated activities and
facilities, transgender students must be allowed to participate in such activities and
access such facilities consistent with their gender identity''; and
WHEREAS, moreover, as noted the Obama Administration's Letter, failing to
take reasonable steps to protect students' privacy related to their transgender status
was a circumstance when a Title lX violation may be found; and
WHEREAS, on February 22, 2017, the U.S. Departments of Justice and
Education under the Trump Administration issued its guidance letter, withdrawing and
rescinding the statements of policy and guidance in the Obama Administration Letter, as
well as those set forth in another guidance letter issued in 2015; and
WHEREAS, the new guidance letter is not only contrary to President Trump's
prior expressions of support for LGBTQ and transgender rights, but it sends a negative
message of intolerance to the nation's transgender youth and their families; and
Page 447 of 1 136
12
WHEREAS, the City Commission of the City of Miami Beach has been a leader
and champion of faimess and equality in its laws and practices and, therefore, strongly
opposes the recent letter issued by the U.S. Departments of Justice and Education on
February 22,2417.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY
cOMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City
Commission hereby strongly oppose the letter issued by the U.S. Departments of
Justice and Education on February 22,2A17 which withdrew and rescinded prior policy
guidance by the Obama Administration that required schools to allow transgender
students access to sex-segregated facilities and activities based on their gender
identity.
PASSED AND ADOPTED this
-
day of March, 2417.
ATTEST:
Philip Levine, Mayor
Rafael E. Granado, CltY Clerk
APPROVED ASTO
FORM & LANGUAGE
& FOR EXECUTION
<J8h7
Dote
t\atto\turn\resos\reso opposlng bansgender pollcy change.doc
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Resslr$onsi8Z_v
AAIAAAI BEACH
GOMMISSION MEITIORAN DU M
T0: Honorable Mayor and Members of the City Commission
FROM: Raul J. Aguila, CityAttorney
DATE: March 1,2017
SUBJECT: A RESOLUTION OF THE MAYOR AND CIry COMMISSION OF THE CIry OF
MIAMI BEACH, FLORIDA, STRONGLY SUPPORTING A FREE PRESS AND
ACKNOWLEDGING ITS VITAL ROLE IN A FREE AND DEMOCRATIC SOCIETY;
AND, FURTHER, DIRECTING THE CITY CLERK TO TRANSMIT A COPY OF
THIS RESOLUTION TO PRESIDENT DONALD TRUMP AND SENATOR IUARCO
RUBIO.
RECOMMENDATION
Pursuant to the request of Mce-Mayor Kristen Rosen Gonzalez. the attached Resolution is submitted
for consideration by the Mayor and City Commission at the March 1,2017 Commission meeting.
Legislative Tracking
Office of the CityAttomey
Sponsor
Vice-Mayor Kristen Rosen Gorzalez
ATTACHMENTS:
Description
s Free Press Reso
Page 1014 of 1 136
15
i :i-. lalEry. i-'-Yr':P
RESOLUTION NO.
A RESOLUTION OF THE MAYOR AND CITY COMMISSION
OF THE CITY OF MIAMI BEACH, FLORIDA., STRONGLY
SUPPORTING A FREE PRESS AND ACKNOWLEDGING ITS
VITAL ROLE lN A FREE AND DEMOCRATIC SOCIETY; AND,
FURTHER, DIRECTING THE CITY GLERK TO TRANSMIT A
COPY OF THIS RESOLUTION TO PRESIDENT DONALD
TRUMP AND SENATOR MARCO RUBIO.
WHEREAS, as stated in the First Amendment to the United States Constitution,
"Congress shall make no law ".. abridging the freedom ,.. of the press... ."; and
WHEREAS, the freedom of the press, and its protection in the First Amendment,
are fundamental and vitalto a democracy in which the government is accountable to the
people; and
WHEREAS, a$ stated by U.S. Supreme Court Justice Hugo Black in his
Concurring Opinion in the landmark prior restraint case of New York Times Co. v.
United $tateq, 403 U.S. 713 (1971): "ln the First Amendment, the Founding Fathers
gave the free press the protection it must have to fulfill its essential role in our
democracy. The press was to serve the governed, not the governors."; and
WHEREAS, quoting James Madison's proposals for the amendments to the
United States Constitution, Justice Black's Concurring Opinion also included the
following at page 716: "The people shall not be deprived or abridged of their right to
speak, to write, or to pubtish their sentiments , and the freedom of the press, as one of
the great bulwarks of liberty, shall be inviolable."; and
WHEREAS, as stated by ihe American Civil Liberties Union, "a free media
serves as a watchdog that can investigate and report on government wrongdoing. lt is
also a vibrant marketplace of ideas, a vehicle for ordinary citizens to express
themselves and gain exposure to a wide range of information and opinions." and
WHEREAS, even as early as 1774, the First Continental Congress addressed
the freedorn of the press in its Appeal to the lnhabitants of Quebec, as follows:
The last right we shall mention regards the freedom of the press. The
importance of this consists, besides the advancement of truth, science...
and arts in general, in its diffusion ol liberal sentiments on the
administration of Government, its ready communication of thoughts
between subjects, and its consequential promotion of union among them,
whereby oppressive officers are shamed or intimidated into more
honorable and just modes of conducting affairs... .; and
Page 1015 of 1136
16
" ,J:BE"!rYf{!p}.::
WHEREAS, the accountability of government has never been more important in
America than it is now when segments of the press have recently been refused access
to White House briefings and the press has been denounced by the President of the
United States, most recently at the Conservative Political Action Conference when
journalists were referred to as "the enemy of the people"; and
WHEREAS, as Republican Senator John McCain recently stated in response to
White House efforts to suppress the media, "We need a free press. We must have it. lt's
vital." lndeed, as Senator McCain further stated, "if you want to preserve democracy as
we know it, you have to have a free and many times adversarial press ... And, without it,
I am afraid that we would lose so much of our individual liberties over time. That's how
dictators get started." and
WHEREAS, the Mayor and City Commission of the City of Miami Beach strongly
support a lree press as a fundamental and valuable component of our free and
democratic society.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND GITY
GOMMISSION OF THE CITY OF Mnftrl BEACH, FLORIDA, that the Mayor and City
Commission hereby strongly support a free press, and acknowledge its vital role in a
free and democratic society; and, further, direct the City Clerk to transmit a copy of this
Resolution to President Donald Trurnp and Senator Marco Rubio.
PASSED AND ADOPTED this
-
day of March, 2017.
ATTEST:
Philip Levine, Mayor
Rafael E. Granado, City Clerk
APPROVED AS TO.
FORM & IANGUAGE
& FOR EXECUTION
I
zhdtzE;-
F:\ATT0\TURN\RESoS\ Free Press Reso 20'l7,doc
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Resolutions - R7 W
COMtTflSS ION ME MORAN D U M
Honorable Mayor and [/embers of the City Commission
Jimrny L. Morales, City Manager
March 1,2017
MIAMI BEACH
TO:
FROM:
DATE:
SUBJECT A RESOLUTION OF MAYOR AND CIry COMMISSION OF THE CIry OF MIAMI
BEACH, FLORIDA, APPROVING AND AUTHORIZING THE MAYOR AND CIry
CLERK TO EXECUTE, SUBSTANTIALLY IN THE FORM ATTACHED TO THIS
RESOLUTION, AN AGREEMENT WITH BIG BELLY SOLAR, INC., FOR A TERM
OF
-
YEARS; SAID AGREEMENT EXTENDING THE TERM OF THE
TWENTY-FOUR (24) EXISTTNG SMARTBELLY TRASH CAN STATTONS, WHrCH
WERE THE SUBJECT OF A ONE YEAR PILOT PROGRAM, AND ADDING
ADDITIONAL SMARTBELLY TRASH CAN STATIONS, ALL TO BE LOCATED
ALONG WASHINGTON AVENUE, BETWEEN sTH STREET AND 17TH STREET,
IN THE TOTALAMOUNT NOT TO EXCEED $99,OOO ANNUALLY.
RECOMMENDATION
The Administration recomrnends approving the resolution.
ANALYSIS
At its July 8, 2015, the City Commission accepted the recommendation of the lv1e,y 27, 2015
Sustainability and Resilience Committee, to proceed with a pilot program and explore a range of
financing options proffered by Big Belly Solar without advertising and subsequently adopted
Resolution 2015-29067. On December 4, 2015 the City and Big Belly Solal lnc. (Bigbelly)
agreed to launch a 12-month pilot program that would allow for the lease of twenty-four (24)
Bigbelly + Smartbelly Double Stations under a service contract at a monthly rate of $128 per
station, for a total monthly cost of $3,072.
At its October 26, 2016 Sustainability and Resiliency Committee meeting, the Committee
requested a financial analysis be conducted of the Bigbelly pilot program. A discussion was
made to the Finance and City Wide Projects Committee on December 16, 2016. Preliminary
cost information and program expansion possibilities were discussed.
The cunent trash receptacles deployed in most locations are manufactured by Victor-Stanley.
The purchase cost for a Victor-Stanley can is $1,400, and over the course of its ten year service
life; it is refurbished every other year at a cost of $200. This results in an average annual cost of
$220 peryear.
For the original pilot project, Bigbelly has provided dual units consisting of a compacting trash
Page 1022 of 1167
19
unit and a recycling container for the monthly cost of $128 per set. lf one were to consider a
similar service life, the average annual cost would be $1,536 per year.
On January 18, 2017, Bigbelly provided pricing with the original 24 units remaining at a
discounted price based on a 60 month deployment. Additional units or any reduction of the
contract time period would result in higher pricing.
The Administration is interested in extending the pilot program to see if the technology offers
sufficient efficiencies in service and recycling to offset the higher cost of the Bigbelly stations.
The concept would be to take a segment of Washington Avenue and make it exclusively
Big belly tras h receptacles.
A discussion was held at the January 20,2017 meeting of the Finance and Citywide Projects
Committee. The Committee voted to expand the pilot program along Washington Avenue with
the direction to report back in six (6) months. ln addition, future financial analysis over an
extended period of time should include cost of living adjustments for labor components.
At the February 8,2017 meeting, the City Commission directed Public Works staff to continue
its contract negotiations with Bigbelly and to bring it back in March on the agenda.
Staff has had several discussions with Bigbelly representatives to develop a mutual agreement.
The latest discussions have resulted in the proposal including insurance to cover damages and
losses of the units, a third party policy at a cost of $3500 with a $1000 deductible and an
additional catastrophic loss policy with a $30,000 deductible will be preferable at this time.
There is also a $10,897 fee to move the existing stations to Washington Avenue as well as a
shipping charge of $7,904 for the additional units being provided.
Attached is the latest draft agreement which is still subject to negotiation. We recommend
capping the total annual value of the contract at the $99,000. While a lower per unit cost has
been provided for the 60 month option, we believe a complete evaluation of the effectiveness
of these units in reducing man hours to service these stations should be achievable within a 36
month period. An adjustment to the number of cans to stay within the budget amount can be
accomplished with a full evaluation at or near the end of the 36 month period.
CONCLUSION
The Administration recommends approving the resolution.
Legislative Tracking
Public Works
ATTACHMENTS:
Description
Page 1023 of 1167
20
D agreerent
Page 1024 ot 1167
21
B,"g.F*lJy
BIGBELLY SERVI CE AGREEMENT
City Redline2-24-2017
Agreement No.
Full Lesal Name: Cifv of Miami Beach Lesal Contact:
Billing Address: 1700 Convention Center Drive
Miami Beach, FL 33139 US
Billins Contact:
Billine Phone:
Billins Email:
Sales Tax }( Exempt (Attach Certificate)
Status: ! Non-f,xempt
TIN or FEIN:
lnsurance: ll Sett Insured
E Insurance Certificate Attached
Shipping Address:Shipnine Contact:
Shipping Phone:
Shipping Email:
24 Existing Bigbelly + Smartbelly Double Station * Rear Panel Standard
Energy with side message panels ("Existing Stations")
Faceplate 1: Black hopper; Faceplate 2: Single Sream
_ New Bigbelly + Smartbelly Double Station - Rear Panel Standard
Energy with side message panels
_ New Bigbelly + Smartbelly Single Station - Rear Parcl Standard
Energy with side message panels (collectively, ("New Stations")
The Existing Stations and New Stations shall be collectively referred to as
"Stations".
(Note: advertising anywhere on the Station (including message panels)
shall be prohibited; only the Bigbelly logo may be displayed on the Station)
Program includes the following services for each Station:
o CLEAN Console and CLEAN Mobile Software Licenses
(collectively, CLEAN Software")
r Warranty (parts and labor - including system battery)
. Shipping, Installation and Set-up
o CLEAN Software and Station Hardware Training
The Station(s) and CLEAN Software for use at each Station shall be
collectively referred to herein as the "Equipment". The Equipment and other
services being provided to the City by Bigbelly under this Agreement, including
warranty and training. shall be collectively referred to herein as the "System".
36 Months
36 Months
36 Months
$$
s
S
Equipment Insurance Fee: Total Annual Cost (Paid in advance annually)
*Insurance is provided for all stations as a fleet, not per individual station. Customer is responsible for paying
the deductible which shall apply on a per incident basis. The cost ofthe policy and any deductible thereunder
shall be subject to annual adjustment on the policy anniversary date (Nov 1'1).
**This amount shall become due upon execution ofthis Agreement and be prorated for the hrst year of
coverage (date of execution until l0l3 1 12017).
$3,500.00
Shipping f,'ee: One Time Fee (applicable to New Stations only)$7,904.00
Relocation Fee: One Time Fee (to move Existing Stations including de-install, relocation, re-install)$10,897.00
Bigbelly Service Agreement BBSA2or507r.+Page tlz3
22
Total MontNy System Cost including insurance for Equipment (Paid in advance monthly) I $
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Bigbelly Service Agreernent BBsr\Zolso7l5 Pag e z lz3
23
This Service Agreement (the "Agreement"), made and entered into as of (the "Effective
Date"), by and between the customer identified above ("Customer" or the "City") and Big Belly Solar, Inc.
("Bigbelly", 'oVendor") a Delaware corporation located at 150 A Sffeet, Suite 103, Needham, MA 02494, and
incorporates herein by reference the Terms and Conditions attached hereto as Attachment A. Vendor and
Customer shall each be referred to herein as a "Party"" This Agreement may be executed in counterparts, each of
which shall be an original, but which together shall constitute one instrument. Intending to be legaily bound,
each of the parties has caused this Agreement to be executed by its duly authorized representative as of the date
set forth above. The City Manager's designee for purposes of this Agreement shall be the City's Public Works
Department Director.
CITY OF MIAMI BEACH
r.;ill i;$'.::
il,..tr
soLA& rNC'
By:
Philip Levine, Mayor
'i,iffu,*,qliin}
"d,...-Ill,311,,",
ittll:"
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ATTEST:
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\ffITNESS:
By:By:
Rafael E. Granado, City Cleik
nted Name:
"'Title:
:i;
Date:Date:
Bigbelly Ser-vice Agreerrrent BBSA?OI5O7I5 Page 3123
24
ATTACHMENT A
BIGBELLY SERVICE TERMS AND CONDITIONS
For purposes of this Attachment A, the "Agreement" shall mean the Bigbelly Service Agreement signed by the
parties, including this Attachment A. The meaning of capitalized and undefined terms appearing in these Terms
and Conditions shall be as set forth in the Bigbelly Service Agreement unless otherwise indicated herein.
1.0 Term of Agreement
1.1 Term. As outlined in the Services Schedule, the Term of this Agreement ("Term") will
corrmence on the Acceptance Date, as defined hereinafter, and will expire ( ) years
from the Acceptance Date. The Acceptance Date,ppa.tl'be defined as the date when all of the
New Equipment (as defined in Section 3.1(A)) oi&red pursuant to this Agreement has been
delivered to the Customer at the receiving locafidn'designated by Custome4 (2) All of the New
Equipment has been installed at the agreed upon Equipment Sites (as defined in Section 3.1(D);
(3) all of the Relocated Equipment (as defined in Section 3.1(A) has been installed at the agreed
upon Equipment Sites; (and (4) all of_t-hg New Equipment and Relocated Equipment have been
accepted by Customer in writing, as evidenced by a signed Acceptance Certificate, in the form
attached hereto as Attachment B. fhe plities agregi&sooperate $dffi3t the Acceptance Date
does not exceed three (3) weeks after the dat,E;.a,!}1N6 'Stations are delilribred to Customer. The
Existing Equipment is the sudwt,of.a separate=:Bjftlly Service Agreement, dated December 4,
2015 (the "Existing Agreementlll Whieh,,rs cune@1ip,Bing extended by the parties, on a month
to month basis, and which ExistiqgEquifEe* will be incorporated into this Agreement as of the
Acceptance Date,,, Upon commeri0bment of$ft lffierm, ffi,ASreement shall effectively replace
and supersedg.;Iie:.lxisting Agreement, which as of the Acceptance Date will be considered
automatically $d immediately termid*ed; ,,91..0i'to the extent otherwise provided herein, the
Term is non-cancelable. ,
I l; )::
ir:- | ):. . : .:'' ==u==1=,,,,.'r,;1',,
2.1 '''fegs. ln compensati.gn for the Bigbelly System described in this Agreement, Customer agrees to
pay,the Service Fe6i:ffie,Equipdent Insurance Fee for personal properfy described in Subsection
3.1(K);(4)) and any offib1 fees'(iacluding one time fees) payable for services specified in the
Agreemei!fi,rSchedule (c$llbctively,'"Seryice Fee" or "Fee"). Bigbelly shall submit invoices to
Customei during the Term of this Agreement per the payment terms outlined in the Agreement
Schedule. Pa$f!Lqnts dile'under this Agreement are subject to the Florida Local Government
Prompt Paymenti,Actr,$mion 218.70 to Section 218.80, Florida Statutes. The Parties agree that
each payment due uilder this Agreement shall be paid within forty-five (45) days from the date
on which the applicable invoice is received by Customer. All payments shall be made by check
or, at Customer's option, may be automatically deposited to the account of Bigbelly. Late
payments shall be subject to interest at the rate of one percent (l%) per month pursuant to the
Florida Local Government Prompt Payment Act.
2.0
2.2 Service Fee Prices.Service Fees are guaranteed for the Term of the Agreement,
3.0 Obligations of the Parties
3.1 Bigbelly'sObligations
(A)Equipment: Software: Ongoing Services. The System which is the subject of this Agreement
shall include twenty-four Q\ Existing Stations with Clean Software ("Existing Equipment"), of
which eighteen (18) will be relocated to a mutually agreed upon site on Washington Avenue
Bigbelly Service Agreement BBSA2Or507r5 Page +lzS
25
between 5th street and 17th Street (the "Relocated Equipment") and 42 New Stations. Bigbelly
will supply the System identified in the Agreement Services Schedule on a rental basis to
Customer for the Term of the Agreement. The New Equipment will be new, not refurbished or
used.
(B) CLEAN Software License. The CLEAN Software License Agreement includes communication
services and access to the CLEAN Management Console and CLEAN Mobile. Customer's use
of the Software is subject to the then current CLEANTM Software License Agreement.
(C)Equiprnent Delivery. Bigbelly will deliver the New Equipment to a receiving dock or to a
location mutually agreed upon by the parties before the shipment. Bigbelly hereby warrants that
as of the delivery date of the New Equipment or as of the installation date of the Relocated
Equipment, the Equipment shall be:
,,
(a) good and merchantable, (b) free from defects and:malfunctions, (c) free of liens, security
interests or other encumbrances, (d) complies w,ifi,all applicable laws, rules, regulations and
orders, and (e) is fit for the purpose for whffi,the Eqg,ipment is intended.
(D)Installation. The New and Relocated Bigbelly waste and recycling Stations will be installed by
Bigbelly at mutually agreed upon locaticls, including semi-pbrr.nanent attachment to the ground
("Equipment Sites"), as more nilly setQ* in Attachment C. In$t lation of the New Equipment
and installation of the Relocated Equifteni *il.-1.-9.F: in accordtfte with the delivery and
installation schedule agreed to.,,bJ the partieS, and memorialized in writing, as Attachment C-1,
executed by Bigbelly and the City Manager, on behalfof Customer.
(E) Training. Bigbelly shall, at its:r€x-pense, p=rovide Customrr Equipment and Software training,
("Customer Trairlirlg PlAn') to the-personntil&ignated;i-i,ii-writing, by the City Manager or City
Manager's de-signee'prior to the Acceptance Date, and ai necessary, during the Term of the
Agreement. ', itemi zatiin of the tofics wt irt will be covered under the Customer Training
Plans are set $ith in Attachment D, attabhed hereto and incorporated herein by reference. The
narti,q-s,gha1l3gree8po-n,.th=e-'.1b9e.!,i,,andme,thpdof training.
All Equipment
failures caused''iB$,,.manufactu{er defects; any repair or replacement required by routine
maintqnance for noifiS*wear'$ifd, ar and excessive wear pursuant to the standards described in
Attachdent f fBigb@,,MaintEm-hce Obligations"); or any repair which may be required so
that the Equipment operates as intended, will be repaired by Bigbelly upon Customer's request
(including partsgd labor) at no cost to Customer. Replacement parts provided by Bigbelly may
be new, refurbffi$ er,,,Certified used. Bigbelly agrees to respond to all such requests and
dispatch a Field SeffiCe Professional (as defined in Section 3.1(H) as follows:
i. Acknowledge any Customer Support request for replacement or repair within turo (2) business
days (the "Acknowledgement Window'),
!!-Complete any repairs within trvo (2) business days of Acknowledgement Window, and
lj!-Replace any Equipment within ten (10) business days of Acknowledgement Window, unless
delayed by Customer.
If Bigbelly Field Service Professional is dispatched and Bigbelly determines the issue is due
to failure of Customer to provide best efforts in connection with the Customer's Repair
Responsibilities (as defined in subsection 3.2(E)), to Customer error, or to damage as a result
Bigbelly Service Agreen-rent BBSAzor50Tr5 Page 5l2f
26
of a Customer Loss (as defined in Section 4.2 below), Bigbelly reseryes the right to bill
Customer for the necessary parts, service call and/or repair, as applicable.
(G)Third Parry Damage. All repairs and part replacements required as a result of external trauma,
error, misuse, abuse or damage (including but not limited to vehicle strikes or vandalism)
(hereinafter referred to as "Third Party Damage") shall be performed by Bigbelly at Bigbelly's
expense to the extent not covered by Bigbelly's insurance policy in accordance with the
provisions contained in Sections 3.1(K) and 4.2.
(H) Customer Support and Equipment Maintenance. Except for losses described in Section 4.2
below, Bigbelly will maintain the Equipment in good working order and operational condition in
accordance with best practices. Technical Customer Support ("Bigbelly Customer Service") is
available Monday through Friday, 7 am to 7 pm ESf$yguide Customer in troubleshooting any
minor common operating issues, including Customei'Repair Responsibilities, and placing repair
service requests. In addition, Bigbelly map,,tains.. a network of trained Field Service
Professionals, in Miami-Dade County, Flori.da;iat'ailable'f,or dispatch upon a Customer's request
to investigate and resolve issues in the !.g,l quipment batteries will be replaced by Bigbelly at
(I) Removal. Upon Bigbelly shall surren0ei'ffi,p"ites in $....-,9 same condition as they were prior to
the Acceptance Date. Bigb:q,Jly shall, at ft$,.,Spggff3..8*pense, in an Efis:qnt not to exceed $300
Bigbelly's obligalion to observe or perform this eovenant shall survive the expiration or other
termination i:ilfii""this.,,,.AgreemeQ .r.l- Continr4ed bccupancy of any Equipment
Sites for -oi iiilu, sixty (60) days atii termination "itt "
Agreement shall constitute trespass by
Bigbelly, and mH$fu pros.q,g d as such,,, gbelly shall pay the City One Thousand $1,000.00
Doflars',per day pefEquipm}*$ite,as liquidaled damages for such trespass and holding over.
-: r '"
(J) Slbcontractof S-er,yig.es. ts,#Up]ty may- ct with third parties to provide Ongoing Services.
(K) Insurance. Bigbeily$d/or'6ii,f$its subcontractors shall maintain and carry in full force during
4
the Texm the followinil,r.iixuranceilltii i
::::::::::::
1. Worker'3ri*Qglgrpensatio**surance as required by Florida, with Statutory limits and
Employer's.'I-i ty I+s$'rance with lirnit of no less than $1,000,000 per accident for
bodily injury or disease.*
2. Commercial Genedl:fiability Insurance on an occurrence basis, including products and
completed operations, contractual liability, property damage, bodily inju.y and personal
& advertising injury with limits no less than $1,000,000 per occurrence, and $2,000,000
general aggregate. (The general aggregate shall apply separately to this Agreement.)
3, Automobile Liability lnsurance covering all owned, non-owned and hired vehicles used
in connection with the work, in an amount not less than $1,000,000 combined single limit
per occurrence, for bodily injury and property damage.
4. Property insurance, including catastrophic events, as defined under the policy, containing
a waiver of subrogation rights which Bigbelly insurers may have against Customer and
against those for whom Customer is in law responsible including, without limitation, its
directors, officers, agents, and employees, (without contribution). Such insurance shall
Bigbelly Service Agreemeat BBSA2ot5o7l5 Pa ge 6lZ3
per Station, remove all Stations ftom the Equiper Station, remove all Stati* fto11the Equipment Sites no later than thirty (30) days after the
conclusion of the Term, notwiths{4d{}pp feasonabib d;}y, (or from the date of other termination
of this Agreement) unless a tonfir lffiiperiod ir di}$d to, in writing, by the City Manager).
27
insure the System in an amount not less than the fulI replacement cost thereof (new).
Such policy shall include Customer as additional insured. At any time during the Term of
the Agreement, upon providing Bigbelly with sixty (60) days written notice, the City
Manager may opt to self-insure for the coverages set forth in this subsection 3.1(K) (4).
The City would be entitled to a credit for any unearned premiums which Bigbelly
receives in connection with said cancellation.
Additional Insured Status
The City of Miami Beach must be covered as an additional insured with respect to liability arising
out of work or operations performed by or on behalf of Bigbelly.
Waiver of Subrosation
Bigbelly hereby grants to City of Miami Beach a wq'lEiE any right to subrogation which any
insurer of Bigbelly may acquire against the City of Miami Beach by virtue of the payment of any
loss under such insurance. Bigbelly agrces 1o o,bi+--:- ... dorsement that may be necessary to
affect this waiver of subrogation, but this provision applies re$ardless of whether or not the City of
Miami Beach has received a waiver of subrogation endorsement &om the insurer.
,r-t:::ri:::=
Other Insurance Provisions
1. For any property claims made under this Agreement for the refliCement of any Equipment,
Bigbelly's coverage shall be primary insurance as respeCts the City of Miami Beach, its officials,
officers, employees, and volunteers. Any insurance or self-insurance maintained by the City of
Miami Beach shall be in exce$$df'Bi$telly's insurance and shall not contribute with it.
2. Eachpolicy required by this clause shall p_rovide that coverage shall not be canceled, except with
Insurance is 6Ea with insurers with a current A.M. Best's rating of no less than A:VII,
unless otherwise accqpta-ble tg City of Mianri Beach Risk Management Office.
lan$!ry effecting ''Eg-,erage".- ired by this Section. All certificates of insurance and
endoiGfunts are to be received prior to any work commencing. However, failure to obtain the
required'ctlverage prior t$lll.lthe woflt:"beginning shall not waive the Consultantos obligation to
provide thefillli,The City offiami Beach reseryes the right to require complete, certified copies of
all required inSrimnce po-$$$.$s, including endorsements required by these specifications, at any
tlme. ':i ; ,1,,
Special Risks or Circf#stances
The City of Miami Beach reserves the right to reasonably request modification of these
requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage,
or other special circumstances. In accordance with the foregoing, Customer agrees to reasonable
adjustment of the Equipment Insurance Fee, and deductible as may become necessary.
Certificate Holder
CITY OF MIAMI BEACH
c/o PROCUREMENT DEPARTMENT
17OO COIIYENTION CBNTER DRTYE
MIAMI BEACH, FL 33139
Bigbelly Service Agreenrent BBSi\2oI5o7l5 Page Zl23
28
Compliance with the foregoing requirements shall not relieve the vendor of his liability and obligation
under this section or under any other section of this agreement.
L.
3.2
Equipment Insurance Fee
As compensation for property insurance provided by Bigbelly, Customer shall pay the annual
Equipment Insurance Fee as described in the Service Schedule. Customer acknowledges that such
insurance is calculated and extended for all stations as a fleet and does not otherwise reflect or
indicate coverage per individual station. For any and all claims made pursuant to Bigbelly's
insurance policy covering the cost of Equipment replacement or repair, Customer shall be
responsible for paying the applicable deductible, which amount shall apply on a per incident basis.
The annual Equipment Insurance Fee (including the cost of the policy and any deductible
thereunder) shall be subject to annual adjustment on the policy anniversary date (Nov 1't) and paid
up-front annually. The Equipment Insurance Fee shall become due upon execution of this
Agreement and be prorated for the first year of coverage (ddte of execution :until l0/3l/2}fi).
'lCitv's Option to Self-insure
At any time during the Term, the City shall ave the'futign to self-insure and assume the
responsibility _, ,
t
t;:
,
Reportine/Monitoring of System. Within ahirfy (30) days from thdre'pd of each month dtring the
Term, Bigbelly will emploV be;t. efforts to [i de .G-itomer with a ieport or the capability to
generate a report, using reasonablB,,,crijeria requested 'Customer, at Cu$tomer's sole discretion,
showing the service levels and 'statiip performaned ,levels, as well as the recycling levels.
Additionally, Customer shall be givea aCcess to the Station's CLEAN Software through an Internet
Protocol Address (IPA) o-r dashboard accessibilryso that Customer may monitor the effectiveness
Customer's Obligttlw ,i i
(A)Custome{ a€rees tli@igli-glly};,ability to peform the Services under the Agreement in a timely
m er:,,,i deprcndent ri.pon aCcess to Customer's installation information and locations.
(B) Cfi-i&r agrees to"$i&:tor tiffi&hipping expense of the New Equipment,in the lump sum of
$79.04 per Station, andt.provid6=,dn appropriate facility that can received inspect and stage all
New Bi$ellyEquipment*ntil the New Equipment is installed.
(C) Customer agree to provide a poured concrete pad if the intended installation surface does not
meet Bigbelly':;.6p;qci$#ions. If Customer's installation surface does not meet such
specifications, the Customer shall pay, subject to a reasonable estimate, any additional cost
associated with Bigbelly's efforts to properly prepare the surface, which will be at Customer's
expense. It is the Customer's responsibility to remove at Customer's expense, existing bins or
any other items from the locations where Bigbelly stations will be installed. Notwithstanding the
foregoing, Customer reserves the right to change the location of an Equipment site, if, in the City
Manager's sole discretion, the site preparation cost or other installation factors are not acceptable
to Customer.
(D)Unsafe Condition. Customer agrees to provide immediate notice to Bigbelly with respect to any
damage or other event which causes the Equipment to pose a public safety issue or create unsafe
operating conditions. City shall remove or otherwise secure from the public space any damaged
equipment that poses an immediate threat to the public or operator safety ("Unsafe Condition").
Upon receipt of notification of said Unsafe Condition, Bigbelly will dispatch a Field Service
Bigbelly Service Agreement BBSA20r507t5 Page 812]
29
Professional, the cost of which shall be determined in accordance with the provisions set forth
herein, to repair any Equipment, or replace any Equipment that Customer has identified as
causing an Unsafe Condition, within the timelines set forth in the preceding subsection 3.1(F).
(E) Automated System Monitoring and Customer Support Escalation. Customer will respond to
minor issues they observe or are notified of via automated CLEAN alerts including but not
limited to a dirty sensor alert or minor operational issues such as a jammed hopper or a Station is
not connecting to the network due to location or placement of Station (collectively "Customer
Repair Responsibilities). Customer will use best efforts to promptly resolve these Customer
Repair Responsibilities and may contact Bigbelly Customer Service to receive troubleshooting
assistance and instructions for proper handling. If Customer's efforts do not resolve these
Customer Repair Responsibilities, or the alert relates to a maintenance issue or a repair issue (as
described in the preceding subsections 3.1(F) and 3.1(G-)$e Customer needs to inform Bigbelly
of the action taken and the status of the Station, igbelly will investigate and repair the
Station at Bigbelly's expense. Notwithstanding thdifCIragoing, if the issue is found to be due to
Customer not taking ordinary precautions to c-e-* - y f Customer's Repair Responsibilities,
or Customer error, misuse or abuse, then Bif,belly't-$wes the right to bill customer for
reasonable and customary incurred expepgiis.,, If Customei:rlEdbnot resolve a network intemrption
using the guidelines provided by Bigtetlr; Customer will inbrm Bigbelly and Bigbelly will
investigate at Bigbelly's cost. : ,
(F) Customer is a Florida municipal corporatiE-n:.and self-insures for liability coverage. Customer
does not carry insurance with,..,a5t rnsurance cO ** So Customer canrtdt provide Bigbelly with
a certificate of insurance. HO"fu,.{ r, in compli4}te with and subject to limitations of Florida
Statutes, Section 768.28 and 440-09, provisions have been made by Customer to process any
liability claims that may arise and the same protection *ill be afforded as would be provided by
a policy of insu_rame,, " Upon eiecrtion ofl,this Agrebmcat, Customer will provide a letter
confi rming s elf-ins*anCe r covor&ge for the liabil ity cov erage.
(G) Customer reserves the right to change.Equipment SiteS, at the City Manager's sole discretion
and at Customdrig,isole ex ense. With1b..five (5) business days following relocation of any
Equigmgg.!,_Custom&,,,sha1,.,:{i
fi,F-..14"11 .,L*dting of the specific location of such Equipment.
4.
4.1
(A)TitIq=.As further set iorth in;S&tion 5.4 below, Bigbelly is and will at all times be the sole
owner of*e EquipmeffiCustofi'& shall not acquire any title or interest, legal or equitable, in
the Equipt$Qqt, other thaElthe use rights set forth in this Agreement. In the event this Agreement
is deemed toi'be disguisd sale, Customer hereby grants to Bigbelly a security interest in the
Equipment f@1 fceisions
thereto and substitutions therefore) and the proceeds thereof.
(B)Use of EquipmentlllffiUStomer shall use the Equipment solely for waste collection and recycling
operations. Customer shall ensure safe operation of the Equipment by trained personnel.
Customer and Bigbelly shall comply with all Bigbelly and governmental guidelines, laws,
rules, regulations and ordinances applicable to the use and operation of the Equipment. The
Equipment cannot be used for advertising purposes and may only contain the Bigbelly logo.
(C)No Pledge. Customer shall not pledge, lend, create a security interest in or permit any lien to
attach to the Equipment or any part thereof or attempt in any other manner to dispose the
Equipment.
(D)No Attachments. Customer represents and warrants that the Equipment is, and shall at all times
remain, fully removable personal property notwithstanding any affixation or attachment to real
property or improvements. Customer shall give Bigbelly immediate notice of any such
attachment or other judicial process affecting the Equipment and shall immediately take all
Bigbelly Service Agreement BBSA20I507I5 Page I lz3
30
action necessary to remove such attachment and terminate the effect of such judicial process on
the Equipment.
(E) Equipment Inspection Rights. Bigbelly and its agents shall have the right to enter any premises
where Equipment is located to inspect such Equipment at any time with reasonable advance
written notice to Customer.
4.2 Risk of Loss. From the Acceptance Date of the Equipment by Customer until the expiration of the
Tenn, Bigbelly will bear the entire risk of whole or partial loss, destruction or damage to the
Equipment resulting from any casualties, including earthquake, flood, named windstorm, not
otherwise covered by insurance as set forth herein; requisition of the Equipment by any
governmental entity; or expropriation or the taking of the Equipment by eminent domain or
otherwise casualties, including, without limitation, earthquake, flood, named windstorm, and defects,
flaws or malfunctions in the Equipment ("Bigbelly Losses); however, excluding any losses resulting
from Customer's or its employees', contractors' or agent$ractions or omissions with respect to the
Equipment; ("Customer Losses")(collectively, gigh$llyland Customer Losses shall be referred to
herein as a 'Loss'). Notwithstanding the foregoing';,an, Lois covered under Bigbelly's all-risk loss
or damage insurance policy, as required pursuant to'Section 3.1(KX4), or any Loss caused by a third
party (not Customer or Bigbelly) shall not-rbg;:.idcluded as a Customer Loss. Customer will give
Bigbelly written notice within 10 days p_fiani Loss ('Loss NotiCii?). Except as provided in this
section, no Loss will condition, reduce, toi relieve Customer's r6rital obligations, including its
obligation to pay any fees pursuant to the Ag.b& u".,d V Attachmdffi} reto. Notwithstanding
the foregoing sentence, if Bigbelly does not repaiithe Equipment within the timeline set forth in the
preceding subsection 3.1(F) or }q.iir{a-Ee e Equipment, as applicable, within a maximum of ten (10
business days from receipt of the Loss Notice; thereaft*;,.Customer shall be entitlted to a per diem
rent abatement until such time as the'Equipment is repaird or r-eplaced. The per diem rent abatement
shall be determined by.t#{rg the total iiqonthly payrpent for the_Equipment divided by the number of
days in the month d Loss. If!'g.a result,of a Loss, any Equipment is damaged but can be
economically repaired, Bigbelly shall immediately have the Equipment restored to good working
order and conditiffial Bigbelly's or Customer's expense, as applicable. Customer agrees to
immediately pay, on demand, the cost of any replacement part or repair incurred in connection with any
Customecl-oss. If as a rbsult,o psr,.,the E ent is not economically repairable, or the repair
cost,of& Equipment exceeds its pMV Amount (as defined herein) ("Total Loss"), Bigbelly shall
replace the Equipment withirr,ten (10) days from receipt of the Loss Notice, and Bigbelly or
Customet as applicable;'s1la11 bd:-{$sp_onsible for the replacement cost of the Equipment. If the Total
Loss reSdted from a Cu$$g1er LoBs; Qustomer will, upon Bigbelly's written demand, pay Bigbelly
the fair marlGtvalue of the Equipment ("FMV Amount"). For purposes of this section the FMV
Amount shalF,&.-ean the repHbment cost of the Equipment, plus the cost of shipping, delivery and
installation of thb Equipmen!"as determined by Bigbelly.
5.0 General Terms and Conditib' ;;i I ].llr'i
5.1 Taxes and Other Charges. Customer is responsible for all taxes (including sales, use and personal
property tax), fees, and assessments (collectively, "Taxes") that may be imposed by any
governmental entity or taxing authority in connection with this Agreement or any amount due
hereunder. Customer will reimburse Bigbelly (or pay directly to the applicable taxing authority if
instructed in writing by Bigbelly). Notwithstanding the foregoing, Bigbelly acknowledges that
Customer is a municipal corporation organized under the State of Florida and has been provided
with Customer's Certificate of Exemption, as such, any taxes (including sales, use and personal
property tax), fees and assessments (collectively, "Taxes") that may be imposed by any
governmental entity or taxing authority in connection with this Agreement or the Equipment or any
amount due hereunder which qualifies for exemption pursuant to the Customer's Certificate of
Exemption, shall not be charged to Customer and shall not be due and owing from Customer.
Bigbelly Service Agreement BBSA20l507t5 Page tolz3
31
5.2
5.3
Ongoing Services. Customer agrees that during the Term of the Agreement, it shall keep in effect
the Ongoing Services as defined in the Agreement. Unless otherwise agreed in a written amendment
to this Agreement, Bigbelly or its subcontractors shall be the sole and exclusive suppliers of the
Ongoing Services.
Additions and Modifications of Equipment. Unless otherwise expressly agreed by an officer of
Bigbelly in writing, Customer shall not make any additions, alterations or modifications to the
Equipment. Customer shall not remove, cover or damage any Bigbelly logos or other identification
markings on the Equipment.
Ownership Riehts. The Equipment and Software contain intellectual property including but not limited
to patented and unpatented inventions, trade secrets, know-how, and copynghts all of which is owned
and will continue to be owned exclusively by Bigbelly and/or its licensors and Customer will obtain no
rights thereto other than the limited rights of use under this Agreement. Customer acknowledges and
agrees that all technology, materials, hardware, soffware.is' sole and exclusive property of Bigbelly
(Bigbelly Property). Bigbelly hereby gants Customer a royqlty-free, non-exclusive, fully paid up right
and license to use the Equipment, tle Software, and any intellectual property rights therein as necessary
for Customer and its contractors to use the Equipment and Bigbelly Service consistent with the terms
and conditions of the Agreement and these Te-lms and Conditions. Blgbelly reserves the right, at its sole
cost and expense and subject to applicable;governmental guidelineg laws, rules, regulations and
ordinances, at any time upon notice to Custo*ix,Jo enhance or otherwib$.qodify the Equipment and/or
Software made available to Customer under this A-greemerri, including but nbt timited to enhancements
or modifications for the purpose: of implementing Wi-Fi network capability to the Equipment,
instituting mechanisms for data collection, processing and analysis. Notwithstanding the foregoing, any
content, data or material of which the Equipment and Software is comprised or which is otherwise
contained within or attached to, genuf1ed,iieti.L1ggtg0 or p&ssed by the Equipment and/or CLEAN
Software, in connecti,,q4.with the perfofunce of this Agreement, shall remain the sole and exclusive
property of Custome.I{'C.ustomer Prope{). Additidnally, Bigbdlly will cooperate with Customer in
connection wittr aty*quests foi records Whic!.euStomer ma)r receive pursuant to any Public Records'
Laws including, withfu limitati$fl: Chapter 119, Florida Statutes.
5.4.1 AdyeAiqllg. The.pa_rties acknowledge thlt no advertising is permitted on anyportion of the
Bigbelly,Equi@ent Notu.i&standin$:ft forelgoing, Customer shall be permitted to display public
service messagei''4ipg add nal cost ib'Customer except for any out of pocket cost incurred by
Bigbelly for the pto o, of such related advertising materials, which cosl shall be reimbursed to
,:, ::lermmatlon'
i(A)Effect of Tennj:ration. F'*lept as provided for in Section 5.7 below, or otherwise specified in this
Agreement, anyt.,termi.nafu of the Agreement by Customer, without cause, shall not relieve
Customer of itS' obligations to make any and all payments which obligations are absolute,
unconditional, irreVoCable, non-cancelable and subject to no right of set off, counterclaim,
deduction, or defense.
(B) Post Termination Duties / Surrender of Equipment. Upon the expiration or earlier termination or
cancellation of the Agreement, Bigbelly shall remove the Equipment as described in Section 3.1 (D
above.
Indemnifications by the Parties
(A)Indemnity bv Bigbelly. Bigbelly shall indemnify, defend, and hold harmless Customer and its
directors, offrcers and employees, agents, and contractors, (collectively Customer and/or its
representatives), as to all actions (whether at law or in equity), claims, liabilities, losses, damages
and expenses (including reasonable attorneys' fees and other legal expenses and amounts paid in
settlements) brought against Customer and/or its representatives because of (a) any negligent
5.4
5.5
5.6
Bigbelly Service Agreernent BBSA?or5o7r5 Page lllz3
32
acts, erors, omissions or other wrongful conduct of Bigbelly, its officers, employees, agents,
contractors, or any other person or entity acting under Bigbelly's control or supervision, in
connection with, related to, or as a result of Bigbelly's performance pursuant to this Agreement
or the use of the Bigbelly Equipment; (b) breach or alleged breach by Bigbelly of any of its
warranties to, or agreements with, Customer, (c) any claim that any of the products or services
infringes any patent, trademark, copyright or other intellectual property right, anywhere in the
world, or (d) any death, injury or damage to any person or property caused by Bigbelly's
negligent performance of this Agreement. In no event will Bigbelly be liable for or indemni$r
Customer or its representatives against any damage, claim or injury arising out of Customer or its
representative's gross negligence or any third party's actions, including but not limited to
accidental or intentional tampering with the Equipment.
(B) Indemnity by Customer. Customer shall indemniff,,,pn-d hold Bigbelly and each of their
directors, officers and employees, harmless, and defend Bigbelly and its representatives if it
requests, as to all claims, liabilities, losses, damages and expenses (including without limitation,
reasonable attomeys' fees and other legal expenses and amounts paid in settlements) brought
against Bigbelly and/or its representatives because of"(a) any breach or alleged breach by
Customer of any of its representations, H,EEnties, or agieements with Bigbelly, (b) any claim
that any of the information provided by Customer to Bigbelly infringes any patent, trademark,
copyright or other intellectual property'righr, anywhere in the *ofld, or (c) any death, injury or
damage to any person or property cd .ffi,..by or,'r.e5.ulting frOr[:t,Customer's negligence in
operating or securing the Equipment. ' , -, ,i I ; :,
(C) Survival of lndemnity ff,etrifihi$,'anO obligatid;ffiBigbelly under thii Section 5.6 survive the
termi nation, cancellation or expiration of: this egreement.
5.7 Default: Dispute Settlement: Goveming Law , .
(A)Definition of Ds-ftfii:l',,.:'.,The term "fl[[r11" ,ru* unv of ihJ following events: (i) Customer fails
to make any pa$ent required underthis Agreement and such non-payment is not cured within
ten (10) days.following *filten notice; (ii) Customer or Bigbelly fails to perform any other
obligation under tbtEAgrge.figgg and such non-performance is not cured within thirty (30) days
fo[swing-,]/{itten notice; (iii) Customer or Bigtelly defaults under any other Agreement between
Cuatomei'444,3!gbelly,(iv) Customei:or nigbetty becomes insolvent or makes an assignment for
the benefit of i6 creditors; (v) a receivei trustee, conservator or liquidator of Customer or
Bigbelly of all or h substantial part of such party's assets is appointed with or without the
appliqlion or consenilff such'$ffi; (vi) a petition is filed by or against Customer or Bigbelly
under'bnyrbankruptcy, insolvency or similar law; or (vii) any warranty or representation made by
either pait -ir;fl-erein proiieq,to have been false or misleading when made; or, (viii) there is a
material adnffie,gfang# Customer's financial condition.
(B) Default bv CustU{dbj;$pon the occurrence of a Default by Customer, Bigbelly may do one or
more of the followingas Bigbelly in its sole discretion shall elect: (i) initiate Dispute Settlement
procedures pursuant to subsection (D) herein to enforce performance by Customer of the
Agreement or to recover damages for the breach thereof; (ii) cause Customer, at Customer's
expense (as more particularly set forth in Section 3.1(I)), to promptly return the Equipment to
Bigbelly at such place as Bigbelly designates in writing; (iii) by notice in writing to Customer,
cancel or terminate the Agreement, without prejudice to any other remedies hereunder; (iv) enter
upon, or instruct its agents or assigns to enter upon, the premises of Customer or other premises
where any Equipment may be located and take possession of and remove all or any portion of
such Equipment without liability to Customer by reason of such entry or taking possession; (v)
subject to the limitations on Customer's liability in Section 5.14 hereof, require Customer to pay
to Bigbelly immediately, upon demand, in addition to all amounts then due through the date of
termination, liquidated damages in the amount of the greater of (A) eighty percent (80%) of the
Bigbelly Service Agreement BBSA2or5o7r5 Page tzlz3
33
remaining Service fees to become due during the Terrn or (B) one year of Service fees; however,
said liquidated damages not exceeding one hundred percent (100%) of the remaining Service
Fees to become due during the Term, which liquidated damage amount, owing to the
acknowledged difficulty in establishing a value for the unexpired Initial Term, the parties agree
represents an agreed upon reasonable measure of damages, , and is not to be deemed a forfeiture
or penalty, (vi) charge Customer interest on all monies due Bigbelly at the rate of one percent
(1%) per month from the date of the Default until paid, pursuant to the Florida Local
Govemment Prompt Payment Act; (vii) collect from Customer all expenses incurred by Bigbelly
in connection with the enforcement of any remedies, including all expenses of repossessing,
storing, shipping, repairing and selling the Equipment and reasonable attomeys' fees; and (viii)
exercise any other right or remedy available to Bigbelly under applicable law.
(C) Default by Bigbelly. Upon the occurrence of a Bigbelly Default, Customer may do one or more
of the following as Customer in its sole discretion shalt elect; (i) initiate Dispute Settlement
procedures pursuant to subsection (D) herein to 'enforce performance of the Agreement or
recover damages for the breach thereof; (ii) cause Bigbelly, at its expense, to promptly collect
the Equipment; (iii) by notice in writing to Bigbeliy, canCel or terminate the Agreement, without
prejudice to any other remedies hereunde_I-"(rv) subject to the limitations on Bigbelly's liability in
Section 5.14 hereof, collect from Bigbetty all expenses incurred by Customer in connection with
right or remedy available to Customer
(D)Dispute Settlement. In the eyeii1,o"g. *y dispui-$ing due to a Default or with respect to the
terms of the Agreement or obligations of the parties; the parties agree to discuss the dispute in an
attempt to amicably resolve sudh dispute withrn 30 .of the date of a written notice of such
dispute by one party,to the other. ,Failing'frii,g..pch resolution, either party will be free to seek
(E) Continuation oif.Obligations. The oc0 h[i of a Aispute under or relating to the Agreement
shall not relieve8igtelly ofi,'or change in any way, Bigbelly's obligation to provide the Ongoing
Servicqs,in accordance with the tgrms of the Agreement nor shall the occurrence of a dispute
,roaal jil:relappg to=tE. -'AgriEi"ent,,relievt,Quitomer of its obligations to make any and all
pafie"tr desiribed in the A-greement inclu.ding the Attachments, which obligations are absolute,
unconditional, i*B&gable;';ii'b,,q;cancelable and subject to no right of set off, counterclaim, or
dedtiClion, unless o e spE@ed in this Agreement.
(F) Govediiig Law. n sffiemeni including the Attachments shall be interpreted under the laws
of the co'Diis of the State 6f Florida, without regard to principles of conflicts of law or the United
Nations Convention o, m" International Sale of Goods. Each party consents to the personal
jurisdiction of federal and state courts iocated in Miami-Dade County, Florida EACH PARTY
HEREBY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY LITIGATION ARISING
FROM OR RELATED IN ANY WAY TO THIS AGREEMENT OR THE EQUIPMENT.
5.8 Assign{nent. Customer may not assign this Agreement or any rights hereunder, or sublease or lend
any Equipment without the prior written consent of Bigbelly. No assignment or sublease shall
relieve Customer of its obligations hereunder and Customer shall remain primarily liable for such
obligations. Any sale, assignment, transfer, encumbrance, delegation or sublease by Customer not
consented to by Bigbelly shall be void ab initio. Bigbelly may at any time assign to any person (an
"Assignee") any interest in this Agreement in part or in whole or grant security interests in the
Equipment and/or the Bigbelly's rights hereunder. In such event, all the provisions of this
Agreement for the benefit of Bigbelly shall inure to the benefit of and be exercised by or on behalf
of such Assignee, but the Assignee shall not be liable for or be required to perform any of Bigbelly's
obligations to Customer and Bigbelly shall retain such obligations. Customer acknowledges that
Bigbelly Service Agreemerrt BBSA2ol5o7r5 Page 13i23
34
Assignee is providing financing for the Equipment only and agrees that (a) as between Customer and
Bigbelly, all of Customer's payment obligations shall be absolute, unconditional and not subject to
set-off, counterclaim, reduction, recoupment or other defense (b) it will not assert any defenses, set-
offs, counterclaims or claims against any Assignee that Customer may have against Bigbelly at any
time; and (c) arry such assignment shall not materially change Customer's duties or obligations
hereunder. Subject to the foregoing, the Agreement shall inure to the benefit of, and be binding upon,
the successors and pemritted assigns ofthe parties hereto.
5.9 Relationship of Parties. Bigbelly and Customer are each independent entities and the relationship
between Bigbelly and Customer under the Agreement is not a joint venture, partnership, principal-agant,
broker, sales representative or &anchise relationship. Bigbelly has no authority to make any promise,
commitrnent or agreement on Customer's behalf, and Bigbelly will not represent to anyone that it does
have such authoritY'
liii .u.,r.
5.10 Notices. Each notice provided for in the Agreement shall be"given in writing and become effective
when: .,-tla. served by personal delivery to the recipient's Legal Deir4 or Contract Administrator;
Customer: City of Miami Beach
,j$l,i,i,BIGgELLY
S0!{h& tNC.:
Name: Jay Fink ii\g,;
,
Brian Phillip, ' =?
Title: Assistant Director '1 iii Presiderrt'CEO -=
of city of Miami Beach l;,1;ili.=. i5$ffiFet, #103 '4'
Public Works Department , --,i, *..dh?p,Y A02494
Address: City of Miami Beach, ,
,- r ,,i{*,
1700 Conventiori"Center Drive ' ' -
With a copy to:
c,rilr..-i.'.,Y,..=,11. srtt i.lt=.=.-:
" ri'''i,,1,,i.=.. A
Cit oitvtiami leach' ,.... . , '
1ZOO Convention Center Dnvq
r . ,...,..i1t:: : :tt:
'"%rr;='''"'*ilii" ''
b. deposited, fidgf._eg. pr."-gaid in the United States registered or certified mails addressed to the
recipient' s I- ep$gfi,$Sient or Contract Administrator;
c. dispatched to the iecipient's Legal Department or Contract Administrator via overnight mail
using UPS, Federal Express or similar carrier; or,
d. sent to recipient's Legal Department or Contract Administrator: via facsimile or other electronic
means if delivery does not require a signature or other confirmation of delivery.
5.11 Force Majeure. Any delay or failure of either party to perform its obligations (other than payment
obligations) shall be excused if it is caused by an extraordinary event or occurrence beyond the
control of the nonperforming party and without the nonperforming party's fault or negligence, such
as acts of God, {ires, floods, windstorms, explosions, natural disasters, wars and sabotage. Raw
material or labor shortages are not force majeure events. Each party shall promptly notify the other
of the reason for the delay and use its best efforts in curing such cause and shall take all action
practicable to minimize the adverse impact of the delay on the other party.
Bigbelly Service Agreement BBSA20r.507l5 Page 14133
35
5.12 No Warranties. Customer hereby acknowledges that it has not entered into the Agreement including
the Attachments in reliance upon any warranty or representation by any person or entity except for
the warranties or representations specifically set forth therein.
5.13 Use of Trade Names and Trademarks. Neither party may use the trade name, service mark, logo or
trademark of the other party for any purpose without previous permission in writing from the other
party.
5.14 Damages. Unless otherwise provided in the Agreement, in no event shall either party, or their
respective affiliates, shareholders, officers, directors, employees, agents, or representatives, or
assigns be liable to the other for lost revenue, lost profits, incidental, indirect or consequential
damages, resulting from any Services provided in connection with this Agreement. The Customer
and Bigbelly's maximum aggregate liability to the other in relation to or in connection with a breach
of the terms of this Agreement will be limited to the total amount paid by Customer to Bigbelly
under the Agreement.
5. 15 Iniunctive Relief. If there is a breach or threat of a breach of the terms of the Agreement, the parties
agree that compensation alone would not be an adddti'ate fepedy for the harm suffered by the non-
breaching party, which harm would be immedidt€ and irrepaiable. Therefore, if there is a breach or
threatened breach, then the non-breaching party shall be entitled to seek injunctive relief to stop the
breach or threatened breach. The rights and obligations of the parties under this provision survive
the termination, cancellation, or expiration ofthrc Agreement. ;
5.16 Fiscal FundingThis Section 5.16 is effective onliif*Cilitomer is a governmental entity, agency or
authority. Customer hereby reprlients and warr# io nigtetty that: (a) Customer is a State,
possession of the United States, thelisfi,cr of ColuniBia or political subdivision thereof as defined
in Section 103 of the lnternal Revenue Code and Treasury Regulations and Rulings related thereto
(the "Code"); (b) If ,Customer is incorporated,.it is duly organized and existing under the
Constitution and larvs of its jurisdiction of incorporafion and'will do or cause to be done all things
necessary to preseft and keep such orgai&atio$:;and existeace in full force and effect; (c) Customer
has been duly authorized by the Constitidon"and laws '6f the applicable jurisdiction and by a
resolution of its governing body (which resolution, if requested by Bigbelly, is affached hereto), to
execute and.,delive. 1|i6-;;;Agreprno$t,t;:and to cafry out its obligations hereunder; (d) All legal
requirements'have !.W" ,i;q;na p.oidOuies have been followed, including public bidding, in order
to ensure the enforceability of the Agreement; (e) The Equipment will be used by Customer only for
essefial govemmentii or propiieiar functions of Customer consistent with the scope of Customer's
authority.'an-d will not bii"used in a trade or business of any person or entity, by the federal
govemm6nt,$5,for any perSonal, family or household use (f) The Customer shall comply at all times
with all appliCable requiretiients of the Code. If sufficient funds are not appropriated to make
contracted papgffs undqfffie Agreement ("Payments"), the Agreement shall terminate and
Customer shall not be obli$dtdd to make contracted Payments under the Agreement beyond the then-
current fiscal year for'Which funds have been appropriated. Upon such an event, Customer shall, no
later than the end of the fiscal year for which contracted Payments have been appropriated, deliver
possession of the Equipment to Bigbelly. If Customer knowingly and willfully prevents Bigbelly
from removing the Equipment, as provided in Section 3.1(D, then the termination shall nevertheless
be effective but Customer shall be responsible for the payment of damages in an amount equal to the
per diem portion of contracted Payments thereafter coming due that is attributable to the number of
days after the termination during which the Customer fails to allow Bigbelly access to Customer's
property for the removal of the Equipment. The per diem amount shall be determined by taking the
total monthly payment for the Equipment divided by the number of days in the hold over month)
Customer shall notify Bigbelly in writing within seven (7) days after the failure of the Customer to
appropriate funds sufficient for the payment of the contracted Payments, but failure to provide such
notice shall not operate to extend the Agreement term or result in any liability to Customer.
Bigbelly Service Agreement BBS,{2ol5o7r5 Page 15123
36
5.17 Entire Agreement. The Agreement including the Attachments constitute the entire agreement
between the parties regarding its subject matter and supersede all prior agreements, oral and written,
negotiations, comrnitments and writings, and may not be released, discharged, abandoned, changed
or modified in any manner, orally or otherwise, except by an instrument in writing signed by a duly
authorized representative of each party. Any purchase order or other ordering document issued by
Customer is for administrative puposes only and does not form part of this Agreement.
5.18 Amendment; Modification: Waiver. No modification, amendment, waiver or release of any
provision of the Agreement or any right, obligation, claim or cause of action arising under the
Agreement shall be valid or binding unless in writing and duly executed by the party against whom
enforcement is sought. No waiver by either party of any breach, or the failure of either party to
enforce any of the terms and conditions of the Agreement, shall affect, limit or waive that party's
right to enforce and compel compliance with all terms and conditions of the Agreement or to
terminate the Agreement as permiued by its terms. Any piovision of this Agreement which for any
reason may be held unenforceable in any one jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such unenforceability without,r:ifl$lidating the remaining provisions of this
Agreement, and any such unenforceability in any one jurisdiction shall not render such provision
unenforceable in any other jurisdiction. This Agreement may be executed in any number of
counterparts and by different parties hereto or thereto on separate counterparts, each of which, when
so executed and deiivered, shall be an original, but all such countef'& shall together consist of but
one and the same instrument.
5.19 Representations. Customer hereby represents, Warrhnts and covenants to Bigbelly that: (a) Customer
is organized and validly existing under.the laws of the,jurisdiction of its organization, with adequate
power and capacity to enter into the Agreement and *y:other documents, instrument or agreement
related to this Agreement; (b) The A.geement,has been duly authorized, executed and delivered by
Customer and constitutes a valid, legal-and bindiri,,g;,ggreemenl,.enforceable in accordance with its
terms, except to the e>itent that the enfoicement qf iemedies theiein provided may be limited under
applicable bankruptcy and insolvency lffi;,{c} n6 approval, consent or withholding of objections is
required from any goruernmental authoriryfti instrumentality with respect to the entry into or
performance by Customer of the Agreement, except such as have already been obtained; (d) there
are no,,:sliilslgf",prcceediii#pending,rff.ttr.uten'ed in court or before any regulatory commission,
board orother iOmi*strative governmental.agency against or affecting Customer, which will have a
materiai adverse effecton the ability of Cusiomer to fulfill its obligitions and liabilities under the
Agreement.
:::::::::::a r:: :tl:5.20 Florida Public Records Law. .lJ:
(A) Bigbelly shall comply with Florida Dpblic Records law under Chapter 119, Florida Statutes, as may be amended
from time to time. Records made or'*rceived in connection with this Agreement are public records under Florida
law, as defined in SectiOnJ lg 01.1 , Florida Statutes.
.,,,(B) Pursuant to Section 119.070i of the Florida Statutes, if the Contractor meets the definition of "Conffactor" as
defined in Section 119.0701(lXa), Bigbelly shall:
(1) Keep and maintain public records required by the City to perform the service;
(2) Upon request from the City's custodian of public records, provide the City with a copy of the requested
records or allow the records to be inspected or copied within a reasonable time at a cost that does not
exceed the cost provided in Chapter 119, Florida Statutes or as otherwise provided by law;
(3) Ensure that public records that are exempt or confidential and exempt from public records disclosure
requirements are not disclosed, except as authorized by law, for the duration of the contract term and
following completion of the Agreement if Bigbelly does not transfer the records to the City;(4) Upon completion of the Agreement, transfer, at no cost to the City, all public records in possession of
Bigbelly or keep and maintain public records required by the City to perform the service. If Bigbelly
transfers all public records to the City upon completion of the Agreement, Bigbelly shall destroy any
duplicate public records that are exempt or confidential and exempt from public records disclosure
requirements. If Bigbelly keeps and maintains public records upon completion of the Agreement,
Bigbelly Service Agreement BB5n20l507l5 Page 16i23
37
Bigbelly shall meet all applicable requirements for retaining public records. All records stored
electronically must be provided to the City, upon request from the City's custodian of public records, in a
format that is compatible with the information technology systems of the City.
(C) REQUEST FORRECORDS; NONCOMPLIANCE.
(l) A request to inspect or copy public records relating to the City's contract for services must be made
directly to the City. If the City does not possess the requested records, the City shall immediately notiff
Bigbelly of the request, and Bigbelly must provide the records to the City or allow the records to be
inspected or copied within a reasonable time.
{2) Bigbelly's failure to comply with the City's request for records within a reasonable time, shall constitute a
breach of this Agreement, and the City, at its sole discretion, may: (1) unilaterally terminate the
Agreement; (2) avail itself of the remedies set forth under the Agreement; and/or (3) avail itself of any
available remedies at law or in equity.
(3) If Bigbelly fails to provide the public records to the City yithin the reasonable time stated above it may
be subject to penalties under s. I I 9. 1 0.
(D) CIVIL ACTTON.
. i.,::i :i,:;:"
ir,i i,ir lr;::ii'
(E)
(l) If a civil action is filed against a Bigbelly to c.orniielprodudtigg..of public records relating to the City's
contract for services, the court shall assesi rhnd award againsl. Bigbelly the reasonable costs of
enforcement, including reasonable attorney. fes:if: .a. The court determines that Bigbelly un}iwfully refused to comply w-ith the public records request
within a reasonable time; and i *, l
b. At least 8 business days before frling the'acpg$ th$,#{*intiff provid€d;:rrritten notice of the public
records request, including.6''stgtement that BifUr* [s not complied fi.th ttre request, to the City
and to Bigbelly. iilrijiirriij ::_(2) A notice complies with subparagfpph"('t)$l).if it is senf't e City's custodian of public records and to
Bigbelly at Bigbelly's address listed jon iB.cg$$gSt with tlid$ty or to Bigbelly's registered agent. Such
notices must be sent by common carrier delivery iervice or by iegistered, Global Express Guaranteed, or
certified mail, with,,pqstage or shippingiiirid by thel$eg|,gg",pnd with evidence of delivery, which may be in
(3) If Bigbelly complies with a public records-request within 8 business days after the notice is sent it is not
liable for the reaS'iidable costs,of,enforcement.iit, ,'.,-.j.,....i. ,'-;;,,.;;u:.,,,,,,= "l,+rF BrcBEiLYri,IilAS tQ@SfioNS nrCannrNC THE APPLTCATTOI\ OF
CHATTER 119, rtOnrOa SUTUTES, TO BTGBELLY',S DUTY TO PROVTDE
PUBLIC. RECORDS NELATTXC TO THIS AGREEMENT, CONTACT THE
CUSTODIAN OF PUBI.IC RECORDS AT:
-,--\-
)*CITY OF MIAMI BEACII
ATTENTION: RAF.AEL E. GRANADO, CITY CLERI(
1 7OO C OI\TVENTION=E.ENTER DRIVE
MIAMI BEACIT, FLoIUDA 33139
E.MAIL: RAFAELGRANADO@MIAMIBEACHFL.GOV
PIIONE: 305-673-7411
5.21 NoDiscrimination.
Bigbelly hereby agrees to comply with City of Miami Beach Human Rights Ordinance, as codified in
Chapter 62 of the City Code, as may be amended from time to time, prohibiting discrimination in
employment, housing, public accommodations, or public seryices, on the basis of actual or
perceived race, color, national origin, religion, sex, intersexuality, sexual orientation, gender identity,
familial and marital status, age, ancestry, height, weight, domestic partner status, labor organization
membership, familial situation, political affiliation, or disability.
Bigbelly Service Agreemerrt BBSA2or507l5 Page t7 123
38
End of Attachment A.
Bigbelly Service Agreement BBsA2otsozrs Pa ge ',S l?3
39
2.
ATTACHMENT B
ACCEPTANCE CERTIFICATE
FOR THE BIGBELLY SERVICE AGREEMENT (AGREEMENT)
WITH THE CITY OF MIAMI BEACH, FLORIDA (CUSTOMER), DATED
The Customer hereby acknowledges that the following conditions have been met and acknowledges the
Acceptance Date below:1. all of the Equipment ordered pursuant to this Agreement has been
delivered to the Customer at the receiving location designated by Customer;
allof the Equipment has been installed at the agreed upon Equipment Sites (as defined in Section 3.1(D)
of the Agreement and is operational..
:r::::l::ailil:::r:
"ll
\t.tt6r,,,,,
CUSTOMER:
CITY OF MIAMI BEACH
.":itiiil i
By:
l,,Ni
' ,.L_::1Print Name and Title:
Date:
.#'iii i$ilr
'i:t::=].
i.:l,lr;rr
i.iri
.;:; i, ,::=
F#irrr{ii1r- 'r}i
r.:::L\
i_\:::
i: :i:i!,.- :i:lS
a:a:r: .;.i..i:tl:::.,:. =';,::i:ll:r.:: .,.,1 : li:i
rrriEjE
Bigbelly SErvice Agreement BBSA20r5c!215 Page 19 123
40
ATTACIIMENT C
EQUIPMENT SITES
City of Miami Beach
Trxh Cans: Fropnsed 3ig Belly Typa
Bigbelly Service Agreement BBSA2or50715 Page 20123
41
ATTACHMENT C.l
DELIVERY AND INSTALLATION SCHEDULE
Bigbelly Service Agreement BBsA2ol5o7l5 Pa g e 21 i23
42
ATTACHMENT D
CUSTOMER TRAINING PLAN
llilmilil'1,,i'=."-=.riiffy'l, ndc'lii,]:n l '.."#
Upon PO o Review the Connect Guidelines to set expectations.
. Highlight site selection and partnership to maintain system in great
working condition.
o Establish criteria for success and how to measure them.
1-3 Weeks Prior to lnstallation a Update CLEAN software:ffim with user names so users can
access the system
Upon lnstallation At a mutually agre€d.upon time, Bi$b,,glly willtrain users to use the
CLEAN softwa iil bptima| results.",TiIr$ining inc|udes site
customization::: ".
,o settin${$prtr.rr,.,,..,,,*.\., '*,,.
i ,o updatinHr3lail"g*, tion descriptidii*..
l Week After !nitialCLEAN Tfaining
i !il,
. Reach out U&adback and adjustments to system set up.
o .==.Aoswer any ['uestions,:
1 Month After,lnstallati6n,,
,:view
iipq 5 aiia how to extract data
Monthly ThereaftCr
I
Fii$.ide a monthly summary of performance against goals.a
:i:::
END OF ATTACHMENT D
Bigbelly Service Agreement BBSA2OI5O7I5 Page zzlz3
43
ATTACHMENT E
WEAR AND TEAR DEFINITIONS
Bigbelly Service Agreement BBSA2or5o715 Page 23 123
44