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RESOLUTION 90-20046 RESOLUTION NO. 90-20046 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF MIAMI BEACH AUTHORIZING THE MAYOR AND THE CITY CLERK TO EXECUTE AN AGREEMENT BETWEEN THE CITY OF MIAMI BEACH AND ADSHELTERS, INC. FOR THE CONSTRUCTION AND MAINTENANCE OF BUS STOP SHELTERS WITH ADVERTISING WHEREAS, the City Administration, through the Department of Purchasing and Property Management, issued a Request for Proposals (No. 98-89/99) for the Construction and Maintenance of Bus Stop Shelters with Advertising; and WHEREAS, a Proposal was received from Adshelters, Inc. in response to the Request for Proposals No. 98-89/99 ; and WHEREAS, an Agreement has been recommended by the City Manager and approved as to form by the City Attorney. NOW, THEREFORE, BE IT DULY RESOLVED BY THE CITY COMMISSION OF THE CITY OF MIAMI BEACH that the Mayor and the City Clerk are hereby authorized to execute the Agreement between the City of Miami Beach and Adshelters, Inc. for the construction and maintenance of bus stop shelters in the City of Miami Beach. PASSED AND ADOPTED THIS 25th day of July , 1990 . ATTEST: $(:; Liar la° 1-g (7/;)al'--/ CITY CLERK MAYO' FORM APPROVED LEGAL DEPT. PNB:HCM: ses By Date `1- b ZU- &to /tüt I vead s-M� eF FLORIDA 3 3 1 3 9 * INCORP'ORATEDj*! J " VACA TIONLAI�L) U. S. A. OFFICE OF THE CITY MANAGER CITY HALL ROB W.PARKINS 1700 CONVENTION CENTER DRIVE CITY MANAGER TELEPHONE: 673-7010 D 7 u COMMISSION MEMORANDUM NO `3 - c-1 DATE: July 25, 1990 TO: Mayor Alex Daoud . - • Members of t - ity Commis�•_,__._- -450" FROM: Rob W. Parks•s 11,00 City Manager fli SUBJECT: AGREEMENT FOR ONSTRUCTION AND MAINTENANCE OF BUS STOP SHELTERS WITH ADVERTISING (RFP NO. 98-89/99) ADVERTISEMENT DATE: April 18, 1990 BID OPENING DATE: July 10, 1990 NOTICES MAILED: 15 SPECIFICATIONS MAILED: 10 REPLIES RECEIVED: 2 BACKGROUND: The City Administration, through the Department of Purchasing and Property Management, issued a Request for Proposals (RFP No. 89- 89/99) for the Construction and Maintenance of Bus Stop Shelters with Advertising at various locations throughout the City of Miami Beach. Under the existing agreement, the Contractor installed some sixty- three (63) bus stop shelters on major streets and thoroughfares. Although this number is less than the 100 scheduled in the agreement, the contractor and the city experienced difficulty in identifying the necessary suitable locations where easements from property owners could be obtained for construction of the balance. Accordingly, the RFP called for continuation of the existing shelter locations (either through maintenance or replacement) and the construction of a minimum of an additional forty (40) shelters during the term of the new agreement. The RFP asked proposers to base their proposal on a percentage of gross receipts which would be paid to the city. The existing agreement required a payment of 26. 1% (paid quarterly) , while most similar agreements in South Florida included a requirement of 15%. The minimum offer which would be accepted under the RFP was 15%. A monthly minimum guaranteed payment was also required by the terms of the RFP. TABULATION OF PROPOSALS RECEIVED: Please see the attached tabulation of the proposals received. The amount proposed by Adshelters, Inc. for percentage payment (30%) was higher than that proposed by Shelter Advertising of America, Inc. (15%) . Shelter Advertising of America, Inc. proposed an escalating monthly minimum payment beginning at $3 , 000 and gradually increasing to $4 , 250. `41 AGENDA C ITEM _ v Cil DATE to AGREEMENT FOR CONSTRUCTION AND MAINTENANCE OF BUS STOP SHELTERS WITH ADVERTISING (RFP NO. 98-89/99) July 25, 1990 Page -2- The monthly gross revenues subject to the fee under the current agreement have averaged $11, 122 since January 1989 ($133 , 464 annualized) . These revenues have increased by more than twenty percent (20%) annually during the past three years. In order to project anticipated revenues under the new agreement, a modest anticipated increase of 2 .5% annually was projected as the basis for the following comparison: ADSHELTERS SHELTER OF AMERICA Minimum / Percentage Minimum / Percentage Year 1 24 , 000 / 40, 039 36, 000 / 20, 019 Year 2 24, 000 / 41, 040 36, 000 / 20, 520 Year 3 24, 000 / 42 , 066 39, 000 / 21, 033 Year 4 24, 000 / 43 , 117 39, 000 / 21, 559 Year 5 24, 000 / 44 , 196 39, 000 / 22, 098 Year 6 24, 000 / 45, 300 42, 000 / 22, 650 Year 7 24 , 000 / 46, 433 42 , 000 / 23, 216 Year 8 24, 000 / 47, 594 48, 000 / 23,797 Year 9 24, 000 / 48, 784 48, 000 / 24, 392 Year 10 24, 000 / 50, 003 51, 000 / 25, 001 $240,000 $448,572 $420,000 $224,293 Projected revenues to the City under both proposals are anticipated to be comparable with an advantage to Adshelters, Inc. over the term of the agreement. Adshelters, Inc. utilizes Shelter Advertising of America, Inc. as the source of supply for the shelters installed, so no substantial difference in equipment is anticipated under either proposal. Under its proposal Adshelters, Inc. will pay the City thirty percent (30%) of gross receipts derived from advertising on the shelters. This payment schedule will provide for the City' s benefiting from any increased rates charged to advertisers, inflation and the construction of additional shelters over the term of the agreement. Based on the favorable return to the City under the percentage of gross revenues to be received, the proposal of Adshelters, Inc. is recommended for award of the new agreement. TERMS AND CONDITIONS: The proposed agreement, for a ten (10) year term, provides for Adshelters, Inc. to continue ownership of all shelters, to bear the entire cost of construction of additional shelters and any utilities expenses associated with the shelters. The City will continue to retain a first option to purchase any or all shelters at the termination of the agreement. ADMINISTRATION RECOMMENDATION: The City Administration recommends that the City Commission approve a Resolution authorizing the Mayor and CIty Clerk to execute an Agreement with Adshelters, Inc. , for the construction and maintenance of bus stop shelters with advertising. RWP:EJD:HCM: ses RFP NO. 98-89/99 Page - of TITLE: Const. & Maint. of Bus Stop Shelters with Advertising OPENING DATE: July 10, 1990 TIME:3:00 p.m. Proposer # 1 Proposer #_ Proposer #___ Name and Address ADSHELTERS, INC. (A Division of Ackerly SHELTER ADVERTISING OF AMERICA, INC. of Proposer Communications, Inc. and Empire Outdoor 1360 N.W. 78th Ave. C" Adv.) Miami, FL 33126 5800 N.W. 77th Court Miami,FL 33166 Percentage Proposed Proposal includes a graduated scale Rental:as Percentage30% 15% of monthly min'mum guaranteed pay'nents, beginning at $3,000 and;.) increasingto $4,25 . (Min. 15%) 5 Number of Shelters 103 Includes the existing 63, plus lug year. Re to be Erected and 40 new shelters. 40 new shelters within one Replace e Maintained: all existing galvanized shelters (43) within 30 days of contract award. RFP Security ($5,000) Yes Yes Enclosed? Insure nce Check,, ist Yes Yes Enclo'Sed? Specifications or Photographs of No Proposed Equipment Proposal refers to continued Yes Enclosed? use of equinment/shelters Operational Plans erected and maintained under Plans current agreement. Yes Enclosed? For Standard Shelters: Yes Yes For Adv. on Rear Panels: Yes \\\ For Special Locations: \\\\ Completed Yes Questionnaire Yes Enclosed? Financial Yes. Also, report of No. Statement independent audit and bank Bank references included. Enclosed? references. PUR 7068 Enclosed? Yes Yes 1 AGREEMENT BETWEEN THE CITY OF MIAMI BEACH AND ADBHELTERB, INC. . TABLE OF CONTENTS PAGE 1. SCOPE OF WORK 2 2 . GRANT OF RIGHT 2 3. RFP AND PROPOSAL INCORPORATED BY REFERENCE 3 4. FEE PAYABLE TO CITY 3 5. PAYMENT SCHEDULE 4 6. LATE FEES 5 7 . DUTIES AND OBLIGATIONS OF CONTRACTOR 5 8. CLAIMS-CITY HELD HARMLESS 6 9 . INSTALLATION OF SHELTERS 7 10. OWNERSHIP OF SHELTERS 7 11. RIGHT OF CONTRACTOR TO REMOVE INDIVIDUAL SHELTERS 8 12 . REPORTS AND RECORDS 8 13. TERM OF THE AGREEMENT 10 14 . PURCHASE OF SHELTERS BY CITY 10 15. RIGHT OF CITY TO CAUSE REMOVAL 11 16. CANCELLATION BY CITY 11 17 . DEFAULT AND TERMINATION 12 18. AGREEMENT NOT ASSIGNABLE 13 19 . COOPERATION BY CITY IN OBTAINING NECESSARY APPROVALS 13 20. SHELTER CONSTRUCTION 13 21. UTILITY HOOK-UP, ELECTRICITY 14 22 . SHELTER DESIGN 14 23 . PERFORMANCE BOND 14 24. INSURANCE REQUIREMENTS 14 25. NOTICES 14 26. WAIVER 15 27 . TIME OF ESSENCE 15 28. TERMS BINDING ON SUCCESSORS 15 29. FORCE MAJEURE 15 30. SEVERABILITY 16 31. CAPTIONS 16 32 . GOVERNING LAW AND VENUE 16 33 . ENTIRE AGREEMENT 16 . AGREEMENT BETWEEN THE CITY OF MIAMI BEACH AND ADSHELTERS, INC. THIS AGREEMENT (hereinafter called the "Agreement") made the 1st day of October , 1990 between the City of Miami Beach, a Municipal Corporation of the State of Florida (hereinafter called the "City") and Adshelters, Inc. , a Florida Corporation, p , with offices at 5800 N.W. 77th Court, Miami, Florida 33166 (hereinafter called the "Contractor") . WITNESSETH WHEREAS, the Purchasing and Property Management Department of the City issued Request for Proposals No. 98-89/99 , as amended, for the Construction and Maintenance of Bus Stop Shelters with Advertising; and WHEREAS, the Contractor submitted its proposal in response to the RFP; and WHEREAS, the City Commission of the City of Miami Beach authorized this agreement by the adoption of Resolution No. 90-20046 , a copy of said Resolution is made a part hereof as set forth in full herein. NOW, THEREFORE, in consideration of the mutual covenants contained herein, by both the City and the Contractor, the parties agree as follows: -1- 1. SCOPE OF WORK The Contractor shall provide for the construction, erection, installation, repair and maintenance of shelters at various bus stop locations within the City of Miami Beach for a ten-year period. Contractor shall provide for shelters at City-owned locations and/or at locations on which it has easements, however where the right to erect shelters is governed by County, State or Federal regulations with reference to right-of-way considerations outside the jurisdiction of the City of Miami Beach, the Contractor shall be solely responsible for obtaining any and all clearances required for placement of shelters at such locations. The Contractor shall maintain and/or replace the existing sixty-three (63) shelters and shall construct an additional forty (40) shelters in accordance with the schedule provided for in paragraph 9 hereof. 2 . GRANT OF RIGHT The City grants to the Contractor for the term hereinafter described the exclusive commercial right to construct, erect, install, repair and maintain shelters at approved bus stop locations throughout the City of Miami Beach. This right is intended to include both approved existing bus stop locations and those created and approved at any time during the term hereof. The City shall also have the right to install or have installed its own shelters at locations of its choice. The City may first offer an option to the contractor to install each such shelter in accordance with this agreement, but it is not required to do so. The right of the City to erect or to allow another Governmental Jurisdiction to erect Bus Stop Shelters shall not be abridged by this Agreement. -2- 3. RFP AND PROPOSAL INCORPORATED BY REFERENCE: The Request for Proposals No. 98-89/99, together with all g amendments thereto, and Contractor's proposal in response thereto, o, are hereby incorporated by reference in this Agreement to the extent that they are not inconsistent with any terms herein. In the event of inconsistency, this Agreement shallp revail. 4. FEE PAYABLE TO CITY In consideration of the right granted, the Contractor shall pay to the City as a fee, thirty percent (30%) of its monthly gross receipts generated from signs and other visual p displaysplaced upon the shelters by the Contractor. Gross Receipts Defined: The term "gross receipts" as used herein shall be construed to include all moniesp aid or payable to and monies received or receivable by the contractor for sales made and for services provided. The term "gross receipts" shall exclude the following: a) Advertising agency commission actually paid not to exceed 15% of the customer billing. b) Quantity purchase discounts actually allowed. c) Any taxes imposed by law which are separately stated to and paid by a customer and directly payable to or by the contractor. d) The amount of any sales, use, gross receipts, occupancy or similar taxes (but not income, occupational or property taxes) paid by contractor in connection with its operations under this agreement. In accordance with the above, all advertising rates of contractor shall be established by a published rate schedule filed 30 days in advance of effect with the City of Miami Beach. Said rate schedule may contain provisions for quantity purchase discounts and special short term rentals providing they are in general accord with established industry practice and rate scales. Inducements to attract advertisers are to be considered as sales promotions and shall be within the limits prescribed in the published rate schedule or, if not falling within the rate schedule, shall be approved in advance by the City on an exception basis. -3- It is the intent of the City to afford the Contractor as much flexibility as possible in attracting customers and increasing ncreasing the overall revenue from advertising sold. The Cit however, City, must be apprised of the contractor's actions in advance. The Contractor shall, upon demand, provide copies of all advertising contracts, advertising agency transmittals of revenues and/or any documentation which would satisfythe Cityto as the exact volume of advertising business generated by the shelters within the City of Miami Beach, includingcommissions paid, quantity purchase discounts and any and all taxesaid to orthe by Contractor. The City agrees that it shall not charge anyadditional licensing fees to the Contractor or impose additional p taxes or tariffs upon the Contractor with respect to the revenues that the Contractor may derive from the sale of advertising with respect to the shelters, it being expressly understood and agreed that the percentage fee described herein is intended as the sole monetary consideration to be received by the City hereunder. 5. PAYMENT SCHEDULE: The Contractor shall make a monthly minimum payment throughout the term of this agreement in the amount of Two Thousand Dollars ($2 , 000) . Such minimum payment shall be due on the 15th day of the month for the preceding month. The Contractor shall make percentage payments once each calendar quarter. Percentage payments shall be due on the 15th day of the month following each calendar quarter. Percentage payments shall be less any minimum payments made during the previous quarter. Percentage payments shall be accompanied by the statements of monthly gross revenues described in Paragraph 12 (a) of this Agreement. It is also understood and agreed that the applicable Florida State Sales Tax on payments to the City shall be added by the Contractor to the contractor' s payment and forwarded to the City as part of said payments. It is the intent of the City that it is to receive the fee as net, free and clear of all costs and charges. -4- 6. LATE FEES: The Contractor shall pay a penalty of $50. 00 for late or delinquent payments, along with simple interest accruing ng to the City at the highest rate allowable by law per annum. Such late fees and interest shall be due and payable beginning with the 20th of each month, when payments are due on the 15th of the month. 7 . DUTIES AND OBLIGATIONS OF CONTRACTOR: The Contractor shall do each of the following at its sole expense with respect to the erection of shelters at various bus stop locations throughout the city of Miami Beach: (a) To erect such shelters using the types of material in accordance with the plans and specifications set forth in Request for Proposals No. 98-89/99, as amended and the Contractor's proposal in response thereto. (b) To inspect, clean, repair and otherwise maintain the shelters on a scheduled basis as set forth in the Request for Proposals No. 98-89/99 , "Shelter Maintenance" pages 28-31. (c) To illuminate the shelters from sunset to sunrise throughout the year or for a shorter period as determined solely by the City. All electric meter, underground service lines and disconnect locations to be installed as approved by the City of Miami Beach. A City of Miami Beach Public Works Department Permit is required prior to construction. (d) To remove each of the shelters previously erected at the conclusion of the term of this agreement in the event the City declines termination options as provided for elsewhere herein, restoring all property, sidewalk, curb, etc. affected by the installation to a condition satisfactory to the City. (e) To solicit and obtain suitable advertising clients who desire to advertise products or services through the advertising panels on the shelters in question in order to maximize advertising receipts from same. Notwithstanding the foregoing, the Contractor agrees with the following provisions: -5- (1) Upon the specific written request of the City Manager, er , the Contractor shall make available up to 5% of all advertising space for use by the City in City-oriented public service messages and/or for such generalp ublic service messages as may be approved by the City; and (2) Upon the specific written request of the City Manager, the Contractor agrees to provide at no cost to the City, up to 51, of the total number of shelters provided for use at locations to be determined by the City, such shelters to contain no contractor advertising but with the provision for possible placement of advertising panels containing messages of a public service or tourism- oriented nature as the City may deem in its best interests. Should panels be required by City, they will be provided at no cost. All shelters so provided shall be included in the Contract as part of the Contractor's responsibility in the same manner as all other shelters provided. (f) To restore City property to City specifications, i.e. , full sections of sidewalk, landscaping, etc. Contractor assumes responsibility for broken roof drains and/or underground services. (g) Contractor is to provide safe passage for vehicles, pedestrians, etc. , at all times during construction. 8. CLAIMS - CITY HELD HARMLESS: The Contractor shall indemnify, defend and hold the City harmless from any and all claims, actions or suits filed or asserted against the City arising out of the installation, maintenance or operation of the shelters or any responsibilities of the Contractor as related to this Agreement. -6- 9. INSTALLATION OF SHELTERS: The Contractor agrees to install not less than forty (40)4 new ) shelters in accordance with RFP No. 98-89/99 "Bus Shelter Locations" , page 15 and "Shelter Installation", p g a es 25 - 27 . Thereafter the Contractor shall have the right, but not the obligation, to install additional shelters at various bus stop locations from time to time. Notwithstanding the foregoing, the g g. City requires that the Contractor submit written requests q is 30 days in advance with respect to proposed shelter locations and the City further reserves the right to withhold its approval as to the installation of shelters at particular location if the City should determine in its sole discretion, that one or morero osed p p locations are unsuitable. Nothing contained in this paragraph or any other provisions of this agreement shall be construed so as to require the Contractor to construct and maintain more than 103 shelters in the City of Miami Beach during the term hereof. In the event the City or any agency having jurisdiction of the property upon which such bus stop shelters are located, requires the removal of such shelter(s) , the Contractor agrees that all costs associated with the removal and any relocation and/or replacement shall be borne by Contractor. 10. OWNERSHIP OF SHELTERS: The Contractor shall retain sole and exclusive ownership of the shelters erected pursuant to the provisions hereof. Such shelters may be removed by the Contractor upon termination of this agreement for any reason, subject to the Contractor's obligation to restore the sidewalks, walkways or curbs to the condition which existed prior to the installation of same and such purchase options retained by the City and detailed in these specifications. Nothing contained in this paragraph or in any other provision of this agreement shall be construed as creating an ownership interest in the Contractor with respect to any sidewalks, walkways or curb to which the shelters are temporarily attached. -7- Contractor's obligation is to restore full sections of sidewalk, walkways, curb and gutter, landscaping, sprinkler systems and y remove all underground electrical installations, etc. , upon termination of this Agreement. 11. RIGHT OF CONTRACTOR TO REMOVE INDIVIDUAL SHELTERS: Except as provided for this paragraph, the Contractor shall not remove any shelters installed or maintained at bus stop locations during the term hereof without first having obtained written consent of the City. The Contractor shall have the right to petition the City for removal of individual shelters in the event that a particular location is no longer used as a bus stop or that a shelter has been subjected to "chronic vandalism" . For the purposes hereof, the phrase "chronic vandalism" shall be defined as damages inflicted to an individual shelter during any six (6) month period, which require cumulative expenditures for replacement and repair that exceed 50% of the cost of construction and installation of the shelter. Where it has been determined that the chronic vandalism alleged has been caused by a design fault which is reasonable, correctable, the City reserves the right to demand such design correction and reserves the right to withhold permission for removal from the specified sites. The City also reserves the right to require the Contractor to remove upon 30 days written notice. Contractor shall keep written record of all vandalism to bus stop shelters for City review upon demand. 12. REPORTS AND RECORDS: (a) MONTHLY REPORTS: The Contractor shall submit a Monthly Statement of Gross Receipts, together with the percentage payment referenced in Paragraph 5 hereof, and other reports as may be required by the City from time to time. (b) ANNUAL REPORTS: The Contractor shall submit an annual CPA Certified Statement of Gross Receipts to the City. -8- Such Certified Statement shall include an on o inibythe p CPA as to the accuracy of the Contractor' s Gross Receipts as defined by this Agreement. The period covered by the CPA Certified Statement of Gross Receipts may coincide with the fiscal year of the Contractor and shall be submitted to the City within sixty (60) days following the end of each twelve month fiscal year. (c) SEPARATE ACCOUNTING: The Contractor shall maintain books of account, reports and records and other documents in connection with this Agreement separately and apart from any other business or businesses the Contractor may be involved in. (d) RECORD RETENTION: The Contractor shall maintain locally, within Dade County, during the term of this Agreement and for one year thereafter all books of account, reports, records including sales slips, advertising contracts, advertising agency transmittals of revenues, bank deposit slips, bank statement, State Sales and Use Tax Returns and such other sales records as an independent Certified Public Accountant would need to examine in order to certify the Contractor' s Annual Statement of Gross Receipts pursuant to Generally Accepted Accounting Standards. The Contractor shall make available upon ten (10) days notice, the records described in this paragraph to the City's Internal Audit Division or such other official as the City Manager may designate from time to time. (e) STANDARDS FOR REPORTS: The Contractor will prepare true and complete records and accounts of all Gross Receipts for each fiscal year in accordance with Generally Accepted Accounting Principles consistently followed. -9- (f) CITY APPROVAL OF ACCOUNTING PRACTICES: The Contractor agrees that the form of a l l books of account, reports, records and types of operating controls are subject to the written approval of the City's Internal Auditor. The Contractor will comply with written recommendations from the Internal Auditor for changes, additions or deletions in accountingractices p , reporting or controls, when requested. (g) EXAMINATION OF BOOKS AND RECORDS: The Contractor will permit the auditors of the City during the term of this Agreement plus one year, during the normal business hours and upon reasonable notice, to audit and examine the Contractor's books of account, reports and records. The Auditors will use their best efforts to not unnecessarily interrupt the business operations of the Contractor. 13. TERM OF THE AGREEMENT: This agreement shall become effective upon execution and shall remain in force and effect for a period of ten (10) years from date of execution. 14. PURCHASE OF SHELTERS BY CITY: At the conclusion of the term of this agreement, the City shall have the sole and exclusive right to elect one of the following alternatives: (a) Require the Contractor to remove all of the previously installed shelters from the City of Miami Beach at Contractor' s sole expense. (b) Purchase some or all of the installed shelters from the Contractor at the then fair market value of same. The City shall provide the Contractor with written notice of the option elected at least forty-five (45) days prior to the termination date hereof. -10- In the event that the City elects to buysome or all of the e existing shelters from the Contractor and in further event that the Contractor and the City are unable to agree as to the fair market value of same, then the sole issue of the price of said shelters shall be submitted to binding arbitration by the American Arbitration Association of Miami, Florida, for final disposition p ion in accordance with the rules of said association. Any award in arbitration may be entered as a judgement in any court of competent jurisdiction. The costs of such arbitration shall be shared equally by the parties hereto. The City reserves the right to withdraw its option to purchase at any timerior to, during g or after such arbitration. 15. RIGHT OF CITY TO CAUSE REMOVAL The City retains the right to cause removal by the Contractor on 30 days written notice of specific shelters at its discretion in order to facilitate construction at or near the shelter site or for other reasons which may affect the safety and welfare of the City; or if the City, at it' s discretion, determines that the site is no longer suitable. The City also reserves the right to withhold permission for re-installation at a given site if re- installation is deemed not in the best interests of the City. However, where possible, the City will offer an alternate site acceptable to the contractor for any locations so eliminated. 16. CANCELLATION BY CITY Notwithstanding anything contained elsewhere herein, the City shall have the unilateral right to cancel and terminate this agreement in the event that the contractor becomes insolvent by being unable to pay its debts when they become due or by having the amount of its liabilities exceed the amount of its assets, or if the contractor commits an act of bankruptcy, makes a general assignment for the benefit of creditors, or if there is filed, by or against the Contractor, a voluntary or involuntary petition in -11- bankruptcy or for the appointment of a receiver, or if there commences under any law relating to bankruptcy, insolvency, reorganization or relief of debtors, proceedings for the contractor's relief or for composition, extension, arrangement or adjustment of any of contractor's obligations whichroceedin s are g not withdrawn or dismissed within ninety (90) days after the filing g of or the entry into same, or the contractor's business is discontinued as a going concern or if the contractor is in violation of the terms of this agreement or if the City determines that continuance of the agreement is not in the best interests of the City of Miami Beach, or if the agreement is found lacking in legal basis by a court of competent jurisdiction. 17 . DEFAULT AND TERMINATION (a) If Contractor abandons or vacates the project of shelter construction and maintenance for a period of thirty (30) days anytime prior to the expiration of the term hereof, or (b) If Contractor fails to make the payments as set forth herein and said payment is not made within 15 days after written notice of such failure is given to Contractor, or (c) If Contractor fails to discharge or bond off any lien filed on the project within fifteen (15) days of written notice from City to Contractor, or (d) If Contractor fails to perform in accordance with any of the other terms and conditions herein contained, and such default is not cured within thirty (30) days after written notice is given to Contractor, then Lessor may pursue any and all legal remedies available to seek redress for such default, with the prevailing party receiving all reasonable legal fees and costs. (e) Should the contract be terminated or as a result of mutual agreement by both parties, the City shall have the -12- option to purchase some or all of the shelters provided under the contract at a price not to exceed the value determined through application of straight line depreciation using an annual rate of depreciation of 10%. The original cost shall be as shown in the audited records of the Contractor. 18. AGREEMENT NOT ASSIGNABLE This agreement shall not be assignable by the Contractor without the express written permission of the City Commission of the City of Miami Beach through formal amendment. 19. COOPERATION BY CITY IN OBTAINING NECESSARY APPROVALS The City agrees to cooperate with the Contractor in his efforts in obtaining City, County, State or Federal approvals or licenses that may be required as a condition of installing the proposed shelters at bus stop locations within the City. The cost of obtaining any such permits or licenses shall be borne by the Contractor except that City of Miami Beach licenses and permits shall be issued at no charge. Responsibility for applying for and obtaining such approvals, permits and licenses remains the sole and prime responsibility of the Contractor. 20. SHELTER CONSTRUCTION Shelters shall be constructed in such a manner as to meet all applicable city, county and area building codes. Any and all necessary approvals from all required governmental agencies shall be obtained by Contractor. Every shelter design provided to the City shall be accompanied by plans sealed by a Professional Engineer licensed in the State of Florida. Any plans submitted with the proposal of this bid shall likewise be sealed by a Professional Engineer in the State of Florida. -13- 21. UTILITY HOOK-UP, ELECTRICITY Contractor is responsible for all hookups to power sources and the payment for any energy consumed by the shelter' s lighting g g source. Prior to City acceptance of shelter as in place and ready for use, the contractor shall provide evidence that allp ower charges for the shelter will be the responsibility of the contractor. 22. SHELTER DESIGN Shelters shall be designed in accordance with the requirements set forth in Request for Proposals No. 98-89/99 . 23. PERFORMANCE BOND The Contractor shall post a Performance Bond, Irrevocable Letter of Credit or in the alternative, a cash deposit in the amount of One Hundred Thousand ($100, 000. 00) Dollars with the City upon the execution of this Agreement. Said Performance Bond shall be issued by a surety company authorized to do business in the State of Florida and shall be refundable at the termination of this Agreement, if all terms and conditions of the Agreement have been satisfied. If the Performance Bond is on an annual coverage basis, renewal for each succeeding year shall be submitted to the Office of the City Manager thirty (30) days prior to termination date of existing Performance Bond. 24. INSURANCE REQUIREMENTS The Contractor shall maintain in full force and effect the insurance coverage according to the requirements as set forth in RFP 98-89/99 . 25. NOTICES All notices and rental payments shall be sent to the parties at the following addresses: -14- CITY: The City of Miami Beach City Manager 1700 Convention Center Drive Miami Beach, Florida 33139 CONTRACTOR: Adshelters, Inc. 5800 N.W. 77th Court Miami, Florida 33166 City and Contractor may change such addresses at any upon u on giving the other party written notification. All notices under this contract must be in writing and shall be deemed to be served when delivered to the address of the addressee. All notices served by mail shall be certified mail, return-receipt requested. Contractor may designate additional persons for notification of default. 26. WAIVER No waiver by City at anytime of any of the terms or conditions of the agreement shall be deemed at any time thereafter of the same or any other terms or conditions hereof. 27 . TIME OF ESSENCE Time shall be of the essence of this Contract. 28. TERMS BINDING ON SUCCESSORS All of the terms and conditions of this contract shall inure to the benefit of and be binding upon the successors and assigns of the parties hereto provided that any assignment by Lessee is first approved pursuant to Paragraph 18 hereof. 29. FORCE MAJEURE The performance of any act by City or Contractor hereunder may be delayed or suspended at any time while, but only so long as, either party is hindered in or prevented from performance by acts of God, the elements, war, rebellion, strikes, lockouts or any other cause beyond the reasonable control of such party provided -15- however, that if the condition of force majeure eure exceeds period a period of ninety (90) days, the City may, at its option and discretion, n, cancel or renegotiate this Agreement. 30. SEVERABILITY If any term or provision of this Agreement or the application thereof to any person or circumstance shall, to any extent be invalid or unenforceable, the remainder of this Agreement or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby and each term and provision of this Agreement shall be valid and be enforced to the fullest extent permitted by law. 31. CAPTIONS The captions contained herein are for the convenience and reference only and shall not be deemed a part of this Agreement or construed as in any manner limiting or amplifying the terms and provisions of this Agreement to which they relate. 32. GOVERNING LAW AND VENUE This Agreement shall be governed by and construed in accordance with the laws of the State of Florida. The venue for any litigation arising out of this Agreement shall be Dade County, Florida. 33. ENTIRE AGREEMENT This Agreement contains all of the agreements between the parties hereto, and it may not be modified in any manner other than by agreement in writing signed by all the parties hereto or their successors in interest. -16- IN WITNESS WHEREOF, the parties have executed this Agreement the date first above written. CITYs CITY OF MIAMI BEACH FORM APPROVED LEGAL DEPT. BY; 11" Or MAYOR Date Mao ATTEST: �-Xs� �- l-��v � ��c.l.,��•C��.� CITY CLER CONTRACTOR: ADSHELTERB, INC. BY: Signature - President Typed Name and Title: William Barkell, President ATTEST: I Aggay As t. BECR • • RY Keith Ritzmann (CORPORATE SEAL) HCM:ses -17- ORIGINAL RESOLUTION NO. 90-20046 Authorizing the Mayor and the City Clerk to execute an agreement between the City of Miami Beach and Adshelter, Inc. for the construction and maintenance of Bus Stop Shelters with advertising.