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Management Agreement with Standard Parking 1 MANAGEMENT AGREEMENT This MANAGEMENT AGREEMENT (this "Agreement ") is made and entered into this /0 day of Alm y eW1 861 L, , 2011, but effective as of August 16, 2011 (Commencement Date), by and between CITY OF MIAMI BEACH, FLORIDA, a municipal corporation -(the "City "), and, SP PLUS MUNICIPAL SERVICES, a division of STANDARD PARKING 4 CORPORATION, a Delaware corporation ("Operator"). WITNESSETH WHEREAS, at its February 9, 2011 meeting, the Mayor and City Commission authorized the issuance of Request for Proposals No. 17- 10/11; for Parking Attendants. for the City's Parking Garages (the "RFP "); and WHEREAS, at its May 11, 2011 meeting, the Mayor . and City 'Commission adopted Resolution No. 2011- 27658, accepting the recommendation of the City Manager, and authorizing the City to negotiate with Operator, as the top ranked proposer, pursuant to the RFP and, if 1 successful further authorizing the Mayor and City Clerk to execute an agreement with Operator; and WHEREAS, the City and Operator desire to enter into an agreement whereby Operator will administer, manage, and operate the City's parking facilities on the terms set forth below. NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, the parties hereto agree as follows: DEFINITIONS r Agreement This written Agreement between the City and the Operator. { "Annual Operating Budget" The proj ections of Operator as to monthly and annual totals for revenues and expenses, for each major financial account and line item, each _distinct group of revenues and expense centers; and individual operating units including estimated requirements of operational contingencies, equipment acquisitions, and the proper distribution of overhead and operator compensation to individual centers and units.. The first Annual Operating Budget, which covers the period from the Commencement Date, through September 30, 2012, is attached and incorporated as Exhibit "F" hereto. . "City Manager ": The Chief Administrative Officer of the City 'or his authorized designee. .. "Contract Year ": Each one (1) year period during the Term of this Agreement, beginning on August 16, and ending on August 15 ' "Fiscal Year ": Each one (1) year period beginning. October 1, ard.ending September 30 . - -- 'Operator ": For "the purposes of this Agreement, Operator shall be deemed to be an independent contractor, and not an agent or employee of the City. ".`Contract Manager An individual designated - by the City Manager vested with the authority" to. represent, correspond, and act on behalf of the City with i regard to the performance of:the Services and this Agreement. "Operating Expenses ": All operating budget expenses incurred by Operator in the operation, administration, and management of the Premises; as well as other expenses -not provided for in the budget, but only if such _expenses are specifically approved b the City-Manager, or his /her authorized p Y pp Y" designee (who shall be the Contract Manager), in writing. "Policies and Procedures ": The City of Miami Beach Parking Department Policies and Procedures for Attendants I and II, as same may -subsequentl y be amended from time to time. The most current copy of the Policies and Procedures, as of "the Commencement Date " of this Agreement, is attached and incorporated as Exhibit "A" hereto. "Proposal ' .Documents" Proposal Documents shall. _mean.. (a) ' Request. for Proposals No. 17- 10 /10 for Parking Attendants, for the _ City's Parking Garages (the RFP); and (b) the Operator's response thereto (the "Proposal "), both i of which are attached- and" incorporated as Exhibit "B" hereto; provided, however, that in the event of an express conflict among the RFP, ,Operator's Proposal, and this Agreement, the. precedence will be given to that term /provision which allows the City to enforce this Agreement in the strictest possible terms, and /or in accordance with the term(s) most favorable for the` City. "Risk Manager ": The Risk Manager" of the City, with offices at 1700 Convention Center Drive, Third Floor, Miami.Beach, Florida 33139. "Services ": All services, work and actions by.the Operator performed pursuant to or undertaken under this Agreement, and including, without limitation,, those set forth in the Scope of Services of the RFP; - Operator's Proposal; and any exhibits and /or .amendments hereto. In the event of an express conflict among the RFP, Operator's Proposal, and this Agreement, the precedence will be given to that term/provision which allows 'the City to enforce this Agreement in the strictest possible 2 Standard Parking Management Agreement (Final 10- 25 711) r terms, and /or in accordance with the term(s) most, favorable for the City. 1. PREMISES As of.the Commencement Date, the City hereby engages Operator and Operator hereby agrees to administer, manage, and operate the parking operations with respect to the various'parking garages and surface parking lots located in the City of Miami Beach, Florida, that are listed on Exhibit "C " , which is attached and incorporated hereto (collectively, the "Premises "). As of September 27, 2011, Operator shall also commence" managing the City's Pay - on -Foot Program including all collections from the various Pay -on -Foot parking stations located on the Premises (collectively, the "Pay - Stations "), in accordance with a collection schedule and standard operating procedures manual approved by the City prior to implementation, and attached as Exhibit "G" hereto. The City reserves the right, without liability to Operator or any related third party, to alter, change, modify,. move or close all or any portion, of- the Premises for . economics, refurbishment, modification, expansion, renovation, improvements, maintenance, or . repair. The City may also add new or additional Premises or delete - existing Premises from this Agreement. Any such modifications, additions, or deletions to the Premises shall be noted herein by providing a revised Exhibit "C" to Operator. Neither the modification, addition, or deletion of Premises shall change the method of calculating compensation due the Operator .*pursuant to Section 5 hereof. The City shall make commercially reasonable efforts to provide staffing schedules to Operator at least four (4) days in advance. In the event that staffing schedules are not received at least seven (7) days in advance, the City agrees to reimburse Operator for any overtime costs incurred by Operator as an Operating Expense. (defined in Section 3 below); provided, however, that Operator shall use commercially reasonable efforts to mitigate any such . overtime costs. "Notwithstanding the preceding, or any other term or condition of this Agreement, under no circumstances. shall Operator exceed the overtime cost(s) as set forth in the Annual Operating Budget, without the prior written approval of "the City Manager or his/her authorized designee. -Any request for overtime beyond the amount approved in the Annual Operating Budget shall be submitted, in writing, to the City .Manager or his authorized designee, prior to incurring such overtime, and must be approved by the City, in writing, in order to be considered an Operating Expense. 2. TERM The initial term of this Agreement shall be for three (3) years commencing on August 16; 2011 (the "Commencement Date"), and continuing through and including .August 15 2014 (the "Initial " Term "), unless terminated earlier as provided in , this Agreement. .At the City's sole option and discretion, and provided further that_ Operator is in good standing and free of default under the terms of this Agreement, the City shall have the option extend this Agreement for up to two (2) additional one .(1) year. terms by giving written notice of each renewal to Operator at least thirty (30), days prior *to expiration of the then current term; unless terminated earlier as provided in this Agreement. The Initial Term and any renewals-terms shall collectively be referred to as the "Term. 3. .. OPERATOR'S OBLIGATIONS AND SERVICES; ANNUAL OPERATING BUDGET; OPERATING EXPENSES Operator hereby covenants and agrees that it will, on a 24 hour basis: 3 Standard Parking Management Agreement (Final 10- 25 -11) (a) Operate and direct the operation of the Premises as. parking facilities, and render the usual and customary services incidental thereto; in a professional, businesslike, and efficient manner. (b) Employ sufficient experienced and qualified personnel who will render the services required by this Agreement, and who will be neatly uniformed and courteous to the public. (c) Promote, advertise, and endeavor to increase the volume, efficiency and quality of the services rendered. (d)_ . Promptly notify the -City of any matter that in Operator's reasonable judgment requires the City's attention. (e) NOTWITHSTANDING THE DESCRIPTION OF OPERATOR'S SERVICES IN THIS SECTION 3 OR ANYWHERE ELSE IN THIS AGREEMENT, AND WITHOUT LIMITATION, OPERATOR SHALL PROVIDE ANY AND ALL WORK AND SERVICES AS SET FORTH , IN, AND IN ACCORDANCE TO THE REQUIREMENTS OF, THE PROPOSAL DOCUMENTS: (WHICH ARE ATTACHED AS.. EXHIBIT " B HERETO AND ARE HEREBY DEEMED INCORPORATED BY REFERENCE AS IF FULLY SET FORTH HEREIN). IN THE EVENT OF AN EXPRESS CONFLICT AMONG THE RFP, OPERATOR'S PROPOSAL, AND THIS AGREEMENT, THE PRECEDENCE WILL . BE . GIVEN' TO THAT TERM /PROVISION WHICH ALLOWS THE CITY TO ENFORCE THIS AGREEMENT IN THE STRICTEST. POSSIBLE TERMS, AND /OR IN ACCORDANCE WITH THE TERM(S) MOST FAVORABLE FOR THE CITY. Annually during . the Term, on the date selected by the Contract Manager, Operator shall - prepare and submit to the City an Annual Operating Budget for the next City Fiscal Year, reflecting the Gross Receipts and Operating Expenses (both as defined herein) which Operator expects to receive and incur, respectively, during the City's forthcoming Fiscal Year. The first Annual Operating Budget is attached and incorporated as Exhibit "F" hereto.' The Annual Operating Budget is to be prepared- in accordance with the City's instructions and requirements. Said budget is subject to approval by the City and shall be used by the City in preparing its annual budget for the year. The City shall make reasonable efforts to approve any . proposed Annual Operating Budget within forty -five (45) days after receipt thereof; provided, however, that the City shall not be penalized, or otherwise waive its rights to approve or disapprove any such Budget, or any portion thereof, if the City exceeds the forty -five (45) day period provided herein. The Annual Operating Budget shall be presented in a monthly format, in total and by operating unit, with comparisons to the prior year (commencing in the second Fiscal Year) and 4 Standard Parking Management Agreement (Final 14- 25 -11) current year budget and actual. The Annual .Operating Budget shall include a detailed listing of recommended staffing for. the Premises, 'wage rate(s), and other employee expenses information. The parties acknowledge and agree that 80,000 labor hours . is the minimum amount of labor hours specified in the RFP, but-the Annual Operating Budget is based on 100,000 minimum labor hours. The Operator shall submit a written narrative explaining the basis and assumptions used in preparing said budget including, .without limitation, the opening and closing of operating units, recommended new services, and cost of products and labor. The Operator, in making the expenditures hereunder, shall not exceed the annually approved expenditure for each line item, without, the prior written approval of the City: In the event the Operator is required to make expenditures in excess of the amount included in the Annual Operating Budget, because of emergencies or operational necessity, and provided such expenditures are reasonable and otherwise reimbursable hereunder, the Operator shall request written approval from the Contract Manager prior to making such expenditure(s). The budget may be modified during any contract year at the direction of, and subject to the prior written approval of, the City Manager, or .his/her authorized designee. The Annual Operating Budget shall include all of the expenses to be incurred by Operator in the performance of its duties, obligations and services pursuant to this Agreement (such expenses to be collectively defined herein as "Operating Expenses") Operating Expenses shall be paid by the City pursuant to Section 7 hereof. Operating Expenses shall include, without limitation, all costs, charges and administrative expenses for: salaries, wages and associated payroll burden (including, without limitation, payroll taxes and . fringe benefits); license and permit fees; compliance with governmental laws and regulations; uniforms, supplies, tools and cleaning; monthly. vehicle lease payments, plus :any related vehicle maintenance and fuel costs; maintenance and repair required by Operator hereunder; telephone; utility .charges (except to the extent paid directly by the City); bookkeeping and administrative services; employee recruitment, training and ongoing employee relations; tickets, paper and reporting forms; accounts payable and insurance claims processing; health insurance, workers' compensation insurance, automobile insurance (where applicable), general public liability insurance and comprehensive crime insurance charges and deductibles established by Operator (plus attorney's fees and court costs to defend the City and/or Operator in actions. brought to recover damages for such losses, if approved in advance by the City'sAttorney), and losses due to theft or robbery. Operating Expenses shall also include any expenses not listed above that are approved by the City Manager and or his/her authorized designee (who, for purposes of this paragraph, shall be the Contract Manager), in writing, prior to expenditure. Operating Expenses shall not include: the costs of maintenance and repair required of The City hereunder; the City's various costs associated with its ownership and/or occupancy of the Premises including, without limitation, . depreciation, building insurance, real estate taxes and assessments, taxes on. the City's personal, property,. debt retirement, rent, and such costs and expenses as may be necessitated to comply with the Americans With Disabilities Act of 1990. Operating Expenses shall also not include expenses incurred by Operator for charitable and political contributions; travel and entertainment; public relations; gift; dues. and 'memberships; any , 5 . Standard Parking Management Agreement (Final 10- 25 -11) penalties, assessments or fines issued by any - court or authorized entity or agency; employee social functions; employee severance pay, and the cost of fringe benefits. not earned or accrued during the Term of this Agreement or while the employee has worked for the Operator. other than at the Premises; and charge -backs which resulted from the failure to apply any controls as described* in the Policies and Procedures, or as may otherwise be prescribed by, and required of Operator, by the City. The City shall have the absolute right to at anytime verify the amount(s) claimed for any Operating Expense. If the City disputes or contests any Operating Expense, the City shall give Operator written notice specifying. the item disputed and the reason therefor.. Payment for any Operating Expense that is not disputed shall not be withheld. The parties shall, in good faith, diligently pursue' clarification and resolution of any disputed item within thirty (30) days of such written notice sent by the City. 4. GROSS RECEIPTS; SALES TAX (a) Gross Receipts All Gross Receipts generated from the operations of the Premises under this Agreement shall adhere to the City.' "Gross Receipts' shall be defined as all monies, paid or payable to Operator for transactions made. and for services rendered by Operator in the operation of the Premises, or collected by Operator from the Pay Stations; regardless of (i) when or where the services are rendered; (ii) whether paid or unpaid; or (iii) whether on a cash `or credit basis. All Gross Receipts generated from the operation of the Premises under this Agreement shall be collected on behalf of the City by Operator, including all applicable sales, use, excise, occupancy, gross receipts, parking or any other tax or charge collected by Operator on behalf - of and payable to a taxing authority (collectively, "Sales Tax "), and shall accrue to the City. Monies payable shall include, without limitation, any and all cashier shortage differentials, overages and undercharges. Dishonored checks,. uncollected insufficient funds amounts, and uncollectible credit card charges shall not be included in Gross Receipts provided that the collection procedures for such transactions, as specified in the Policies and Procedures, or as may otherwise be prescribed by the City, are adhered to by Operator. (b) Operator shall deposit all Gross Receipts collected into an on -site drop safe and then courier to the City's designated bank for deposit via armored car service. Operator shall deposit the Gross Receipts in the - City's bank account in accordance with the City's written instructions (including identification of the name and account number of such account) to Operator. Daily deposits shall be made as soon as practical, but no later than the next banking day following receipt 'of. the revenue transactions. Possession of Gross Receipts shall be deemed. the. City's only when the Contract Manager; or his /her authorized designee, within the City's Parking Department, has received the duplicate slips, properly certified by a cashier. or officer of the depository bank. Said validated deposit slips must be delivered to the Contract Manager, or his /her authorized designee, Standard Parking Management Agreement (Final 10- 25 711) on a daily basis, but not later than 11:30 am, following the execution of any revenue transaction. All bank advice pertaining to, without limitation, counterfeit money, dishonored checks, and deposit corrections, shall also be delivered to the Contract Manager, or his /her authorized designee, in the same manner. The City must report any missing Gross Receipts to Operator within twenty four (24) hours after the corresponding deposit is made into the City's bank account. (c) All cash losses .(including, without limitation, cash shortage and discrepancies in reconciling cash collected to parking tickets, revenue control reports, any exception tickets, missing parking tickets, and any other form of payment of Gross Receipts) shall be the responsibility of, and be reimbursed by, the Operator. Operator shall promptly reimburse the City, in full, for any such losses; and in no event shall such reimbursement be later than within 72 hours following either verbal or written notice from the Contract Manager or his /her authorized designee. (d) Sales Tax Payments and Filings The City, shall be solely responsible for (i) remitting all Sales Tax due in connection with the Premises directly to the applicable taxing authorities (whether City, County and /or State) and (ii). preparing and filing. all Sales Tax returns (whether City, County and /or State) required in connection with the Premises.. Operator shall not have any obligation for payment of any Sales Tax or filing of any Sales. Tax returns; provided, however, that Operator shall, as reasonably requested by the City, assist the City with the preparation of such tax returns. Upon written request from Operator (whether monthly or semi - annually), the City shall promptly provide Operator with a copy of each Sales Tax return filed with and each Sales Tax payment made. to any taxing authority during such period .requested. (1) The City shall keep and maintain, in accordance with generally accepted accounting principles, .complete and accurate records of all Sales Tax computations, Sales Tax payments and Sales Tax returns for not less than three (3), years following expiration or termination of this Agreement. In the. event that Operator is subject to an audit by any taxing authority, the City shall use reasonable commercial efforts to cooperate with Operator and provide Operator with ,.City's records required to be.' maintained hereunder. All business licenses and tax - related applications shall be in the City's name and the City shall provide Operator with a copy of the City's State of Florida sales & use tax remittance /account number. (e) The City shall provide Operator with access keys for the Pay Stations as well as access to the City's_ ScanNet computer software so that Operator may obtain the necessary activity reports. Standard Parking Management Agreement (Final 10- 25 -11) (f) Operator - shall provide a one -time advance of $172,500 to establish and maintain adequate change funds in the change hoppers of the Pay Stations; provided, however; that this amount may be subject to change in the event the City, determines to add additional Pay .Stations from time to time throughout the Term (the "Change Fund Advance"). The City agrees that Operator will always have access to the Pay Stations during the Term, and that Operator may withdraw the Change Fund. Advance from the Pay Stations immediately upon expiration or. termination of this Agreement by either party regardless of reason. In addition, if there, are insufficient funds in the Pay Stations for Operator to fully recoup the Change Fund Advance, the City agrees to pay Operator any remaining balance due within five (5) after receipt of invoice. 5. MONTHLY MANAGEMENT FEE As compensation for Operator's services hereunder, the City shall pay: Operator, a fixed management fee of $6;250 per month (the "Management Fee "), prorated, for any partial month. Said fee be payable upon billing by the Operator, and in accordance with Section 6 hereof. 6. MONTHLY REPORTING (a) Within twenty (20) days after the end of each month, Operator shall submit to the Contract Manager, for his/her review and approval and payment thereof, a statement, certified by an officer of the Operator, showing all Operating Expenses, the Management Fee, and the total amount due and payable by the City to Operator pursuant to Section 7 hereof for the preceding month. The report serves as a summary of monthly Operating Expenses, and as a monthly invoice to the City from the Operator. Operator shall keep complete and accurate reports and records of all Gross Receipts and Operating Expenses, which shall be kept in accordance with good accounting practices. (b) Operating Expenses. are: to be accompanied by -a scanned original invoice(s) and supporting documentation. Reproduced invoices shall not be accepted by the City; and subject the Operator_ to non - reimbursement... (c) The Operator shall_ not be reimbursed_ for the .purchase of products or services, which would otherwise constitute an. Operating. Expense hereunder, if such purchase has been from -a Related Party, unless such proposed purchase has been fully disclosed by Operator to the City, in writing prior to the purchase, and written approval has been given by City. For purposes herein, a Related Party is defined -as the Operator, or any entity which has direct or indirect ownership interest in the Operator, or any entity in which the Operator has a direct for indirect ownership interest.. 8 Standard Parking Management Agreement (Final 10- 25 -11) (d). Operator shall permit the City- to inspect Operator's records at Operator's -offices during reasonable business hours and at the City's expense. 7. PAYMENT OF MANAGEMENT FEE AND OPERATING EXPENSES All payments required to.be made to Operator -by the City hereunder shall be due and payable within twenty five (25) days. of receipt and in accordance with the guidelines of the Local Government Prompt Payment Act, as set forth in-Part VII of Chapter.218, .Florida Statutes (and as same may be. amended from time to time)., The City may withhold payment of those portions, of billings from Operator which are in question or dispute. The City shall advise Operator, in writing, of any such questioned or disputed portions of the billing within. the guidelines and timeframes of the relevant statutory or contractual period, and shall remit . the undisputed balance as provided for. herein. 8. OPERATOR'S INSURANCE COVERAGES (a) Operator shall not commence any work, and /or services under this. Agreement until all insurance required under this Section has been obtained and such insurance has' been approved by the City's Risk = Manager. Operator shall carry and maintain, as an Operating Expense, the following insurance coverages during the Term of this Agreement: (1) Worker's Compensation insurance in compliance with the Worker's Compensation Act of the State of Florida. (2) Employer's liability insurance on all employees for the Premises not covered by the Worker's Compensation Act, for occupational accidents or disease, in limits of not. less than $1,000,000 for any one occurrence, or whatever is necessary to satisfy the requirements of the umbrella .liability insurance specified in Subsection (a)(6) below. (3) Comprehensive General Liability insurance on an occurrence form basis- with limits of not less than $1,000,000 per occurrence for bodily injury property damage to include Premises /Operations; Products; Completed Operations and Contractual Liability. Contractual. Liability and Contractual Indemnity, with Hold Harmless /Indemnity provision and with an annual aggregate limit Of $1,000,000 per location. (4) Automobile liability, insurance including comprehensive and collision` coverage with a limit of not less than $1,000,000 per occurrence (owned /non - owned /hired automobiles includes). (5) Comprehensive crime insurance including employee theft, premise, transit and depositor's forgery coverage with limits as to any given occurrence of $1,000,000. Standard Parking Management Agreement (Final 10- 25 -11) (6) Umbrella liability insurance with an annual aggregate limit of not less than $50,000,000. (b) The liability policies affording the coverages described in subsections -(a)(3), (a)(4) and (a)(6) above shall be endorsed to cover the City and its employees, agents, directors and officers as additional insureds. (c) Operator shall deliver certificates of insurance to the City's Risk Manager and renewal policies shall be obtained, and certificates delivered to the Risk Manager, at least fifteen (15) days prior to expiration. The certificates of insurance shall state that the issuing company shall provide thirty (30) days' prior written notice to the certificate. holder should any of the policies be cancelled prior to the expiration date.' (d) All of Operator's certificates, above; shall contain endorsements providing that written notice shall be given to the City at least thirty (3 0) days prior to termination, cancellation or reduction in coverage in the policy. The insurance must be furnished by insurance companies authorized to do business in the State of Florida and approved by the City's Risk Manager. Original certificates of insurance for the above coverage must be submitted to the City's Risk Manager'. These certificates will be kept on file in the office of the Risk Manager, City Hall, 1700 Convention Center Drive, 3rd Floor, Miami Beach, Florida 33139. The Operator shall also be solely responsible for obtaining, submitting, and maintaining current. and in full force, all insurance for its subcontractors. (e) All insurance policies must be issued by companies authorized to do business under the laws of the State of Florida. The companies must be rated no less than "B +" as to management and not less than "Class VI" as to strength by the latest edition of Best's Insurance Guide, published by A.M. Best Company, Oldwick, New Jersey, or its equivalent, subject to the approval of the City's Risk Manager. (f) Compliance with the insurance requirements in this Section, shall not relieve'the Operator of the liabilities and obligations under this Section or under any other portion of this Agreement, and the City shall have the right to from the Operator specimen copies of the insurance policies in the event that submitted certificates of insurance are inadequate to ascertain compliance with required coverage. The Operator represents and warrants that any insurance protection required by this Agreement or otherwise provided by its contractors and subcontractors shall in no way limit .the responsibility to indemnify, keep and save harmless and defend the City or its officers, employees, contractors; consultants, agents, and instrumentalities as herein provided. 10 Standard Parking Management Agreement (Final 10- 25 -11) 9. AUDIT AND INSPECTIONS (a) At any time during normal .business hours, and. as often as the. City may deem necessary, during the Term herein, Operator shall make available to the City and/or such representatives as the City may deem to act on its behalf, to audit, examine, inspect, and /or copy, any and all records and documents of Operator's related to matters covered by this Agreement including, without limitation, all . contracts, invoices, payrolls, records of personnel, conditions of employment, and such other data, records, documents, and /or .materials (collectively, the Records) as may relate to, matters covered by this Agreement. Operator shall maintain any and all such Records throughout the Term of this Agreement and for a period of three (3) years after. the conclusion of all Services to be performed herein. - (b) Access to Records: Operator agrees to allow access during normal business hours to all Records, pertaining to this Agreement and the performance of the . Services, to the City and /or such authorized representatives as it may deem to act on. its behalf, and agrees to provide such assistance as may be necessary to facilitate audit (financial or otherwise), and /or inspection by the. City or its representatives.. (c) Operator shall bind any bf' its contractors performing a portion of work and /or of the Services under this Agreement to the provisions of Sections 9 and subsection 9(a) hereto. - (d) Annual Performance Evaluation and Audit: It is the parties' intent to .stay informed of comments and suggestions by the City regarding Operator's performance under this Agreement. Accordin 1 within thirty 30 days . p - g g Y� Y (� ) s Y after the: end of each contract year during the Term of this Agreement, City and Operator shall meet - to review and evaluate Operator's performance under, this Agreement for the previous contract year, following which, a detailed written report/performance evaluation shall be prepared and presented to the City Manager who, in his reasonable discretion and judgment, may present said report to the City Commission. 10. OPERATOR'S EMPLOYEES Operator will make every effort to obtain and hire personnel of the highest quality, caliber, and integrity relative to each position required 'to perform the Services hereunder. All personnel shall have, at a minimum, good command of the English language, shall be proficient in simple math, and shall be qualified to complete all daily cashier reports, and related materials. All personnel must be bonded or insured with proof of same to be made available to the City - Standard Parking Management Agreement (Final 10- 25 -11) upon request (Operator's bonding requirement shall be satisfied with Operator's comprehensive crime insurance required in Section 8 above). (a) Personnel Standard (1) The Operator shall properly control its employees, who shall present a clean, neat, well - groomed and, professional appearance at all times, and discharge their duties in a cooperative, courteous and efficient manner. Satisfactory maintenance of these requirements shall be the basis for continued employment of all employees of 'the Operator hereunder. The Operator shall require all personnel except non- public contact, and managerial employees, to wear visibly on their person, at all times while on duty, - a distinctive name tag identifying the individual by name as an employee of the Operator and if .appropriate, displaying an, employee number or title. (2) The Operator shall ensure at all times that the names of on -duty cashier personnel are properly displayed at ,the exit booths so as to be readily visible and readable by drivers of exiting vehicles, while stopped at such exit booths. (3) The Operator shall require all its personnel, except non - public contact and managerial employees, to be properly uniformed. The design and color of such uniforms are to be approved .in advance by the City. (4) Operator's employees and /or independent contractors shall be employees /contractors 'of Operator and shall not be considered agents or employees of the City. Subject to the provisions of this Agreement, Operator shall select . the number, function, qualifications, and compensation (including benefits as applicable) of each and every one of its employees /contractors. (5) In its performance of the Services, the Operator shall comply, and shall be solely responsible for ensuring that its employees and independent contractors comply, with all applicable City, State, ,County, and Federal laws and ordinances including, without limitation, applicable regulations of the City (including, without limitation, the Policies and Procedures), ADA,' and EEO Regulations and Guidelines. (6) Selection, hiring, and staffing of the required cashiers, attendants, and supervisors to adequately ensure the provisions o f the Services in' a first -class manner will be the sole responsibility of the Operator. Notwithstanding the preceding however, the City shall `12 - Standard Parking Management Agreement (Final 10- 25 -11) determine the Op.erator's staffing levels, in its sole and absolute discretion. The Operator shall provide the Services in accordance with the - highest levels of service and professionalism and in a manner comparable to the provision of similar services in first- class public parking garages. (7) It is the sole responsibility of the Operator to ensure that all personnel are trained in the use of Federal APD magnetic- stripe parking systems and /or- comparable revenue control systems the City may institute, and have received training ini and are fully knowledgeable with the Policies and Procedures. Operator and its employees shall at all times, during the Term herein, adhere to the Policies. and Procedures. Y (8) The most current version of the Policies and Procedures, as of the effective date of this Agreement, is attached and incorporated as Exhibit "A " , hereto. Notwithstanding 'the preceding, the City . reserves the right; in its sole discretion, to amend the Policies and Procedures at any time during the_ Term of this Agreement, and Operator hereby agrees and acknowledges to be governed by any and all such amendments. (9) Operator- shall issue its employees uniforms, which shall be approved by the City, and worn per City- issued standards. Operator and its employees- shall keep uniforms in like -new condition. Operator will provide and . directly pay for the costs of all uniforms for its employees as an Operating Expense. (10) All prospective employees of Operator at the. Premises, including the Premises - Manager (as herein after defined), shall agree, in writing,.. to any testing as allowable by law; including, without limitation, criminal background checks and alcohol and drug testing, as a pre- employment screening mechanism, to assist the Operator in determining the accuracy and integrity of employment applications. (11) In addition, the City may require the Operator to have polygraph examinations administered . at. individual instances, fully in compliance with the requirements and limitations of federal and State law. Further, the Operator shall establish a program for alcohol and drug screening based upon reasonable suspicion. that an employee, while on duty at - the Premises, - may be under the influence of alcohol or 'drugs. 13 - - Standard Parking Management Agreement (Final 10- 25 -11) (12) The Operator, shall, on an ongoing basis, provide effective customer service training programs for all personnel having public contact. (b) Immediate Removal of Cashiers, Attendants, and /or Supervisors The City reserves the right, 'in the City Manager and /or the Contract Manager's sole and reasonable discretion, to demand that the Operator replace any cashier(s), attendant(s), ' or supervisor(s) within one (1) hour of notification, whether written or verbal, by the City's Contract Manager to the Premises Manager, of any employee that the City deems unacceptable. The City may deem an -employee unacceptable where, in its sole and reasonable judgment, the City determines that an employee is not providing work and /or services and /or performing. in accordance with the standard of quality and level of professionalism as would be commensurate with cashiers, attendants, and supervisors in similar, first- class operated public parking garages, and may consider such factors as: employee job knowledge; 'employee courtesy to the public; employee attendance; employee communication skills; employee honesty and integrity; employee capability'as a cashier, attendant, and/or supervisor; or other similar factors. (c) Premises Manager Prior to commencement of any Services pursuant to this Agreement, the Operator.. shall appoint a trained and qualified individual, acceptable - 'to the City Manager or his /her authorized designee, to serve as the Premises Manager. The Premises Manager shall be qualified and experienced in parking facilities management and operations, with similar responsibilities for a comparably sized operation, or an equivalent approved by the City. The Premises Manager shall have no other duties or responsibilities than the day -to -day management of the Premises and the activities under this Agreement, and he /she shall serve as the primary contact for the City's .Contract Manager. The Premises Manager (including, without limitation, any successor thereto) shall at all times be subject to approval by the City. Manager ' or his /her authorized designee. Operator further agrees that, within fourteen. (14) days written notice from. the City, Operator shall promptly review -and replace the Premises Manager assigned to this Agreement, which request may be made by the City with or without stating cause for .same. (d) " Migration ". of Imperial Parking (U.S.), Inc. Employes As further .inducement for the City to enter into this. Agreement, Operator commits to offer employment to employees of the City's former operator /provider of cashiers, attendants and supervisors, Imperial Parking (U.S.), Inc. (or Impark), which offer shall include that any, Impark employee choosing to "migrate" shall be offered employment by Operator, at a' minimum, at the same wage the employee had with Impark. 14 Standard Parking Management Agreement (Final 10- 25 -11) Operator shall not reduce any employee wages for those employees of Impark who were earning -more than the. hourly wage required under the City's Living Wage Ordinance; (provided the employee was earning that wage as of the date of issuance of the .City RFP process for the Services herein): Notwithstanding the preceding, any and all employees including, without limitation, employees of Impark, seeking employment with Operator pursuant to the aforestated provisions, must comply with Operator's hiring policies and procedures as a condition of employment. (e) Living Wage Ordinance Requirement THE FOLLOWING REQUIREMENTS SHALL APPLY TO. THIS CONTRACT. .Pursuant to City of Miami Beach Living Wage Ordinance No. 2010 -3682, as codified in Chapter 2, Division 6, Sections 2 -407 through 2 -410, of the Miami Beach Code, and as attached and incorporated as Exhibit "D" - hereto,' all service groups or individuals, entering into a contract with the - City, shall be required to pay all employees, who. provide services pursuant to this Agreement, the hourly living wage rates, based on the following three (3) year phase -in approach: Commencing with City Fiscal Year 2010=11 (October. 1, 2010), the hourly living wage. rate will be $10.16 /hr with health benefits, and $11.41 /hr without benefits; • Commencing with City Fiscal Year 2011 -12 (October 1, 2011), the hourly living - wage rate will be $10.72 /hr with health benefits, and $12.17 /hr without, benefits; and Commencing with .City. Fiscal Year 2012 -13 (October 1, 2012), the hourly living .rate will be $1 /hr with health benefits, and $12.92/hr without benefits. For purposes of complying with the -new Living Wage requirements by choosing to pay the lower. hourly rate, when a covered employer also provides health benefits, such health benefits shall consist of payment of at least $1.64 per hour toward the provision of a health. benefits plan for covered employees and their dependents. Operator's failure to comply with this provision shall be deemed a .material breach under this Agreement. (f) Equal Benefits Requirements THE FOLLOWING REQUIREMENTS SHALL APPLY TO THIS CONTRACT. Operator by its execution of this Agreement, further acknowledges that it required to comply with all applicable provisions of City Ordinance_ No. 2005- 3494, attached and incorporated as Exhibit "E" hereto and as same may be amended from time to time which requires certain Operator to provide equal benefits for domestic partners (the Ordinance). This. Ordinance applies to all - Standard Parking Management Agreement (Final 10- 25 -11) employees of Operator who work within the City limits of the City of Miami Beach, Florida, and the Operator's employees located in the United States, but outside of the City of Miami Beach limits, which are directly performing work on a contract within the'City of Miami Beach. 11. INTELLECTUAL PROPERTY Operator hereby grants to the City, during the Term of this Agreement only, a non - assignable, non - exclusive right and license to use Operator's intellectual property, including but not limited to its trade names, trademarks and any and all on- site parking amenities programs (the "Intellectual Property "), to the extent related to Operator's administration, management and operation of the Premises. Upon termination of this Agreement for any reason, Operator shall have the right, at its sole cost and expense, to remove the Intellectual Property from the Premises, and -the City shall refrain from all further use of the - Intellectual Property. 12. THE CITY'S OBLIGATIONS The City shall, at its expense, be responsible for performance of the following: (a) Except for custodial duties expressly delegated to Operator pursuant to Section 3 hereof, all repair and maintenance of the Premises, the Pay . Stations, and the City's systems and improvements in good condition and repair. The City shall be responsible for all preventive maintenance; regular maintenance; and repairs of all pay on foot stations. (b) The City shall provide Operator with a calendar of events at the City of Miami Beach Convention Center, The Fillmore at the Miami Beach Jackie Gleason, and New World Symphony. The City shall also provide Operator with a copy of the City of Miami Beach annual calendar. (c) The City shall use reasonable business .efforts to notify Operator of any special events and their specific parking requirements at least one week (seven (7) calendar days) prior to commencement of the event. - (d) The City shall provide a comprehensive list of events requiring the staffing of surface parking lots. (e) The City expressly acknowledges that Operator does not have knowledge or expertise as a guard or security service; and does not employ personnel for that. purpose, nor do Operator's employees undertake the obligation to guard or protect customers against the intentional acts of third parties. The City shall determine, at the City's sole and reasonable discretion, whether and to what extent any precautionary measures, security devices, or security services maybe required to protect patrons in and about the Premises. (f) The City shall make commercially . reasonable efforts to provide staffing schedules to Operator at least four (4) days in advance. In the event that staffing schedules are not received at least seven (7) days in advance, the 16 Standard Parking Management Agreement (Final 10- 25 -11) City agrees to. reirriburse Operator for any overtime_ costs incurred by Operator as an Operating Expense (defined in Section 3 hereof); provided, however, that Operator shall use commercially reasonable efforts to mitigate any such overtime costs. Notwithstanding - the preceding, or any other term or condition of this Agreement, under. no circumstances shall Operator exceed the overtime cost(s) as set forth in the Annual Operating Budget, without the prior written approval of the City - Manager or his/her authorized designee.. Any request for overtime beyond the amount approved in the Annual'Operating Budget shall be submitted, in writing, to the City. Manager or his, authorized designee, prior to incurring such overtime, and must be approved by the City, in writing, in order to be considered an Operating Expense. 13. INDEMNIFICATION The Operator shall indemnify, defend, and hold harmless the City, including its successors and assigns, and its officers, employees, operators, suboperators, consultants; subconsultants, agents, bond trustees, and instrumentalities (collectively, the "Indemnitees "), from any and all liability, loss, claim, damage or cost, including attorney's and expert fees and cost of defense, which the City or its officers, employees, operators, suboperators, consultants, subconsultants, agents, bond trustees, or instrumentalities, may incur in whole or in part (i) out of any injury, loss, theft, damage or cost to any .person or property while on or about the Premises, or out of any condition, on the Premises, caused by any breach of any Agreement term, condition, covenant, warranty or representation by Operator or persons acting under Operator, or from any act or omission anywhere by Operator br persons. acting - under Operator; or (ii) as a result of claims, demands, suits, "causes of, actions or. proceedings of any kind or nature ari sing out of, relating to, or resulting from, the performance of this Agreement by the Operator or its employees, agents, servants, partners, principals, operators, vendors,. or suppliers, except to - the extent caused directly by the gross negligence or willful misconduct of City. The Operator shall pay all claims and losses in connection therewith, and shall investigate -and defend all claims, "suits or actions of any kind or nature in the name of the City, where applicable, including appellate proceedings, and shall pay all costs, judgments, and attorney's and expert fees which may issue thereon. This provision shall survive termination of this Agreement. 14. Intentionally Deleted 15. RELEASE AND WAIVER OF SUBROGATION In the event all or any part of . the Premises (including any buildings, improvements or other real or personal property thereon) are damaged or destroyed by fire or other casualty, the rights or claims of either party or its employees, agents, successors or assigns, against the other with respect to liability for such loss, destruction or damage resulting therefrom, including loss, destruction or damage suffered as a result of negligence of either party or their employees. or agents, are hereby released and discharged, and any and all subrogation rights or claims are hereby waived to the extent of the actual insurance coverage carried by the parties or. which is commonly covered under an all -risk insurance policy, in either case irrespective of applicable deductibles. All such insurance policies shall contain a clause or endorsement providing that the insurance shall not be prejudiced if the insured has waived its rights of recovery (including subrogation rights) against any person or company prior to the date of loss, destruction.or damage. - 17 Standard Parking Management Agreement (Final 10- 25 -11) 16. LICENSES AND PERMITS Operator shall obtain and maintain all licenses and permits required by an operator of parking facilities by any governmental body or agency having jurisdiction over Operator's operations at the Premises and will abide by the terms of such licenses and permits. Any license or permit fees incurred by Operator shall be deemed an Operating Expense: 17. LAWS AND ORDINANCES Operator shall not use all ' or any part of the Premises for any use or purpose which is (i) forbidden by or in - violation of any law of the United States, any State . law or any County or City ordinance; or (ii) may be dangerous to life, limb or property. The Operator, its agents, employees, and contractors shall comply with all applicable Federal, ` State, and County laws; the City Charter and Related Laws; Code and ordinances; the Policies and Procedures; and any and all applicable rules and regulations promulgated by local, - State, and national boards, bureaus and agencies as they relate to this Agreement. 18. PROHIBITION OF - HIRING SUPERVISORY PERSONNEL Operator shall provide experienced and qualified supervisory personnel to supervise its operations. Consequently, the City covenants and agrees that it shall not.hire such supervisory personnel for a period of six (6) months after the date of termination of this Agreement. The City and Operator agree that it would be difficult to ascertain the amount of damages that would result in the breach of this covenant. Therefore, the parties stipulate and agree that Operator will be compensated, in the amount of $5,000 per employee, as liquidated damages for each and every employee hired by the City prior to the end of the 6 -month period agreed to herein. 19. RELATIONSHIP OF THE PARTIES; NO _ THIRD PARTY BENEFICIARIES No partnership or joint venture between the parties ' is created by this Agreement, it being agreed that Operator is an independent contractor. Officers, agents, employees, contractors, consultants, suppliers, or vendors of Operator are not employees of the City for any purpose whatsoever. There are NO third party beneficiaries of this Agreement. 20.. FORCE MAJEURE Neither party shall be in violation. of this Agreement for failure to perform any of its obligations by reason of strikes, boycotts; .labor disputes, embargoes, shortages of materials, acts of God, acts of the public enemy, acts of public authority, weather conditions, riots, rebellion accidents, sabotage or any other circumstances for which it is not responsible and which.are not within its control. No Management Fee shall be due to Operator if it suspends operations for any such cause or event for the period of such suspension. 21. GOVERNING LAW This Agreement shall be governed by, and construed in accordance with,' the laws of the State of Florida, both substantive and remedial, without regard to principles of conflict of laws. The exclusive venue for any litigation arising out of this Agreement shall be Miami -Dade County, Florida, if in State court, and the U.S. District Court, Southern District of Florida, if , in federal court. BY ENTERING INTO THIS AGREEMENT, THE CITY AND OPERATOR EXPRESSLY WAIVE ANY RIGHTS EITHER PARTY MAY HAVE TO A TRIAL BY JURY .OF ANY CIVIL LITIGATION RELATED TO, OR ARISING OUT OF, THIS AGREEMENT. 18 Standard Parking Management Agreement (Final 10- 25 -11) 22.: APPROVALS Whenever the approval of either party is required herein, such approval, unless expressly provided otherwise herein, shall be given in writing and shall not be unreasonably withheld, conditioned or delayed. 23. WAIVERS No waiver of default by either party of any term, covenant or condition hereof to be performed-or observed by the other party shall be construed as, or operate'as, a waiver of any subsequent default of the same or any other term, covenantor condition hereof. 24. SEVERABILITY If any provision hereof is held to be invalid. by a court of competent jurisdiction, such invalidity shall not affect any other provision hereof, provided such invalidity does not materially prejudice either party in its rights and obligations contained in the valid provisions of this Agreement. 25. TERMINATION, SUSPENSION AND SANCTIONS (a) Termination for Cause. (1) If the Operator shall fail to fulfill, in a timely manner, or otherwise violate any of the covenants, agreements, or stipulations in this Agreement, the City shall thereupon have the right to terminate the Services then remaining be performed. Prior to exercising its option to terminate for cause, the City shall notify the Operator of its violation of the. particular terms of this Agreement and shall grant Operator seven (7) days to cure such default.. If such default remains uncured after. seven (7) days, the City, upon three (3) days' prior written notice to Operator, may terminate this Agreement., Notwithstanding the above, the Operator shall not be relieved of liability to the City for damages sustained by the City by virtue of any, breach of this Agreement by ' the Operator. Additionally, the City may reasonably wit_ hhold payments to the Operator for the purposes of set -off until such time as the exact amount of damages due the City from the Operator is determined. (2) If the City shall fail to pay Operator any amounts when due, or shall fail to fulfill or otherwise -violate any other monetary covenants,. agreements, or stipulations in this Agreement, Operator shall thereupon, have the right to terminate this Agreement. Prior to exercising its option to terminate for cause, Operator shall notify the City of its default of the particular terms of this Agreement and shall. grant the City thirty (30) days to cure such default. If such default remains uncured. after thirty (30) days; Operator, may terminate this Agreement; provided, however, that, notwithstanding_ and in addition to, the City's thirty (30) day cure period, Operator shall provide the City with no less then sixty (60) days prior written notice of its intent to terminate this Agreement, in order to allow the City time to either (i) manage and operate the 19 Standard Parking Management Agreement (Final 10- 25 -11) Premises itself, or (ii) find a successor interim (or permanent, as the case may be) operator for the Premises. (b) Termination for Convenience of the City. NOTWITHSTANDING THE LANGUAGE IN SUBSECTION 25(a)(1), THE CITY MAY, FOR ITS CONVENIENCE AND WITHOUT CAUSE, TERMINATE THE SERVICES THEN REMAINING TO BE PERFORMED AT ANY TIME BY GIVING. THIRTY (3 0) DAYS WRITTEN NOTICE TO OPERATOR OF SUCH TERMINATION, WHICH SHALL BECOME EFFECTIVE AS OF THE DATE SPECIFIED IN THE NOTICE TO OPERATOR. (c) Termination for Insolvency. The City also reserves the right to terminate the remaining Services to be performed in the event the Operator is placed either in voluntary or involuntary bankruptcy or makes an assignment for the benefit of creditors. In such event, the right and obligations for the parties shall be the same as provided for in Section 25.1. (d) Sanctions for Noncompliance with Nondiscrimination Provisions. In the event of the Operator's noncompliance with the nondiscrimination provisions of this Agreement, the City shall impose such sanctions as the City, or the State of Florida, may determine to be appropriate, including but not limited to, withholding of payments to the Operator under. this Agreement until the Operator complies and /or cancellation, termination or suspension of the Services. In the event the City cancels or terminates the Services pursuant to this Subsection, the rights and obligations of the parties shall be the same as provided in Section 25.1 26. ASSIGNMENT Operator shall not assign or transfer this Agreement or its right, title or interest herein without the prior written consent of the City, which consent shall not be unreasonably withheld. Operator is _hereby given the right to assign this Agreement to an affiliate of Operator or to a corporation substantially all of the stock of which is owned by Operator and/or to collaterally assign its right,, title and interest herein to a financial institution as security for any present or future loans to Operator. 27. NOTICES Any notice or communication required to be given to or served upon either party hereto shall be given or served by personal service or by express delivery or by mailing the same, postage prepaid, by United States registered or certified mail, return receipt requested, to the following addresses: TO CITY: City of Miami Beach . 1755 Meridian Avenue, Suite 100 Miami Beach, FL 33139 Attn: Saul Frances, Parking Director TO OPERATOR: Standard Parking Corporation 900 N. Michigan Avenue, Suite 1600 20 Standard Parking Management Agreement (Final 10- 25 -11) Chicago, IL 60611 Attn: Legal Department with copy to: Standard Parking Corporation (by regular mail). 900 N. Michigan Avenue, Suite 1020 Chicago, IL 60611 Attn: Steven A. Warshauer,- Executive Vice President Either party may designate a substitute address at any time hereafter by written notice thereof to the other party. 28. ENTIRE AGREEMENT This Agreement, together with all exhibits hereto, constitutes the entire agreement between the parties, and supersedes all representations, statements or prior agreements and understandings both written and oral with respect to the matters contained in this Agreement and exhibits hereto. No person has been authorized to give any information or make any representation not contained in this Agreement. This Agreement may be amended only by written agreement of the parties. 29. PARTIES BOUND This Agreement shall be binding upon and inure to the benefit of the parties hereto and their heirs, successors, executors, administrators, legal representatives and permitted assigns. 30. NEITHER PARTY DEEMED DRAFTER The parties to this Agreement have had sufficient time to consult legal counsel and negotiate changes regarding the terms hereof. Therefore, neither party shall be deemed the drafter of this Agreement and, as such, this Agreement shall not be construed against either party due to the drafting hereof. 31. ATTORNEY FEES In the event that either party hereto should (i) retain legal counsel and/or institute any suit against the other for violation of this Agreement or to enforce any. of the covenants or conditions herein, or (ii) intervene in any suit in which the other is a party to enforce or protect its interest or rights hereunder, the prevailing party in any such suit shall be entitled to all of its costs, expenses and reasonable fees of its attorney(s) in connection therewith. The rights and obligations of this Section shall survive the termination or expiration of this Agreement. 32. AUTHORITY The individual signing this Agreement on behalf of the City hereby represents that he or she has been empowered with full authority to act on behalf of the City in connection with this Agreement, and that execution of this Agreement has been duly authorized by the City. The individual signing this Agreement on behalf of Operator hereby represents that he or she has been empowered with full authority to act on behalf of Operator in connection with this Agreement, and that execution of this Agreement has been duly authorized by Operator. 33. EMPLOYEE /SUB- CONTRACTOR SKILL, KNOWLEDGE AND EXPERIENCE The Operator represents that it has made, and will continue to make, reasonable investigation of all employees (including, without limitation, supervisors, cashiers, and attendants) and independent ,Contractors to be utilized in the performance of the Services under 21 Standard Parking Management Agreement (Final 10- 25 -11) this Agreement, to determine that all possess the requisite skill, knowledge, and experience necessary to enable them to perform their respective work and /or portion of the Services, in accordance with the level of service and quality associated with the operation of similar first - class public parking garage facilities. Notwithstanding the preceding, or any other term or condition of this Agreement, Operator shall be primarily and solely responsible to the City for the performance of the Services under this Agreement. 34. EQUAL EMPLOYMENT OPPORTUNITY In connection with the performance of this Agreement, the Operator shall not discriminate against any employee or applicant for employment because of race, ' color, religion, ancestry, sex, age, national origin, place of birth, marital status, sexual orientation or disability. The Operator shall take all action required by applicable law to ensure that applicants are employed and that employees are treated during their employment without regard to their race, color, religion, ancestry, sex, age, national origin, place of birth, marital status, sexual orientation or disability. Such action shall include, but not be limited to the following: employment, upgrading, demotion, or termination; recruitment or recruitment advertising; layoff or termination; rates of pay, or other forms of compensation; and selection for training, including apprenticeship. 35. CONFLICT OF INTEREST The Operator agrees to adhere to and be governed by the Miami -Dade County Ethics and Conflict of Interest laws, as same may be amended from time to time, and by the City of Miami Beach Charter and Code, as same may be amended from time to time, in connection with the performance of the Services herein. The Operator covenants that it presently has no interest and shall not acquire any interest, direct or indirectly which should conflict in any manner or degree with the performance of the Services. The Operator further covenants that in the performance of this Agreement, no person having any such interest shall knowingly be employed by the Operator. 36. PUBLIC ENTITY CRIMES Prior to commencement of the Services herein, Operator shall file with the Office of the City Clerk a State of Florida.Form PUR 7068, Sworn Statement,. under Section 287.133(3)(1), Florida Statutes, (Public Entity Crimes). 37. LIMITATION OF CITY'S LIABILITY The City desires to enter into ' this Agreement only if in so doing the City can place a limit on its liability for any cause of action for money damages due to an alleged breach by the City of this Agreement, so that its liability for any such breach never exceeds the total amount of any sums to be paid by the City to Operator pursuant to this Agreement, less any sums actually paid thereon. Operator hereby expresses its willingness to enter into this Agreement with Operator's recovery from the City for any damage action for breach of contract to be limited to a maximum amount equal to the total of any sums to be paid to Operator pursuant to this Agreement, less the amount of all funds actually paid by the City to Operator pursuant to this Agreement. Accordingly, and notwithstanding any other term or condition of this Agreement, Operator hereby agrees that the City shall not be liable to the Operator for damages in an amount in excess of the total amount of any sums to be paid by the City to Operator pursuant to this Agreement, which amount shall be reduced by such amounts actually paid by the City to Operator pursuant to this Agreement, for any action or claim for breach of obligations imposed 22 Standard Parking Management Agreement (Final 10- 25 -11) upon the City by this Agreement. Nothing 'contained in this paragraph or elsewhere in this Agreement is in. any way intended to be a waiver of the limitation placed. .38. MOST FAVORED ' CUSTOMER Operator warrants and represents to the City that the prices, warranties, benefits and terms set forth in this Agreement shall be at least equal to (or more favorable to the City than) the prices, warranties, benefits and terms now charged or offered by Operator in the State of Florida, or that may be charged or offered during the Term of this Agreement by Operator in Florida, for the same or substantially similar services as provided in.this Agreement. If at a time during the Term, Operator enters into another agreement in Florida, for the same or substantially similar services as provided in this Agreement,. on. a basis that provides prices, warranties, benefits and terms more . favorable than those .provided to the. City hereunder, then Operator shall, within thirty (30) calendar days thereafter, notify the City. of such fact, and (regardless of whether such notice . is sent or received by Operator or received by the City) this Agreement shall be deemed to be automatically amended, effective retroactively to the effective .date of the more favorable agreement, to provide the same prices, warranties, benefits and terms to the City; provided that`the Cityshall have the right and option to decline to accept any such change, in which event such amendment shall be deemed null and void: [REMAINDER OF PAGE . LEFT INTENTIONALLY BLANK] 23 Standard Parking Management Agreement (Final 10- 25 -11) IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written. CITY: OPERATOR: . City of Miami Beach SP Plus Municipal Services; a division _.of Standard Parking Corporation By: By. Name: S Title: Executive Vice President Attest: Attest: o � Gtit Gl�.eti B B City Clerk i ature� TZ013 Ur_1" P Ike 14e2 3 Print Name Print Name /Title APPROVED AS TO FORM & LANGUAGE & FRXECUTBON ttorney Date 24 Standard Parking Management Agreement (Final 10- 24 -11) Exhibit A (Attach copy of Policies and Procedures) 25 Standard Parking Management Agreement (Final 10- 25 -11) Exhibit B (Attach copy of Proposal Documents) 26 Standard Parking Management Agreement (Final 10- 25 -11) Exhibit C (Attach list of garages and lots comprising the Premises) 27 Standard Parking Management Agreement (Final 10- 25 -11) Exhibit D (Attach copy of Living Wage Ordinance) 28 Standard Parking Management Agreement (Final 10- 25 -11) Exhibit E (Attach copy of Equal Benefits Ordinance) 29 Standard Parking Management Agreement (Final 10- 25 -11) . Exhibit F (Attach copy of first Annual Operating Budget) 30 Standard Parking Management Agreement (Final 10- 25 -11) Exhibit G (Attach copies of Collection Schedule and Standard Operating Procedures Manual) `31 . Standard Parking Management Agreement (Final 10- 25 -11)