2017-29790 ResoRESOLUTION NO. 2017 -29790
A RESOLUTION OF MAYOR AND CITY COMMISSION OF THE CITY
OF MIAMI BEACH, FLORIDA, APPROVING AND AUTHORIZING THE
MAYOR AND CITY CLERK TO EXECUTE, SUBSTANTIALLY IN THE
FORM ATTACHED TO THIS RESOLUTION, AN AGREEMENT WITH
BIG BELLY SOLAR, INC., FOR A TERM OF THREE (3) YEARS, WITH
ONE (1) TWO (2) YEAR OPTION; SAID AGREEMENT EXTENDING
THE TERM OF THE TWENTY -FOUR (24) EXISTING SMARTBELLY
TRASH CAN STATIONS, WHICH WERE THE SUBJECT OF A ONE
YEAR PILOT PROGRAM, AND ADDING APPROXIMATELY FORTY -
TWO (42) ADDITIONAL SMARTBELLY TRASH CAN STATIONS, ALL
TO BE LOCATED ALONG WASHINGTON AVENUE, BETWEEN 5TH
STREET AND 17TH STREET, WITH A BLENDED ANNUAL SERVICE
FEE NOT TO EXCEED AN AVERAGE OF $99,000 ANNUALLY, OVER
A FIVE YEAR PERIOD, WITH A CUMULATIVE TOTAL OVER THE
FIVE YEAR PERIOD NOT TO EXCEED $495,000, NOT INCLUDING
SHIPPING FEES, RELOCATION FEES, EQUIPMENT INSURANCE (OR
SELF - INSURANCE) COSTS AND DEDUCTIBLES, AND EQUIPMENT
REPAIR AND REPLACEMENT COSTS.
WHEREAS, at its July 8, 2015 meeting, the City Commission accepted the
recommendation of the May 27, 2015 Sustainability and Resilience Committee, to
proceed with a pilot program and explore a range of financing options proffered by Big
Belly Solar without advertising, and subsequently adopted Resolution 2015 - 29067; and
WHEREAS, on December 4, 2015, the City and Big Belly Solar, Inc. (Bigbelly)
agreed to launch a 12 -month pilot program that would allow for the lease of twenty -four
(24) Bigbelly + Smartbelly Double Stations under a service contract at a monthly rate of
$128 per station, for a total monthly cost of $3,072 (the Pilot Program); and
WHEREAS, these stations were installed in key locations throughout the City,
including the Entertainment Districts, Commercial Districts and City Parks; and
WHEREAS, at the December 16, 2016 Finance and Citywide Projects
Committee meeting, the Administration presented, for discussion, the preliminary cost
information for the Pilot Program and the possibility of expanding the program, in order
to see if the technology offered sufficient efficiencies in service and recycling to offset
the higher cost of the Bigbelly stations; and
WHEREAS, at the January 20, 2017 Finance and Citywide Projects Committee
meeting, the Committee voted to expand the Pilot Program, along Washington Avenue
from 5th Street to 17th Street, with the direction to report back in six (6) months; and
further suggested that future financial analysis over an extended period of time should
include cost of living adjustments for labor components; and
WHEREAS, at the January 27, 2017 Neighborhood /Community Affairs
Committee meeting, the expansion of the Pilot Program was also discussed and
endorsed; and
WHEREAS, at the February 8, 2017 City Commission meeting, the Administration
recommended that the City Commission authorize the Administration to negotiate a new
agreement with Bigbelly, without advertising, based upon the following essential terms:
• Term: One (1) year;
• Cost: an amount not to exceed $99,000 per year;
• Number of Smartbelly stations:
1. continue using the existing 24 Smartbelly Double Stations which were
installed during the pilot program; and
2. add additional single or double Smartbelly stations, with or without options
(such as the addition of a foot pedal and an ash tray), to be determined by
the Administration; and
Target Location of the Smartbelly stations: along Washington Avenue, between 5th
Street and 17th Street, in order to maximize the efficiency of the program; and
WHEREAS, on February 8, 2017, the Mayor and City Commission directed the
Administration to negotiate an agreement for a minimum term of three years or a
maximum term of five (5) years, based upon which term the Administration determined
would be in the best interest of the City, based upon the savings realized, and directed
the Administration to present the agreement at the next City Commission meeting for
approval; and
WHEREAS, on March 1, 2017, the Mayor and City Commission approved, in
substantial form, the agreement with Big Belly Solar, Inc., attached to this Resolution as
Exhibit A, for an initial term of three (3) years with one (1) two -year renewal term, for a
blended annual service fee, which over a five (5) year term will not exceed $99,000 a
year, excluding the shipping fee, relocation fee, annual equipment insurance (or self -
insurance) costs and deductibles and equipment repair and replacement costs.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND THE CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City
Commission hereby approve and authorize the Mayor and City Clerk to execute,
substantially in the form attached to this Resolution, an agreement with Big Belly Solar,
Inc., for a term of three (3) years, with one (1) two (2) year option; said agreement
extending the term of the twenty -four (24) existing Smartbelly trash can stations, which
were the subject of a one year pilot program, and adding approximately forty -two (42)
additional Smartbelly trash can stations, all to be located along Washington Avenue,
between 5th street and 17th street, with a blended service fee not to exceed an average
of $99,000 annually, over a five year period (with a cumulative total of $495,000 over the
five year period), excluding shipping fees, relocation fees, equipment insurance (or self -
insurance) costs and deductibles, and equipment repair and replacement costs.
1st day March, 2017.
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PASSED AND ADOPTED this
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City Attorney
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Resolutions-R7 W
MIAMI BEMI BEACH
COMMISSION MEMORANDUM
TO: Honorable Mayor and Members of the City Commission
FROM: Jimmy L. Morales, City Manager
DATE: March 1, 2017
SUBJECT: A RESOLUTION OF MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI
BEACH, FLORIDA, APPROVING AND AUTHORIZING THE MAYOR AND CITY
CLERK TO EXECUTE, SUBSTANTIALLY IN THE FORM ATTACHED TO THIS
RESOLUTION, AN AGREEMENT WITH BIG BELLY SOLAR, INC., FOR A TERM
OF YEARS; SAID AGREEMENT EXTENDING THE TERM OF THE
TWENTYFOUR (24) EXISTING SMARTBELLY TRASH CAN STATIONS, WHICH
WERE THE SUBJECT OF A ONE YEAR PILOT PROGRAM, AND ADDING
ADDITIONAL SMARTBELLY TRASH CAN STATIONS, ALL TO BE LOCATED
ALONG WASHINGTON AVENUE, BETWEEN 5TH STREET AND 17TH STREET,
IN THE TOTAL AMOUNT NOT TO EXCEED $99,000 ANNUALLY.
RECOMMENDATION
The Administration recommends approving the resolution.
ANALYSIS
At its July 8, 2015, the City Commission accepted the recommendation of the May 27, 2015
Sustainability and Resilience Committee, to proceed with a pilot program and explore a range of
financing options proffered by Big Belly Solar without advertising and subsequently adopted
Resolution 2015-29067. On December 4, 2015 the City and Big Belly Solar, Inc. (Bigbelly)
agreed to launch a 12-month pilot program that would allow for the lease of twenty-four (24)
Bigbelly + Smartbelly Double Stations under a service contract at a monthly rate of $128 per
station,for a total monthly cost of$3,072.
At its October 26, 2016 Sustainability and Resiliency Committee meeting, the Committee
requested a financial analysis be conducted of the Bigbelly pilot program. A discussion was
made to the Finance and City Wide Projects Committee on December 16, 2016. Preliminary
cost information and program expansion possibilities were discussed.
The current trash receptacles deployed in most locations are manufactured by Victor-Stanley.
The purchase cost for a Victor-Stanley can is $1,400, and over the course of its ten year service
life; it is refurbished every other year at a cost of$200.This results in an average annual cost of
$220 per year.
For the original pilot project, Bigbelly has provided dual units consisting of a compacting trash
Page 1022 of 1167
unit and a recycling container for the monthly cost of $128 per set. If one were to consider a
similar service life,the average annual cost would be$1,536 per year.
On January 18, 2017, Bigbelly provided pricing with the original 24 units remaining at a
discounted price based on a 60 month deployment. Additional units or any reduction of the
contract time period would result in higher pricing.
The Administration is interested in extending the pilot program to see if the technology offers
sufficient efficiencies in service and recycling to offset the higher cost of the Bigbelly stations.
The concept would be to take a segment of Washington Avenue and make it exclusively
Bigbelly trash receptacles.
A discussion was held at the January 20, 2017 meeting of the Finance and Citywide Projects
Committee. The Committee voted to expand the pilot program along Washington Avenue with
the direction to report back in six (6) months. In addition, future financial analysis over an
extended period of time should include cost of living adjustments for labor components.
At the February 8, 2017 meeting, the City Commission directed Public Works staff to continue
its contract negotiations with Bigbelly and to bring it back in March on the agenda.
Staff has had several discussions with Bigbelly representatives to develop a mutual agreement.
The latest discussions have resulted in the proposal including insurance to cover damages and
losses of the units, a third party policy at a cost of $3500 with a $1000 deductible and an
additional catastrophic loss policy with a $30,000 deductible will be preferable at this time.
There is also a $10,897 fee to move the existing stations to Washington Avenue as well as a
shipping charge of$7,904 for the additional units being provided.
Attached is the latest draft agreement which is still subject to negotiation. We recommend
capping the total annual value of the contract at the $99,000. While a lower per unit cost has
been provided for the 60 month option, we believe a complete evaluation of the effectiveness
of these units in reducing man hours to service these stations should be achievable within a 36
month period. An adjustment to the number of cans to stay within the budget amount can be
accomplished with a full evaluation at or near the end of the 36 month period.
CONCLUSION
The Administration recommends approving the resolution.
Legislative Tracking
Public Works
ATTACHMENTS:
Description
Page 1023 of 1167
D agreement
Page 1024 of 1167
Bigbelly
CHANGE YOUR SPACE
BIGBELLY SERVICE AGREEMENT
City Redline 2-24-2017
Agreement No.
Full Legal Name:City of Miami Beach Legal Contact:
° Billing Address: 1700 Convention Center Drive Billing Contact:
Miami Beach,FL 33139 US Billing Phone:
Billing Email:
Sales Tax ® Exempt (Attach Certificate) TIN or FEIN:
Status: ❑ Non-Exempt
Insurance:
❑ Self Insured
❑ Insurance Certificate Attached
Shipping Address: Shipping Contact:
Shipping Phone:
Shipping Email:
24 Existing Bigbelly+Smartbelly Double Station—Rear Panel Standard 36 Months $ $
Energy with side message panels("Existing Stations")
Faceplate 1:Black hopper;Faceplate 2: Single Stream
New Bigbelly+Smartbelly Double Station—Rear Panel Standard 36 Months
Energy with side message panels
New Bigbelly+Smartbelly Single Station—Rear Panel Standard $
Energy with side message panels (collectively,("New Stations") 36 Months
The Existing Stations and New Stations shall be collectively referred to as
"Stations".
(Note: advertising anywhere on the Station(including message panels)
shall be prohibited;only the Bigbelly logo may be displayed on the Station)
Program includes the following services for each Station:
• CLEAN Console and CLEAN Mobile Software Licenses
(collectively,CLEAN Software")
• Warranty(parts and labor—including system battery)
• Shipping,Installation and Set-up
• CLEAN Software and Station Hardware Training
The Station(s)and CLEAN Software for use at each Station shall be
collectively referred to herein as the"Equipment". The Equipment and other
services being provided to the City by Bigbelly under this Agreement,including
warranty and training,shall be collectively referred to herein as the"System".
Equipment Insurance Fee:Total Annual Cost(Paid in advance annually) $3,500.00
*Insurance is provided for all stations as a fleet,not per individual station. Customer is responsible for paying
the deductible which shall apply on a per incident basis. The cost of the policy and any deductible thereunder
shall be subject to annual adjustment on the policy anniversary date(Nov 1'`).
**This amount shall become due upon execution of this Agreement and be prorated for the first year of
coverage(date of execution until 10/31/2017).
Shipping Fee:One Time Fee(applicable to New Stations only) $7,904.00
Relocation Fee: One Time Fee(to move Existing Stations including de-install,relocation,re-install) $10,897.00
Bigbelly Service Agreement BBSA20150714 Page 11 23
Total Monthly System Cost including insurance for Equipment(Paid in advance monthly) $
Bigbelly Service Agreement BBS:12o150715 Page 2123
This Service Agreement (the "Agreement"), made and entered into as of (the "Effective
Date"), by and between the customer identified above ("Customer" or the "City") and Big Belly Solar, Inc.
("Bigbelly", "Vendor") a Delaware corporation located at 150 A Street, Suite 103, Needham, MA 02494, and
incorporates herein by reference the Terms and Conditions attached hereto as Attachment A. Vendor and
Customer shall each be referred to herein as a"Party." This Agreement may be executed in counterparts, each of
which shall be an original, but which together shall constitute one instrument. Intending to be legally bound,
each of the parties has caused this Agreement to be executed by its duly authorized representative as of.the date
set forth above. The City Manager's designee for purposes of this Agreement shall be the City's Public Works
Department Director.
16,
CITY OF MIAMI BEACH BIG BELLY SOLAR,INC.
By: By:
Philip Levine,Mayor
Printed Name:
Title:
ATTEST: WITNESS:
By: By:
Rafael E. Granado, City Clerk
Printed Name:
Title:
Date: Date:
Bighelly Service Agreement BBSA2o15o715 Page 3123
ATTACHMENT A
BIGBELLY SERVICE TERMS AND CONDITIONS
For purposes of this Attachment A, the "Agreement" shall mean the Bigbelly Service Agreement signed by the
parties, including this Attachment A. The meaning of capitalized and undefined terms appearing in these Terms
and Conditions shall be as set forth in the Bigbelly Service Agreement unless otherwise indicated herein.
1.0 Term of Agreement
1.1 Term. As outlined in the Services Schedule, the Term of this Agreement ("Term") will
commence on the Acceptance Date, as defined hereinafter, and will expire ( ) years
from the Acceptance Date. The Acceptance Date shall be defined as the date when all of the
New Equipment (as defined in Section 3.1(A)) ordered pursuant to this Agreement has been
delivered to the Customer at the receiving location designated by Customer; (2) All of the New
Equipment has been installed at the agreed upon Equipment Sites (as defined in Section 3.1(D);
(3) all of the Relocated Equipment (as defined in Section 3.1(A) has been installed at the agreed
upon Equipment Sites; (and (4) all of the New Equipment and Relocated Equipment have been
accepted by Customer in writing, as evidenced by a signed Acceptance Certificate, in the form
attached hereto as Attachment B. The parties agree to cooperate so that the Acceptance Date
does not exceed three (3) weeks after the date all NewStations are delivered to Customer. The
Existing Equipment is the subject of a separate Bigbelly Service Agreement, dated December 4,
2015 (the "Existing Agreement"), which is currently being extended by the parties, on a month
to month basis, and which Existing Equipment will be incorporated into this Agreement as of the
Acceptance Date. Upon commencement of the. Term, this Agreement shall effectively replace
and supersede the Existing Agreement, which asof the Acceptance Date will be considered
automatically and immediately terminated. Except to the extent otherwise provided herein, the
Term is non-cancelable.
2.0 Fees Payable by Customer
2.1Fees. In compensation for the Bigbelly System described in this Agreement, Customer agrees to
pay the Service Fee, the Equipment Insurance Fee for personal property described in Subsection
3.1(K) (4)): and any other fees (including one time fees) payable for services specified in the
Agreement, Schedule (collectively, "Service Fee" or "Fee"). Bigbelly shall submit invoices to
Customer during the Term of this Agreement per the payment terms outlined in the Agreement
Schedule. Payments due under this Agreement are subject to the Florida Local Government
Prompt Payment Act, Section 218.70 to Section 218.80, Florida Statutes. The Parties agree that
each payment due under this Agreement shall be paid within forty-five (45) days from the date
on which the applicable invoice is received by Customer. All payments shall be made by check
or, at Customer's option, may be automatically deposited to the account of Bigbelly. Late
payments shall be subject to interest at the rate of one percent (1%) per month pursuant to the
Florida Local Government Prompt Payment Act.
2.2 Service Fee Prices. Service Fees are guaranteed for the Term of the Agreement.
3.0 Obligations of the Parties
3.1 Bigbelly's Obligations
(A)Equipment; Software; Ongoing Services. The System which is the subject of this Agreement
shall include twenty-four (24) Existing Stations with Clean Software ("Existing Equipment"), of
which eighteen (18) will be relocated to a mutually agreed upon site on Washington Avenue
Bigbelly Service Agreement BBSA2o15o715 Page 4123
between 5th street and 17`h Street (the "Relocated Equipment") and 42 New Stations. Bigbelly
will supply the System identified in the Agreement Services Schedule on a rental basis to
Customer for the Term of the Agreement. The New Equipment will be new, not refurbished or
used.
(B)CLEAN Software License. The CLEAN Software License Agreement includes communication
services and access to the CLEAN Management Console and CLEAN Mobile. Customer's use
of the Software is subject to the then current CLEANTM Software License Agreement.
(C)Equipment Delivery. Bigbelly will deliver the New Equipment to a receiving dock or to a
location mutually agreed upon by the parties before the shipment. Bigbelly hereby warrants that
as of the delivery date of the New Equipment or as of the installation date of the Relocated
Equipment,the Equipment shall be:
(a) good and merchantable, (b) free from defects .and'Malfunctions, (c) free of liens, security
interests or other encumbrances, (d) complies with all" applicable laws, rules, regulations and
orders, and(e) is fit for the purpose for which the Equipment is intended.
(D)Installation. The New and Relocated Bigbelly waste and recycling Stations will be installed by
Bigbelly at mutually agreed upon locations, including semi-permanent attachment to the ground
("Equipment Sites"), as more fully set forth in Attachment C. Installation of the New Equipment
and installation of the Relocated Equipment will he:. in accordance with the delivery and
installation schedule agreed to by the parties, and memorialized in writing, as Attachment C-1,
executed by Bigbelly and the City,Manager, on behalf of Customer.
(E)Training. Bigbelly shall, at its ;expense;"provide Customer Equipment and Software training,
("Customer Training Plan") to the personnel designated, in writing, by the City Manager or City
Manager's designee prior to the Acceptance Date, and as necessary, during the Term of the
Agreement. An itemization of the topics which will be covered under the Customer Training
Plans are set forth in Attachment D, attached hereto and incorporated herein by reference. The
parties shall agree upon the location and method of training.
(F) Wan anty, Defective Part Replacement, Maintenance and Repair Services. All Equipment
failures caused by manufacturer defects; any repair or replacement required by routine
maintenance for normal wear and tear and excessive wear pursuant to the standards described in
Attachment E ("Bigbelly Maintenance Obligations"); or any repair which may be required so
that the Equipment operates as intended, will be repaired by Bigbelly upon Customer's request
(including parts and labor)at no cost to Customer. Replacement parts provided by Bigbelly may
be new, refurbished or certified used. Bigbelly agrees to respond to all such requests and
dispatch a Field Service Professional(as defined in Section 3.1(H)) as follows:
i. Acknowledge any Customer Support request for replacement or repair within two (2) business
days (the "Acknowledgement Window"),
ii. Complete any repairs within two (2)business days of Acknowledgement Window, and
iii. Replace any Equipment within ten (10) business days of Acknowledgement Window, unless
delayed by Customer.
If Bigbelly Field Service Professional is dispatched and Bigbelly determines the issue is due
to failure of Customer to provide best efforts in connection with the Customer's Repair
Responsibilities (as defined in subsection 3.2(E)), to Customer error, or to damage as a result
Bigbelly Service Agreement BBSA2a35o715 Page 5123
of a Customer Loss (as defined in Section 4.2 below), Bigbelly reserves the right to bill
Customer for the necessary parts, service call and/or repair, as applicable.
(G)Third Party Damage. All repairs and part replacements required as a result of external trauma,
error, misuse, abuse or damage (including but not limited to vehicle strikes or vandalism)
(hereinafter referred to as "Third Party Damage") shall be performed by Bigbelly at Bigbelly's
expense to the extent not covered by Bigbelly's insurance policy in accordance with the
provisions contained in Sections 3.1(K) and 4.2.
(H) Customer Support and Equipment Maintenance. Except for losses described in Section 4.2
below, Bigbelly will maintain the Equipment ingood working order and operational condition in
accordance with best practices. Technical Customer Support ("Bigbelly Customer Service") is
available Monday through Friday, 7 am to 7 pm EST.to guide Customer in troubleshooting any
minor common operating issues, including Customer Repair Responsibilities, and placing repair
service requests. In addition, Bigbelly maintains a network of trained Field Service
Professionals, in Miami-Dade County, Florida, available for dispatch upon a Customer's request
to investigate and resolve issues in the field. Equipment batteries will be replaced by Bigbelly at
no cost to Customer during the Terni of the Agreement..
(I) Removal. Upon Bigbelly shall surrender the Sites in the same condition as they were prior to
the Acceptance Date. Bigbelly shall, at Customer's expense, in an amount not to exceed $300
per Station, remove all Stations from the Equipment Sites no later than thirty(30) days after the
conclusion of the Term, notwithstanding reasonable:delay, (or from the date of other termination
of this Agreement) unless a longer time period is agreed to, in writing, by the City Manager).
Bigbelly's obligation°to observe or perform this covenant shall survive the expiration or other
termination of this Agreement. = Continued occupancy of any Equipment
Sites for more than sixty(60)days after termination of the Agreement shall constitute trespass by
Bigbelly, and may be prosecuted as such. Bigbelly shall pay the City One Thousand $1,000.00
Dollars per day per Equipment Site as liquidated damages for such trespass and holding over.
(J) Subcontractor Services. Bigbelly may contract with third parties to provide Ongoing Services.
(K) Insurance. Bigbelly and/or any of its subcontractors shall maintain and carry in full force during
the Term the following insurance:
1. Worker's Compensation Insurance as required by Florida, with Statutory limits and
Employer's Liability Insurance with limit of no less than $1,000,000 per accident for
bodily injury or disease.
2. Commercial General Liability Insurance on an occurrence basis, including products and
completed operations, contractual liability, property damage, bodily injury and personal
& advertising injury with limits no less than $1,000,000 per occurrence, and $2,000,000
general aggregate. (The general aggregate shall apply separately to this Agreement.)
3. Automobile Liability Insurance covering all owned, non-owned and hired vehicles used
in connection with the work, in an amount not less than $1,000,000 combined single limit
per occurrence, for bodily injury and property damage.
4. Property insurance, including catastrophic events, as defined under the policy, containing
a waiver of subrogation rights which Bigbelly insurers may have against Customer and
against those for whom Customer is in law responsible including, without limitation, its
directors, officers, agents, and employees, (without contribution). Such insurance shall
Bigbelly Service Agreement BBSA2OI50715 Page 6123
insure the System in an amount not less than the full replacement cost thereof (new).
Such policy shall include Customer as additional insured. At any time during the Teen of
the Agreement, upon providing Bigbelly with sixty (60) days written notice, the City
Manager may opt to self-insure for the coverages set forth in this subsection 3.1(K) (4).
The City would be entitled to a credit for any unearned premiums which Bigbelly
receives in connection with said cancellation.
Additional Insured Status
The City of Miami Beach must be covered as an additional insured with respect to liability arising
out of work or operations performed by or on behalf of Bigbelly.
Waiver of Subrogation
Bigbelly hereby grants to City of Miami Beach a waiver of any right to subrogation which any
insurer of Bigbelly may acquire against the City of Miami Beach by virtue of the payment of any
loss under such insurance. Bigbelly agrees to obtain any endorsement that may be necessary to
affect this waiver of subrogation, but this provision applies regardless of whether or not the City of
Miami Beach has received a waiver of subrogation endorsement,from the insurer.
Other Insurance Provisions
1. For any property claims made under this Agreement for the replacement of any Equipment,
Bigbelly's coverage shall be primary insurance as respects the City of Miami Beach, its officials,
officers, employees, and volunteers. Any insurance or self-insurance maintained by the City of
Miami Beach shall be in excess of Bigbelly's insurance and shall not contribute with it.
2. Each policy required by this clause shall provide that coverage shall not be canceled, except with
notice to the City of Miami Beach.
Acceptability of Insurers
Insurance is to be placed with insurers with a current A.M. Best's rating of no less than A:VII,
unless otherwise acceptable to the City of Miami Beach Risk Management Office.
Verification of Coverage
Consultant shall provide the required insurance certificates, endorsements or applicable policy
language effecting coverage required by this Section. All certificates of insurance and
endorsements are to be received prior to any work commencing. However, failure to obtain the
required coverage prior to the work beginning shall not waive the Consultant's obligation to
provide them. The City of Miami Beach reserves the right to require complete, certified copies of
all required insurance policies, including endorsements required by these specifications, at any
time.
Special Risks or Circumstances
The City of Miami Beach reserves the right to reasonably request modification of these
requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage,
or other special circumstances. In accordance with the foregoing, Customer agrees to reasonable
adjustment of the Equipment Insurance Fee, and deductible as may become necessary.
Certificate Holder
CITY OF MIAMI BEACH
c/o PROCUREMENT DEPARTMENT
1700 CONVENTION CENTER DRIVE
MIAMI BEACH,FL 33139
Bigbelly Service Agreement BBSA20150715 Page 7123
Compliance with the foregoing requirements shall not relieve the vendor of his liability and obligation
under this section or under any other section of this agreement.
Equipment Insurance Fee
As compensation for property insurance provided by Bigbelly, Customer shall pay the annual
Equipment Insurance Fee as described in the Service Schedule. Customer acknowledges that such
insurance is calculated and extended for all stations as a fleet and does not otherwise reflect or
indicate coverage per individual station. For any and all claims made pursuant to Bigbelly's
insurance policy covering the cost of Equipment replacement or repair, Customer shall be
responsible for paying the applicable deductible, which amount shall apply on a per incident basis.
The annual Equipment Insurance Fee (including the cost of the policy and any deductible
thereunder) shall be subject to annual adjustment on the policy anniversarydate (Nov 1St) and paid
up-front annually. The Equipment Insurance Fee shale become due upon execution of this
Agreement and be prorated for the first year of coverage(date of execution until 10/31/2017).
City's Option to Self-insure
At any time during the Term, the City shall have the option to self-insure and assume the
responsibility
L. Reporting/Monitoring of System. Within thirty (30) days from the end of each month during the
Term, Bigbelly will employ best effortsto provide Customer with a report or the capability to
generate a report, using reasonable criteria requested by Customer, at Customer's sole discretion,
showing the service levels and :station performance levels, as well as the recycling levels.
Additionally, Customer shall be given access to,,the Station's CLEAN Software through an Internet
Protocol Address (IPA),or dashboard accessibility so that Customer may monitor the effectiveness
of the System.
3.2 Customer's Obligations
(A)Customer agrees that Bigbelly's ability to perform the Services under the Agreement in a timely
mangier is dependent upon access to Customer's installation information and locations.
Deadlines imposed by this Agreementshall be extended in the event that Customer fails to
provide such information and/or access in a timely manner.
(B)Customer agrees to pay for the shipping expense of the New Equipment, in the lump sum of
$79.04 per Station, and to provide an appropriate facility that can received inspect and stage all
New Bigbelly Equipment until the New Equipment is installed.
(C) Customer agrees to provide a poured concrete pad if the intended installation surface does not
meet Bigbelly specifications. If Customer's installation surface does not meet such
specifications, the Customer shall pay, subject to a reasonable estimate, any additional cost
associated with Bigbelly's efforts to properly prepare the surface, which will be at Customer's
expense. It is the Customer's responsibility to remove at Customer's expense, existing bins or
any other items from the locations where Bigbelly stations will be installed. Notwithstanding the
foregoing, Customer reserves the right to change the location of an Equipment site, if, in the City
Manager's sole discretion, the site preparation cost or other installation factors are not acceptable
to Customer.
(D)Unsafe Condition. Customer agrees to provide immediate notice to Bigbelly with respect to any
damage or other event which causes the Equipment to pose a public safety issue or create unsafe
operating conditions. City shall remove or otherwise secure from the public space any damaged
equipment that poses an immediate threat to the public or operator safety ("Unsafe Condition").
Upon receipt of notification of said Unsafe Condition, Bigbelly will dispatch a Field Service
Bigbelly Service Agreement. BBSA20150715 Page 8123
Professional, the cost of which shall be determined in accordance with the provisions set forth
herein, to repair any Equipment, or replace any Equipment that Customer has identified as
causing an Unsafe Condition,within the timelines set forth in the preceding subsection 3.1(F).
(E)Automated System Monitoring and Customer Support Escalation. Customer will respond to
minor issues they observe or are notified of via automated CLEAN alerts including but not
limited to a dirty sensor alert or minor operational issues such as a jammed hopper or a Station is
not connecting to the network due to location or placement of Station (collectively "Customer
Repair Responsibilities). Customer will use best efforts to promptly resolve these Customer
Repair Responsibilities and may contact Bigbelly Customer Service to receive troubleshooting
assistance and instructions for proper handling. If Customer's efforts do not resolve these
Customer Repair Responsibilities, or the alert relates to a maintenance issue or a repair issue (as
described in the preceding subsections 3.1(F) and 3.1(G),the Customer needs to inform Bigbelly
of the action taken and the status of the Station, and Bigbelly will investigate and repair the
Station at Bigbelly's expense. Notwithstanding the"foregoing, if the issue is found to be due to
Customer not taking ordinary precautions to correct any of Customer's Repair Responsibilities,
or Customer error, misuse or abuse, then Bigbelly reserves the right to bill customer for
reasonable and customary incurred expenses. If Customer cannot resolve a network interruption
using the guidelines provided by Bigbelly Customer will inform Bigbelly and Bigbelly will
investigate at Bigbelly's cost.
(F) Customer is a Florida municipal corporationand self-insures for liability coverageCustomer
does not carry insurance with an insurance company, so Customer cannot provide Bigbelly with
a certificate of insurance. However, in compliance with and subject to limitations of Florida
Statutes, Section 768.28 and 440.09, provisions havebeen made by Customer to process any
liability claims that may arise and the same protection will be afforded as would be provided by
a policy of insurance. Upon execution of this Agreement, Customer will provide a letter
confirming self-insurance coverage for the liability coverage.
(G) Customer reserves the right to change Equipment Sites, at the City Manager's sole discretion
and at Customer's sole expense. Within five (5) business days following relocation of any
Equipment,Customer shall notify Bigbelly in writing of the specific location of such Equipment.
4. Equipment Rental Terms and Conditions
4.1 Title To and Use of Equipment
(A)Title. As further set forth in Section 5.4 below, Bigbelly is and will at all times be the sole
owner of-the Equipment. Customer shall not acquire any title or interest, legal or equitable, in
the Equipment, other than the use rights set forth in this Agreement. In the event this Agreement
is deemed to,be disguised'!sale, Customer hereby grants to Bigbelly a security interest in the
Equipment(andall accessions thereto and substitutions therefore) and the proceeds thereof.
(B)Use of Equipment. ' Customer shall use the Equipment solely for waste collection and recycling
operations. Customer shall ensure safe operation of the Equipment by trained personnel.
Customer and Bigbelly shall comply with all Bigbelly and governmental guidelines, laws,
rules, regulations and ordinances applicable to the use and operation of the Equipment. The
Equipment cannot be used for advertising purposes and may only contain the Bigbelly logo.
(C)No Pledge. Customer shall not pledge, lend, create a security interest in or permit any lien to
attach to the Equipment or any part thereof or attempt in any other manner to dispose the
Equipment.
(D)No Attachments. Customer represents and warrants that the Equipment is, and shall at all times
remain, fully removable personal property notwithstanding any affixation or attachment to real
property or improvements. Customer shall give Bigbelly immediate notice of any such
attachment or other judicial process affecting the Equipment and shall immediately take all
Bigbelly Service Agreement BBSA2o15o715 Page 9123
action necessary to remove such attachment and terminate the effect of such judicial process on
the Equipment.
(E)Equipment Inspection Rights. Bigbelly and its agents shall have the right to enter any premises
where Equipment is located to inspect such Equipment at any time with reasonable advance
written notice to Customer.
4.2 Risk of Loss. From the Acceptance Date of the Equipment by Customer until the expiration of the
Term, Bigbelly will bear the entire risk of whole or partial loss, destruction or damage to the
Equipment resulting from any casualties, including earthquake, flood, named windstorm, not
otherwise covered by insurance as set forth herein; requisition of the Equipment by any
governmental entity; or expropriation or the taking of the Equipment by eminent domain or
otherwise casualties, including,without limitation, earthquake, flood,named windstorm, and defects,
flaws or malfunctions in the Equipment ("Bigbelly Losses);however, excluding any losses resulting
from Customer's or its employees', contractors' or agents', actions or omissions with respect to the
Equipment; ("Customer Losses")(collectively, Bigbelly'"and Customer Losses shall be referred to
herein as a `Loss'). Notwithstanding the foregoing, any Loss covered under Bigbelly's all-risk loss
or damage insurance policy, as required pursuant to:Section 3.1(K)(4), or any Loss caused by a third
party (not Customer or Bigbelly) shall not be,_included as a Customer Loss. Customer will give
Bigbelly written notice within 10 days of any Loss (`Loss Notice'). Except as provided in this
section, no Loss will condition, reduce, °''or:relieve Customer's rental obligations, including its
obligation to pay any fees pursuant to the Agreement and any Attachments thereto. Notwithstanding
the foregoing sentence, if Bigbelly does not repair the Equipment within the'timeline set forth in the
preceding subsection 3.1(F) or replace the Equipment,;as applicable, within a maximum of ten (10
business days from receipt of the'Loss Notice; thereafter, Customer shall be entitlted to a per diem
rent abatement until such time as the Equipment is repaird or replaced. The per diem rent abatement
shall be determined by taking the total monthly payment for the Equipment divided by the number of
days in the month during the Loss. If as"a result of a Loss, any Equipment is damaged but can be
economically repaired, Bigbelly shall immediately have the Equipment restored to good working
order and condition at Bigbelly's or Customer's expense, as applicable. Customer agrees to
immediately pay, on demand, the cost of any replacement part or repair incurred in connection with any
Customer Loss If as a result of"a Loss,�the Equipment is not economically repairable, or the repair
cost of the Equipment exceeds its FMV Amount (as defined herein) ("Total Loss"), Bigbelly shall
replace the Equipment within ,ten (10) days from receipt of the Loss Notice, and Bigbelly or
Customer, as applicable, shall be responsible for the replacement cost of the Equipment. If the Total
Loss resulted from a Customer Loss, Customer will, upon Bigbelly's written demand, pay Bigbelly
the fair market value of the Equipment ("FMV Amount"). For purposes of this section the FMV
Amount shall mean the replacement cost of the Equipment, plus the cost of shipping, delivery and
installation of the Equipment,as determined by Bigbelly.
5.0 General Terms and Conditions
5.1 Taxes and Other Charges. Customer is responsible for all taxes (including sales, use and personal
property tax), fees, and assessments (collectively, "Taxes") that may be imposed by any
governmental entity or taxing authority in connection with this Agreement or any amount due
hereunder. Customer will reimburse Bigbelly (or pay directly to the applicable taxing authority if
instructed in writing by Bigbelly). Notwithstanding the foregoing, Bigbelly acknowledges that
Customer is a municipal corporation organized under the State of Florida and has been provided
with Customer's Certificate of Exemption, as such, any taxes (including sales, use and personal
property tax), fees and assessments (collectively, "Taxes") that may be imposed by any
governmental entity or taxing authority in connection with this Agreement or the Equipment or any
amount due hereunder which qualifies for exemption pursuant to the Customer's Certificate of
Exemption, shall not be charged to Customer and shall not be due and owing from Customer.
Bigbelly Service Agreement BBSA2o150715 Page 10 123
5.2 Ongoing Services. Customer agrees that during the Term of the Agreement, it shall keep in effect
the Ongoing Services as defined in the Agreement. Unless otherwise agreed in a written amendment
to this Agreement, Bigbelly or its subcontractors shall be the sole and exclusive suppliers of the
Ongoing Services.
5.3 Additions and Modifications of Equipment. Unless otherwise expressly agreed by an officer of
Bigbelly in writing, Customer shall not make any additions, alterations or modifications to the
Equipment. Customer shall not remove, cover or damage any Bigbelly logos or other identification
markings on the Equipment.
5.4 Ownership Rights. The Equipment and Software contain intellectual property including but not limited
to patented and unpatented inventions, trade secrets, know-how, and copyrights all of which is owned
and will continue to be owned exclusively by Bigbelly and/or its licensors and Customer will obtain no
rights thereto other than the limited rights of use under this Agreement. Customer acknowledges and
agrees that all technology, materials, hardware, software is the sole and exclusive property of Bigbelly
(Bigbelly Property). Bigbelly hereby grants Customer a royalty-free, non-exclusive, fully paid up right
and license to use the Equipment,the Software, and any intellectual property rights therein as necessary
for Customer and its contractors to use the Equipment and Bigbelly Service consistent with the terms
and conditions of the Agreement and these Terms and Conditions.Bigbelly reserves the right, at its sole
cost and expense and subject to applicable governmental guidelines, laws, rules, regulations and
ordinances, at any time upon notice to Customer,to enhance or otherwise modify the Equipment and/or
Software made available to Customer under this Agreement,including but not limited to enhancements
or modifications for the purpose of implementing Wi-Fi network capability to the Equipment,
instituting mechanisms for data collection,processing and analysis. Notwithstanding the foregoing, any
content, data or material of which,,the Equipment and Software is comprised or which is otherwise
contained within or attached to, generated, collected or processed by the Equipment and/or CLEAN
Software, in connection;with the performance orrnance of this,Agreement, shall remain the sole and exclusive
property of Customer("Customer Property"). Additionally, Bigbelly will cooperate with Customer in
connection with any requests for records which Customer may receive pursuant to any Public Records'
Laws including,without limitation, Chapter 1 19,Florida Statutes.
5.4.1 Advertising. The parties acknowledge that no advertising is permitted on any portion of the
Bigbelly Equipment. Notwithstanding the foregoing, Customer shall be permitted to display public
service messages' at no additional cost to Customer except for any out of pocket cost incurred by
Bigbelly for the production of such related advertising materials, which cost shall be reimbursed to
Bigbelly. _,,
5.5 Termination
(A)Effect of T'etiination. Except as provided for in Section 5.7 below, or otherwise specified in this
Agreement, any termination of the Agreement by Customer, without cause, shall not relieve
Customer of its obligations to make any and all payments which obligations are absolute,
unconditional, irrevocable, non-cancelable and subject to no right of set off, counterclaim,
deduction,or defense.
(B)Post Termination Duties / Surrender of Equipment. Upon the expiration or earlier termination or
cancellation of the Agreement, Bigbelly shall remove the Equipment as described in Section 3.1 (I)
above.
5.6 Indemnifications by the Parties
(A)Indemnity by Bigbelly. Bigbelly shall indemnify, defend, and hold harmless Customer and its
directors, officers and employees, agents, and contractors, (collectively Customer and/or its
representatives), as to all actions (whether at law or in equity), claims, liabilities, losses, damages
and expenses (including reasonable attorneys' fees and other legal expenses and amounts paid in
settlements) brought against Customer and/or its representatives because of (a) any negligent
Bigbelly Service Agreement BBSA2o35o715 Page 11 123
acts, errors, omissions or other wrongful conduct of Bigbelly, •its officers, employees, agents,
contractors, or any other person or entity acting under Bigbelly's control or supervision, in
connection with, related to, or as a result of Bigbelly's performance pursuant to this Agreement
or the use of the Bigbelly Equipment; (b) breach or alleged breach by Bigbelly of any of its
warranties to, or agreements with, Customer, (c) any claim that any of the products or services
infringes any patent, trademark, copyright or other intellectual property right, anywhere in the
world, or (d) any death, injury or damage to any person or property caused by Bigbelly's
negligent performance of this Agreement. In no event will Bigbelly be liable for or indemnify
Customer or its representatives against any damage, claim or injury arising out of Customer or its
representative's gross negligence or any third party's actions, including but not limited to
accidental or intentional tampering with the Equipment.
(B) Indemnity by Customer. Customer shall indemnify and.Mhold Bigbelly and each of their
directors, officers and employees, harmless, and defend'Bigbelly and its representatives if it
requests, as to all claims, liabilities, losses, damages and expenses (including without limitation,
reasonable attorneys' fees and other legal expenses=and amounts paid in settlements) brought
against Bigbelly and/or its representatives because of,(a) any breach or alleged breach by
Customer of any of its representations, warranties, or agreements with Bigbelly, (b) any claim
that any of the information provided by Customer to Bigbelly infringes any patent, trademark,
gh yw d, or (c) any death, injury or
copyright or other intellectual property right, anywhere in the worl
damage to any person or property caused by or ,,resulting from Customer's negligence in
operating or securing the Equipment.
(C) Survival of Indemnity. The r>ghts and obligations• cif Bigbelly under this Section 5.6 survive the
termination, cancellation or expiration ofthis Agreement.
5.7 Default; Dispute Settlement; Governing Law
(A)Definition of Default The term "Dfault" means any of the: ollowing events: (i) Customer fails
to make any payment required under this Agreement and
such non-payment is not cured within
ten (10) days following written notice; (ii) Customer or Bigbelly fails to perform any other
obligation under this Agreement and such non-performance is not cured within thirty (30) days
following written notice; (iii)Customer or Bigbelly defaults under any other Agreement between
Customer and Bigbelly(iv) Customer or Bigbelly becomes •insolvent or makes an assignment for
the benefit of its creditor ;3 (v) a receiver, trustee, conservator or liquidator of Customer or
Bigbelly of all or substantial part of such party's assets •is appointed with or without the
application or consent,of such party; (vi) a petition •is filed by or against Customer or Bigbelly
under any bankruptcy, insolvency or similar law; or(vii) any warranty or representation made by
either party ?herein prove;to have been false or misleading when made; or, (viii) there •is a
material adverse change inCustomer's financial condition.
(B)Default by Customer Upon the occurrence of a Default by Customer, Bigbelly may do one or
more of the following as Bigbelly •in its sole discretion shall elect: (i) •initiate Dispute Settlement
procedures pursuant to subsection (D) herein to enforce performance by Customer of the
Agreement or to recover damages for the breach thereof; (ii) cause Customer, at Customer's
expense (as more particularly set forth in Section 3.1(I)), to promptly return the Equipment to
Bigbelly at such place as Bigbelly designates in writing; (iii) by notice in writing to Customer,
cancel or terminate the Agreement,without prejudice to any other remedies hereunder; (iv) enter
upon, or instruct its agents or assigns to enter upon, the premises of Customer or other premises
where any Equipment may be located and take possession of and remove all or any portion of
such Equipment without liability to Customer by reason of such entry or taking possession; (v)
subject to the limitations on Customer's liability in Section 5.14 hereof, require Customer to pay
to Bigbelly immediately, upon demand, in addition to all amounts then due through the date of
termination, liquidated damages in the amount of the greater of(A) eighty percent (80%) of the
Bigbelly Service Agi Bement BBSA2oigo71a Page 12 23
remaining Service fees to become due during the Term or(B) one year of Service fees; however,
said liquidated damages not exceeding one hundred percent (100%) of the remaining Service
Fees to become due during the Term, which liquidated damage amount, owing to the
acknowledged difficulty in establishing a value for the unexpired Initial Term, the parties agree
represents an agreed upon reasonable measure of damages, , and is not to be deemed a forfeiture
or penalty, (vi) charge Customer interest on all monies due Bigbelly at the rate of one percent
(1%) per month from the date of the Default until paid, pursuant to the Florida Local
Government Prompt Payment Act; (vii) collect from Customer all expenses incurred by Bigbelly
in connection with the enforcement of any remedies, including all expenses of repossessing,
storing, shipping, repairing and selling the Equipment and reasonable attorneys' fees; and (viii)
exercise any other right or remedy available to Bigbelly under applicable law.
(C)Default by Bigbelly. Upon the occurrence of a Bigbelly Default, Customer may do one or more
of the following as Customer in its sole discretion;shall elect; (i) initiate Dispute Settlement
procedures pursuant to subsection (D) herein to enforce performance of the Agreement or
recover damages for the breach thereof; (ii) cause Bigbelly, at its expense, to promptly collect
the Equipment; (iii) by notice in writing to Bigbelly, cancel or terminate the Agreement, without
prejudice to any other remedies hereunder, O subject to the limitations on Bigbelly's liability in
Section 5.14 hereof, collect from Bigbelly all expenses incurred,;by Customer in connection with
the enforcement of any remedies, including all expenses of repossessing, storing, shipping,
repairing and selling the Equipment and reasonable attorneys' fees; and (v) exercise any other
right or remedy available to Customer under applicablelaw.
(D)Dispute Settlement. In the even of; any dispute arising due to a Default or with respect to the
terms of the Agreement or obligations the parties,'the parties agree to discuss the dispute in an
attempt to amicably resolve such dispute within 30 days of the date of a written notice of such
dispute by one party_to the other` Failing any such resolution, either parry will be free to seek
remedy througha court:of competent jurisdiction.
(E)Continuation of Obligations,. The occurrence of a dispute under or relating to the Agreement
shall not relieve Bigbelly of, or change in any way, Bigbelly's obligation to provide the Ongoing
Services in accordance with the_terms of the Agreement nor shall the occurrence of a dispute
under or relating to the Agreement relieve Customer of its obligations to make any and all
payments described in the Agreement including the Attachments,which obligations are absolute,
unconditional, irrevocable, non-cancelable and subject to no right of set off, counterclaim, or
deduction,unless otherwise specified in this Agreement.
(F) Governing,Law. The Agreement including the Attachments shall be interpreted under the laws
of the courts of the State-of Florida, without regard to principles of conflicts of law or the United
Nations Convention on the International Sale of Goods. Each party consents to the personal
jurisdiction of federal and state courts located in Miami-Dade County, Florida EACH PARTY
HEREBY WAIVE �ANY RIGHT TO A TRIAL BY JURY IN ANY LITIGATION ARISING
FROM OR RELATED IN ANY WAY TO THIS AGREEMENT OR THE EQUIPMENT.
5.8 Assignment. Customer may not assign this Agreement or any rights hereunder, or sublease or lend
any Equipment without the prior written consent of Bigbelly. No assignment or sublease shall
relieve Customer of its obligations hereunder and Customer shall remain primarily liable for such
obligations. Any sale, assignment, transfer, encumbrance, delegation or sublease by Customer not
consented to by Bigbelly shall be void ab initio. Bigbelly may at any time assign to any person (an
"Assignee") any interest in this Agreement in part or in whole or grant security interests in the
Equipment and/or the Bigbelly's rights hereunder. In such event, all the provisions of this
Agreement for the benefit of Bigbelly shall inure to the benefit of and be exercised by or on behalf
of such Assignee,but the Assignee shall not be liable for or be required to perform any of Bigbelly's
obligations to Customer and Bigbelly shall retain such obligations. Customer acknowledges that
Bigbelly Service Agreement BB5.42o150735 Page 13 23
Assignee is providing financing for the Equipment only and agrees that(a) as between Customer and
Bigbelly, all of Customer's payment obligations shall be absolute, unconditional and not subject to
set-off, counterclaim, reduction, recoupment or other defense (b) it will not assert any defenses, set-
offs, counterclaims or claims against any Assignee that Customer may have against Bigbelly at any
time; and (c) any such assignment shall not materially change Customer's duties or obligations
hereunder. Subject to the foregoing, the Agreement shall inure to the benefit of, and be binding upon,
the successors and permitted assigns of the parties hereto.
5.9 Relationship of Parties. Bigbelly and Customer are each independent entities and the relationship
between Bigbelly and Customer under the Agreement is not a joint venture,partnership,principal-agent,
broker, sales representative or franchise relationship. Bigbelly has no authority to make any promise,
commitment or agreement on Customer's behalf, and Bigbelly will not represent to anyone that it does
have such authority.
5.10 Notices. Each notice provided for in the Agreement shall be given in writing and become effective
when:
a. served by personal delivery to the recipient's Legal Department or Contract Administrator;
Customer: City of Miami Beach BIGBELLY SOLAR, INC.:
Name: Jay Fink Brian Phillips
Title: Assistant Director President/CEO
of City of Miami Beach 150 A Street, #103
Public Works Department Needham,MA 02494
Address: City of Miami Beacly"'.
1700 Convention Center Drive
With a copy to:
City manager
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
b. deposited, postage prepaid in the United States registered or certified mails addressed to the
recipient's Legal Depaitiiient or Contract Administrator;
c. dispatched to the recipient's Legal Department or Contract Administrator via overnight mail
using UPS,Federal Express or similar carrier; or,
d. sent to recipient's Legal Department or Contract Administrator: via facsimile or other electronic
means if delivery does not require a signature or other confirmation of delivery.
5.11 Force Majeure. Any delay or failure of either party to perform its obligations (other than payment
obligations) shall be excused if it is caused by an extraordinary event or occurrence beyond the
control of the nonperforming party and without the nonperforming party's fault or negligence, such
as acts of God, fires, floods, windstorms, explosions, natural disasters, wars and sabotage. Raw
material or labor shortages are not force majeure events. Each party shall promptly notify the other
of the reason for the delay and use its best efforts in curing such cause and shall take all action
practicable to minimize the adverse impact of the delay on the other party.
Bigbelly Service Agreement BBSA2a150715 Page 14123
5.12 No Warranties. Customer hereby acknowledges that it has not entered into the Agreement including
the Attachments in reliance upon any warranty or representation by any person or entity except for
the warranties or representations specifically set forth therein.
5.13 Use of Trade Names and Trademarks. Neither party may use the trade name, service mark, logo or
trademark of the other party for any purpose without previous permission in writing from the other
party.
5.14 Damages. Unless otherwise provided in the Agreement, in no event shall either party, or their
respective affiliates, shareholders, officers, directors, employees, agents, or representatives, or
assigns be liable to the other for lost revenue, lost profits, incidental, indirect or consequential
damages, resulting from any Services provided in connection with this Agreement. The Customer
and Bigbelly's maximum aggregate liability to the other in relation to or in connection with a breach
of the terms of this Agreement will be limited to the total amount paid by Customer to Bigbelly
under the Agreement.
5.15 Injunctive Relief. If there is a breach or threat of a breach=of the terms of the Agreement, the parties
agree that compensation alone would not be an adequate remedy for the harm suffered by the non-
breaching party, which harm would be immediate and irreparable. Therefore, if there is a breach or
threatened breach, then the non-breaching party shall be entitled to seek injunctive relief to stop the
breach or threatened breach. The rights and obligations of the parties under this provision survive
the termination, cancellation, or expiration of the Agreement.
5.16 Fiscal Funding This Section 5.16 is effective only if Customer is a governmental entity, agency or
authority. Customer hereby represents and warrants to Bigbelly that: (a) Customer is a State,
possession of the United States, the District of Columbia, or political subdivision thereof as defined
in Section 103 of the Internal Revenue Code and Treasury Regulations and Rulings related thereto
(the "Code"); (b) If Customer is incorporated, it is duly organized and existing under the
Constitution and laws of its jurisdiction of incorporation and will do or cause to be done all things
necessary to preserve and keep such organization and existence in full force and effect; (c) Customer
has been duly authorized by the Constitution and laws of the applicable jurisdiction and by a
resolution of its governing body (which resolution, if requested by Bigbelly, is attached hereto), to
execute and deliver the Agreement and to carry out its obligations hereunder; (d) All legal
requirements havebeen met,and procedures have been followed, including public bidding, in order
to ensure the enforceability of the Agreement; (e) The Equipment will be used by Customer only for
essential,governmental or proprietary functions of Customer consistent with the scope of Customer's
authority and will not be used in a trade or business of any person or entity, by the federal
government or for any personal, family or household use (f) The Customer shall comply at all times
with all applicable requirements of the Code. If sufficient funds are not appropriated to make
contracted payments under the Agreement ("Payments"), the Agreement shall terminate and
Customer shall not be obligated to make contracted Payments under the Agreement beyond the then-
current fiscal year for which funds have been appropriated. Upon such an event, Customer shall, no
later than the end of the fiscal year for which contracted Payments have been appropriated, deliver
possession of the Equipment to Bigbelly. If Customer knowingly and willfully prevents Bigbelly
from removing the Equipment, as provided in Section 3.1(I), then the termination shall nevertheless
be effective but Customer shall be responsible for the payment of damages in an amount equal to the
per diem portion of contracted Payments thereafter coming due that is attributable to the number of
days after the termination during which the Customer fails to allow Bigbelly access to Customer's
property for the removal of the Equipment. The per diem amount shall be determined by taking the
total monthly payment for the Equipment divided by the number of days in the hold over month)
Customer shall notify Bigbelly in writing within seven (7) days after the failure of the Customer to
appropriate funds sufficient for the payment of the contracted Payments, but failure to provide such
notice shall not operate to extend the Agreement term or result in any liability to Customer.
Bigbelly Service Agreement BBSA2o25o715 Page 15 23
5.17 Entire Agreement. The Agreement including the Attachments constitute the entire agreement
between the parties regarding its subject matter and supersede all prior agreements, oral and written,
negotiations, commitments and writings, and may not be released, discharged, abandoned, changed
or modified in any manner, orally or otherwise, except by an instrument in writing signed by a duly
authorized representative of each party. Any purchase order or other ordering document issued by
Customer is for administrative purposes only and does not form part of this Agreement.
5.18 Amendment; Modification; Waiver. No modification, amendment, waiver or release of any
provision of the Agreement or any right, obligation, claim or cause of action arising under the
Agreement shall be valid or binding unless in writing and duly executed by the party against whom
enforcement is sought. No waiver by either party of any breach, or the failure of either party to
enforce any of the terms and conditions of the Agreement, shall affect, limit or waive that party's
right to enforce and compel compliance with all terms and conditions of the Agreement or to
terminate the Agreement as permitted by its terms. Any provision of this Agreement which for any
reason may be held unenforceable in any one jurisdiction shall, as to such jurisdiction,be ineffective
to the extent of such unenforceability without invalidating the remaining provisions of this
Agreement, and any such unenforceability in any jurisdiction shall not render such provision
unenforceable in any other jurisdiction. This;Agreement may be executed in any number of
counterparts and by different parties hereto or thereto on separate,counterparts, each of which, when
so executed and delivered, shall be an original, but all such counterparts shall together consist of but
one and the same instrument.
5.19 Representations. Customer hereby represents, warrants and covenants to Bigbelly that: (a) Customer
is organized and validly existing under the laws of the jurisdiction of its organization, with adequate
power and capacity to enter into the Agreement and anyother documents, instrument or agreement
related to this Agreement; (b) The Agreement has been duly authorized, executed and delivered by
Customer and constitutes a valid, legal and binding agreement, enforceable in accordance with its
terms, except to the extent that the enforcement of remedies therein provided may be limited under
applicable bankruptcy and insolvency laws; (c)no approval, consent or withholding of objections is
required from any governmental authority or instrumentality with respect to the entry into or
performance by Customer of the Agreement, except such as have already been obtained; (d) there
are no suits or, proceedings pending or threatened in court or before any regulatory commission,
board orother administrative governmental agency against or affecting Customer, which will have a
material adverse effect on the ability of Customer to fulfill its obligations and liabilities under the
Agreement.
5.20 Florida Public Records Law.
(A) Bigbelly shall comply with Florida Public Records law under Chapter 119, Florida Statutes, as may be amended
from time to time. Records made or received in connection with this Agreement are public records under Florida
law,as defined in Section 119.011(12),Florida Statutes.
(B) Pursuant to Section 119.0701E of the Florida Statutes, if the Contractor meets the definition of"Contractor" as
defined in Section 119.0701(1)(a),Bigbelly shall:
(1) Keep and maintain public records required by the City to perform the service;
(2) Upon request from the City's custodian of public records, provide the City with a copy of the requested
records or allow the records to be inspected or copied within a reasonable time at a cost that does not
exceed the cost provided in Chapter 119,Florida Statutes or as otherwise provided by law;
(3) Ensure that public records that are exempt or confidential and exempt from public records disclosure
requirements are not disclosed, except as authorized by law, for the duration of the contract term and
following completion of the Agreement if Bigbelly does not transfer the records to the City;
(4) Upon completion of the Agreement, transfer, at no cost to the City, all public records in possession of
Bigbelly or keep and maintain public records required by the City to perform the service. If Bigbelly
transfers all public records to the City upon completion of the Agreement, Bigbelly shall destroy any
duplicate public records that are exempt or confidential and exempt from public records disclosure
requirements. If Bigbelly keeps and maintains public records upon completion of the Agreement,
Bigbelly Service Agreement BBSA2OI50715 Page 16 23
Bigbelly shall meet all applicable requirements for retaining public records. All records stored
electronically must be provided to the City,upon request from the City's custodian of public records, in a
format that is compatible with the information technology systems of the City.
(C) REQUEST FOR RECORDS;NONCOMPLIANCE.
(1) A request to inspect or copy public records relating to the City's contract for services must be made
directly to the City. If the City does not possess the requested records, the City shall immediately notify
Bigbelly of the request, and Bigbelly must provide the records to the City or allow the records to be
inspected or copied within a reasonable time.
(2) Bigbelly's failure to comply with the City's request for records within a reasonable time,shall constitute a
breach of this Agreement, and the City, at its sole discretion, may: (1) unilaterally terminate the
Agreement; (2) avail itself of the remedies set forth under the Agreement; and/or (3) avail itself of any
available remedies at law or in equity.
(3) If Bigbelly fails to provide the public records to the City within the reasonable time stated above it may
be subject to penalties under s. 119.10.
(D) CIVIL ACTION.
(1) If a civil action is filed against a Bigbelly to compel production of public records relating to the City's
contract for services, the court shall assess and award against Bigbelly the reasonable costs of
enforcement,including reasonable attorney fees,if:
a. The court determines that Bigbelly unlawfully refused to comply with the public records request
within a reasonable time;and
b. At least 8 business days before filing the action, the plaintiff provided@written notice of the public
.E
records request, including a statement that Bigbelly'"has not complied with the request, to the City
and to Bigbelly.
(2) A notice complies with subparagraph (1)(b) if it is sentto the City's custodian of public records and to
Bigbelly at Bigbelly's address listed on its contract with the City or to Bigbelly's registered agent. Such
notices must be sent by common carrier delivery service or by registered, Global Express Guaranteed, or
certified mail,with postage or shipping paid by the sender and with evidence of delivery,which may be in
an electronic format.
(3) If Bigbelly complies with a public records request within 8 business days after the notice is sent it is not
liable for the reasonable costs ofenforcement.
(E) IF BIGBELLY: HAS QUESTIONS. REGARDING THE APPLICATION OF
CHAPTER 119, FLORIDA STATUTES, TO BIGBELLY'S DUTY TO PROVIDE
PUBLIC RECORDS RELATING TO THIS AGREEMENT, CONTACT THE
CUSTODIAN OF PUBLIC RECORDS AT:
CITY OF MIAMI:BEACH
ATTENTION: RAFAEL E. GRANADO, CITY CLERK
1700 CONVENTION CENTER DRIVE
MIAMI BEACH, FLORIDA 33139
E-MAIL: RAFAELGRANADOAMIAMIBEACHFL.GOV
PHONE: 305-673-7411
5.21 No Discrimination.
Bigbelly hereby agrees to comply with City of Miami Beach Human Rights Ordinance, as codified in
Chapter 62 of the City Code, as may be amended from time to time, prohibiting discrimination in
employment, housing, public accommodations, or public services, on the basis of actual or
perceived race, color, national origin, religion, sex, intersexuality, sexual orientation, gender identity,
familial and marital status, age, ancestry, height, weight, domestic partner status, labor organization
membership, familial situation, political affiliation, or disability.
Bigbelly Service Agreement BBSA20150715 Page 17123
End of Attachment A.
Bigbelly Service Agreement BBSA2ot5o715 Page 18 I 23
ATTACHMENT B
ACCEPTANCE CERTIFICATE
FOR THE BIGBELLY SERVICE AGREEMENT (AGREEMENT)
WITH THE CITY OF MIAMI BEACH,FLORIDA(CUSTOMER),DATED
The Customer hereby acknowledges that the following conditions have been met and acknowledges the
Acceptance Date below:1. all of the Equipment ordered pursuant to this Agreement has been
delivered to the Customer at the receiving location designated by Customer;
2. all of the Equipment has been installed at the agreed upon Equipment Sites(as defined in Section 3.1(D)
of the Agreement and is operational.
CUSTOMER:
CITY OF MIAMI BEACH
By:
Print Name and Title:
Date:
Bigbelly Service Agreement BBSA2O150715 Page 191 23
ATTACHMENT C
EQUIPMENT SITES
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Bigbelly Service Agreement BBSAzo35o715 Page 20 I 23
ATTACHMENT C-1
DELIVERY AND INSTALLATION SCHEDULE
Bigbelly Service Agreement BBSA2o15o715 Page 21 23
ATTACHMENT D
CUSTOMER TRAINING PLAN
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Upon PO • Review the Connect Guidelines to set expectations.
• Highlight site selection and partnership to maintain system in great
working condition.
• Establish criteria for success and how to measure them.
1-3 Weeks Prior to Installation • Update CLEAN software system with user names so users can
access the system
Upon Installation At a mutually agreed upon time, Bigbelly will train users to use the
CLEAN software for optimal results. Training includes site
customization:.
o Setting up users
o Updating station location descriptions
o Establishing groups
o Setting up Email notifications.
o How to make adjustments in the system and using the alert
notifications to address any hardware/software issues.
1 Week After Initial CLEAN Training • Reach out for feedback and adjustments to system set up.
• , Answer any questions
1 Month After Installation • Review reports and how to extract data
Monthly Thereafter • Provide a monthly summary of performance against goals.
END OF ATTACHMENT D
Bigbelly Service Agreement BBSA20r5o715 Page 22123
ATTACHMENT E
WEAR AND TEAR DEFINITIONS
Bigbelly Service Agreement BBSA20150715 Page 23 1 23