Equipment Purchase and Installation Agreement with Metalco Active USA, Inc. c201-7-02qg
EQUIPMENT PURCHASE AND INSTALLATION AGREEMENT
Metalco Active USA,Inc.
and
THE CITY OF MIAMI BEACH
dated as of
Equipment Purchase and Installation Agreement between
Metalco Active USA,Inc. and
The City of Miami Beach.
EQUIPMENT PURCHASE AND INSTALLATION AGREEMENT
This Equipment Purchase and Installation Agreement, dated as of s/IL In (this
"Agreement"), is entered into between Metalco Active USA, Inc. a Florida corporation
("Seller"), and City of Miami Beach, Florida, a municipal corporation, existing under the laws
of the State of Florida("City"), and together with Seller, the "Parties", and each, a "Party").
RECITALS
WHEREAS, Seller manufactures and sells in the United States high-end outdoor fitness
equipment (the "Goods"); and
WHEREAS, City planned to upgrade the existing aged exercise circuit east of the rock
wall at Lummus Park at 9th Street and Ocean Drive; and
WHEREAS, Seller proposed to install certain of its Goods for the upgrade, and the City
approved Seller's proposal,
NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions
set out herein, and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Capitalized terms have the meanings set forth or referred to in this Article I.
"Action" means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry,
audit, notice of violation, proceeding, litigation, citation, summons, subpoena or investigation of
any nature, civil, criminal, administrative, regulatory or otherwise, whether at law, in equity or
otherwise.
"Affiliate" of a Person means any other Person that directly or indirectly, through one or
more intermediaries, controls, is controlled by, or is under common control with, such Person.
The term "control" (including the terms "controlled by" and "under common control with")
means the possession, directly or indirectly, of the power to direct or cause the direction of the
management and policies of a Person, whether through the ownership of voting securities, by
contract or otherwise.
"Agreement" has the meaning set forth in the preamble.
"Basic Purchase Order Terms" means, collectively, any one or more of the following
terms specified by City in a Purchase Order pursuant to Section 4.01: (a) a list of the Goods to be
purchased, including make and model number; (b) the quantity of each of the Goods ordered; (c)
the requested delivery date; (d) the unit Price for each of the Goods to be purchased; (e) the
billing address; and (f) the Delivery Location. For the avoidance of doubt, the term "Basic
Purchase Order Terms" does not include any general terms or conditions of any Purchase Order.
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Equipment Purchase and Installation Agreement between
Metalco Active USA,Inc. and
The City of Miami Beach.
"Business Day" means any day except Saturday, Sunday or any other day on which
commercial banks located in the State of New York are authorized or required by Law to be
closed for business.
"City" means the City of Miami Beach, Florida, a municipal corporation having its
principal offices at 1700 Convention Center Drive, Miami Beach, Florida, 33139. In all respects
hereunder, City's obligations and performance is pursuant to City's position as the owner of the
Site acting in its proprietary capacity with respect to the Site and Project. In the event City
exercises its regulatory authority as a governmental body, including to its regulatory authority for
code inspections and issuance of building or other applicable permits within its jurisdiction, the
exercise of such regulatory authority and the enforcement of any rules, regulations, laws and
ordinances shall be deemed to have occurred pursuant to City's regulatory authority as a
governmental body and shall not be attributable in any manner to City as a party to this
Agreement.
"City Commission" means the governing and legislative body of the City.
"City Manager"means the Chief Administrative Officer of the City.
"Contract Administrator" means the designee(s) of the City Manager, who shall be the
City's authorized representative(s) to coordinate, direct, and review, on behalf of the City, all
matters related to the Work and the Project, except as otherwise provided herein. The City
Manager's initial designees with respect to coordination and review of Project-related matters is
John Rebar, Director of Parks and Recreation Department.
"Claim" means any Action brought against a Person entitled to indemnification under
Article XIV.
"Confidential Information" has the meaning set forth in Article XI.
"Control" (and with correlative meanings, the terms "Controlled by" and "under common
Control with") means, with respect to any Person, the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of another Person, whether
through the ownership of voting securities, by contract, or otherwise.
"Defective" means not conforming to the warranties in Section 13.01.
"Defective Goods" means goods shipped by Seller to City pursuant to this Agreement
that are Defective.
"Delayed Shipment Date" has the meaning set forth in Section 5.03.
"Delivery Location" means the street address specified in the Purchase Order.
"Disclosing Party" has the meaning set forth in Article XI.
"Effective Date" means the date this Agreement was executed.
"Force Majeure Event" has the meaning set forth in Section 18.17.
"Goods" means the goods set forth in Schedule 1.
"Governmental Authority" or "Governmental Authorities" means any federal, state,
local or foreign government or political subdivision thereof, or any agency or instrumentality of
such government or political subdivision, or any self-regulated organization or other non-
governmental regulatory authority or quasi-governmental authority (to the extent that the rules,
regulations or orders of such organization or authority have the force of Law), or any arbitrator,
court or tribunal of competent jurisdiction, including, without limitation, the City of Miami
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Equipment Purchase and Installation Agreement between
Metalco Active USA,Inc. and
The City of Miami Beach.
Beach Building Department or Public Works Department (in their regulatory capacities as
agencies having jurisdiction).
"Governmental Order" means any order, writ,judgment, injunction, decree, stipulation,
award or determination entered by or with any Governmental Authority.
"Indemnified Party" has the meaning set forth in Section 14.01.
"Indemnifying Party" has the meaning set forth in Section 14.01.
"Individual Transaction" means the Purchase Order that has been accepted by Seller
pursuant to Section 4.01.
"Subcontractor" means an individual or company hired for a specific project or period
of time, not indefinitely, to perform any portion of the services required by this Agreement,
including, without limitation, the installation of the Goods at the Site. The Seller shall be
responsible for the services provided by its Subcontractor(s)The Subcontractor shall indemnify
the Seller and the City for death, personal injury, property damage and all other consequences
resulting from the Subcontractor's acts or omissions.
"Initial Term" has the meaning set forth in Section 10.01.
"Inspection Period" has the meaning set forth in Section 5.05.
"Instructions"has the meaning set forth in Section 13.02
"Intellectual Property Rights" means all industrial and other intellectual property rights
comprising or relating to: (i) Patents; (ii) Trademarks; (iii) internet domain names, whether or
not Trademarks, registered by any authorized private registrar or Governmental Authority, web
addresses, web pages, website and URLs; (iv) works of authorship, expressions, designs and
design registrations, whether or not copyrightable, including copyrights and copyrightable
works, software and firmware, [application programming interfaces, architecture, files, records,
schematics,] data, data files, and databases and other specifications and documentation; (v) Trade
Secrets; and (vi) all industrial and other intellectual property rights, and all rights, interests and
protections that are associated with, equivalent or similar to, or required for the exercise of, any
of the foregoing, however arising, in each case whether registered or unregistered and including
all registrations and applications for, and renewals or extensions of, such rights or forms of
protection pursuant to the Laws of any jurisdiction throughout in any part of the world.
"Law" means any statute, law, ordinance, regulation, rule, code, constitution, treaty,
common law, Governmental Order or other requirement or rule of law of any Governmental
Authority.
"Losses" has the meaning set forth in Section 14.01.
"Nonconforming Goods" means any goods received by City from Seller pursuant to a
Purchase Order that: (i) do not conform to the make and model listed in the applicable Purchase
Order; or (ii) do not significantly conform to the Specifications. Where the context requires,
Nonconforming Goods are deemed to be Goods for purposes of this Agreement.
"Notice" has the meaning set forth in Section 18.03.
"Party" has the meaning set forth in the preamble to this Agreement.
"Patents" means all patents (including all reissues, divisionals, provisionals,
continuations and continuations-in-part, re-examinations, renewals, substitutions and extensions
thereof), patent applications, and other patent rights and any other Governmental Authority-
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Equipment Purchase and Installation Agreement between
Metalco Active USA,Inc. and
The City of Miami Beach.
issued indicia of invention ownership (including inventor's certificates, petty patents and patent
utility models).
"Payment Failure" has the meaning set forth in Section 10.02.
"Person" means any individual, partnership, corporation, trust, limited liability entity,
unincorporated organization, association, Governmental Authority or any other entity.
"Personnel" means agents, employees or subcontractors engaged or appointed by Seller
or City.
"Price" has the meaning set forth in Section 7.01.
"Project" means the requirements for the installations and other specifications described
in Exhibit F.
"Purchase Order" means City's purchase order issued to Seller, including all terms and
conditions attached to, or incorporated into, such purchase order, pursuant to Section 4.01.
"Receiving Party" has the meaning set forth in Article XI.
"Representatives" means a Party's Affiliates, employees, officers, directors, partners,
shareholders, agents, attorneys, third-party advisors, successors and permitted assigns.
"Seller's Intellectual Property Rights" means all Intellectual Property Rights owned by
or licensed to Seller.
"Seller's Trademarks" means all Trademarks owned or licensed by Seller.
"Site" the location described in Exhibit B, where the Seller shall install the Goods in
accordance with the Specifications.
"Specifications" means the specifications for the Goods attached hereto as Exhibit A.
"Term" means the period from the Effective Date until the end of the inspection period.
"Third-Party Product" means any product that has not been produced by the Seller or a
product that has not been approved by the Seller before being used in conjunction with the
Goods.
"Trademarks" means all rights in and to US and foreign trademarks, service marks,
trade dress, trade names, brand names, logos, trade dress, corporate names and domain names,
and other similar designations of source, sponsorship, association or origin, together with the
goodwill symbolized by any of the foregoing, in each case whether registered or unregistered
and including all registrations and applications for, and renewals and extensions of, such rights
and all similar or equivalent rights or forms of protection in any part of the world.
"Trade Secrets" means all inventions, discoveries, trade secrets, business and technical
information and know-how, databases, data collections, patent disclosures and other confidential
and proprietary information and all rights therein.
"Warranty Period" has the meaning set forth in Section 13.01.
ARTICLE II
AGREEMENT TO PURCHASE AND SELL GOODS
Section 2.01 Purchase and Sale. Subject to City's acceptance of the Project and
the terms and conditions of this Agreement, during the Term, Seller shall, on a non-exclusive
basis, sell to City, and City shall, on a non-exclusive basis, purchase from Seller, the Goods.
Section 2.02 No Annual Minimum Quantities. The Parties agree that:
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Equipment Purchase and Installation Agreement between
Metalco Active USA,Inc. and
The City of Miami Beach.
(a) City is not obligated to purchase any annual minimum quantities from Seller under
this Agreement; and
(b) Seller is not obligated to sell any annual minimum quantities to City under this
Agreement, other than the Goods; and
(c) No separate purchase or membership subscription's fees shall be required (from
either the City or members of the general public electing to use the Goods) in connection with the
use of the Goods, including, without limitation, any content provided through use of any mobile
or web-based application or format offered in connection with the Goods. This provision shall
survive the expiration of this Agreement.
ARTICLE III
TERMS OF AGREEMENT PREVAIL OVER CITY'S PURCHASE ORDER
This Agreement is expressly limited to the terms of this Agreement and the Basic
Purchase Order Terms. The terms of this Agreement prevail over any terms or conditions
contained in any other documentation. In the event of any conflict between the terms of this
Agreement and the terms of any other document issued by City, the terms of this Agreement
prevail.
ARTICLE IV
ORDER PROCEDURE
Section 4.01 Purchase Orders. Within two months from the Effective Date, City
shall initiate the Purchase Order in written form via facsimile, e-mail or US mail, and cause the
Purchase Order to contain the Basic Purchase Order Terms. By placing a Purchase Order, City
makes an offer to purchase the Goods pursuant to the terms and conditions of this Agreement,
including the Basic Purchase Order Terms, and on no other terms. Except with respect to the
Basic Purchase Order Terms, any variations made to the terms and conditions of this Agreement
by City in any Purchase Order or by Seller in any counter-offer, invoice, or other sales
documentation, are void and have no effect.
Section 4.02 Seller's Right to Accept or Reject Purchase Order. Except as to
the Purchase Order for the Goods, Seller has the right, in its sole discretion, to accept or reject
any other Purchase Order. Seller may accept any such Purchase Order by confirming the order
(whether by written confirmation, invoice or otherwise) or by delivering such Goods, whichever
occurs first. No Purchase Order is binding on Seller unless accepted by Seller as provided in this
Agreement.
Section 4.03 Cancellation of the Individual Transaction. Either Party may, in
its sole discretion, without liability or penalty, cancel the Individual Transaction if the cancelling
Party determines that the other Party has materially breached or is in material breach of this
Agreement, including, without limitation,with respect to a breach of payment obligations.
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Equipment Purchase and Installation Agreement between
Metalco Active USA,Inc. and
The City of Miami Beach.
ARTICLE V
SHIPMENT,DELIVERY AND INSTALLATION
Section 5.01 Shipment Terms: Delivery shall be made FOB Miami Beach,
Florida, to the Delivery Location.
Section 5.02 Delivery. Unless expressly agreed to by the Parties in any Individual
Transaction, Seller shall deliver the Goods to the Delivery Location, using Seller's standard
methods for packaging and shipping such Goods. All prices are FOB Miami Beach, Florida.
Section 5.03 Late Delivery. Any time quoted by Seller for delivery is an estimate
only. Seller is not liable for or in respect of any loss or damage arising from any delay in filling
any order, failure to deliver or delay in delivery. However, if Seller delays shipment of the
Goods for more than fifteen (15) days after the estimated delivery date (the "Delayed Shipment
Date"), then City may, as its sole remedy therefor and without penalty or any liability
whatsoever under this Agreement, cancel the related Purchase Order with respect to the delayed
Goods by giving Seller Notice of the Delayed Shipment Date, unless Seller's delay is caused by
City's failure to fulfill its payment obligation under Section 7.03 or by the occurrence of any of
the events described in section 5.05(e).
Section 5.04 Packaging and Labeling. Seller shall properly pack, mark and ship
Goods and provide City with shipment documentation showing the Purchase Order number,
Seller's identification number for the subject Goods, the quantity of pieces in shipment, the
number of cartons or containers in shipment, Seller's name, the bill of lading number and the
country of origin.
Section 5.05 Pre-installation and Installation of the Goods. Seller shall be solely
responsible for the quality and timely prosecution, of the pre installation and installation
activities described in Exhibit B. Seller may cause for the pre-installation and installation
process of the Goods through an Subcontractor approved by the City in advance, with all of the
requisite licenses and experience required to perform the installation of the Goods at the Site,
provided that, at least twenty (20) days before installation, City removes, at its own expense, any
equipment that is currently occupying the Site. Notwithstanding
City's approval of any Subcontractor, Seller shall be ultimately responsible for the
Subcontractor's work and for the satisfactory completion of all of Seller's obligations under the
Agreement. Seller shall be responsible for supervising any Subcontractor, and City shall have no
responsibility or liability with respect thereto. Seller shall be responsible for obtaining all
requisite permits that may be required from any Governmental Authority. Seller shall cause for
all work to be performed in such manner and at such times so as not to cause interference with
City operations, and all such work shall be coordinated in advance with the City to minimize any
traffic impacts or impacts to the general public's use of the Site and the surrounding areas. Seller
shall be responsible for cleanup of the Site upon completion of the installation, and shall remove
any of its equipment, excess materials, and waste promptly from the Site. The Goods, and the
completed Project, shall comply with all applicable laws.
(a) City and Seller shall establish a mutually agreeable timeframe for the installation
of the Goods. In the event that the pre installation process is delayed from beginning on or before
the time agreed by the Parties as a result of the City's failure to remove the old equipment as to
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Equipment Purchase and Installation Agreement between
Metalco Active USA,Inc. and
The City of Miami Beach.
reasonably permit starting the pre-installation process therein, or the installation process is
delayed as a result of the City's Payment Failure, or if any delay that impacts the previously
agreed timeframe is caused by the City, the Seller shall be granted an extension of time to
complete and install the Goods, and subject to Seller's duty to mitigate its damages, shall be
reimbursed for reasonable storage costs, if any, and all out-of-pocket non-refundable or non-
cancelable expenses, if any, incurred for the period between the time scheduled for installation
and the date upon which removal of the old equipment from the Site is sufficiently complete to
reasonably permit installation of the Goods.
(b) Seller shall notify the Contract Administrator in writing of any adverse Site
conditions that may impede or otherwise impact the smooth and normal progress of the
installation of the Goods, and which require resolution before proceeding with any portion of the
installation. Seller shall provide such notice within five (5) calendar days so as to allow the
Contract Administrator to properly coordinate with the field and not create any delays to the
schedule.
(c) Where any delay condition beyond the Seller's control arises, the Seller shall so
notify the Contract Administrator in writing no later than five (5) calendar days of the occurrence
of the events giving rise to the claimed delay, with a detailed explanation describing all of the
circumstances beyond the Seller's control that do not permit the Seller to begin the pre-
installation process or installation of the Goods, an explanation of how the delay has specifically
impacted the Seller's schedule, and any supporting documentation relating thereto. Seller's failure
to timely present a request for time extension or other claim in accordance with this Article V
shall be conclusively deemed a waiver, abandonment or relinquishment of any such claim, it
being expressly understood and agreed that the timely presentation of claims, in sufficient detail
to allow proper investigation and prompt resolution thereof, is essential to the administration of
this Agreement.
(d) In the event the Seller causes a delay that it could have prevented and impacts the
construction schedule for the installation of the Goods at the Site, the Seller shall accelerate its
services to mitigate the delay at no additional cost to the City. If the Seller is unable to mitigate
the delay in an acceptable and effective manner, the City may terminate this Agreement pursuant
to Section 10.03 of this Agreement.
(e) Either party shall not be liable for any delay in delivery, in whole or in part, or in
the installation of the Goods, caused by the occurrence of a major force event such as hurricane,
fire, civil disobedience, strikes, riots, rebellions, explosion, flood, storm, Acts of God, and similar
occurrences, or delays caused by U.S. Customs and Border Protection examination of the Goods
and entry documents or any other event beyond either Party's control. Failure to fulfill
contractual obligations due to major forces set forth in the preceding sentence will not be
considered a breach of contract, provided that such obligations shall be suspended only for the
duration of such condition.
Section 5.06 Inspection. City shall inspect the Goods in two separate occasions
("Inspection Period"). The first inspection shall take place upon completion of the Goods'
installation, following final approval by any Governmental Authorities whose regulatory
approval may be required (i.e. to close out permits). The second inspection shall be performed
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Equipment Purchase and Installation Agreement between
Metalco Active USA,Inc. and
The City of Miami Beach.
within ten (10) days after the installation is complete. The Inspection Period starts upon
completion of the Good's installation and terminates upon completion of the second inspection.
The inspections shall be performed by an Agent appointed by the Seller, and the City may
appoint a second Agent to perform the inspections. The City's Parks and Recreation Director
will be responsible for the appointment of a second Agent on behalf of the City. During the
Inspection Period, the City may either accept the Goods or, if such Goods are Defective or
Nonconforming Goods, reject such Goods. City will be deemed to have accepted the Goods
unless it notifies Seller in writing of any Defective or Nonconforming Goods during the
Inspection Period and furnishes such written evidence or supporting documentation with respect
thereto. If City timely notifies Seller of any Defective or Nonconforming Goods, Seller shall
appoint a local Agent to examine the Goods to determine, whether the Seller concurs with the
City's assessment that the Goods are Defective or Nonconforming Goods. If Seller agrees that
the Goods are Defective or Nonconforming Goods, it shall, in its sole discretion (i) repair or
replace such Defective or Nonconforming Goods with non-Defective and conforming Goods, or
(ii) refund the Price for such Defective or Nonconforming Goods, together with all shipping and
handling expenses incurred by City in connection therewith. If Seller exercises its option to
replace Defective or Nonconforming Goods, Seller shall make all arrangements to ship, at
Seller's expense and risk of loss, the Defective or Nonconforming Goods to any location
designated by Seller, and receive, at Seller's expense and risk of loss, the replaced Goods to the
Delivery Location.
CITY ACKNOWLEDGES AND AGREES THAT THE REMEDIES SET FORTH IN THIS
THIS SECTION 5.06 ARE CITY'S EXCLUSIVE REMEDIES FOR THE DELIVERY OF
NONCONFORMING GOODS, SUBJECT TO CITY'S RIGHTS UNDER ARTICLE XIII
WITH RESPECT TO ANY NONCONFORMING GOODS FOR WHICH CITY HAS
ACCEPTED DELIVERY UNDER THIS SECTION 5.06.
ARTICLE VI
TITLE AND RISK OF Loss
Section 6.01 Title. Title to Goods ordered under the Individual Transaction passes
to City upon installation of such Goods at the Site.
Section 6.02 Risk of Loss. Risk of loss to all Goods ordered under any Purchase
Order passes to City upon installation of the Goods by Seller or its Subcontractor at the Site.
ARTICLE VII
PRICE AND PAYMENT
Section 7.01 Price. City shall purchase the Goods from Seller for one hundred
and seventy-five thousand dollars and zero cents ($175,000.00) ("Price"). Pursuant to the terms
of this Agreement, the Price includes the Goods and all work, services, labor, materials, costs
and expenses relating to the fabrication, permitting, transportation, delivery, storage, installation
and inspection of the Goods at the Site, as provided in the Seller's proposal attached hereto as
Exhibit A. Any Agent appointed by the City and any inspection other than what is covered by
section 5.06 will be the responsibility of the City.
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Equipment Purchase and Installation Agreement between
Metalco Active USA,Inc. and
The City of Miami Beach.
Section 7.02 Shipping Charges, Insurance and Taxes. The Price includes
shipping charges, insurance and all taxes related to the Goods, and any duties and charges of any
kind imposed by any Governmental Authority with respect to, or measured by, the manufacture,
sale, shipment, use or Price of the Goods (including interest and penalties thereon).
Section 7.03 Payment Terms. The City shall pay 30% of the total amount upon
signing this Agreement. The remaining amount due shall be paid in two installments: 60% of the
remaining within 14 days after shipping and the final balance within thirty (30) days after the
conclusion of the Inspection Period and receipt of a final invoice from the Seller. All payments
hereunder shall be in US dollars and made by check or electronic transfer. Wire transfer [in
accordance with the following wire instructions:
ABA Number:
Account Number:
Bank Address:
Attn: Metalco Active USA, Inc.
City shall pay interest on all late payments at the rate of 1%per month.
Section 7.04 No Set-off Right. City shall not, and acknowledges that it will have
no right, under this Agreement, any Purchase Order, any other agreement, document or Law, to
withhold, offset, recoup or debit any amounts owed (or to become due and owing) to Seller or
any of its Affiliates, whether under this Agreement or otherwise, against any other amount owed
(or to become due and owing) to it by Seller or Seller's Affiliates, whether relating to Seller's or
its Affiliates' breach or non-performance of this Agreement, any Purchase Order, any other
agreement between (a) City or any of its Affiliates and (b) Seller or any of its Affiliates, or
otherwise.
ARTICLE VIII
COMPLIANCE WITH LAWS AND THE SELLER'S INSTRUCTIONS
Section 8.01 General Compliance With Laws Covenant. City and Seller shall at
all times comply with all Laws applicable to this Agreement, City's and Seller's performance of
their obligations hereunder and City's use of the Goods. Without limiting the generality of the
foregoing, Seller shall at its own expense, maintain all certifications, credentials, licenses and
permits necessary to conduct its business relating to the sale of the Goods. City and Seller shall
not engage in any activity or transaction involving the Goods, by way of shipment, use or
otherwise, that violates any Law.
Section 8.02 Compliance with Seller's Instructions. City shall at all times follow
Seller's Instructions regarding the use and regular maintenance of the Goods.
ARTICLE IX
INTELLECTUAL PROPERTY RIGHTS
Section 9.01 Ownership. City acknowledges and agrees that:
(a) any and all Seller's Intellectual Property Rights are the sole and exclusive property
of Seller or its licensors;
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Equipment Purchase and Installation Agreement between
Metalco Active USA, Inc. and
The City of Miami Beach.
(b) City shall not acquire any ownership interest in any of Seller's Intellectual Property
Rights under this Agreement;
(c) any goodwill derived from the use by City of Seller's Intellectual Property Rights
inures to the benefit of Seller or its licensors, as the case may be;
(d) if City acquires any Intellectual Property Rights, rights in or relating to any Goods
(including any rights in any Trademarks, derivative works or patent improvements relating
thereto) by operation of Law, or otherwise, such rights are deemed and are hereby irrevocably
assigned to Seller or its licensors, as the case may be, without further action by either of the
Parties; and
(e) City shall use Seller's Intellectual Property Rights solely for purposes of using the
Goods under this Agreement and only in accordance with this Agreement and the instructions of
Seller.
Section 9.02 Prohibited Acts. City shall not:
(a) take any action that might interfere with any of Seller's rights in or to Seller's
Intellectual Property Rights, including Seller's ownership or exercise thereof;
(b) challenge any right, title or interest of Seller in or to Seller's Intellectual Property
Rights;
(c) make any claim or take any action adverse to Seller's ownership of Seller's
Intellectual Property Rights;
(d) register or apply for registrations, anywhere in the world, for Seller's Trademarks
or any other Trademark that is similar to Seller's Trademarks or that incorporates Seller's
Trademarks in whole or in confusingly similar part;
(e) use any mark, anywhere that is confusingly similar to Seller's Trademarks in whole
or in confusingly similar part, other than with respect to promoting the Goods as being available
for use by the general public at the Site;
(f) engage in any action that tends to disparage, dilute the value of, or reflect
negatively on the Goods or any Seller's Trademarks;
(g) misappropriate any of Seller's Trademarks for use as a domain name without prior
written consent from Seller; or
(h) alter, obscure or remove any Seller's Trademarks, or Trademark or copyright
notices or any other proprietary rights notices placed on the Goods, marketing materials or other
materials that Seller may provide.
ARTICLE X
TERM;TERMINATION
Section 10.01 Term. The term of this Agreement commences on the Effective Date
and continues until City's compliance with the payment obligations set forth in Article VII
unless and until earlier terminated as provided under this Agreement(the "Term").
Section 10.02 Seller's Right to Terminate. Seller may terminate this Agreement
upon written notice to City if City fails to pay any amount when due under this Agreement
("Payment Failure") and such failure continues for fourteen (14) days after City's receipt of
written notice of nonpayment, provided, however, that Seller shall not have the right to terminate
this Agreement pursuant to this Section 10.02 if City's failure to pay is due to a material breach
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Equipment Purchase and Installation Agreement between
Metalco Active USA,Inc. and
The City of Miami Beach.
by Seller of its obligations under this Agreement, and City has provided notice to Seller of said
breach in accordance with the Agreement's terms.
Section 10.03 City's Right to Terminate. City may terminate this Agreement
upon written notice to Seller:
(a) pursuant to section 5.03 and 5.05(d) of this Agreement; or
(b) if Seller materially breaches any material provision of this Agreement or any
Individual Transaction and either the breach cannot be cured or, if the breach can be cured, it is
not cured by Seller within fourteen(14) days after Seller's receipt of written notice of such breach.
Section 10.04 Termination for Convenience. City may terminate this Agreement
for its convenience at any time upon furnishing sixty (60) days written notice to the other party.
In the event the City terminates this Agreement for convenience, the City shall revert title of the
Goods to the Seller and return, at its own expense, the Goods, any material data and or work in
progress to the Seller. The Seller shall remit any payment received under this Agreement to the
City, less any nonrefundable expense incurred under this Agreement prior to the Termination
Date.
Section 10.05 Effect of Termination.
(a) Expiration or termination of the Term will not affect any rights or obligations of
the Parties that come into effect upon or after expiration or termination of this Agreement.
(b) A Notice of termination under this Agreement automatically operates as a
cancellation of the delivery of the Goods to City if such delivery is scheduled to be made
subsequent to the effective date of termination, whether or not the order for such Goods had been
accepted by Seller.
(c) Except as specifically provided in this Agreement, the Party terminating this
Agreement, or in the case of the expiration of this Agreement, each Party, shall not be liable to the
other Party for any damage of any kind (whether direct or indirect) incurred by the other Party by
reason of the expiration or earlier termination of this Agreement. Termination of this Agreement
will not constitute a waiver of any of either Party's rights, remedies or defenses under this
Agreement, at law, in equity or otherwise.
ARTICLE XI
CONFIDENTIALITY
Section 11.01 Scope of Confidential Information. From time to time during the
Term, Seller (as the "Disclosing Party") may disclose or make available to City (as the
"Receiving Party") information about its business affairs, goods and services, Forecasts,
confidential information and materials comprising or relating to Intellectual Property Rights,
trade secrets, third-party confidential information and other sensitive or proprietary information
marked, designated or identified as "confidential" in written, electronic or other form or media
(collectively, "Confidential Information"). Confidential Information does not include
information that, at the time of disclosure and as established by documentary evidence:
11
Equipment Purchase and Installation Agreement between
Metalco Active USA,Inc. and
The City of Miami Beach.
(a) is or becomes generally available to and known by the public other than as a result
of, directly or indirectly, any breach of this Article XI by the Receiving Party or any of its
Representatives;
(b) is or becomes available to the Receiving Party on a non-confidential basis from a
third-party source, provided that such third party is not and was not prohibited from disclosing
such Confidential Information;
(c) was known by or in the possession of the Receiving Party or its Representatives
prior to being disclosed by or on behalf of the Disclosing Party;
(d) was or is independently developed by the Receiving Party without reference to or
use of, in whole or in part, any of the Disclosing Party's Confidential Information; or
(e) is required to be disclosed by City pursuant to applicable Law, including, without
limitation, Chapter 119 of the Florida Statutes (the Florida Public Records Act).
Section 11.02 Protection of Confidential Information. Solely to the extent
permitted by applicable Law, and subject to City's public record disclosure obligations, the
Receiving Party shall, for two (2) years from receipt of such Confidential Information:
(a) protect and safeguard the confidentiality of the Disclosing Party's Confidential
Information with at least the same degree of care as the Receiving Party would protect its own
Confidential Information, but in no event with less than a commercially reasonable degree of
care;
(b) not use the Disclosing Party's Confidential Information, or permit it to be accessed
or used, for any purpose other than to exercise its rights or perform its obligations under this
Agreement; and
(c) not disclose any such Confidential Information to any Person, except to the
Receiving Party's Representatives who need to know the Confidential Information to assist the
Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this
Agreement.
ARTICLE XII
REPRESENTATIONS AND WARRANTIES
Section 12.01 City's Representations and Warranties. City represents and
warrants to Seller that:
(a) it is a municipal corporation duly organized, validly existing and in good standing
in the jurisdiction of its incorporation;
(b) it is duly qualified to do business and is in good standing in every jurisdiction in
which such qualification is required for purposes of this Agreement, except where the failure to
be so qualified, in the aggregate, would not reasonably be expected to adversely affect its ability
to perform its obligations under this Agreement;
(c) it has the full right, corporate power and authority to enter into this Agreement, to
grant the rights and licenses granted under this Agreement and to perform its obligations under
this Agreement;
(d) the execution of this Agreement by its Representative whose signature is set forth
at the end hereof has been duly authorized by all necessary corporate action of the Party;
12
Equipment Purchase and Installation Agreement between
Metalco Active USA, Inc. and
The City of Miami Beach.
(e) when executed and delivered by each of Seller and City, this Agreement will
constitute the legal, valid and binding obligation of City, enforceable against City in accordance
with its terms, except as may be limited by any applicable bankruptcy, insolvency, reorganization,
moratorium, or similar laws and equitable principles related to or affecting creditors' rights
generally or the effect of general principles of equity;
(f) it is in material compliance with all applicable Laws relating to this Agreement and
the Goods; and it is not insolvent and is paying all of its debts as they become due
Section 12.02 Seller's Representations and Warranties. Seller represents and
warrants to City that:
(a) it is a corporation duly organized, validly existing and in good standing in the
jurisdiction of its incorporation;
(b) it is duly qualified to do business and is in good standing in every jurisdiction in
which such qualification is required for purposes of this Agreement, except where the failure to
be so qualified, in the aggregate, would not reasonably be expected to adversely affect its ability
to perform its obligations under this Agreement;
(c) it has the full right, corporate power and authority to enter into this Agreement, to
grant the rights and licenses granted under this Agreement and to perform its obligations under
this Agreement;
(d) the execution of this Agreement by its Representative whose signature is set forth
at the end hereof has been duly authorized by all necessary corporate action of the Party; and
(e) when executed and delivered by each of City and Seller, this Agreement will
constitute the legal, valid and binding obligation of Seller, enforceable against Seller in
accordance with its terms, except as may be limited by any applicable bankruptcy, insolvency,
reorganization, moratorium, or similar laws and equitable principles related to or affecting
creditors' rights generally or the effect of general principles of equity;
(f) it is in material compliance with all applicable Laws relating to this Agreement and
the Goods; and
(g) it is not insolvent and is paying all of its debts as they become due.
ARTICLE XIII
PRODUCT WARRANTIES
Section 13.01 Limited Warranty. Seller warrants to City that:
(a) no Goods will be Defective Goods or Nonconforming Goods.
(b) Pursuant to the Seller's warranty details set forth in Exhibit D, such Goods will
materially conform to the specifications set forth in Exhibit A in effect as of the date of shipment
and will be free from significant defects in material and workmanship for the following periods:
(i) ten(10) years for the following structural parts in concrete:
o Elements in concrete, MyEquilibria and MyBeast(trunk, branches
and leaves
o Box Jump A;
o Box Jump B;
13
Equipment Purchase and Installation Agreement between
Metalco Active USA,Inc. and
The City of Miami Beach.
o Flat Bench;
o Incline Bench;
o Decline Bench;
o Wellness Stone;
(ii) Ten(10) years for the following structural parts in steel:
o Struts for Pull-up bars;
o Struts for rings;
o Stall Bar MyBeast;
o Dip MyBeast;
o Monkey Bar MyBeast;
(iii) five (5) years for the following nonstructural elements:
o Parallels MyEquilibria;
o Fixed push-up;
o Pistols;
o Push-up bars;
o Hooks;
o Battle Rope Hooks
o Parallettes;
and
(iv) two (2) years for all mobile parts and the following accessories:
o Pull-up bar;
o Rings;
o MyBeast Stages (except for those mentioned above)
o Ab Wheel;
o Sliding Push-up;
o Rotary Push-up;
o Stability Board;
14
Equipment Purchase and Installation Agreement between
Metalco Active USA,Inc. and
The City of Miami Beach.
o Ropes;
o Boxing bag.
(c) City will receive good and valid title to the Goods, free and clear of all
encumbrances and liens of any kind; and
(d) The Goods are Seller's original product and will be delivered in a manner that does
not infringe, or constitute an infringement or misappropriation of, any Intellectual Property Rights
of any third party.
Section 13.02 Warranty Limitations. The warranties set forth in Exhibit D and
Section 13.01 ("Warranties") do not apply to minor imperfections that do not affect Goods
performance, or minor variations in color, discoloration, graying, or yellowing, or any other
aesthetic deterioration that can be attributed to regular use of the Goods. In addition, the
Warranties do not apply where the Goods have:
(a) been subjected to abuse, misuse, neglect, negligence, accident, improper testing,
improper storage, or any other improper handling, contrary to any Instruction provided by Seller,
including the Seller's digital App, Seller's Manual, attached hereto as Exhibit D, and the Warning
Label, attached hereto as Exhibit E (the "Instructions"), other than normal wear and tear (which
shall not serve to limit or affect the Seller's warranty obligations);
(b) been subject to abnormal physical stress or abnormal environmental conditions due
to Force Majeure, provided, however, that Seller acknowledges and agrees that the Site is located
in the sub-tropical South Florida climate at or near the beaches and such climate conditions shall
not be deemed or construed as "abnormal environmental conditions");
(c) been used contrary to the Instructions issued by Seller;
(d) have been vandalized, provided that Seller's warranty obligations shall only be
limited if any such vandalism is the direct cause of the condition that resulted in the Goods being
considered Defective or Nonconforming Goods;
(e) been reconstructed, repaired or altered by Persons other than Seller or its
Authorized Representative; or
(f) been used with any Third-Party Product that has not been previously approved in
writing by Seller.
Section 13.03 City's Exclusive Remedies for Defective Goods. During the
Warranty Period, with respect to any allegedly Defective Goods or Non-Conforming Goods:
(a) City shall notify Seller, in writing, of any alleged claim or defect within ten (10)
Business Days from the date City discovers, or upon reasonable inspection should have
discovered, such alleged claim or defect (but in any event before the expiration of the applicable
Warranty Period);
(b) City should immediately close the area or isolate the accessories, or part of the
Goods, suspected to be defective until an inspection has been made;
15
Equipment Purchase and Installation Agreement between
Metalco Active USA,Inc. and
The City of Miami Beach.
(c) Seller and City shall each select a local Agent to inspect and test the allegedly
Defective Goods or Nonconforming Goods;
(d) If inspection and testing reveal that such Goods are Defective or Non-conforming
Goods, Seller shall repair or replace such Defective Goods and shall ship to City, at its expense
and risk of loss, the repaired or replaced Goods to the Delivery Location;
(e) If Seller undertakes corrective action with respect to any Defective Goods or Non-
conforming Goods, and the Goods are subsequently determined by the City to be Defective or
Non-conforming Goods, then Seller shall, at City's discretion, either repair or replace the
Defective Goods at its expense, or credit or refund (at City's option) the Price of such Defective
Goods after title has been reverted and the Defective Goods have been shipped, at the Seller's
expense, back to the Seller.
THIS Section 13.02 SETS FORTH THE CITY'S SOLE AND EXCLUSIVE REMEDY AND
SELLER'S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET
FORTH IN Section 13.01
Section 13.04 Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES SET
FORTH IN SECTION 13.01 SELLER MAKES NO WARRANTY WHATSOEVER WITH
RESPECT TO THE GOODS, INCLUDING ANY (a) WARRANTY OF
MERCHANTABILITY; and (b) WARRANTY OF FITNESS FOR A PARTICULAR
PURPOSE; WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF
PERFORMANCE, USAGE OF TRADE OR OTHERWISE. CITY ACKNOWLEDGES THAT
IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY
SELLER, OR ANY OTHER PERSON ON SELLER'S BEHALF, EXCEPT AS
SPECIFICALLY PROVIDED IN THIS AGREEMENT.
ARTICLE XIV
INDEMNIFICATION
Section 14.01 Seller Indemnification. Subject to the terms and conditions of this
Agreement, including those set forth in Section 14.02, Seller (as "Indemnifying Party") shall
indemnify, defend and hold harmless City and its Representatives, directors, employees, agents,
affiliates, successors and permitted assigns (collectively, "Indemnified Party") against any and
all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest,
awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys'
fees, fees and the costs of enforcing any right to indemnification under this Agreement and the
cost of pursuing any insurance providers, incurred by Indemnified Party, not limited to final non-
appealable judgments (collectively, "Losses"), relating to any Claim of a third party or Party
alleging (collectively, "Claims"):
(a) breach or non-fulfillment of any representation, warranty or covenant under this
Agreement by Indemnifying Party or Indemnifying Party's Personnel;
(b) any negligent or more culpable act or omission of Indemnifying Party or its
Personnel (including any recklessness or willful misconduct) in connection with the performance
of its obligations under this Agreement; or
16
Equipment Purchase and Installation Agreement between
Metalco Active USA,Inc. and
The City of Miami Beach.
(c) any bodily injury, death of any Person or damage to real or tangible personal
property caused by the willful or grossly negligent acts or omissions of Indemnifying Party or its
Personnel; or
(d) any failure by Indemnifying Party or its Personnel to comply with any applicable
Laws; or
(e) that the Goods infringe on any third-party's intellectual property rights (including
patent, trademark or servicemark, copyright, or other intellectual property rights.
Notwithstanding anything to the contrary in this Agreement, this Section does not apply
to any claim (direct or indirect) for which a sole or exclusive remedy is provided for under
another section of this Agreement.
Section 14.02 Exceptions and Limitations on Indemnification. Notwithstanding
anything to the contrary in this Agreement, Indemnifying Party is not obligated to indemnify or
defend Indemnified Party against any claim (direct or indirect) if such claim or corresponding
Losses arise out of or result from, in whole or in part, Indemnified Party's or its Personnel's:
(a) Gross negligence or more culpable act or omission (including recklessness or
willful misconduct); or
(b) bad faith failure to comply with any of its material obligations set forth in this
Agreement.
ARTICLE XIV SETS FORTH THE ENTIRE LIABILITY AND OBLIGATION OF EACH
INDEMNIFYING PARTY AND THE SOLE AND EXCLUSIVE REMEDY FOR EACH
INDEMNIFIED PARTY FOR ANY LOSSES COVERED BY ARTICLE XIV.
ARTICLE XV
LIMITATION OF LIABILITY
Section 15.01 No Liability for Consequential or Indirect Damages. EXCEPT
FOR OBLIGATIONS TO MAKE PAYMENT UNDER THIS AGREEMENT, LIABILITY FOR
INDEMNIFICATION, LIABILITY FOR BREACH OF CONFIDENTIALITY, OR LIABILITY
FOR INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY
RIGHTS, NEITHER PARTY IS LIABLE TO THE OTHER PARTY FOR CONSEQUENTIAL,
INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED
DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING
OUT OF OR RELATING TO ANY BREACH OF THIS AGREEMENT, REGARDLESS OF
(A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT
EITHER PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (C)
THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON
WHICH THE CLAIM IS BASED, AND NOTWITHSTANDINGTHE FAILURE OF ANY
AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
Section 15.02 Maximum Liability of Seller. LIABILITY FOR
INDEMNIFICATION, LIABILITY FOR BREACH OF CONFIDENTIALITY, OR LIABILITY
FOR INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY
17
Equipment Purchase and Installation Agreement between
Metalco Active USA,Inc. and
The City of Miami Beach.
RIGHTS, AND SELLER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO
THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF
CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL NOT
EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER PURSUANT TO THIS
AGREEMENT IN THE PERIOD PRECEDING THE EVENT GIVING RISE TO THE
CLAIM., EXCLUDING ANY INSURANCE PROCEEDS THAT MAY BE AVAILABLE
UNDER THE GENERAL LIABILITY INSURANCE POLICY REQUIRED UNDER
ARTICLE XVI HEREOF .
Section 15.03 Maximum Liability of City. The City desires to enter into this
Agreement only if in so doing the City can place a limit on the City's 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 aggregate sum of $10,000. Seller Except for
claims for non-payment of amounts due under the Agreement, Seller's recovery from the City
for any damage action for breach of contract shall be limited to a maximum amount of$10,000.
Accordingly, and notwithstanding any other term or condition of this Agreement, except for
claims relating to non-payment of amounts due under this Agreement, Seller hereby agrees that
the City shall not be liable to the Seller for damages in an amount in excess of$10,000 for any
action or claim for breach of contract or negligence arising out of the performance or non-
performance of any obligations imposed upon the City by this Agreement.
Nothing contained in this section or elsewhere in this Agreement is in any way intended to be a
waiver of the limitation placed upon the City's liability, as set forth in Section 768.28, Florida
Statutes.
ARTICLE XVI
SELLER'S INSURANCE OBLIGATIONS
Seller shall maintain, at its sole cost and expense, the following types of insurance
coverage at all times during installation of the Good or until inspection of the Good, whichever is
later:
Comprehensive General Liability in the amount of Two Million ($2,000,000)
dollars per occurrence bodily injury, death, property damage, and personal
injury. This policy must also contain coverage for premises operations,
products and contractual liability, including indemnification.
The City must be named as an additional insured on the foregoing general liability
insurance policy. All insurance policies must be issued by companies that are authorized to do
business in the State of Florida, and have a rating of B+VI or better in the current edition of
Best's Key Rating Guide.
The policies of insurance referred to above shall not be subject to cancellation or
changing coverage except upon at least thirty (30) days prior written notice to the City, and then
18
Equipment Purchase and Installation Agreement between
Metalco Active USA,Inc. and
The City of Miami Beach.
only subject to the prior written approval of the City's Risk Manager. Prior to starting
installation, Seller shall provide Contract Administrator with a Certificate of Insurance for each
such policy. For the avoidance of doubt, the foregoing general liability policy required by this
Agreement shall provide coverage, and shall not contain any exclusion for, the contractual
liability and indemnity obligations set forth herein.
ARTICLE XVII
CITY'S INSURANCE OBLIGATIONS
Upon completion of the installation, City shall, at its own expense, self-insure for
comprehensive general liability (including property insurance) for bodily injury, death, property
damage, and personal injury, with financially sound and reputable insurers, that may arise out of
the use of the Goods by the public.
ARTICLE XVIII
MISCELLANEOUS
Section 18.01 Further Assurances. Upon a Party's reasonable request, the other
Party shall, at its sole cost and expense, execute and deliver all such further documents and
instruments, and take all such further acts, necessary to give full effect to this Agreement.
Section 18.02 Entire Agreement.
(a) Subject to Article III, this Agreement, including all related exhibits, schedules,
attachments and appendices, together with the Basic Purchase Order Terms, constitutes the sole
and entire agreement of the Parties with respect to the subject matter contained herein and therein,
and supersedes all prior and contemporaneous understandings, agreements, representations and
warranties, both written and oral, with respect to such subject matter.
(b) Without limitation of anything contained in Section 18.02(a), City acknowledges
that except for the representations and warranties contained in Article XII and the limited product
warranty contained in Section 13.01, neither Seller nor any other Person has made or makes any
express or implied representation or warranty, either written or oral, on behalf of Seller, including
any representation or warranty arising from statute or otherwise in law.
Section 18.03 Notices. All notices, requests, consents, claims, demands, waivers
and other communications under this Agreement (each, a "Notice") must be in writing and
addressed to the other Party at its address set forth below (or to such other address that the
receiving Party may designate from time to time in accordance with this Section). All Notices
must be delivered by personal delivery, nationally recognized overnight courier or certified or
registered mail (in each case, return receipt requested, postage prepaid). Notwithstanding the
foregoing, Notice given by facsimile or e-mail (with confirmation of transmission) will satisfy
the requirements of this Section 17.03. Except as otherwise provided in this Agreement, a Notice
is effective only (a) on receipt by the receiving Party, and (b) if the Party giving the Notice has
complied with the requirements of this Section.
Notice to Seller: Metalco Active USA, Inc.,
Facsimile: 305-675-3352
19
Equipment Purchase and Installation Agreement between
Metalco Active USA,Inc. and
The City of Miami Beach.
E-mail: bbianchi@bfflegal.com
Attention: Beatrice Bianchi Fasani, Esq.
Notice to City: City of Miami Beach
Facsimile: 786-394-4363
E-mail: JohnRebar@miamibeachfl.gov
Attention: John Rebar
Section 18.04 Interpretation. For purposes of this Agreement, (a) the words
"include," "includes" and "including" are deemed to be followed by the words "without
limitation"; (b) the word "or" is not exclusive; (c) the words "herein," "hereof," "hereby,"
"hereto" and "hereunder" refer to this Agreement as a whole; (d) words denoting the singular
have a comparable meaning when used in the plural, and vice-versa; and (e) words denoting any
gender include all genders. Unless the context otherwise requires, references in this Agreement:
(x) to sections, exhibits, schedules, attachments and appendices mean the sections of, and
exhibits, schedules, attachments and appendices attached to, this Agreement; (y) to an
agreement, instrument or other document means such agreement, instrument or other document
as amended, supplemented and modified from time to time to the extent permitted by the
provisions thereof; and (z) to a statute means such statute as amended from time to time and
includes any successor legislation thereto and any regulations promulgated thereunder. The
Parties drafted this Agreement without regard to any presumption or rule requiring construction
or interpretation against the Party drafting an instrument or causing any instrument to be drafted.
The exhibits, schedules, attachments and appendices referred to herein are an integral part of this
Agreement to the same extent as if they were set forth verbatim herein.
Section 18.05 Headings. The headings in this Agreement are for reference only
and do not affect the interpretation of this Agreement.
Section 18.06 Severability. If any term or provision of this Agreement is invalid,
illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall
not affect any other term or provision of this Agreement or invalidate or render unenforceable
such term or provision in any other jurisdiction; provided, however, that if any fundamental term
or provision of this Agreement is invalid, illegal or unenforceable, the remainder of this
Agreement shall be unenforceable.
Section 18.07 Amendment and Modification. No amendment to or modification
of or rescission, termination or discharge of this Agreement is effective unless it is in writing,
identified as an amendment to or rescission, termination or discharge of this Agreement and
signed by an authorized Representative of each Party.
Section 18.08 Waiver.
(a) No waiver under this Agreement is effective unless it is in writing and signed by
an authorized representative of the Party waiving its right.
20
Equipment Purchase and Installation Agreement between
Metalco Active USA,Inc. and
The City of Miami Beach.
(b) Any waiver authorized on one occasion is effective only in that instance and only
for the purpose stated, and does not operate as a waiver on any future occasion.
(c) None of the following constitutes a waiver or estoppel of any right, remedy,
power, privilege or condition arising from this Agreement:
(i) any failure or delay in exercising any right, remedy, power or privilege or
in enforcing any condition under this Agreement; or
(ii) any act, omission or course of dealing between the Parties.
Section 18.09 Cumulative Remedies. Except as otherwise specified in this
Agreement, all rights and remedies provided in this Agreement are cumulative and not
exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise
of any other rights or remedies that may now or subsequently be available at law, in equity, by
statute, in any other agreement between the Parties or otherwise.
Section 18.10 Equitable Remedies. Each Party acknowledges and agrees that (a) a
breach or threatened breach by the other Party of any of its obligations under this Agreement
would give rise to irreparable harm to the other Party for which monetary damages would not be
an adequate remedy and (b) in the event of a breach or a threatened breach by either Party of any
such obligations, the non-breaching Party shall, in addition to any and all other rights and
remedies that may be available to that Party at law, at equity or otherwise in respect of such
breach, be entitled to equitable relief, including a temporary restraining order, an injunction,
specific performance and any other relief that may be available from a court of competent
jurisdiction, without any requirement to post a bond or other security, and without any
requirement to prove actual damages or that monetary damages will not afford an adequate
remedy.
Section 18.11 Assignment. Either Party may not assign any of its rights or delegate
any of its obligations under this Agreement without the prior written consent of the other Party.
Except, Seller may assign any of its rights or delegate any of its obligations to any Affiliate or to
any Person acquiring all or substantially all of Seller's assets. Any purported assignment or
delegation in violation of this Section is null and void. Any assignment or delegation in violation
of this Section does not relieve the assigning or delegating Party of any of its obligations under
this Agreement.
Section 18.12 Successors and Assigns. This Agreement is binding on and inures to
the benefit of the Parties to this Agreement and their respective permitted successors and
permitted assigns.
Section 18.13 Choice of Law. This Agreement, including all Individual
Transaction documents and exhibits, schedules, attachments and appendices attached to this
Agreement and thereto, and all matters arising out of or relating to this Agreement, are governed
by, and construed in accordance with, the Laws of the State of Florida, United States of America,
without regard to the conflict of laws provisions thereof to the extent such principles or rules
would require or permit the application of the Laws of any jurisdiction other than those of the
State of Florida. The parties agree that the United Nations Convention on Contracts for the
International Sale of Goods does not apply to this Agreement.
Section 18.14 Exclusive Venue. All disputes arising in connection with this
Agreement shall be submitted to a court of competent jurisdiction in Miami-Dade County,
21
Equipment Purchase and Installation Agreement between
Metalco Active USA,Inc. and
The City of Miami Beach.
Florida, as the exclusive venue for the resolution of all disputes arising out of or related to this
Agreement.
Section 18.15 Waiver of Jury Trial. Each Party acknowledges and agrees that any
controversy that may arise under this Agreement, including any Individual Transaction
Documents or exhibits, schedules, attachments and appendices attached to this Agreement, is
likely to involve complicated and difficult issues and, therefore, each such Party irrevocably and
unconditionally waives any right it may have to a trial by jury in respect of any legal action
arising out of or relating to this Agreement, including any Individual Transaction documents,
exhibits, schedules, attachments or appendices attached to this Agreement, or the transactions
contemplated hereby. Each Party certifies and acknowledges that (a) no Representative of the
other Party has represented, expressly or otherwise, that such other Party would not seek to
enforce the foregoing waiver in the event of a legal action, (b) such Party has considered the
implications of this waiver, (c) such Party makes this waiver voluntarily, and (d) such Party has
been induced to enter into this Agreement by, among other things, the mutual waivers and
certifications in this Section.
Section 18.16 Counterparts. This Agreement may be executed in counterparts,
each of which is deemed an original, but all of which together are deemed to be one and the same
agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of
electronic transmission is deemed to have the same legal effect as delivery of an original signed
copy of this Agreement.
Section 18.17 Force Majeure. Each Party shall not be liable or responsible to the
other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure
or delay in fulfilling or performing any term of this Agreement, when and to the extent such
failure or delay is caused by or results from acts beyond the affected Party's reasonable control,
including, without limitation: (a) acts of God; (b) flood, fire, earthquake or explosion; (c) war,
invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil
unrest; (d) Law; (e) actions, embargoes or blockades in effect on or after the date of this
Agreement; (1) action by any Governmental Authority; (g) national or regional emergency; (h)
strikes, labor stoppages or slowdowns or other industrial disturbances; and (i) shortage of
adequate power or transportation facilities (each a "Force Majeure Event").
Section 18.18 Relationship of Parties. Nothing in this Agreement creates any
agency, joint venture, partnership or other form of joint enterprise, employment or fiduciary
relationship between the Parties. Seller is an independent contractor pursuant to this Agreement.
Neither Party has any express or implied right or authority to assume or create any obligations on
behalf of or in the name of the other Party or to bind the other Party to any contract, agreement
or undertaking with any third party.
Section 18.19 Public Entity Crimes. Seller represents that the execution of this
Agreement will not violate the Public Entity Crimes Act (Fla. Stat. §287.133), which provides
that a person or affiliate who is a contractor, Seller or other provider and who has been placed on
the convicted vendor list following a conviction for a Public Entity Crime may not submit a
proposal on a contract to provide any goods or services to City, may not submit a proposal on a
contract with City for the construction or repair of a public building or public work, may not
submit bids on leases of real property to City, may not be awarded or perform work as a
contractor, supplier, subcontractor, or Seller under a contract with City, and may not transact any
22
Equipment Purchase and Installation Agreement between
Metalco Active USA,Inc. and
The City of Miami Beach.
business with City in excess of the threshold amount provided in Section 287.017, Florida
Statutes, for category two purchases for a period of 36 months from the date of being placed on
the convicted vendor list. Violation of this section shall result in termination of this Agreement
and recovery of all monies paid hereto, and may result in debarment from City's competitive
procurement activities.
In addition to the foregoing, Seller further represents that there has been no
determination, based on an audit, that it committed an act defined by Section 287.133, Florida
Statutes, as a public entity crime.
Section 18.20 Audit and Inspections. Upon reasonable verbal or written notice to
Seller, and at any time during normal business hours (i.e. 9AM—5PM, Monday through Fridays,
excluding nationally recognized holidays), and as often as the City Manager may, in his/her
reasonable discretion and judgment, deem necessary, there shall be made available to the City
Manager, and/or such representatives as the City Manager may deem to act on the City's behalf,
to audit, examine, and/ or inspect, any and all other documents and/or records relating to all
matters covered by this Agreement. Seller shall maintain any and all such records at its place of
business at the address set forth in the "Notices" section of this Agreement.
Section 18.21 COMPLIANCE WITH FLORIDA PUBLIC RECORDS LAW
(A) Seller shall comply with Florida Public Records law under Chapter 119, Florida Statutes,
as may be amended from time to time.
(B) The term"public records" shall have the meaning set forth in Section 119.011(12), which
means all documents, papers, letters, maps, books, tapes, photographs, films, sound
recordings, data processing software, or other material, regardless of the physical form,
characteristics, or means of transmission, made or received pursuant to law or ordinance
or in connection with the transaction of official business of the City.
(C) Pursuant to Section 119.0701 of the Florida Statutes, if the Seller meets the definition of
"Contractor" as defined in Section 119.0701(1)(a), the Seller 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
the Seller 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 the Seller or keep and maintain public records required
by the City to perform the service. If the Seller transfers all public records to the
City upon completion of the Agreement, the Seller shall destroy any duplicate
public records that are exempt or confidential and exempt from public records
disclosure requirements. If the Seller keeps and maintains public records upon
23
Equipment Purchase and Installation Agreement between
Metalco Active USA, Inc. and
The City of Miami Beach.
completion of the Agreement, the Seller 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.
(D) 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 the Seller of the request, and
the Seller must provide the records to the City or allow the records to be inspected
or copied within a reasonable time.
(2) Seller's failure to comply with the City's request for records 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) A Seller who fails to provide the public records to the City within a reasonable
time may be subject to penalties under s. 119.10.
(E) CIVIL ACTION.
(1) If a civil action is filed against a Seller to compel production of public records
relating to the City's contract for services, the court shall assess and award against
the Seller the reasonable costs of enforcement, including reasonable attorney fees,
if:
a. The court determines that the Seller 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 records request, including a statement that the Seller has
not complied with the request, to the City and to the Seller.
(2) A notice complies with subparagraph (1)(b) if it is sent to the City's custodian of
public records and to the Seller at the Seller's address listed on its contract with
the City or to the Seller'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) A Seller who complies with a public records request within 8 business days after
the notice is sent is not liable for the reasonable costs of enforcement.
(F) IF THE SELLER HAS QUESTIONS REGARDING THE APPLICATION OF
CHAPTER 119, FLORIDA STATUTES, TO THE SELLER'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
24
Equipment Purchase and Installation Agreement between
Metalco Active USA,Inc. and
The City of Miami Beach.
1700 CONVENTION CENTER DRIVE
MIAMI BEACH, FLORIDA 33139
E-MAIL: RAFAELGRANADO@MIAMIBEACHFL.GOV
PHONE: 305-673-7411
Section 18.22 Non-discrimination.
In connection with the performance of the Services, the Seller shall not exclude from
participation in, deny the benefits of, or subject to discrimination anyone on the grounds of
race, color, national origin, sex, age, disability, religion, income or family status.
Additionally, Seller shall comply fully with the City of Miami Beach Human Rights Ordinance,
codified in Chapter 62 of the City Code, as may be amended from time to time, prohibiting
discrimination in employment, housing, public accommodations, and public services on
account of actual or perceived race, color, national origin, religion, sex, intersexuality, gender
identity, sexual orientation, marital and familial status, age, disability, ancestry, height, weight,
domestic partner status, labor organization membership, familial situation, or political
affiliation.
[SIGNATURE PAGE FOLLOWS]
25
Equipment Purchase and Installation Agreement between
Metalco Active USA, Inc. and
The City of Miami Beach.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of
the date first written above by their respective officers thereunto duly authorized.
Me .6A.'
Jr),L ,Inc.
By ADA
Name: Gian Luca Innocenzi
Title: Director
DATE: g 4 6 2-04041/
Ci-}y oc Mi. i Br Cu / Florida /
City of Miami:: :a lorida
EN �► By ,
Tinnrry f
• Mor. Ie5 Name: PF'ip `-v'` e
Ct - 9, age r- Title: a ; r
DA .
ATTES
Rafe, E.Granad•,City Clerk
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