Resolution 2024-33027RESOLUTION NO: 2024-33027
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI
BEACH, FLORIDA, ACCEPTING THE WRITTEN RECOMMENDATION OF THE
INTERIM CITY MANAGER (AS SET 'FORTH IN THE CITY COMMISSION
MEMORANDUM ACCOMPANYING THIS RESOLUTION) AND WAIVING, BY A 5/7T"
VOTE, THE FORMAL COMPETITIVE BIDDING REQUIREMENT, AS PERMITTED IN
SECTION 2-367(E) OF THE CITY CODE, FINDING SUCH WAIVER TO BE IN THE
BEST INTEREST OF THE CITY, AND APPROVING, IN SUBSTANTIAL FORM, A
PROFESSIONAL SERVICES AGREEMENT WITH OUTFRONT MEDIA GROUP, LLC,
FOR THE MANAGEMENT AND OPERATION OF ADVERTISEMENT SERVICES ON
THE CITY TROLLEY VEHICLES; SAID AGREEMENT COMMENCING
RETROACTIVELY, AS OF MAY 10, 2022, AND SUBJECT TO TERMINATION FOR
CONVENIENCE BY THE CITY UPON PROVIDING OUTFRONT WITH NINETY (90)
DAYS NOTICE, IN ORDER TO PERMIT THE CITY TO CONTINUE EARNING
ADVERTISING REVENUES PENDING EXECUTION OF A NEW AGREEMENT FOR
THE SAME SERVICES PURSUANT TO ITN NO. 2024 -008 -ND TO SECURE
MUNICIPAL CIRCULATOR SERVICES, INCLUDING ADVERTISING SERVICES;
AND FURTHER AUTHORIZING THE INTERIM CITY MANAGER TO EXECUTE THE
PROFESSIONAL SERVICES AGREEMENT.
WHEREAS, on August 18, 2011, the City of Miami issued a Request for Proposal 272271 to
secure a firm to execute trolley' advertising services; and
WHEREAS, the City of Miami, via Resolution R-13-0501, executed a Professional Services
Agreement for Trolley Advertisement Program Services for the City of Miami with Van Wagner Miami,
LLC ("Van Wager"), with an effective contract date of March 20, 2014, with an initial term of two (2)
years, with the ability to extend the contract for up to four (4) additional one (1) year periods; and
WHEREAS, in 2014, Van Wager sold its outdoor advertising division to CBS, now known as
OUTFRONT Media Group, LLC ("OUTFRONT"); and
WHEREAS, at the July 13, 2018 Finance and Citywide Projects Committee budget briefing
meeting, multiple options were presented to the. Committee as alternative, ways to generate revenue
for the City of Miami Beach; and
WHEREAS, at the September 14, 2018 Finance and Citywide Projects Committee meeting,
the City's Marketing and Communications Department presented options for advertising revenue
generation throughout the City including (1) advertising on the City trolleys, (2) large-scale
sponsorships, including naming opportunities for certain City -owned facilities, including the Miami
Beach Convention Center, and (3) advertising on the rear exterior facade of the City's Fleet
Management building on Terminal Island; and
WHEREAS, at the September 14, 2018 Finance and Citywide Projects Committee meeting,
the Committee voted to direct the Administration to obtain trolley advertising services via a
"piggyback" agreement with the City of Miami's existing agreement with OUTFRONT; and
WHEREAS, on September 26, 2018, the Mayor and City Commission adopted Resolution No.
2018-30518, approving an authorizing the City Administration to obtain advertising services for the
City's trolleys from the City of Miami trolley advertising contract with OUTFRONT; and
WHEREAS, on December 14, 2021, the City of Miami executed a contract extension with
OutFront Media, to extend the existing agreement through to May 9, 2022; and
WHEREAS, on August 3, 2023, the City of Miami Beach requested to continue their piggyback
agreement between the City of Miami and ,OUTFRONT, but OUTFRONT was unable to agree to the
terms of the piggyback agreement; and
WHEREAS, on February 23, 2024, the City of Miami Beach issued an ITN 2024 -008 -ND (the,
"ITN") to secure Municipal Circulator Services to include trolley advertising with a closing date of May
10, 2024; and
WHEREAS, in the interim, the City wishes to execute a bridge agreement with OUTFRONT
retroactive to May 10, 2022, in order to formalize the month to month advertising services provided by
OUTFRONT to the City since May 10, 2022, and moving forward, until such time as the City executes
a new agreement pursuant to the ITN; and further acknowledging the business terms for trolley
advertising, including the exclusion of alcohol as an advertising category; and
WHEREAS, based upon the. foregoing, the Interim City Manager recommends that the
Mayor and City Commission waive, by a 5/7ths vote, the formal competitive bidding requirement, as
permitted in Section 2-367(e) of the City Code, as being in the best interest of the City, and approve,
in substantial form, the draft Professional Services Agreement with OUTFRONT, a copy of which is
attached to the City Commission Memorandum accompanying this Resolution, so the City may
continue to generate revenues from the City trolley advertising services provided by OUTFRONT, until
such time as a new agreement for similar services may be executed pursuant to the ITN; and further
authorize the Interim City Manager to finalize and execute the Professional Services Agreement with
OUTFRONT.
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE
CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City Commission hereby accept the written
recommendation of the Interim City Manager (as set forth in the City commission memorandum
accompanying this Resolution) and waive, by a 5/7th vote, the formal competitive bidding requirement,
as permitted in section 2-367(e) of the City Code, finding such waiver to be in the best interest of the
City, and approve, in substantial form, a Professional Services Agreement with OUTFRONT for the
management and operation of advertisement services on City trolley vehicles; said Agreement
commencing retroactively, as of May 10, 2022, and subject to termination for convenience by the City
upon providing OUTFRONT with ninety (90) days notice, in order to permit the City to continue
earning advertising revenues pending execution of a new agreement for the same services pursuant
to ITN No. 2024 -008 -ND to Secure Municipal Circulator Services, including advertising services; and
further authorize the Interim City Manager to execute the Professional Services Agreement.
PASSED AND. ADOPTED this 15th day of May, 2024.
ATTEST:
MAY 2 1 2024
Rafael E. Granado, City Clerk ,,;,•off„
Steven Meiner, Mayor
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5/9124, 10:15 AM
MIAMIBEACH
TO: Honorable Mayor and Members of the City Commission
FROM: Rickelle Williams, Interim City Manager
DATE: May 15, 2024
Item Coversheet
COMMISSION MEMORANDUM
SUBJECT: A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH,
FLORIDA, ACCEPTING THE WRITTEN RECOMMENDATION OF THE INTERIM CITY MANAGER
(AS SET FORTH IN THE CITY COMMISSION MEMORANDUM ACCOMPANYING THIS
RESOLUTION) AND WAIVING, BY A 517TH VOTE, THE FORMAL COMPETITIVE BIDDING
REQUIREMENT, AS PERMITTED IN SECTION 2-367(E) OF THE CITY CODE, FINDING SUCH
WAIVER TO BE IN THE BEST INTEREST OF THE CITY, AND APPROVING, IN SUBSTANTIAL
FORM, A PROFESSIONAL SERVICES AGREEMENT WITH OUTFRONT MEDIA GROUP, LLC,
FOR THE MANAGEMENT AND OPERATION OF ADVERTISEMENT SERVICES ON THE CITY
TROLLEY VEHICLES; SAID AGREEMENT COMMENCING RETROACTIVELY, AS OF MAY 10,
2022, AND SUBJECT TO TERMINATION FOR CONVENIENCE BY THE CITY UPON PROVIDING
OUTFRONT WITH NINETY (90) DAYS NOTICE, IN ORDER TO PERMIT THE CITY TO
CONTINUE EARNING ADVERTISING REVENUES PENDING EXECUTION OF A NEW
AGREEMENT FOR THE SAME SERVICES PURSUANT TO ITN NO. 2024 -008 -ND TO SECURE
MUNICIPAL CIRCULATOR SERVICES, INCLUDING ADVERTISING SERVICES; AND FURTHER
AUTHORIZING THE INTERIM CITY MANAGER TO EXECUTE THE PROFESSIONAL SERVICES
AGREEMENT.
RECOMMENDATION
Based upon the foregoing, the Interim City Manager recommends that the Mayor and City Commission waive, by a 5/7ths
vote, the formal competitive bidding requirement, as permitted in Section 2-367(e) of the City Code, as being in the best
interest of the City, and approve, in substantial form, the draft Professional Services Agreement with OUTFRONT, a copy of
which is attached hereto, so the City may continue to generate revenues from the City trolley advertising services provided by
OUTFRONT, until such time as a new agreement for similar services may be executed pursuant to the ITN; and further
authorize the Interim City Manager to finalize and execute the Professional Services Agreement with OUTFRONT.
BACKGROUNDIHISTORY
On August 18, 2011, the City of Miami issued a Request for Proposal 272271 to secure a firm to execute trolley
advertising services. Upon receiving proposals the City of Miami, via Resolution R-13-0501, executed a Professional Services
Agreement for Trolley Advertisement Program Services for the City of Miami with Van Wagner Miami, LLC ("Van Wager"), with
an effective contract date of March 20, 2014, with an initial term of two (2) years, with the ability to extend the contract for up to
four (4) additional one (1) year periods.
In 2014, Van Wager sold its outdoor advertising division to CBS, now known as OUTFRONT Media Group, LLC
("OUTFRONT"). In 2018; the City of Miami Beach Office of Marketing and Communications was tasked with finding alternate revenue
streams for the City, and at the July 13, 2018 City of Miami Beach Finance and Citywide Projects Committee budget briefing meeting,
multiple options were presented to the Committee as altemative ways to generate revenue for the City of Miami Beach including various
advertising and sponsorship opportunities.
At the September 14, 2018 Finance and Citywide Projects Committee meeting, the City's Office of Marketing and
Communications presented options for additional sources of revenue generation throughout the City including (1) advertising
on the City trolleys, (2) large-scale sponsorships, including naming opportunities for certain City -owned facilities, including the
Miami Beach Convention Center, and (3) advertising on the rear exterior fagade of the City's Fleet Management building on
Terminal Island.
At the September 14, 2018 Finance and Citywide Projects Committee meeting, the Committee voted to direct the
Administration to obtain trolley advertising services via a "piggyback" agreement with the City of Miami's existing agreement
with OUTFRONT.
On September 26, 2018, the Mayor and City Commission adopted Resolution No. 2018-30518, approving an authorizing the
City Administration to obtain advertising services for the City's trolleys from the City of Miami trolley advertising contract with
OUTFRONT.
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Item Coversheet
On December 14, 2021, the City of Miami executed a contract extension with OutFront Media, to extend the existing service
agreement through to May 9, 2022. After realizing the contract had expired, the City of Miami Beach Office of Marketing and
Communications reach out to OutFront Media on August 3, 2023, to request to continue their piggyback agreement between
the City of Miami and OUTFRONT, but OUTFRONT was unable to agree to the terms of the piggyback agreement as the new
agreement with the City of Miami had a large lump sum payment up front, which OutFront Media was unable to agree to with
the City of Miami Beach. With the business terms not being identical to the City of Miami agreement, a piggyback agreement
was no longer viable.
On February 23, 2024, the City of Miami Beach issued an ITN No. 2024 -008 -ND to Secure Municipal Circulator Services, to
include trolley advertising, with a closing date of May 10, 2024, and in the interim, the City needs to execute a bridge
agreement with OUTFRONT to outline the business terms for trolley advertising as outlined in the draft PSA agreement
attached.
SUPPORTING SURVEY DATA
N/A
FINANCIAL INFORMATION
This proposed Agreement will continue with the existing business terms of the expired agreement, but with the removal of
alcohol as an allowable category.
For the years 2021, 2022 and 2023 combined, Alcohol Advertising on Miami Beach trolleys totaled of sum of $130,251, as
outlined below:
Total Trolley Advertising Revenues (incl. alcohol) - $281,249
Total Alcohol Trolley Advertising Revenues - $87,001 (31 % of total revenues)
1. Anheuser Busch $55,000
2. Villa Maria Wines $10,000
3. Buzz Balls $22,001
2022
Total Trolley Advertising Revenues (incl. alcohol) - $179,166
Total Alcohol Trolley Advertising Revenues - $43,250 (24% of total revenues)
Alcohol Advertising
1. Palm Bay International MOSCATO WINES - $43,250
2021
Total Trolley Advertising Revenues (incl. alcohol) - $250,610
Total Alcohol Trolley Advertising Revenues, - $0 (0% of total revenues)
The majority of alcohol advertising sales have taken place during the holiday season (November, December and January) or during
May, which aligns with F1.
CONCLUSION
The Administration recommends that the Mayor and City Commission waive, by a 5/7ths vote, the formal competitive bidding
requirement, as permitted in Section 2-367(e) of the City Code, as being in the best interest of the City, and approve, in substantial
form, the draft Professional Services Agreement with OUTFRONT.
LOBBYIST DISCLOSURE
In accordance with Resolution No. 2023-32857, adopted by the City Commission on December 13, 2023, the following information
has been provided by the Administration as it relates to the subject resolution:
1. Was the Agenda Item initially requested by a lobbyist which, as defined in Code Sec. 2-481, includes a principal engaged in
lobbying? No
2. If so, specify name of lobbyist(s) and principal(s): Not Applicable
Applicable Area
Citywide
Is this a "Residents Right to
Know" item,_pursuantto
City Code Section 2-14?
No
Strategic Connection
Non -Applicable
Does this item utilize G.O.
Bond Funds?
IM
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Legislative Tracking
Marketing and Communications
ATTACHMENTS:
Description
D Resolution
Draft PSA Agreement Outfront Media LLC
703
Item Coversheet
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PROFESSIONAL SERVICES AGREEMENT
BETWEEN
THE CITY OF MIAMI BEACH
AND
OUTFRONT MEDIA GROUP, LLC
FOR
FOR TROLLEY ADVERTISEMENT PROGRAM SERVICES
This Professional Services Agreement ("Agreement") is entered into this day of
2024, with an effective date of May 10, 2022 ("Effective
Date"), between the CITY OF MIAMI 'BEACH, FLORIDA, a municipal corporation organized
and existing under the laws of the State of Florida, having its principal offices at 1700
Convention Center Drive, Miami Beach, Florida, 33139 (the "City"), and OUTFRONT MEDIA
GROUP, LLC, a Delaware limited liability company, whose address is 90 Park Avenue, 91
Floor, New York, NY 10016 ("Contractor").
SECTION 1
DEFINITIONS
Agreement: This Agreement between the City and Contractor, including any exhibits
and amendments thereto.
City Manager: The chief administrative officer of the City.
City Manager's
Designee: The City staff' member who is designated by the City Manager to
administer_ this Agreement on behalf of the City. The City Manager's
designee shall be the Marketing and Communications Department
Director or his/her designee.
Contractor: For the purposes of this Agreement, Contractor shall be deemed to be an
independent contractor, and not an agent or employee of the City.
Services: All services, work and actions by the Contractor performed or undertaken
pursuant to the Agreement.
Fee: Amount paid to the Contractor as compensation for Services.
Risk Manager: The Risk Manager of the City, with offices at 1700 Convention Center
Drive, Third Floor, Miami Beach, Florida 33139; telephone number- (305)
673-7000, Ext. 6435; and fax number (305) 673-7023.
SECTION 2
SCOPE OF SERVICES
2.1 In consideration of the Fee to be paid to Contractor by the City, Contractor shall provide
the work and services described in Exhibit- "A" hereto (the "Services").
766
Although Contractor may receive a schedule of the available hours to provide its Services, the
City shall not control nor have the right to control the hours of the Services performed by the
Contractor; where the Services are performed (although the City will provide Contractor with the
appropriate location to perform the Services); when the Services are performed, including how
many days a week the Services are performed; how the Services are performed, or any other
aspect of the actual manner and means of accomplishing the Services provided.
Notwithstanding the foregoing, all Services provided by the Contractor shall be performed in
accordance with the terms and conditions set forth in Exhibit "A" and to the reasonable
satisfaction of the City Manager. If there are any questions regarding the Services to be
performed, Contractor should contact the following person:
Melissa Berthier
Marketing and Communications Department Director
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
2.2 Contractor's Services, and any deliverables incident thereto, shall be completed in
accordance with the timeline and/or schedule in Exhibit "A", attached hereto.
SECTION 3
TERM
The. parties acknowledge that this Agreement is intended to provide the City with the Services
from the Effective Date until such time as the City enters into a new contract for trolley
advertising services, similar to the Services : being performed by Contractor under this
Agreement, pursuant to a public procurement process As such, the term of this Agreement
("Term") shall commence retroactively as of the Effective Date set forth on p. 1 hereof, and
shall have an initial term of three (3) months, automatically renewing for consecutive three (3)
month renewal periods and terminable by the City, at the City Manager's sole option and
discretion, pursuant to Section 5.2.
Notwithstanding the Term provided herein, Contractor shall adhere to any specific timelines,
schedules, dates, and/or performance milestones for completion and delivery of the Services,
as same is/are set forth in the timeline and/or schedule referenced in Exhibit "A" hereto.
SECTION 4
FEE
4.1 In consideration of the Services to be provided, Contractor shall pay to the City as
revenue earned 52.5% of Gross Receipts on a monthly basis, payable within thirty (30) days
following the end of each month with respect to the previous month during the Term. The term
"Gross Receipts" is understood to mean all income collected and received by Contractor from
the sale and display of advertising on any portion of the trolley vehicles, permitted under the
terms of this Agreement. Gross receipts shall be reduced by: (1) Independent third party
agency commissions; and (ii) amount of any sales or excise tax levied upon any sales, rentals,
and/or services rendered and payable to the appropriate governmental authority; the City shall
not be responsible to pay any expenditures under this Agreement.
767
4.2 REPORTS OF GROSS RECEIPTS
Within thirty (30) days from the end of each month throughout the Term, Contractor shall
provide the City Manager's designee with a detailed quarterly report of the Gross Receipts
for the preceding month. The report shall reflect the activity and expenditures on a monthly
basis and shall itemize the total monthly Gross Receipts and expenses from each
advertisement for each trolley vehicle. The City Manager's designee may request back-up
documents for any entry in the monthly report and Contractor shall provide said
documentation within ten (10) days from the City's request.
Monthly payments shall be submitted to the City at the following address, with a copy of the
remittance to the City Manager's designee:
City of Miami Beach
Attention: Finance Department
1700 Convention Center Drive, 31 Floor
Miami Beach, Florida 33139
Re: Outfront Trolley Advertising Agreement
4.3 INTEREST FOR LATE PAYMENT
Any payment which Contractor is required to make to City which is not paid on or before the
respective date provided for in this Agreement shall be subject to interest at the rate of
eighteen percent (18%) per annum, or the maximum interest allowable pursuant to Florida
law, whichever is less, from the due date of payment until such time as payment is actually
received by the City. In addition, any payment received after five (5) days of its due date, shall
accrue a late charge of five percent (5%) of the payment amount due.
SECTION 5
TERMINATION
5.1 TERMINATION FOR CAUSE
If the Contractor shall fail to fulfill in a timely manner, or otherwise violates, any of the
covenants, agreements, or stipulations material to this Agreement, the City, through its City
Manager, shall thereupon have the right to terminate this Agreement for cause. Prior to
exercising its option to terminate for cause, the City shall notify the Contractor of its violation of
the particular term(s) of this Agreement, and shall grant Contractor ten (10) days to cure such
default. If such default remains uncured after ten (10) days, the City may terminate this
Agreement without further notice to Contractor. Upon termination, the City shall be fully
discharged from any and all liabilities, duties, and terms arising out of, or by virtue of, this
Agreement.
Notwithstanding the above, the Contractor shall not be relieved of liability to the City for
damages sustained by the City for any breach of the Agreement by the Contractor. The City, at
its sole option and discretion, shall be entitled to bring any and all legal/equitable actions that it
deems to be in its best interest in order to enforce the City's rights and remedies against
768
Contractor. The City shall be entitled to recover all costs of such actions, including reasonable
attorneys' fees.
5.2 TERMINATION FOR CONVENIENCE OF THE CITY
THE CITY MAY ALSO, THROUGH ITS CITY MANAGER, AND FOR ITS
CONVENIENCE AND WITHOUT CAUSE, TERMINATE THE AGREEMENT AT ANY
TIME DURING THE TERM BY GIVING WRITTEN NOTICE TO CONTRACTOR OF
SUCH TERMINATION; WHICH SHALL BECOME EFFECTIVE NINETY (90) DAYS
FOLLOWING RECEIPT BY THE CONTRACTOR OF SUCH NOTICE.
ADDITIONALLY, IN THE EVENT OF A PUBLIC HEALTH, WELFARE OR SAFETY
CONCERN, AS DETERMINED BY THE CITY MANAGER, IN THE CITY MANAGER'S
SOLE DISCRETION, THE CITY MANAGER, PURSUANT TO A VERBAL OR
WRITTEN NOTIFICATION TO CONTRACTOR, MAY IMMEDIATELY SUSPEND THE
SERVICES UNDER THIS AGREEMENT FOR A TIME CERTAIN, OR IN THE
ALTERNATIVE, TERMINATE THIS AGREEMENT ON A GIVEN DATE. IF THE
AGREEMENT IS TERMINATED FOR CONVENIENCE BY THE CITY, CONTRACTOR
SHALL CONTINUE TO,PERFORM THE SERVICES UP TO THE EFFECTIVE.DATE
OF TERMINATION AND SHALL PAY THE CITY'S SHARE OF GROSS RECEIPTS
FOR SUCH CAMPAIGNS IN ACCORDANCE WITH SECTION 4 (FEE); FOLLOWING
WHICH THE CITY SHALL BE DISCHARGED FROM ANY AND ALL LIABILITIES,
DUTIES, AND TERMS ARISING OUT OF, OR BY VIRTUE OF, THIS AGREEMENT.
5.3 TERMINATION FOR INSOLVENCY'
The City also reserves the right to. terminate the Agreement in the event the Contractor is
placed either in voluntary or involuntary bankruptcy or makes an assignment for the benefit of
creditors. In such event, the right and obligations for the parties shall be the same as provided
for in Section 5.2.
5.4 SURRENDER OF ADVERTISING SPACES/REMOVAL BY CONTRACTOR
ADVERTISEMENTS
Upon expiration, or earlier termination of this Agreement, Contractor shall surrender the
Advertising Spaces (as defined in Exhibit "A", attached hereto) in the same condition as the
Advertising Spaces were prior to the Effective Date. Contractor shall, at its sole expense and at
no charge to the City, remove all advertising materials, panels, and equipment ("Advertising
Space Improvements") from the Advertising Spaces and restore the Advertising Spaces and
any surrounding areas, including repairing any damage caused from the removal of the
Advertising Space Improvements prior to the effective date of expiration or termination of the
Term unless a longer time period is agreed to, in writing, by the City Manager or his/her
designee.
Contractor's obligation to observe or perform this covenant shall survive the expiration or other
termination of this Agreement. Continued occupancy of any Advertising Spaces after expiration
or termination of the Agreement (unless otherwise agreed to_ pursuant to the signed Removal
Schedule) shall constitute trespass by Contractor and may be prosecuted as such. In addition,
Contractor shall pay to the City One Thousand ($1,000.00) Dollars per day per Advertising
Space as liquidated damages for such trespass and holding over.
769
5.5 SUBSTITUTE PERFORMANCE
In the event that Contractor fails to properly perform the removal of any advertising
improvements, equipment or materials from the Advertising Spaces and restoration of the
Advertising Spaces to their original condition in accordance with the terms 'of the Agreement,
then the City shall have the right to undertake and/or purchase, as the City Manager deems
appropriate, any such supplies, materials,. services, etc., covered herein and to charge
Contractor for all actual costs thereby incurred by the City. Contractor shall be responsible for
paying all of said costs.
SECTION 6
INDEMNIFICATION AND INSURANCE REQUIREMENTS
6.1 INDEMNIFICATION
Contractor agrees to indemnify, defend and hold harmless the City of Miami Beach and its
officers, employees, agents, and contractors, from and against any and all actions (whether at
law or in equity), claims, liabilities, losses, and expenses, including, but not limited to, attorneys'
fees and costs, for personal, economic or bodily injury, wrongful death, loss of or damage to
property, which may arise or be alleged to have arisen from the negligent acts, errors,
omissions or other wrongful conduct of the Contractor, its officers, employees, agents,
contractors, or any other person or entity acting under Contractor's, control or supervision, in
connection with, related to, or as a result of the Contractor's performance of the Services
pursuant to this Agreement. To that extent, the Contractor shall pay all such claims and losses
and shall pay all such costs and judgments which, may issue from any lawsuit arising from such
claims and losses, and shall pay all- costs and attorneys' fees expended by the City in the
defense of such claims and losses, including appeals. The Contractor expressly understands
and agrees that any insurance protection required by this Agreement or otherwise provided by
the Contractor shall in no way limit the Contractor's responsibility to indemnify, keep and save
harmless and defend the City or its officers, employees, agents and instrumentalities as herein
provided.
The parties agree that one percent (1%) of the total compensation to Contractor for
performance of the Services under this Agreement is the specific consideration from the City to
the Contractor for the Contractor's indemnity agreement. The provisions of this Section 6.1 and
of this indemnification shall survive termination or expiration of this Agreement.
6.2 INSURANCE REQUIREMENTS
The Contractor shall maintain and carry in full force during the Term, the following insurance:
Commercial General Liability
(A) Limits of Liability
Bodily injury and property damage liability
Each occurrence limit, $1,000,000.00;
General Aggregate limit, $2,000,000.00
Products/Completed Operations, $1,000,000.00
Personal and Advertising Injury, $1,000,000.00
740
(B) Endorsements Required
City of Miami Beach included as an additional insured
Contingent Liability & Contractual Liability;
Primary Insurance Clause (not contributory) for direct claims under the
Agreement
Premises & Operations Liability
Waiver of Subrogation
2. Business Automobile Liability
(A) Limits of Liability
Bodily Injury and Property Damage Liability
Combined Single Limit
Any Auto/Owned Autos/Scheduled
Including Hired, Borrowed or Non -Owned Autos
Any One Accident, $1,000,000.00
(B) Endorsements Required
City of Miami Beach included as an Additional Insured
3. Workers Compensation & Employers Liability, as required pursuant to Florida Statutes,
waiver of subrogation.
(A) Limits of Liability
$500,000.00 for bodily injury caused by an accident, each accident.
$500,000.00 for bodily injury caused by disease, each employee
$500,000.00.for bodily injury caused by disease, policy limit
4. Excess Liability (Excess Follow Form)
(A) Limits of Liability
Each Occurrence $1,000,000.00
Policy Aggregate $1,000,000.00
City of Miami Beach as additional insured
5. Contractor Professional Liability/Errors & Omissions
(A) Limits of Liability
Bodily Injury and Property Damage Liability
Each Claim $1,000,000.00
Policy Aggregate $1,000,0.00.00
The insurance must be furnished by insurance companies authorized to do business in the
State of Florida. All insurance policies must be issued by companies rated no less than "A-" as
to management and not less than "Class VI" as to strength by the latest edition of Best's
Insurance Guide, published by A.M. Best Company.
Timely renewal certificates will be provided to the City as coverage renews. If the Professional
Liability coverage is provided on a claims made basis, then such insurance shall continue for (3)
years following the expiration or termination of the Agreement.
741
Original certificates of insurance must be submitted to the City's Risk Manager for approval
(prior to any work and/or services commencing) and will be kept on file in the Office of the Risk
Manager. The City shall have the right to obtain from the Contractor specimen copies of the
insurance policies in the event that submitted certificates of insurance are inadequate to
ascertain compliance with required coverage.
The Contractor is also solely responsible for obtaining and submitting all insurance certificates
for any sub -Contractors.
Compliance with the foregoing requirements shall not relieve the Contractor of the liabilities and
obligations under this section or under any other portion of this Agreement.
The Contractor shall not commence any work and or services pursuant to this Agreement until
all insurance required under this section has been obtained and such insurance has been
approved by the City's Risk Manager.
SECTION 7
LITIGATION JURISDICTIONNENUE/JURY TRIAL WAIVER
This Agreement shall be construed in accordance with the laws of the State of Florida. This
Agreement shall be enforceable in Miami -Dade County, Florida, and if legal action is necessary
by either party with- respect to the enforcement of any or all of the terms or conditions herein,
exclusive venue for the enforcement of same' shall lie in Miami -Dade County, Florida. By
entering into this Agreement, Contractor and the City- expressly waive any rights either parry
may have to a trial by jury of any civil litigation related to or arising out of this Agreement.
SECTION 8
LIMITATION OF CITY'S LIABILITY
The City -desires to enter into this Agreement only if in so doing the City can place a limit on 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 sum of $10,000.
Contractor hereby expresses its willingness to enter into this Agreement with Contractor's
recovery from the City for any damage action for breach of contract to be limited to a maximum
amount of $10,000.
Accordingly, and notwithstanding any other term or condition- of this Agreement, Contractor
hereby agrees that the City shall not be liable to the Contractor for damages in an amount in
excess of $10,000 for any action or claim for breach of contract 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.
7b
SECTION 9
DUTY OF CARE/COMPLIANCE WITH APPLICABLE LAWS/PATENT RIGHTS; COPYRIGHT;
AND CONFIDENTIAL FINDINGS
9.1 DUTY OF CARE
With respect to the performance of the Services contemplated herein, Contractor shall exercise
that degree of skill, care, efficiency and diligence normally exercised by reasonable persons
and/or recognized professionals with respect to the performance of comparable work and/or
services.
9.2 COMPLIANCE WITH APPLICABLE LAWS
In its performance of the Services, Contractor shall comply with all applicable laws, ordinances,
and regulations of the City, Miami -Dade County, the State of Florida, and the federal.
government, as applicable.
9.3 PATENT RIGHTS; COPYRIGHT; CONFIDENTIAL FINDINGS
Any work product arising out of this Agreement, as well as all information specifications,
processes, data and findings, are intended to be the property of the City and shall not otherwise
be made public and/or disseminated by Contractor, without the prior written consent of the City
Manager, excepting any information, records etc. which are required to be disclosed pursuant to
Court Order and/or Florida Public Records Law.
All reports, documents, articles, devices, and/or work produced in whole or in part under this
Agreement are intended to be the sole and exclusive property of the City, and shall not be
subject to any application for copyright or patent by or on behalf of the Contractor or its
employees or sub -contractors, without the prior written consent of the City Manager.
SECTION 10
GENERAL PROVISIONS
10.1 MAINTENANCE AND EXAMINATION OF RECORDS / AUDIT AND INSPECTIONS
(A) Maintenance and Examination of Records. Contractor shall maintain current, accurate,
and complete financial records (on an accrual basis) related to its operations herein. Systems
and procedures used to maintain these records shall include a system of internal controls
and all accounting records shall be maintained in accordance with generally accepted
accounting principles and shall be open to inspection and audit by the City Manager or the
City Manager's designee, upon reasonable prior notice, whether verbal or written, and during
normal business hours. Such records and accounts shall include, at a minimum, a
breakdown of Gross Receipts, expenses, and profit and loss statements. In the event
Contractor accepts cash as a form of payment, it shall maintain accurate receipt -printing
cash registers or the like which will record and show the payment for every sale made or
service provided in the Sites; and such other records shall be maintained as would be
required by an independent CPA in order to audit a statement of annual gross receipts and
profit and loss statement pursuant to generally accepted accounting principles.
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(B) Audit and Inspections. Contractor shall maintain its financial records pertaining to its
operations herein for a period of three (3) years after the expiration or other termination of this
Agreement, and such records shall be open and available to the City Manager or City
Manager's designee, as deemed necessary by the City Manager or City Manager's designee.
Contractor shall make such records available electronically, or at the City's option, at a
location in Miami Beach, within ten (10) days' notice (written or verbal) from the City at
Contractor's expense.
The City Manager shall be entitled to audit Contractor's records, by an Auditor designated by
the City Manager, pertaining to its operations, as often as he deems reasonably necessary
throughout the Term of this Agreement, and three (3) times within the three (3) year period
following termination of the Agreement (regardless of whether such termination results from
the natural expiration of the Term or for any other reason). The City shall be responsible for
paying all costs associated with such audits, unless the audit(s) reveals a deficiency of five
(5%) percent or more in Contractor's statement of Gross Receipts for any year or years
audited, in which case Contractor shall pay to the City, within thirty (30) days of the audit
being deemed final by ther City, the cost of the audit and a sum equal to the amount of the
deficiency revealed by the audit, plus interest. The City Manager, in the City Manager's sole
discretion, may have the audit conducted by one of its internal auditors or may retain the
services of a private auditor.
Contractor shall submit within sixty (60) days from the end of each Contract Year (throughout
the Term), an annual statement of Gross Receipts, in a form consistent with generally
accepted accounting principles. Additionally, such statement shall be accompanied by a report
from an independent CPA.
It is Contractor's intent to stay informed of comments and suggestions by the City regarding
Contractor's performance under the Agreement. Within thirty (30) days after the end of each
Contract Year, upon written notice from the City Manager, C o n t r a c o r shall meet with the
City Manager or City Manager's designee to review Contractor's performance under the
Agreement. At the meeting, Contractor and City may discuss quality, operational,
maintenance and any other issues regarding Contractor's performance under the
Agreement.
10.2 INSPECTOR GENERAL AUDIT RIGHTS
(A) Pursuant to Section 2-256 of the Code of the City of Miami Beach, the City has
established the Office of the Inspector General which may, on a random basis, perform
reviews, audits, inspections and investigations on all City contracts, throughout the
duration of said contracts. This random audit is separate and distinct from any other
audit performed by or on behalf of the City.
(B) The Office of the Inspector General is authorized to investigate City affairs and
empowered to review past, present and proposed City programs, accounts, records,
contracts and transactions. In addition, the Inspector General has the power to
subpoena witnesses, administer oaths, require the production of witnesses and monitor
744
City projects and programs. Monitoring of an existing City project or program may
include a report concerning whether the project is on time, within budget and in
conformance with the contract documents and applicable law. The Inspector General
shall have the power to audit, investigate, monitor, oversee, inspect and review
operations, activities, performance and procurement process including but not limited to
project design, bid specifications, (bid/proposal) submittals, activities of the Contractor,
its officers, agents and employees, lobbyists, City staff and elected officials to ensure
compliance with the contract documents and to detect fraud and corruption. Pursuant to
Section 2-378 of the City Code, the City is allocating a percentage of its overall annual
contract expenditures to fund the activities and operations of the Office of Inspector
General.
(C) Upon ten (10) days written notice to the Contractor, the Contractor shall make all
requested records and documents available to the Inspector General for inspection and
copying. The Inspector General is empowered to retain the services of independent
private sector auditors to audit, investigate, monitor, oversee, inspect and review
operations activities, performance and procurement process including but not limited to
project design, bid specifications, (bid/proposal) submittals, activities of the Contractor its
officers, agents and employees, lobbyists, City staff and elected officials to. ensure
compliance with the.contract documents and to detect fraud and corruption.
(D) The Inspector General shall have the right to inspect and copy all documents and
records in the Contractor's possession, custody or control which in the Inspector
General's sole judgment, pertain to performance of the contract, including, but not limited
to original estimate files, change order estimate files, worksheets, proposals and
agreements from and with successful subcontractors and suppliers, all project -related
correspondence, memoranda, instructions, financial documents, construction
documents, (bid/proposal) and contract documents, back -change documents, all
documents and records which involve cash, trade or volume discounts, insurance
proceeds, rebates, or dividends received, payroll and personnel records and supporting
documentation for the aforesaid documents and records.
(E) The Contractor shall make available at its office at all reasonable times the records,
materials, and other evidence regarding the acquisition (bid preparation) and
performance of this Agreement, for examination, audit, or reproduction, until three (3)
years after final payment under this Agreement or for any longer period required by
statute or by other clauses of this Agreement. In addition:
L If this Agreement is completely or partially terminated, the Contractor shall make
available records relating to the work terminated until three (3) years after any
resulting final termination settlement; and
05
ii. The Contractor shall make available records relating to appeals or to litigation or
the settlement of claims arising under or relating to this Agreement until such
appeals, litigation, or claims are finally resolved.
(F) The provisions in this section shall apply to the Contractor, its officers, agents,
employees, subcontractors and suppliers. The Contractor shall incorporate the
provisions in this section in all subcontracts and all other agreements executed by the
Contractor in connection with the performance of this Agreement.
(G) Nothing in this section shall impair any independent right to the City to conduct audits or
investigative activities. The provisions of this section are neither intended nor shall they
be construed to impose any liability on the City by the Contractor or third parties.
10.3 ASSIGNMENT, TRANSFER OR SUBCONSULTING
Contractor shall not subcontract, assign, or transfer all or any portion of any work and/or
service under this Agreement without the prior written consent of the City Manager, which
consent; if given at all, shall be in the Manager's sole judgment and discretion. Neither this
Agreement, not any term or provision hereof, or right hereunder, shall be assignable unless as
approved pursuant to this section, and any attempt to make such assignment (unless
approved) shall be void.
10.4 PUBLIC ENTITY CRIMES
Prior to commencement of the Services, the Contractor shall file a State of Florida Form PUR
7068, Sworn Statement under Section 287.133(3)(8) Florida Statute on Public Entity Crimes
with the City's Procurement Division:
10.5 NO DISCRIMINATION
In connection with the performance of the Services, the Contractor 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, Contractor 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 (including independent contractors), housing, public
accommodations, public services, and in connection with its membership or policies because
of actual or perceived race, color, national origin, religion, sex, intersexuality, gender identity,
sexual orientation, marital and familial status, age, disability, ancestry, height, weight, hair
texture and/or hairstyle, domestic partner status, labor organization membership, familial
situation, or political affiliation.
10.6 CONFLICT OF INTEREST
Contractor herein agrees to adhere to and be governed by all applicable Miami -Dade County
Conflict of Interest Ordinances and Ethics provisions, as set -forth in the Miami -Dade County
Code, as may be amended from time to time; and by the City of Miami Beach Charter and
Code, as may be amended from time to time; both of which are incorporated by reference as if
fully set forth herein.
A6
Contractor covenants that it presently has no interest and shall not acquire any interest,
directly or indirectly, which could conflict in any manner or degree with the performance of the
Services. Contractor further covenants that in the performance of this Agreement, Contractor
shall not employ any person having any such interest.
10.7 CONTRACTOR'S COMPLIANCE WITH FLORIDA PUBLIC RECORDS LAW
(A) Contractor 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 Contractor meets the
definition of "Contractor" as defined in Section 119.0701(1)(a), the Contractor 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 11.9; Florida Statutes oras otherwise provided by law;
(3) Ensure thatt.
, public records that are exempt or confidential and exempt from
public records disclosure requirements are not disclosed, except as authorized
by -.law, forthe duration of the contract term and following completion of the
Agreement if the Contractor 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 Contractor or keep and maintain public records
required by the City to perform the service. If the Contractor transfers all public
records to the City upon completion of the Agreement, the Contractor shall
destroy any duplicate public records that are exempt or confidential and exempt
from, public records disclosure requirements. If the Contractor keeps and
maintains public records upon completion of the Agreement, the Contractor shall
meet all applicable requirements for retaining public record's. 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 Contractor of the request,
and the Contractor must provide the records to the City or allow the records to be
inspected or copied within a reasonable time.
(2) Contractor'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.
MAP
(3) A Contractor 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 Contractor to compel production of public records
relating to the City's contract for services, the court shall assess and award
against the Contractor the reasonable costs of enforcement, including
reasonable attorneys' fees, if:
a. The court determines that the Contractor 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
Contractor has not complied with the request, to the City and to the
Contractor.
(2) A notice complies with subparagraph (1)(b) if it is sent to the City's custodian of
public records and to the Contractor at the Contractor's address listed on its
. contract witli the City or to the Contractor's registered agent-, Sucty-noticeg must
be, sent by common.'carrier delivery, service or by .registered,'�_ Global Express
',.:Gdaranteed, !or certified mail, with postage or shipping paid by the sender and
witli�evidence of delivery` , which may be in an electronic format. j
(3) A�,Contractor, who complies with ,a pu6116''records request within 8 business days
after'the notice is sent is not liable -for the reasonable ;costs of enforcement.
F IF THE=- ?CONTRACTOR HAS QUESTIONS- REGARDING; THE
APPLICATION OF CHAPTER` 11 -9; -FLORIDA STATUTES, ;OR AS
TO THE-CONT'RACTO.R'S DUTY -T -O -PROVIDE PUBLIC RECORDS
RELATING T;OTHIS 'AGREEMENT, CONTACT THE CUSTODIAN
OF� PUBLIC RECORDS AT: i I '
CITY OF MIAMI BEACH
ATTENTION: RAFAEL E. GRANADO, CITY CLERK
1700 CONVENTION CENTER DRIVE
MIAMI BEACH, FLORIDA 33139
E-MAIL: RAFAELGRANADO(aD-MIAMIBEACHFL.GOV
PHONE: 305-673-7411
10.8 FORCE MAJEURE
(A) A "Force Majeure" event is an event that (i) in fact causes a delay in the performance of
the Contractor or the City's obligations under the Agreement, and (ii) is beyond the
reasonable control of such party unable to perform the obligation, and (iii) is not due to
an intentional act, error, omission, or negligence of such party, and (iv) could not have
reasonably been foreseen and prepared for by such party at any time prior to the
occurrence of the event. Subject to the foregoing criteria, Force Majeure may include
events such as war, civil insurrection, riot, fires, epidemics, pandemics, terrorism,
sabotage, explosions, embargo restrictions, quarantine restrictions, transportation
accidents, strikes, strong hurricanes or tornadoes, earthquakes, or other acts of God
which prevent performance. Force Majeure shall not include technological impossibility,
inclement weather, or failure to secure any of the required permits pursuant to the
Agreement.
(B) If the City or Contractor's performance of its contractual obligations is prevented or
delayed by an event believed by to be Force Majeure, such party shall immediately,
upon learning of the occurrence of the event or of the commencement of any such delay,
but in any case within fifteen (15) business days thereof, provide notice: (i) of the
occurrence of event of Force Majeure, (ii) of the nature of the event and the cause
thereof, (iii) of the anticipated impact on the Agreement, (iv) of the anticipated period of
the delay, and (v) of what course of action such party plans to take in order to mitigate
the detrimental effects of the event. The timely delivery of the notice of the occurrence of
a Force Majeure event is a condition precedent to allowance of any relief pursuant to this
section; however, receipt of such notice shall .not constitute acceptance that the event
claimed to be a Force Majeure event is in fact Force Majeure, and the burden of proof of
the occurrence of a Force Majeure event shall be on the requesting party.
(C) No party hereto shall be liable for its failure to carry out its obligations under the
Agreement during a period when such party is rendered unable, in whole or in part, by
Force Majeure to carry out such obligations. The suspension of any of the obligations
under this Agreement due to a Force Majeure event shall be of no greater scope and no
longer duration than is required. The party shall use its reasonable best efforts to
continue to perform its obligations hereunder to the extent such obligations- are not
affected or are only partially affected by the Force Majeure event, and to correct or cure
the event:or condition excusing performance and otherwise to remedy its inability to
perform to the extent its inability to .perform is the direct result of the Force Majeure
event with all reasonable dispatch.
(D) Obligations pursuant to the Agreement that arose before the occurrence of a Force
Majeure event, causing the suspension of performance, shall not be excused as a result
of such occurrence unless such occurrence makes such performance not reasonably
possible. The obligation to pay money in a timely manner for obligations and liabilities
which matured prior to the occurrence of a Force Majeure event shall not be subject to
the Force Majeure provisions.
(E) Notwithstanding any other provision to the contrary herein, in the event of a Force
Majeure occurrence, the City may, at the sole discretion of the City Manager, suspend
the City's payment obligations under the Agreement, and may take such action without
regard to the notice requirements herein. Additionally, in the event that an event of
Force Majeure delays a party's performance under the Agreement for a time period
greater than thirty (30) days, the City may, at the sole discretion of the City Manager,
terminate the Agreement on a given date, by giving written notice to Contractor of such
termination. If the Agreement is terminated pursuant to this section, Contractor shall be
paid for any Services satisfactorily performed up to the date of termination; following
which the City shall be discharged from any and all liabilities, duties, and terms arising
out of, or by virtue of, this Agreement. In no event will any condition of Force Majeure
extend this Agreement beyond its stated term.
7T9
10.9 E -VERIFY
(A) To the extent that Contractor provides labor, supplies, or services under this Agreement,
Contractor shall comply with Section 448.095, Florida Statutes, "Employment Eligibility"
("E -Verify Statute"), as may be amended from time to time. Pursuant to the E -Verify
Statute, commencing on January 1, 2021, Contractor shall register with and use the E -
Verify system to verify the work authorization status of all newly hired employees during
the Term of the Agreement. Additionally, Contractor shall expressly require any
subcontractor performing work or providing services pursuant to the Agreement to
likewise utilize the U.S. Department of Homeland Security's E -Verify system to verify the
employment eligibility of all new employees hired by the subcontractor. If Contractor
enters into a contract with an approved subcontractor, the subcontractor must provide
the Contractor with an affidavit stating that the subcontractor does not employ, contract
with, or subcontract with an unauthorized alien. Contractor shall maintain a copy of such
affidavit for the duration of this Agreement or such other extended period as may be
required under this Agreement.
(B) TERMINATION RIGHTS.
(1) If the City has a good faith belief that Contractor has knowingly violated Section
448.09(1), Florida Statutes, which prohibits any person from knowingly
employing, hiring, recruiting, or referring an alien who is not duly authorized to
work- by the immigration laws or the Attorney General of the United States, the
City shall terminate this Agreement with Contractor for cause, and the City shall
thereafter have or owe no further obligation or liability to Contractor.
(2) If the City has a good faith belief that a subcontractor has knowingly violated the
foregoing Subsection 10.9(A), but- the Contractor :otherwise complied with such
subsection, the City will promptly notify the Contractor and order the Contractor
to immediately terminate the contract with the subcontractor. Contractor's failure
to terminate a subcontractor shall be an event of default under this Agreement,
entitling City to terminate this Agreement for cause.
(3) A contract terminated under the foregoing Subsection (13)(1) or (13)(2) is not in
breach of contract and may not be considered as such.
(4) The City or Contractor or a subcontractor may file an action with the Circuit or
County Court to challenge a termination under the foregoing Subsection (13)(1) or
(B)(2) no later than 20 calendar days after the date on which the contract was
terminated.
(5) If the City terminates the Agreement with Contractor under the foregoing
Subsection (13)(1), Contractor may not be awarded a public contract for at least 1
year after the date of termination of this Agreement.
(6) Contractor is liable for any additional costs incurred by the City as a result of the
termination of this Agreement under this Section 10.9.
SECTION 11
NOTICES
All notices and communications in writing required or permitted hereunder, shall be delivered
personally to the representatives of the Contractor and the City listed below or may be mailed
by U.S. Certified Mail, return receipt requested, postage prepaid, or by a nationally recognized
overnight delivery service.
7`$0
Until changed by notice, in writing, all such notices and communications shall be addressed as
follows:
TO CONTRACTOR: Outfront Media Group, LLC
405 Lexington Avenue
New York, NY 10174
Attention:
TO CITY: City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
Attention: Marketing and Communications Department Director
WITH COPY TO: City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
Attention: City Manager
Notice may also be provided to any other address designated by the party to receive notice if such
alternate address, is provided via U.S. certified mail, return receipt requested, hand delivered, or by
overnight delivery. In the event an alternate notice address is properly provided, notice shall be
sent to such alternate address in addition to any other address which notice would otherwise be
sent, unless other delivery instruction as specifically provided for by the party entitled to notice.
Notice shall be deemed given on the date of an acknowledged receipt, or, in all other cases, on the
date=of receipt or refusal.
Notwithstanding the foregoing, each party may communicate with each other relating to
operational issues, except with respect to any alleged defaults, which will require notice to the
foregoing parties.
SECTION 12
MISCELLANEOUS PROVISIONS
12.1 CHANGES AND ADDITIONS
This Agreement cannot be modified or amended without the express written consent of the
parties. No modification, amendment, or alteration of the terms or conditions contained herein
shall be effective unless contained in a written document executed with the same formality and
of equal dignity herewith.
12.2 SEVERABILITY
If any term or provision of this Agreement is held invalid or unenforceable, the remainder of this
Agreement shall not be affected and every other term and provision of this Agreement shall be
valid and be enforced to the fullest extent permitted by law.
�w�
12.3 WAIVER OF BREACH
A party's failure to enforce any provision of this Agreement shall not be deemed a waiver of
such provision or modification of this Agreement. A party's waiver of any breach of a provision
of this Agreement shall not be deemed a waiver of any subsequent breach and shall not be
construed to be a modification of the terms of this Agreement.
12.4 JOINT PREPARATION
The, parties hereto acknowledge that they have sought and received whatever competent advice
and counsel as was necessary for them to form a full and complete understanding of all rights
and obligations herein and that the preparation of this Agreement has been a joint effort of the
parties, the language has been agreed to by parties to express their mutual intent and the
resulting document shall not, solely as a matter of judicial construction, be construed more
severely against one of the parties than the other.
12.5 NO THIRD PARTY BENEFICIARY
Nothing in. this Agreement shall confer upon any person or entity, including, but not limited
to subcontractors, other than the parties hereto and their respective successors and
permitted assigns, any rights or remedies by reason of this Agreement.
12.6 ENTIRETY OF AGREEMENT
The City and Contractor agree that this is the entire agreement between the parties. This
Agreement supersedes all prior negotiations, correspondence, conversations, agreements or
understandings 'applicable to the matters contained herein, and there are no commitments,
agreements or understandings concerning the subject matter of this Agreement that are not
contained in this document. Title and paragraph headings are for convenient reference and are
not intended to confer any rights or obligations upon the parties to this Agreement.
[REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK]
Ilk
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their appropriate officials, as of the date first entered above.
FOR CITY:
ATTEST:
By:
City Clerk
Date:
FOR CONTRACTOR:
ATTEST:
By:
Print Name and Title
Date:
CITY OF MIAMI BEACH, FLORIDA
City Manager
OUTFRONT MEDIA GROUP, LLC
Print Name and Title
F: ATTOrrORG/Agreements/Professional Services Agreement 2021 modified 11-7-2022
713
EXHIBIT "A"
1. MARKETING, MANAGEMENT AND OPERATION OF TROLLEY ADVERTISEMENTS
Contractor agrees to market, manage and operate the advertisement services on the City's
trolley vehicles, solely on the advertising spaces ("Advertising Spaces") which may be
designated from time to time by the City Manager's designee, in the City Manager's designee's,
sole option and discretion, to be included as part of the City's trolley advertisement program (the
"Services"), including, without limitation, the following in accordance with the terms of this
Agreement:
(A) evaluate current and future revenue potential;
(B) market the City's trolley vehicle advertising opportunities pursuant to the terms of this
Agreement;
(C) provide ongoing management of the trolley advertisement program;
(D) Track and'manage all issues and requests concerning the operation of the trolley
advertisement program;
(E), Coordinate the installation and/or removal of advertising equipment, including to all
applicable City departments;
(F) For City sponsorships or public service announcements (PSAs), assist with the printing,
installation and removal of advertising materials on the inside of the trolleys, each at the sole
cost and expense of the City at the current negotiated rate of $3,750.00 per trolley as further
outlined under "Advertising Standards"
(G) Prevent any additional costs not contemplated under this Agreement;
(1) Provide all personnel, equipment, and other resources necessary to operate the City's
trolley advertisement program; and
(J) Coordinate all necessary requirements pursuant to all other City departments.
2. LICENSES, TAXES. ASSESSMENTS
(A) Contractor shall also be solely responsible (at its sole cost and expense) for obtaining
and maintaining current any applicable licenses or permits, as required for the operations
contemplated in this Agreement including, without limitation, any occupational licenses required
by law for the proposed uses contemplated in this Agreement.
(B) Contractor agrees and shall pay before delinquency all taxes and assessments of
any kind levied or assessed by reason of this Agreement, or by reason of Contractor's
business and/or operations. Contractor will have the right, at its own expense, to contest the
amount or validity, in whole or in part, of any tax by appropriate proceedings diligently
conducted in good faith. Contractor may refrain from paying a tax to the extent it is contesting
the imposition of same in a manner that is in accordance with law. However, if, as a result
Il24
of such contest, additional delinquency charges become due, Contractor shall be
responsible for such delinquency charges, in addition to payment of the contested tax, if so
ordered.
3. EMPLOYEES AND INDEPENDENT CONTRACTORS
(A) Contractor's Employees.
(1) Contractor shall select, train and employ such number of employees or
contractors as is necessary or appropriate for Contractor to satisfy its responsibilities
hereunder. Contractor shall be the sole .authority to hire, terminate and discipline
any and all personnel employed by Contractor..
(2) Contractor shall designate a competent full-time employee to oversee the
day-to-day operations, and who shall act as the contract administrator for the trolley
vehicle advertising program and serve as Contractor's primary point -person with the
City. This individual . shall have the requisite amount of experience in, operating,
managing, and maintaining the advertising. program and operations contemplated
herein. The employee shall be accessible to the City Manager or City Manager's
designee at all reasonable times during, normal business hours (8:00 A.M. to 5:00
P.M.) to discuss the management, operation and maintenance of the Program, and
during the hours of. 8:00 A.M. and 2:00 A.M. in the event of an emergency. Consistent
failure by the employee to be accessible shall be reported to Contractor's principal(s),
and if not rectified, shall. be grounds for replacement of the employee:
(3) Contractor shall provide the City Manager's designee with a list of its employees
and/or contractors who meet the Level 1 Screening Standards described in Subsection (5), and
such qualified .employees and/or contractors will be permitted to secure identification badges
from the City's'Human Resource Department: Contractor's employees and/or contractors will be
required - to. wear the City issued identification during all hours of operation when such
employee and/or contractor is acting within the scope of such employment or such
contractor relationship. All employees and/or contractors shall observe all the graces of
personal grooming. Contractor shall hire people to work in its operation who are neat, clean,
well groomed, and who shall comport themselves in a professional and courteous manner.
(4) Contractor shall use its best efforts to hire employees and/or contractors for
the program from among unemployed workers in the City of Miami Beach workforce.
(5) Background Check Screening Process. Contractor shall conduct a full Level I
criminal background screening check at its own expense on each of its employees and/or
contractors engaged in providing services under this Agreement. The Level I background
screening check shall be compliant with the requirements of Section 435.03, Florida Statutes,
as may be amended from time to time, and must include, at minimum, employment history
checks and statewide criminal correspondence checks through the Department of Law
Enforcement, and a check of the Dru Sjodin National Sex Offender Public Website, and local
criminal records checks through local law enforcement agencies (collectively, the "Statutory
Screening- Standards"). Contractor shall ensure that each employee and/or contractor meets
the Statutory Screening Standards prior to commencing to perform any work and/or services
under this Agreement. Contractor acknowledges that it has an ongoing duty to maintain and
update these lists as new employees and/or contractors are hired and in the event that any
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previously screened employee and/or contractor fails to meet the Statutory Screening
Standards. Contractor agrees to notify the City immediately upon becoming aware that one of
its employees and/or contractors who was previously certified as completing the background
check and meeting the Statutory Screening standards is subsequently arrested or convicted of
any disqualifying offense. Failure by Contractor to notify the City of such arrest or conviction
within two business days of being put on notice or within thirty (30) days of the occurrence of
qualifying arrest resulting in charges or conviction, shall constitute grounds for the City, at its
sole option, to place Contractor in default. Contractor shall defend, indemnify and hold the City,
its officers, employees, and agents harmless from and against any and all liability, loss,
expense (including reasonable attorney's fees) or claims for injury or damages arising out of its
failure to comply with this requirement. Contractor shall employ personnel competent to
perform the work specified herein. The City reserves the right to request the removal of
Contractor employee's from performing services under this Agreement where the employee's
performance or actions are obviously detrimental to the Program. Contractor's personnel must
wear photo identification at all times.
(6) Contractor shall not retain, add, or replace any sub -contractor without the prior
written approval of the City Manager or his/her designee, in response to a written request from
Contractor stating the reasons for any proposed substitution. Any approval of a sub -contractor
by the City Manager or designee shall not in any way shift the responsibility for the quality and
acceptability by the City of the services performed by the sub -contractor. The quality of
services and acceptability to the City of the services performed by sub -contractor shalFbe the
sole responsibility of Contractor.
(7) A change in Contractor's project manager or key personnel (as well ,as any
replacement) shall be subject to the prior written approval of the City Manager or City
Manager's designee. Replacement (including reassignment) of an approved project manager,
public information officer, or any key personnel shall not be made without submitting a resume
for the replacement staff person and receiving prior written approval of the City Manager or
City Manager's designee.
(8) Contractor shall coordinate the work performed by its team (Project Team) and
suppliers and shall be fully responsible for all acts and omissions of the Project Team, suppliers,
and their employees. Any provision of the Agreementreferring to the acts or omissions of
Contractor shall also refer to and include the acts and omissions of Project Team and suppliers.
Project Team composition and responsibilities will be provided and attached to this Agreement.
(9) If any portion of the subcontracted work is not performed in accordance with the
Agreement, or if a Contractor's Team member or Supplier commits or omits any act that would
constitute a breach of this Agreement, Contractor shall cure the breach (within the time frame
established by the City); and, at the direction of the City Manager's designee, shall replace
Contractor's Team member(s) or Supplier(s). Following a debarment for breach, said
member(s) or Supplier(s) shall not be employed again to perform work or services under the
Agreement.
4. NO IMPROPER USE
Contractor shall not suffer or permit the City's trolleys or any part thereof to be used in any
manner, or anything to be done therein, or suffer or permit anything to be brought into or kept
therein, which would in any way (i) violate any legal requirements or insurance requirements; (ii)
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cause structural injury to the trolleys' structure or any part thereof; (iii) constitute a public or private
nuisance; (iv) create a public health, safety or general welfare risk; (v) materially impair or interfere
with the regular operations of the trolleys; (vi) or impair or interfere with the physical convenience
of any of the occupants of the trolleys. Contractor understands that this Agreement is limited to
the portions of the City's trolley vehicles which has been designated by the City Manager's
designee as Advertising Spaces within the trolley vehicles.
5. ADVERTISING STANDARDS
(A) Contractor shall comply with the following:
(1) All advertising accepted for placement will comply with Federal, State, Miami -
Dade County, and existing City of Miami Beach laws, rules and regulations;
(2) The Contractor shall neither accept for display, install, display nor maintain any
advertisement that falls within one or more of the following categories;
(a) contains the words "STOP", "LOOK", "DRIVE IN", "DANGER" or any other
word, symbol, or displays designed to distract vehicular traffic;
(b) false or misleading material that is immoral, lascivious, or obscene as
defined in Section 847.001,. Florida Statutes;
(d) no advertising shall be for businesses engaged in any activity that
requires the exclusion. of minors pursuant to Chapter 847, Florida
Statutes;
(e) promotes unlawful or illegal goods, services or activities;
(f) tobacco or tobacco related products including electronic cigarettes;
(g) firearms;
(h) sexual services, programs or products;
(i) political candidates or political issues, campaigns:
Q) detrimental to the operation or goals of the City;
(k) competitive products with the Pepsi Cola and Red Bull brands pursuant to
the exclusive sponsorship agreements in existence with the City as of the
effective date of this Agreement, and any future Agreement with the City
relating to a citywide exclusive sponsorship agreement, as notified in
writing to Contractor; and
(1) any such additional category of advertising that the City Manager, in the
City Manager's sole discretion, may determine to be reasonable, as
notified in writing to Contractor.
(m) Advertising of alcoholic beverages is prohibited absent the expressed
written consent of the City Manager.
(B) Any prohibited or unacceptable material, as determined by the City Manager, in
the City Manager's sole discretion, which is displayed or placed, shall be
immediately removed by Contractor upon notice from the City Manager. In the
event Contractor fails to remove any prohibited material within twenty-four hours of
receipt of written notice from the City, the City may, at its sole option and discretion, (i)
terminate this Agreement for cause upon written notice to Contractor, without liability to
the City, or, at the City's option, or (ii) remove the prohibited material and charge
Contractor for the actual cost thereof, without liability to the City.
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6. CITY'S SELF -PROMOTIONAL SPACE
The City shall be entitled to purchase advertising space on the trolley's at an agreed to
rate of $3,750.00 per trolley, inclusive of production and installation costs, with such
rate remaining in effect during the term of this Agreement unless otherwise agreed to
in writing by the City Manager or his/her Designee.
7. INTERRUPTION OF OPERATIONS
Contractor releases the City for any diminution of rental value or by reason of inconvenience,
annoyance or interference with Contractor's operation arising from the City' or its agents
removing any trolley vehicles from operation, or making any repairs, replacements, alterations,
decorations, or improvements in or to any portion of a trolley vehicle.
8. COPYRIGHT, PATENTS & ROYALTIES
Contractor shall indemnify and hold harmless the City, its officers, employees, contractor
and/or agents from liability of any nature or kind, including costs and expenses for, or on
account of, any copyrighted, patented, or unpatented invention, process, or article
manufactured or used in the performance of the Agreement, including its use by the City of
Miami Beach, Florida. If Contractor uses any design, device or materials covered by letters,
patent, or copyright, it is mutually understood and agreed, without exception, that the proposed
prices shall include all royalties or cost arising from the use of such design, device, or material
used in connection with the trolley advertising program. This indemnity shall survive the
expiration or termination of .this Agreement.
W.
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