MacKay Meters Agreement for Parking Systema00y ?Gf~f~
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AGREEMENT BETWEEN CITY OF MIAMI BEACH AND MACKAY METERS
FOR PURCHASE OF SINGLE SPACE
PARKING METERS FOR THE CITY'S PARKING SYSTEM
THIS AGREEMENT ,made this day of , 2007, by and between the
City of Miami Beach, a municipal corporation existing under the laws of the State of Florida,
hereinafter referred to as the "City" and MacKay Meters, Inc., a Florida Corporation duly
authorized to do business in the State of Florida, hereinafter referred to as the "Contractor" or
"MacKay".
WHEREAS, on January 14, 2004, the City issued a Request for Proposals No. 37-
05/06, seeking contractors to provide single-space parking meters and provide certain services
(the RFP); and
WHEREAS, MacKay submitted a response to the RFP, dated October 23, 2006; and
WHEREAS, MacKay has agreed to provide certain goods, consisting of single-space
parking meters, accessories and software, pursuant to the specifications provided as part of
MacKay's response to the RFP; and
WHEREAS, the City has selected MacKay as awardee of the contract to provide single-
space parking meters and provide certain services; and
WHEREAS, MacKay represents and warrants that it is qualified and has the capabilities
to undertake and satisfactorily complete the work contemplated under RFP, and MacKay's
response thereto, and as further defined herein and required under this Agreement.
NOW, THEREFORE, the parties agree as follows:
I. SCOPE
This document together with any future amendments, the City's Request for Proposals
No. 37-05/06, and any amendments thereto, attached hereto as Exhibit "A" (the RFP),
and the Contractor's Proposal in response to the RFP and any addendums thereto
(including Contractor's license agreement), attached hereto as Exhibit "B" (the
Proposal), both of which exhibits are incorporated by reference herein and made a part
hereof as fully as if herein set forth, constitute the agreement between the parties (the
"Agreement").
Upon the receipt of a purchase order from the City ("Purchase Order") for services or
materials, consisting of single-space parking meters, accessories and software as set
forth in its Proposal (the "Work"), the Contractor is to perform and provide the Work
identified in the Purchase Order in the manner specified in its Proposal. Unless
otherwise specified herein, or in its Proposal, the Contractor is to furnish all materials,
tools, equipment, manpower, and any and all other deliverables as necessary to
complete the Work.
For, the resolution and interpretation of any inconsistencies in this Agreement or in the
event of any conflict, the precedence of these documents shall be given in the following
order:
1. This Agreement with any amendment(s) thereto;
2. Contractor's Proposal, attached hereto as Exhibit "B";
3. The RFP, attached hereto as Exhibit "A".
II. SCHEDULE/TERM
The term of this Agreement shall be for three (3) years, commencing upon execution by
the Parties hereto, and which date shall be the date referenced on p. 1 of the Agreement
(the Commencement. Date). Pursuant to the terms of its Proposal, Contractor shall
accept a Purchase Order for the Work set forth in its Proposal upon the prices and terms
set forth in the Proposal for a period of three (3) years from the Commencement Date of
this Agreement. The Contractor shall commence Work on a Purchase Order issued
under this Agreement no later than ten (10) business days from receipt by the Contractor
of said Purchase Order from the City, and shall fully complete all Work, in accordance
with this Agreement, within (90) calendar days from the Purchase Order date, or as
otherwise agreed to (in writing) by the parties. All on-site Work, if any, and unless
otherwise specified or agreed to in advance, is to be performed during the City's normal
business hours of 8:00 a.m. to 5:00 p.m., Monday through Friday, excluding City
holidays.
III. COMPENSATION PLAN
The Contractor agrees to provide the Work as specified in its Proposal to the City at the
prices specified in said Proposal. Any prices specified in this Agreement will remain firm
for the Term of this Agreement.
IV. PAYMENT
The Contractor, upon delivery of any portion of the Work set forth in a Purchase Order,
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shall issue an invoice to the City for the Work delivered at prices specified in this
Agreement. All invoices received by the City are payable within thirty (30) calendar days
from receipt, provided they have first been approved by the City and the City has
accepted the Work.
The City reserves the right, with justification (including, without limitation, for Work and/or
any portion thereof not satisfactorily performed and/or not otherwise acceptable), to
partially pay any invoice submitted by the Contractor. All invoices shall be directed to the
City of Miami Beach, Parking Department, 309 23rd Street, Suite 200, Miami Beach,
Florida, 33139, Attn: Rocio Rodriguez.
ALL INVOICES MUST CLEARLY INDICATE THE CITY AGREEMENT NUMBER, AS
STATED HEREIN.
V. CANCELLATION DUE TO UNAVAILABILITY OF FUNDS
In the event that funds are not appropriated or otherwise made available to support
continuation of performance for the Work contemplated herein, the Agreement may be
canceled by the City, in its sole discretion, without penalty, upon ten (10) calendar days
notice to Contractor, and the Contractor shall be entitled to be paid for any Work
approved and accepted by the City up to the date of termination specified in the notice,
and for all portions of materials, supplies, services, and facility orders which cannot be
cancelled and were placed prior to the effective date of termination; and thereafter the
City shall have no further obligation and/or liability to Contractor under this Agreement.
VI. GENERAL CONDITIONS
A. Patents and CoayriQhts
The Contractor shall pay all royalties and assume all costs arising from the use of
any invention, design, process, materials, equipment, product or device in
performance of the Work, which is the subject of patent rights or copyrights.
Contractor shall, at its own expense, hold harmless and defend the City against any
claim, suit or proceeding brought against the City which is based upon a claim,
whether rightful or otherwise, that the Work, or any part thereof, furnished under this
Agreement, constitutes an infringement of any patent or copyright of the United
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States. The Contractor shall pay all damages and costs awarded against the City.
B. Termination for Default
1. The performance of Work under this Agreement may be terminated by the City,
in whole or in part, in writing, whenever the City in its sole and reasonable
judgment and discretion, shall determine that the Contractor has failed to meet
the performance requirements of this Agreement.
2. The City also has a right to terminate for default if the Contractor fails to make
delivery of, or if the Contractor fails to perform, the Work within the time
specified in the Agreement, or if the Contractor fails to perform any other
provisions of the Agreement.
3. Failure of Contractor to deliver or perform the Work within the time specified, or
if no time is specified, within a reasonable time as determined by the City (not to
be less than thirty (30) calendar days from the date of written notice from the
City), or failure to make replacements of rejected articles of Work when so
requested, shall constitute authority for the City to purchase in the open market
articles of Work of comparable grade to replace the articles of Work rejected,
not delivered, or not completed. On all such purchases, the Contractor shall
reimburse the City, within a reasonable time specified by the City, for any
expense incurred in excess of the Agreement prices. Such purchases shall be
deducted from Agreement quantities.
4. Should public necessity demand it, the City reserves the right to utilize services
or use and/or consume articles delivered which are substandard in quality,
subject to an adjustment in price to be determined by the City. The Contractor
shall not be liable for any excess costs if acceptable evidence has been
submitted to the City that failure to perform the Work was due to causes beyond
the control and without the fault or negligence of the Contractor.
C. Termination for Convenience
The City may terminate this Agreement for its convenience and without penalty upon
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ninety (90 calendar days written notice to the Contractor. In the event of such a
termination by the City, the City shall be liable for the payment of all Work properly
performed and accepted by the City prior to the effective date of termination and for
all portions of materials, supplies, services, and facility orders which cannot be
cancelled and were placed prior to the effective date of termination; thereafter, the
City shall have no further obligation and/or liability to Contractor under this
Agreement.
D. Warranty
The Contractor warrants that the Work, including equipment and materials provided,
shall conform to professional standards of care and practice in effect at the time the
Work is performed; be of the highest quality; and be free from all faults, defects or
errors. Whenever required by the specifications of the RFP (unless modified by the
terms of its Proposal, including proposed warranty terms), the Contractor warrants
that all equipment and materials constituting the Work provided shall be new. In
addition to the warranties contained in this Section VI. D., the Contractor's Warranty
is set out in its Proposal (attached as Exhibit "B"). If the Contractor is notified in
writing of a fault, deficiency or error in the Work provided, the Contractor shall
promptly repair or replace such portions of the Work to correct such fault, defect or
error, at no additional cost to the City.
E. Force Maieure
The Contractor or City, respectively, shall not be liable for any loss or damage,
resulting from any delay or failure to perform its contractual obligations within the
time specified, due to acts of God, actions or regulations by any governmental entity
or representative, strikes, or other labor trouble, fire, embargoes, or other
transportation delays, damage to or destruction in whole or in part, of equipment or
manufacturing plant, lack of or ability to obtain raw materials, labor, fuel or supplies
for any reason including default of suppliers, or any other causes, contingencies or
circumstances not subject to the Contractor's or City's control, respectively, whether
of a similar or dissimilar nature, which prevent or hinder the performance of the
Contractor's or City's contractual obligations, respectively.
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Any such causes of delay, even though existing on the date of the Agreement, or on
the date of the start of Work, shall extend the time of the Contractor's or City's
performance respectively, by the length of the delays occasioned thereby, including
delays reasonably incident to the resumption of normal work schedules.
However, under such circumstances as described herein, the City may in its sole
discretion, cancel this Agreement for the convenience of the City, as provided in
Section VI. C. hereof.
F. Indemnification and Insurance
1. Indemnity
The Contractor hereby agrees to indemnify and hold harmless the City, its
officers, agents, and employees, from and against any and all liability, claims,
damages, demands, expenses, fees, fines, penalties, suits, proceedings,
actions, and costs of actions, including attorneys' fees for trial and on appeal,
and for the preparation of same arising out of the Contractor's, its officers',
agents', and employees' acts, or omissions associated with the Agreement.
Notwithstanding the preceding, nothing herein shall be deemed to require the
Contractor to indemnify or hold harmless the City for any acts or omissions
resulting from the sole negligence of the City's officers, agents or employees.
In addition, notwithstanding the preceding provisions of this Section F.1., such
indemnity clause shall not render the Contractor liable to the City for claims of
the City for loss of revenue or for claims of the City for indirect, incidental or
consequential damages arising out of or related to the City's operation or use of
equipment and materials supplied by Contractor as part of the Work. This
Indemnification shall survive termination of this Agreement.
2. Insurance
The Contractor, at its own expense, shall keep in force and at all times maintain
during the term of this Agreement:
(a.) Commercial General Liability Insurance:
Commercial General Liability Insurance, issued by responsible insurance
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companies and in a form acceptable to the City, protecting and insuring
against all the foregoing with coverage limits of not less than One Million
Dollars ($1,000,000) per occurrence for Bodily Injury and Property
Damage.
(b.) Workers' Compensation Coverage:
Full and complete Workers' Compensation Coverage, as required by
State of Florida law, shall be provided, if any Work is to be performed by
the Contractor at the City's site(s) of business.
(c)
Insurance Certificates:
The Contractor shall provide the City with Certificate(s) of Insurance on
all the policies of insurance and renewals thereof in a form(s) acceptable
to the City's Risk Manager. Said Commercial General Liability policy shall
provide that the City of Miami Beach, Florida, shall be named as an
additional insured. The City shall be notified in writing of any reduction,
cancellation or substantial change of policy or policies at least thirty (30)
calendar days prior to the effective date of said action. All insurance
policies shall be issued by responsible companies who are acceptable to
the City and licensed and authorized to do business under the laws of the
State of Florida.
G. Liquidated Damages
The Parties agree that damages are difficult to determine but that these liquidated
damages are agreed to be a reasonable cost for any delays. If the Contractor shall
neglect, fail or refuse to complete the Work within the time specified, or any proper
extension thereof granted by the City, then the Contractor does hereby agree, as
part consideration for awarding of the Agreement, to pay the City the sum of One
Hundred Fifty Dollars ($150.00), for each and every business day that the Contractor
shall be in default after the time stipulated in the Agreement for completing the
Work, not as a penalty but as liquidated damages for breach of contract as herein
set forth.
H. Acceptance
The Work (or any portion thereof), shall be deemed accepted, if not rejected by the
City by written notice mailed, delivered or faxed to Contractor at any business office
of Contractor or an affiliate of Contractor on or before ten (10) business days after
the equipment is installed. The Work under this Agreement shall remain the property
of the Contractor until it is accepted by the City (or if deemed accepted). In the
event the Work furnished under this Agreement is found to be defective or does not
conform to the specifications, the City reserves the right to cancel the Agreement
upon written notice to the Contractor, but only after the Contractor has been given
written notice of the proposed rejection by the City, and has failed to adequately
repair or replace the Work within thirty (30) calendar days of receipt of such notice.
I. Correction of Work
The Contractor shall promptly correct all Work rejected by the City (including, without
limitation, Work deemed by the City to be faulty, defective, or failing to conform to
this Agreement) whether observed before or after substantial completion of the
Work. After acceptance of the Work by the City, the Contractor's obligation shall be
restricted to its Warranty obligations as set out in this Agreement and in Exhibit "B".
The Contractor shall bear all costs of correcting such rejected Work in accordance
with the Contractor's Warranty in Exhibit "B".
J. Right to Audit Records
The City shall be entitled to audit the books and records of the Contractor or any
sub-contractor to the extent that such books and records relate to the performance
of this Agreement or any sub-contract to this Agreement. Such books and records
shall be maintained by the Contractor for a period of three (3) years from the date of
final payment under this Agreement and by the sub-contractor for a period of three
(3) years from the date of final payment under the sub-contract unless a shorter
period is otherwise authorized in writing.
K. Time is of the Essence
Parties agree that time is of the essence in the completion of the Work called for
under this Agreement. The Contractor agrees that all Work shall be executed
regularly, diligently, and uninterrupted at such a rate of progress as will ensure full
completion thereof within the time specified.
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All information, data, designs, plans, drawings, and specifications developed solely
for the City by the Contractor or its subcontractors pursuant to this Agreement, shall
be the sole property of the City and all rights therein are reserved by the City, except
that the Contractor may disclose any such information to its corporate affiliates and
their agents.
M. Safety Measures
The Contractor shall take all necessary precautions for the safety of the City's and
Contractor's employees on the Work site, if the Contractor is required to do any
Work at the City's Work site(s), and shall erect and properly maintain at all times all
necessary safeguards for the protection of its workmen and the public. If required
by the City, the Contractor shall post signs warning against hazards in and around
the Work site.
N. Extra Work
The City, without invalidating this Agreement, may order changes in the Work within
the general scope of this Agreement consisting of additions or deletions, the
Agreement price and time being adjusted accordingly, provided that there are no
changes in the specifications of any of the articles comprising the Work.
All such changes in the Work shall be authorized by a written amendment to this
Agreement, and shall only be effective if approved and executed by the Parties
hereto. If the Contractor plans to make a claim for an increase in the Agreement
price or an extension in the Agreement Schedule/Term, it shall first give the City
written notice within ten (10) business days after the occurrence of the event giving
rise to such a claim, which notice shall also state the nature of the claim and any
supporting information and documentation therefore. This written notice shall be
given by the Contractor to the City, and a written approval secured from the City,
before proceeding to execute the Work, except in an emergency endangering life or
property, in which case the Contractor shall immediately proceed. No claim for extra
work will be considered valid by the City unless submitted in writing within the time
periods provided herein, and unless duly approved and executed by the City (which
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approval, if given at all, shall be in the City's sole and reasonable discretion). It is
expressly agreed that any and all claims for changes to the Agreement price or a
change and/or extension in the Agreement Schedule/Term shall be waived if not
submitted in accordance with the requirements of this Section N.
O. Familiarity With The Work
The Contractor by executing this Agreement acknowledges full understanding of the
extent and character of the Work required and the conditions surrounding the
performance thereof.
The City will not be responsible for any alleged misunderstanding of the Work to be
furnished or completed, or any misunderstanding of conditions surrounding the
performance thereof. It is understood that the execution of this Agreement by the
Contractor serves as its stated commitment to fulfill all the conditions referred to in
this Agreement.
P. Title and Risk of Loss
The title and risk of loss to the Work shall pass from the Contractor to the City upon
City's acceptance of the Work.
Q. Parking Debit "Smart" Card Interface
The Contractor will supply the parking debit "smart" cards, as described in its
Proposal, to operate in the single space meters supplied to the City.
The Contractor will, in accordance with its Proposal, supply certain information and
interface assistance, to incumbent third party ancillary parking equipment vendors
("Third Party Vendors"). The Third Party Vendors will, at all times, be responsible for
their development work and all costs associated with the software development,
modifications and implementation necessary for their respective equipment to
achieve interoperability with the Contractor's parking debit "smart" card. The
Contractor disclaims, actions taken by Third Party Vendors achieving operability of
the Contractor's parking debit "smart" card in any Third Party Vendor's ancillary
parking equipment.
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In the case that Third Party Vendor(s) cannot successfully implement one or more of
the interfaces within the agreed time period, the Contractor shall provide to the City
a written report detailing any reason known to the Contractor that is preventing the
implementation of said interfaces. The Contractor shall also require Third Party
Vendors, to provide a written report to the City, detailing the reasons that are
preventing the implementation of said interfaces. Each type of interface shall be
deemed a "project" and shall be identified and reported on individually by both the
Contractor and each Third Party Vendor. The City shall have the sole and exclusive
right and authority to determine whether to accept any number of the interfaces,
including all or none and/or exercise its rights to terminate this Agreement without
cause and/or convenience and without liability to City, upon thirty (30) days written
notice to Contractor.
VII. MISCELLANEOUS PROVISIONS
A. The Contractor shall not employ subcontractors without the prior written permission
of the City. Notwithstanding the preceding, the Contractor shall be permitted to use
Medeco High Security Locks, Inc. as a subcontractor for the provision of any training
and any other services as it relates to the Medeco NEXGEN® High Security
Electronic Access Control System, described in the Proposal.
B. Assignment of this Agreement shall not be made without the prior written consent of
the City.
C. The Contractor shall comply with all applicable federal, State and local laws,
ordinances, rules and regulations pertaining to the performance of Work under this
Agreement.
D. No waiver, alterations, consent, amendments or modification of any of the provisions
of this Agreement shall be binding unless in writing and signed by the parties.
E. The Contractor is solely responsible for obtaining all permits, licenses, and
certificates, or any such approvals of plans or specifications as may be required by
federal, State and. local laws, ordinances, rules, and regulations, for the proper
execution and completion of the Work under this Agreement, including all costs
therefore.
F. The Contractor is responsible for all damage or loss by fire, theft or otherwise, to the
ii
Contractor's materials, tools, equipment, and consumables, left on City property by
the Contractor.
G. This Agreement is considered anon-exclusive Agreement between the parties.
H. This Agreement is deemed to be under and shall, be governed by, and construed
according to, the laws of the State of Florida.
I. Any litigation arising out of this Agreement shall be had in the courts of Miami-Dade
County, Florida. BY ENTERING INTO THIS AGREEMENT, CITY AND
CONTRACTOR EXPRESSLY WAIVE ANY RIGHTS EITHER PARTY MAY HAVE
TO A TRIAL BY JURY OF ANY CIVIL LITIGATION RELATED TO, OR ARISING
OUT OF, THIS AGREEMENT.
J. Contractor hereby certifies that this Agreement is made without prior understanding,
agreement or connection with any corporation, firm or person who submitted bids for
the Work covered by this Agreement and is in all respects fair and without collusion
or fraud. Contractor further warrants and certifies that it is authorized to enter into
this Agreement and the undersigned is authorized to execute same on behalf of
Contractor as the act of the said Contractor.
K. This Agreement, including any Exhibits hereto, contains all the terms and conditions
agreed upon by the Parties. No other agreements, oral or otherwise, regarding the
subject matter of this Agreement shall be deemed to exist or to bind either party
hereto. If any provision of this Agreement is held to be unenforceable, this
Agreement shall be construed without such provision.
L. All payments by City to Contractor pursuant to this Agreement shall be in United
States Dollars.
M. Payment of any Florida sales and use taxes, levied upon or as a result of the Work
provided under this Agreement, if any, shall be the obligation of the City.
N. Contractor shall be deemed at all times to be an independent contractor and is wholly
responsible for the manner in which it performs the Work under this Agreement.
Contractor is liable for the acts and omissions of itself, its employees and its agents.
Nothing in this Agreement shall be construed as creating an employment or agency
relationship between City and Contractor.
O. This Agreement may be executed in any number of counterparts, each of which will
be deemed an original, but all of which together will constitute but one agreement.
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IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and seals on
the date first written above.
CITY OF MIAMI BEACH, FLORI
By:
Matti Herrera Bower
CONTRACTOR
By:
Vice-Mayor .~-~
l~ C~.e2Y ~~ ~I~.s~e~~r
Name, Typed or~Pri~nted Name & Title, Typed or Printed
Date: ~~G~~'!~-~cJ °Z, , 2007 mu c- K I~1~~-e.~- -
Name of C pany, Corp., etc.
PU t3o-,c 3 3~ , 13 ~ ~ ~ bev c.,~o~rn b~ e ~d.
Mailing Address
N~~ G taso~~ . ~1~~A s~d~~A ~3aw sE3
City, State and Zip
C9ua)- ~Sa -Sla~l
Area Code/Telephone Number
SEAL
ATTEST:
City Clerk
Robert Parcher
ATTEST:
Signature
Name, Typed or Printed
Date: U/~~~r~-~~r ~ 02 , , 2007
7pr~s~ ~~GG1G.v~+SO/1, Fii~Gr'1 / F~l~~o P, ~f /~r-alyS~_
Name & Title, Typed or~~~~,ED AS TO
FORM & LANGUAGE
t~ FO ELUTION
14 ~~~Q7
Attome Date
S~AIE OF ~ ~~ ~ C ~•T) t~
COUNTY OF pi ~%f7J ~'
The foregoing instrument was acknowledged before me this ~ ~ day of
r~ 2007, by ~~- M ~ • C ~-~'~ wY and
9U . ~ , as the '~ ; ~ ~ ~ c2 ~3 i ~ ~ -'~ ~ and ~ UT .
(~ ~esffecti~eiy~ and on behalf of
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He/s~l~(t~y (is) (tee) personally known to me
(Type of Identification*)
as identification and (did) (fret) take an oath.
Q~
WITNESS my hand and official seal this ~~day of -~~1, , 2007.
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(SEAL) Signature of Person Taking Acknowledgment
~~ ~~ ~ ~- l-d~- Lt
Typ de Printed or Stamped Name of Person
I~~~'r ~ ~ Q l ~ti ~ Taking Acknowledgment
My Commission Ee~s:
/~~ ~~~.~~I ~~~~ ~
Title/Rank of Person Taking Acknowledgment
*Acceptable Form of ID pursuant to Florida Statute 117.05 (provided it is current or has been
issued within the past 5 years and bears a serial or other identifying number):
• a driver's license or non-driver's ID card issued by Florida or any other U.S. state or
U.S. territory;
• a U.S. passport or a foreign passport stamped by the U.S. Immigration and
Naturalization Service;
• a U.S. military ID card;
• a Canadian or Mexican driver's license issued by an official agency;
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• for an inmate in custody, an ID card issued by the Florida Department of Corrections;
• an ID card issued by the U.S. Immigration and Naturalization Service.
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EXHIBIT "A"
REQUEST FOR PROPOSALS NO. AND
ANY AMENDMENTS THERETO
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EXHIBIT "B"
CONTRACTOR'S
PROPOSAL AND ANY AMENDMENTS THERETO
is