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2001-24346 RESO RESOLUTION NO. 2001-24346 A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT WITH ADSHEL, INC., PURSUANT TO REQUEST FOR PROPOSALS (RFP) NUMBER 112-99/00, TO CONSTRUCT, OPERATE AND MAINTAIN DIRECTORY STRUCTURES IN THE LINCOLN ROAD AREA, PROVIDING DIRECTORY INFORMATION, LOCATION MAPS, AND OFFERING ADVERTISING SPACE FOR COMMERCIAL USE; AND FABRICATE AND INSTALL STREET SIGNS AND BLOCK NUMBER SIGNS AT INTERSECTIONS ALONG LINCOLN ROAD. WHEREAS, the City issued a Request for Proposals (RFP) No. 112-99/00, to construct, operate and maintain a minimum often (10) directory structures in the Lincoln Road area, providing directory information, location maps, and offering advertising space for commercial use; and fabricate and install street signs and block number signs at ten(1 0) intersections along Lincoln Road; and WHEREAS, an Evaluation Committee recommended by the City Manager and approved by the Mayor and City Commission met on March 24, 2000, and recommended that the two proposers . be invited for oral presentations before the Committee; and WHEREAS, the Committee unanimously found the most qualified proposer to be Adshel, Inc. and the second most qualified to be InfInity Outdoor; and the Evaluation Committee heard oral presentations on July 12, 2000, and unanimously voted to recommend negotiations with the top- ranked firm, and the second-ranked fIrm should an agreement not be made with the top-ranked firm for this contract; and WHEREAS, the City Manager has reviewed the responses and the recommendation of the Evaluation Committee, and concurs with its recommendation; and WHEREAS, on July 26, 2000, the Mayor and City Commission accepted the recommendation of the City Manager, and authorized the Administration, in coordination with Lincoln Road Marketing, Inc., to enter into negotiations with the top-ranked firm of Adshel, Inc. NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City Commission herein authorize the Mayor and City Clerk to execute a Professional Services Agreement with Adshel, Inc., pursuant to Request for Proposals (RFP) Number 112-99/00, to construct, operate and maintain directory structures in the Lincoln Road area, providing directory information, location maps, and offering advertising space for commercial use; and fabricate and install street signs and block number signs at intersections along Lincoln Road_ ATTEST: PASSED and ADOPTED this 18th day of April, 2001. APPROVED p.s TO FORM & LANGUAGE & FOR EXECUTION f/j MAYOR T:\AGENDA\2001\APRI80 I IREGULARII12-9900.J/J . CITY OF MIAMI BEACH CITY HALL 1700 CONVENTION CENTER DRIVE MIAMI BEACH, FLORIDA 33139 http:\\ci.miami-beach.fl.us TO: FROM: SUBJECT: COMMISSION MEMORANDUM NO. '2.:~~ -0 \ Mayor Neisen O. Kasdin and DATE: April 18, 2001 Members of the City Commission Jorge M. Gonzalez ,,, "r/ City Manager UW"f) A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE A PROFESSIONAL SERVICES AGREEMENT WITH ADSHEL, INC., PURSUANT TO REQUEST FOR PROPOSALS (RFP) NUMBER 112-99/00, TO CONSTRUCT, OPERATE AND MAINTAIN DIRECTORY STRUCTURES IN THE LINCOLN ROAD AREA, PROVIDING DIRECTORY INFORMATION, LOCATION MAPS, AND OFFERING ADVERTISING SPACE FOR COMMERCIAL USE, AND FABRICATE AND INSTALL STREET SIGNS AND BLOCK NUMBER SIGNS AT INTERSECTIONS ALONG LINCOLN ROAD. ADMINISTRATION RECOMMENDATION: Adopt the Resolution. ANALYSIS: The directory structures ("directories") are an important missing element for all the businesses on Lincoln Road. They are particularly vital to the small business retailers. The directories will provide a major service to tourists, visitors and residents by informing them of where businesses are located, a calendar of events, and free panels of advertisement to promote the cultural activities of Miami Beach. The directories will contain a map of the area, a listing of local merchants keyed to locations on the map, which will be required to be corrected and updated frequently, along with a maximum space for two advertising posters, which may be used for commercial purposes. In addition to the directories' informational and way-finding components, this project will also attract both national and local advertisers who want a premiere venue for marketing their products. The design concepts and color themes will be approved by the City, after receiving input from Lincoln Road Marketing, Inc., (LRMI) and will comply with all pertinent building and design codes. AGENDAITEM~ DATE 4--\% -OJ T:IAGENDA \200 llAPR180I IREGULAR\112-9900. WPD RFP No. 112-99/00 April 18, 2001 Page 2 The world renowned architectural firm, Arquitectonica, will be designing the directory kiosks which will be brought through the City's established Design Review process. On March 13,2000, the Land Use and Development Committee met and requested information regarding the cost of construction, installation, maintenance and upkeep as well as revenue sources projected from general advertising or local funding. At the Special Meeting ofthe Land Use and Development Committee held on March 20, 2000, the Committee unanimously supported the issuance of an RFP with the accepted caveats and urged expedience since the business community of Lincoln Road had been waiting for far too long. On June 28, 2000, the City Commission authorized (Commission Memo No. 491-00) the issuance of a Request for Proposals (RFP) to select a firm to construct, operate and maintain a minimum of 10 directory structures in the Lincoln Road area, providing directory information, location maps, and offering advertising space for commercial use, and fabricate and install street and block number signs at intersections along Lincoln Road to identify cross streets and missing block numbers. On July 12, 2000, the Evaluation Committee (the Committee) met to review proposals received from Adshel and Infinity Outdoor. The Committee consisted of the following individuals: Ronnie Singer William Cary Gary Knight Michael Comras Jeff Bechdel Carl Hastings Robert Warren Executive Assistant to the City Manager Director, Design, Preservation & Neighborhood Planning Division Executive Director, Artcenter/South Florida President, The Comras Company Vice President, Miami Beach Chamber of Commerce Project Manager Lincoln Road Marketing, Inc. On July 12,2000, representatives from Adshel and Infinity Outdoor presented proposed rates and options, and made oral presentations relative to their approach and methodology, their proposed project team, their proposed rates, and the various design options. The Committee unanimously determined the most qualified firm to be Adshel, second most qualified to be Infinity. The Committee's recommendation was provided to the City Manager for his consideration. In accordance with the terms of the RFP, the City Manager reviewed the Evaluation Committee's recommendation and concurred with its ranking of responses retumed. On July 26, 2000, the Mayor and City Commission accepted the recommendation of the City Manager, and authorized the Administration, to enter into negotiations with the top-ranked firm of Adshel. A summary of the terms of that Agreement follows: T:IAGENDA \2001 IAPRI80 I IREGULARII 12-9900_WPD RFP No. lJ2-99/00 April 18, 2001 Page j 1. The attached Agreement shall be for a term offive (5) years, commencing April 19, 2001 and terminating on April 19, 2006, unless earlier terminated as provided in the Agreement. The Agreement shall automatically renew for not more than five (5) additional terms of one (1) year each, commencing the 19th day of April for each year from 2006 to 2011 unless the City, in its sole discretion should elect not to renew the Agreement and notifies Company of such non-renewal by providing 120 days written notice prior to the expiration of the renewal term. (Attachment A shows the financial retum to the City) The following is a comparison of other markets' negotiated agreements with Adshel: 2. Adshel will provide: Two, 4-sided structures to be located at the intersection of Lincoln RoadlWashington Avenue and Lincoln Road! Alton Road Eight, 2-sided structures to be located on Lincoln Road at the head of each street beginning at Collins Avenue and ending at Lenox Avenue All 2-sided signs may be designed to accommodate an additional 2-sided panel should additional advertising be desired. This will produce a total of24 sign faces broken down as follows: 10 directories 2 Welcome to Lincoln Road 3 cultural calendars 9 ads to be sold for limited commercial use 10 street signs with block numbers located from Collins to Alton will also be fabricated and installed. 3. Advertisin~ Rates A. Lincoln Road businesses B. Commercial (non-Lincoln Road) C. Non-Profit Cultural Agencies $600/month. $850/month. 10% of inventories will be free of charge 4. Adshel will provide their own electric services, if required, or pay the costs of connection and usage to City power sources. 5. Obtain all required permits, and obey all laws and regulations. 6. Place an updated directory in each structure a minimum of six times per year. 7. Inspect and clean the interior and exterior surfaces as needed, but no less often than twice per month. 8. Provide status reports no less than quarterly, to the City. T:\AGENDA \2001 IAPRI 80 I IREGULAR\112-9900. WPD RFP No. J12-99/00 Apr/l18,2001 Page 4 9. Priority of assignment relative to advertisements will be to Lincoln Road merchants on an equal basis, at a designated date to respond. 10. No Lincoln Road merchant may at any time, request more than three (3) sign faces. 11. Provide the City upon request, with an accounting of all advertising revenues generated by the directory structures, certified by an independent Certified Public Accountant (CPA). 12. Fabricate and install street signs and block number signs at ten (10) intersections along Lincoln Road, utilizing design themes and color schemes provided by the City. 13. Adshel will undertake every effort to sell its advertising space to advertisers located on Lincoln Road. 14. Adshel will make Miami Beach the first City in the United States to have a technologically advanced electronic information system. 15. Adshel will maintain an agreement with the Miami Firm Arquitectonica to design directory structures and street and block number signs. 16. Adshel will employ Miami Beach residents on a preferential basis. 17. Adshel will utilize local firms for the installation, illumination and glazing of the street furniture. 18. All structures will be cleaned on a weekly basis; update of informational component ofI+ Terminals is on-going; update of static directory/information maps six times a year or more often if needed. 19. Advertisements shall comply with all Federal, State, County and City rules, regulations and ordinances pertaining to billboards, signs, and outdoor advertisements. 20. Adshel shall maintain all directories and advertisements in good condition and repair and shall be solely responsible for the maintenance, cleaning, repair and replacement of the same and each part thereof. 21. In the event any directory or advertisement is damaged or defaced in any manner, Adshel shall, within three (3) days of notification of such damage or defacement, remedy the damage or defacement at no cost to City. 22. All work, supplies and/or materials including any modifications thereto which may be performed or provided by Adshel pursuant to the attached agreement shall be Guaranteed/Warranted for the full term of the Agreement. T:\AGENDA \2001 IAPRI80 IIREGULARII 12-9900. WPD RFP No. 112-99/00 April1B, 2001 Page 5 23. Adshel shall, at its sole expense, fully indemnify, defend and hold harmless the City, and in their capacity as such, the officers, agents and employees thereof, from and against any and all claims, suits, actions, liability and judgments for damages: This project will provide attractive structures ofthe highest quality along with an uncompromising maintenance program that will serve the Lincoln Road business community and most importantly their audience, the residents of and visitors to the City of Miami Beach. Furthermore, Adshel will also provide and install street signs and block number signs at intersections along Lincoln Road. In doing so, visitors will be able to easily identify addresses which heretofore has been a source of frustration to both the business community and those seeking this information. CONCLUSION The Administration recommends the approval of the Professional Services Agreement with Adshel, Inc. and the adoption of the concomitant Resolution. JMG:thqL:lf~ Attactb~i}:s T:\AGENDA\2001 IAPRI gO llREGULARII I2-9900_WPD : . Agreement Between the City of Miami Beach. Florida and Adshel. Inc. to Construct. Operate and Maintain Directory Structures in the Lincoln Road Area. Provide Directory Information Location Maps. Offer Limited Advertisin2 Space for Commercial Use. and Fabricate and Install Street Si2ns and Block Numbers at Ten (10) Intersections Alon2 Lincoln Road. Pursuant to City of Miami Beach Request For Proposals No. 112-99/00 THIS AGREEMENT is made this JE.! day of April, 2001, by and between the CITY OF MIAMI BEACH, a municipal corporation of the State of Florida ("City"), and ADSHEL, INC., a New York Corporation, whose principal place of business is located at 780 Third Avenue, New York City, New York ("Contractor"). RECITALS WHEREAS, the Contractor is the successful proposer in response to City of Miami Beach Request for Proposals No. 112-99/00 entitled, "Construct, Operate and Maintain a Minimum of Ten (10) Directory Structures in the Lincoln Road Area, Providing Directory Information, Location Maps, and Offering Advertising Space for Commercial Use, and Fabricate and Install Street Signs and Block Numbers at Ten (10) Intersections along Lincoln Road"; and WHEREAS, accordingly, the City and Contractor have negotiated the foregoing Agreement wherein the City agrees to allow Contractor the exclusive right to install certain directory structures, location maps, street signs, and other signage, including signage offering limited advertising space for commercial use (collectively, the "Street Fumiture"). NOW, THEREFORE, in consideration of the mutual promises and agreements contained herein, and other good and valuable consideration, the sufficiency of which is hereby acknowledged, City and Contractor hereby agree as follows: SECTION 1 LINCOLN ROAD DIRECTORIES PROGRAM/SCOPE OF SERVICES. AND SIGNAGE 1.1 Contractor shall erect, install, operate and maintain, at its sole cost and expense, and at no cost to the City, the Street Furniture set forth in Exhibit nAn, attached hereto and incorporated herein. 1.2 The Street Furniture set forth in Exhibit nAn, shall be erected, installed, operated, and maintained, in the locations identified in Exhibit nAn. Contractor shall not erect, install, operate, and maintain additional Street Furniture, nor identify additional or alternate locations for same, other than as identified in Exhibit nAn, without first obtaining the prior written authorization of the City. 1.3 The City acknowledges that Contractor may display limited commercial advertising material on the Street Fumiture (the Advertisements). Notwithstanding same, any Advertisements to be displayed on the Street Furniture set forth in Exhibit nAn and in this Agreement shall be approved, in writing, by the City prior to installation/display of same. Written permission shall be granted within five (5) days from submission. Additionally, any Advertisements displayed on the Street Fumiture shall comply with all Federal, State, Miami-Dade County, and City of Miami Beach laws, rules, regulations, ordinances, and codes, including, but not limited to, those pertaining to and/or related to 2 billboards, outdoor advertisements, and signage, as applicable. In addition, the construction, materials, content and appearance of any Advertisements to be installed on the Street Furniture shall comply with such other and future requirements as Federal, State, County, and City authorities may from time to time impose, including, but not limited to, public safety, zoning, building, and aesthetic requirements. Accordingly, any unauthorized Advertisements on Street Fumiture including, but not limited to, any Advertisements not approved by the City in the manner provided herein, or any Advertisements failing to comply with any applicable Federal, State, County, and City provisions, as set forth herein, shall and must be removed by Contractor, at its sole cost and expense, within forty-eight (48) hours from receipt of written notice from the City. In the event such Advertisements are not removed within said time period, the City may, at its sole option and discretion, terminate this Agreement for cause, without further notice to Contractor, and without liability to City. Additionally, the installation and display of the Advertisements shall also be subject to the requirements set forth in Exhibit nBn, attached hereto and incorporated herein. Contractor herein acknowledges that the City reserves the right to impose such additional requirements for the installation and display of the Advertisements, at anytime, at its sole option and discretion; provided that the City shall provide Contractor with written notice of such additional requirements and such requirements do not frustrate the purpose and intent of this Agreement. 1.4 All Street Furniture contemplated herein shall be handicap accessible and shall be erected, installed, and maintained by Contractor in accordance with all applicable Federal, State, and local laws and ordinances, including the Americans with Disabilities Act of 1990, as amended. 3 1.5 The Contractor shall provide, at its sole cost and expense, any and all design services including, but not limited to, architectural and engineering services, relative to the design of the Street Fumiture. This shall include, but not be limited to the following, as required by the City: preparation of schematic design documents consisting of drawings, site plans, elevations, samples as required to show the scale and relationship of the components and the design concept as a whole; and, based upon the schematic design documents, as approved by the City, design development documents which may consist of, but not be limited to, drawings, outline specifications and other documents, as necessary to fix and describe the size and character of the Street Furniture in terms of architectural, structural (if any), and electrical systems (if any), construction finish materials, and such other elements as may be appropriate. 1.6 With regard to the design of the Street Furniture, the Contractor, may be required to participate in a number of public presentations, workshops, community meetings, etc., as required for review and approval from regulatory bodies and, as also deemed necessary by the City, in its discretion, for community and public involvement; particularly with regard to approvals and recommendations made or requested from the Lincoln Road Marketing organization, or its successor organization. This shall also include meeting with the staff of the City's Planning Department to determine whether the Street Fumiture will require and, if so, assist Contractor in obtaining, Design Review and Historic Preservation Board approvals. 1. 7 With regard to design services to be provided by Contractor relative to the design of the Street Fumiture herein, the City acknowledges and herein approves the firm of Architectonica, Inc., as Contractor's design consultant. In the event that Contractor 4 does not utilize or otherwise terminates its relationship with Architectonica, 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, in the alternative, (ii) approve a replacement design consultant, as presented by Contractor to City, said approval to be at the sole option and discretion of the City. 1.8 The Contractor herein warrants and represents to the City that any architects utilized by Contractor herein shall be duly licensed and admitted to practice architecture in the State of Florida pursuant to Chapter 481, Florida Statutes, and additionally possess the requisite occupational licenses from the City and the County. Any and all engineers required herein shall be duly licensed and certified by the State of Florida to engage in the practice of engineering in this State. 1.9 The Contractor shall, at its sole cost and expense and at no cost to the City, construct or install, or cause to be constructed or installed, the Street Fumiture. Contractor shall be responsible for preparation of any and all plans and specifications for same, and shall be responsible for obtaining all govemmental approvals and permits prior to construction/installation. Contractor shall provide, or cause to be provided, a payment and performance bond (the Performance Bond) issued by a licensed surety transacting business in Florida and reasonably acceptable to the City, assuring completion of the Street Fumiture pursuant to the approved design(s), naming the City as co-obligee. Such bond shall be approved by the City and shall be in an amount equal to the cost of completion of the Street Fumiture. 1.10 Contractor shall commence, or cause to be commenced, construction and installation of the Street Fumiture, within ninety (90) days from the City's approval of the 5 design and issuance of permits of the Street Fumiture. Thereafter, Contractor shall diligently prosecute and complete construction of the Street Furniture no later than ninety (90) days after commencement of such construction. Upon execution of this Agreement by the parties hereto, Contractor shall provide the City with a Construction Schedule for the Street Furniture specifying commencement of construction; installation; specific milestones; timelines, etc.; through completion. Said Schedule, when completed, shall be attached and incorporated as an Exhibit to this Agreement. 1.11 In the event any notice or claim of lien shall be asserted against the interest of the City on account of or arising from any work done by or for Contractor, or any person claiming by, through or under Contractor, or for improvements or work, the cost of which is the responsibility of Contractor, Contractor agrees to have such notice or claim oflien cancelled and discharged within fifteen (15) days after notice to Contractor by City. In the event Contractor fails to do so, City may terminate this Agreement for cause without liability to City. 1.12 City shall not be liable for any claims, losses or damages suffered by third parties arising from Contractor's or its officers, agents, employees or contractors, construction and installation of the Street Furniture, unless caused by City's negligence. In addition to the preceding sentence, Contractor shall maintain, or require that its contractor(s) maintain, worker's compensation insurance in at least the minimum amounts required by law and shall provide to City a certificate evidencing such coverage. SECTION 2. TERM. This Agreement shall be for an initial term of five (5) years, commencing on April _, 2001, and terminating on April _, 2006, unless earlier terminated, as herein 6 provided. At the end of the initial term, this Agreement shall automatically renew for up to five (5) additional one (1) year terms; provided, however, that the City, at its sole option and discretion, may, after the initial five (5) year term, and prior to the conclusion of each one (1) year renewal term, elect not to renew the Agreement by notifying Contractor of its intent not to renew, in writing, 120 days prior to the expiration of the initial five (5) year term, or the expiration of each successive one (1) year renewal term, as the case may be. SECTION 3. MINIMUM ANNUAL GUARANTEE. 3.1 In addition to erecting, installing, operating, and maintaining, the Street Furniture contemplated by this Agreement, at its sole cost and expense, and at no cost to the City, Contractor shall also pay to the City, on a quarterly basis, a Minimum Annual Guarantee as follows: Year I: Year 2: Year 3: Year 4: Year 5: $1,300 per structure per year or 20% of the total Net Revenues, whichever is greater; $1,300 per structure per year or 25% of the total Net Revenues, whichever is greater; $1,300 per structure per year or 25% of the total Net Revenues, whichever is greater; $2,000 per structure per year or 28% of the total Net Revenues, whichever is greater; $2,000 per structure per year or 28% of the total Net Revenues, whichever is greater; and 7 Years 6 -10: $2,000 per structure per year or 30% of the total Net Revenues, whichever is greater, For purposes of this Section 3, Contractor's Net Revenues shall be defined as its Gross Revenues less only a fifteen percent (15%) deduction of gross revenue agency fee, which Contractor herein represents as the standard in the industry paid to a third party for selling costs. In the event that the industry standard is less than fifteen percent (15%), this Agreement shall be automatically amended to reflect such change (and the new percentage). The City shall receive each payment no later than the fifth day of the month succeeding the close of the quarter. The Contractor shall include with each payment, a statement of its advertising revenues from the sale of advertising, for the quarter applicable to the payment. Said statements shall be in a form acceptable to the City Manager or his designee. 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 twelve percent (12%) per annum, from the due date of payment until such time as payment is actually received by the City. It is also understood that any required Florida State Sales and Use Tax (es), as applicable, shall be added to the Minimum Annual Guarantee payments, as set forth above, and forwarded to the City as part of said payment. It is the City's intent that it is to receive the Minimum Annual Guarantees as net, free and clear of all costs and charges arising from or relating to Contractor's obligations pursuant to this Agreement. 3.2 The Contractor shall maintain current, accurate, and complete financial records on an accrual basis of accounting related to its activities pursuant to this 8 Agreement. 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 upon reasonable request. Such records and accounts shall include a breakdown of gross receipts, expenses, and profit and loss statements. Contractor shall maintain records as will be required by an independent CPA in order to audit a statement of annual gross receipts and profit and loss statements pursuant to generally accepted accounting principles. 3.3 Contractor shall maintain its financial records pertaining to its operations pursuant to this Agreement for a period of two (2) years after the conclusion of the term of this Agreement, including any renewal terms, as applicable. Contractor further agrees that such records shall be open and available to the City, as deemed necessary by the City. The City shall be entitled to audit Contractor's records pertaining to its operations pursuant to this Agreement as often as the City, at its sole option and discretion, deems necessary, including during the two (2) year period following the termination of this 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. Additionally, Contractor shall submit, at the end of each year during the term of this Agreement, including renewal terms, an audited annual report and a profit and loss statement of operations, in a form consistent with generally accepted accounting principles. 9 SECTION 4. MAINTENANCE. 4.1 Contractor shall maintain all Street Furniture and Advertisements in good operating condition and repair and shall be solely responsible for the maintenance, cleaning, repair, and replacement of the same and each part thereof. Contractor shall not permit or offer others to commit a nuisance in connection with the Street Fumiture or Advertisements. In the event any Street Fumiture or Advertisements is damaged or defaced in any manner, Contractor shall, within three (3) days of receipt of written notice from the City, remedy such damage or defacement, at its sole cost and expense and at no cost to City. In the event Contractor fails to complete said remedy in a timely manner, 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 (ii) remedy the damage or defacement and charge the actual cost thereof to Contractor. 4.2 In addition to the aforestated paragraph, the parties herein acknowledge, and Contractor herein agrees to be bound by and adhere to, those minimum maintenance standards, entitled "City of Miami Beach Minimum Maintenance Specifications for Street Furniture and Advertisements", attached hereto and incorporated herein as Exhibit ncn. It is further understood that Contractor shall provide the City with a monthly maintenance report, in a format approved by the City, that shall include, but not be limited to, maintenance, repair, and replacement, as applicable, of all Street Fumiture and Advertisements that are subject to this Agreement. SECTION 5. GUARANTEEIW ARRANTY. 5.1 All work, supplies and/or materials, including any modifications thereto, which may be performed or provided by Contractor pursuant to this Agreement, 10 including renewal terms, shall be guaranteed and expressly warranted throughout the term of this Agreement with respect to the use, description, design, merchantability, fitness for use for any particular purpose, condition and/or durability thereof. Such guarantees and/or express warrantees shall, at a minimum, include guarantees/warranties: a. Against all faulty or imperfect materials and/or equipment and against all imperfect, careless and/or unskilled workmanship; and b. Against injury or undue deterioration during proper and usual use of the goods and/or services. 5.2 In any such event described in Subsection 5.1 above, Contractor shall, upon seven (7) days written notice from the City: a. Remove and replace the defective materials, equipment and/or services with proper materials, equipment and/or services and re- execute, correct, and/or repair and replace, at its sole cost and expense, and at no cost to the City, any materials, equipment and/or services found to be improper, imperfect, defective, or failing to perform as specified; b. Make good all damage caused to other work, materials and/or equipment due to such required removal, replacement and/or re- execution; and c. Comply with any and all requirements of whatever nature referred to in other portions of this Agreement. 5.3 Contractor's failure to comply with the provisions of this Section 5, notwithstanding its failure to maintain the aforestated guarantees and/or warrantees, or, 11 failure to correct, repair and replace, upon written notice from the City, shall be considered a default of this Agreement and the City may terminate same without liability to the City. SECTION 6. INSURANCE. 6.1 The Contractor shall not commence any work 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. The Contractor shall maintain and carry in full force during the term of this Agreement the following insurance: a. Commercial General Liability. A policy including, but not limited to, comprehensive general liability bodily injury, personal injury, property damage, in the amount of a combined single limit of not less than $1,000,000.00. Coverage shall be provided on an occurrence basis. The City of Miami Beach shall be named as additional insured on the policy. Contractor shall provide a certificate of insurance evidencing required coverage. b. Advertisers' Liability (Errors and Omissions): a minimum of $1,000,000.00 per occurrence. c. Workers Compensation & Employers Liability as required pursuant to Florida statute. d. Thirty (30) days written notice of cancellation or substantial modification in the insurance coverage must be given to the City's Risk Manager by the Contractor and his insurance company. 12 e. The insurance must be furnished by insurance companies authorized to do business in the State of Florida and approved by the City's Risk Manager. f. Original certificates of insurance for the above coverage must be submitted to the City's Risk Manager for approval prior to any work commencing. These certificates will be kept on file in the office of the Risk Manager, 3rd Floor, City Hall. g. The Contractor is responsible for obtaining and submitting all insurance certificates for their consultants. 6.2 All insurance policies must be issued by companies authorized to do business under the laws of the State of Florida. The companies must be rated no less than nB+n as to management and not less than nClass VIn as to strength by the latest edition of Best's Insurance Guide, published by A.M. Best Company, Oldwick, New Jersey, or its equivalent, subject to the approval of the City's Risk Manager. 6.3 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, and 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 overage. SECTION 7. INDEMNIFICATION. In consideration ofa separate and specific consideration of$10.00 and other good and valuable consideration the receipt of which is hereby acknowledged, the Contractor hereby agrees to indemnify, defend and hold the City and its employees, agents and 13 authorized representatives harmless with respect to any and all costs, claims, damages and liability which may arise out of the performance of this Agreement: 1. For actual or alleged injury to persons or property (including loss of use of property whether or not such property is physically damaged or destroyed), in any way arising out of or through, or alleged to arise out of or through, any act or omission of Contractor, or any of its officers, agents, employees, or contractors, or to which any act or omission of Contractor or any of its officers, agents, employees or contractors in any way contributed in its performance of any part of this Agreement, but not as a result of the gross or willful negligence of the City, its agents or employees; or 2. for Contractor's, or any of its officers, agents, employees or contractors actual or alleged failure to comply with the provisions of any statute, regulation or ordinance of the United States, State of Florida, Miami-Dade County, City of Miami Beach or of any other agency applicable to Contractor, or any of its officers, agents, employees or contractors, in its business if the claim, suit, action, liability or judgment is related in any manner to the performance or nonperformance of this Agreement; or 3. for Contractor's, or any of its officers, agents, employees or contractors, actual or alleged failure to obtain any and all necessary 14 licenses, permission, copyrights, and authorization associated with the Advertisements. SECTION 8. NOTICE. All notices, certificates or other communications hereunder shall be sufficiently given and shall be deemed given when delivered or mailed by registered mail, postage pre-paid (or airmailed if addressed to an address outside of the city of dispatch). Until changed by notice in writing, all such notices and communications shall be addressed as follows: To Contractor: Adshel, Inc. Attn: Douglas Watts, President 780 Third Avenue, 3rd Floor N.Y., N.Y. 10017 Telephone: (212) 755-8282 To City: City of Miami Beach Attn: Jorge M. Gonzalez, City Manager 1700 Convention Center Drive Miami Beach, FL 33139 Telephone: (305) 673-7010 With Copies To: City of Miami Beach Attn: Murray H. Dubbin, City Attorney 1700 Convention Center Drive Miami Beach, FL 33139 Telephone: (305) 673-7470 Notices hereunder shall be effective: If delivered personally, on delivery; if mailed to an address in the city of dispatch, on the day following the date mailed; and if mailed to an address outside the city of dispatch on the seventh day following the date mailed. 15 SECTION 9. TERMINATION. 9.1 Termination for Bankruotcvllnsolvency. If either the City or Contractor shall be adjudged bankrupt or insolvent, or if any receiver or trustee of all or any part of the business property of either party shall be appointed, or if any receiver of all or any part of the business property shall be appointed and shall not be discharged within sixty (60) days after appointment, or if either party shall make an assignment of its property for the benefit of creditors, or shall file a voluntary petition in bankruptcy, or insolvency, or shall apply for reorganization or arrangement with its creditors under the bankruptcy or insolvency laws now in force or hereinafter enacted, Federal, State, or otherwise, or if such petitions shall be filed against either party and shall not be dismissed within sixty (60) days after such filing, then the other party may immediately, or at any time thereafter, and without further demand or notice, terminate this Agreement without being prejudiced as to any remedies which may be available to it for breach of contract. 9.2 Termination for Cause. In the event that Contractor or the City fails to perform or observe any of the covenants, terms or provisions under this Agreement and such failure continues fifteen (15) days after written notice thereof from the other party hereto, unless other subsections in this Agreement specifically denote shorter time periods, such non-defaulting party may immediately or at any time thereafter, and without further demand or notice, terminate this Agreement without being prejudiced as to any remedies which may be available to it for breach of contract. 9.3 Termination for Convenience. THE CITY, IN ADDITION TO THE RIGHTS AND OPTIONS TO TERMINATE FOR CAUSE, AS SET FORTH ABOVE, OR ANY OTHER PROVISIONS SET FORTH IN THIS AGREEMENT, RETAINS 16 THE RIGHT TO TERMINATE THIS AGREEMENT AT ITS SOLE OPTION, AT ANY TIME, FOR CONVENIENCE, WITHOUT CAUSE AND WITHOUT PENALTY, WHEN IN ITS SOLE DISCRETION IT DEEMS SUCH TERMINATION IS IN THE BEST INTEREST OF THE CITY, UPON NOTICE TO CONTRACTOR, IN WRITING, THIRTY (30) DAYS PRIOR TO TERMINATION. 9.4 In the event the City elects to terminate this Agreement pursuant to Subsections 9.1 through 9.3, respectively, Contractor shall, at its sole cost and expense, promptly remove all of the Street Fumiture and Advertisements and restore the public rights-of-way to their original condition, as provided in Section 10 herein. Notwithstanding the proceeding sentence, and this Section 9, Contractor shall have a continuing obligation to indemnify and hold the City harmless, as provided in Section 7, and to reimburse the City for any and all expenses incurred in remedying any default by Contractor. SECTION 10. REMOVAL BY CONTRACTOR OF STREET FURNITURE AND ADVERTISEMENTS UPON EXPIRATION AND/OR TERMINATION OF AGREEMENT. At the end of the term of this Agreement, or otherwise upon termination of this Agreement, Contractor shall, at its sole cost and expense and at no cost to the City, remove any and all Street Furniture and Advertisements erected or installed pursuant to this Agreement and, at its sole cost and expense and at no cost to the City, return the City's right-of-way and adjacent areas to their original condition prior to the installation of any Street Furniture and Advertisements. Contractor shall have thirty (30) days after the conclusion of the term of this Agreement, or from the date of other termination of this 17 -. Agreement, as the case may be, in which to remove all Street Fumiture and Advertisements, and return the right-of-way and adjacent areas to their original condition. SECTION 11. SUBSTITUTE PERFORMANCE. In the event that the Contractor fails to timely deliver any of the supplies, materials and/or equipment, or to properly perform any services, including the restoration of sidewalks, curbs and adjacent areas to their original condition, in accordance with the terms of the Agreement, then the City shall have the right to purchase, on such terms as it deems appropriate, any such supplies, materials, equipment, 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 12. ASSIGNMENT. Except as otherwise provided below, Contractor shall not assign all or any portion of its costs or obligations under this Agreement without the prior written consent of the City Manager or his designee, which shall not be unreasonably withheld. Contractor shall notify the City of any proposed assignment in writing, at least thirty (30) days prior to the proposed effective date of such assignment and City shall respond within thirty (30) days. In the event that any such assignment is approved by the City, the assignee shall agree to be bound by all the covenants of this Agreement required of Contractor. SECTION 13. PERFORMANCE BOND OR ALTERNATE SECURITY. In addition to the requirements of Subsection 1.9, Contractor shall, on or before the effective date of this Agreement, furnish to the City a Performance Bond in the penal sum as stated below for the payment of which Contractor shall bind itself for the faithful performance of the terms and conditions of this Agreement. A Performance Bond in the 18 amount of Twenty-Five Thousand and 00/100 Dollars ($25,000.00) shall be required and be in faithful observance of this Agreement throughout the term hereof, including renewal terms. A cash deposit, irrevocable letter of credit, or certificate of deposit may also suffice, as determined by the City in its discretion. The form of the Performance Bond or letter of credit shall be as required by the City. Contractor shall be so required to maintain said Performance Bond or alternate security, as accepted by City, in full force and effect throughout the term of this Agreement, including renewal terms. SECTION 14. INDEPENDENT CONTRACTOR. City and Contractor hereby acknowledge and agree that Contractor is an independent contractor, and not an employee, of the City. As an independent contractor Contractor shall be responsible for and shall remit directly to the appropriate authority any and all federal, state and local taxes due and payable on account of this Agreement. SECTION 15. OFFSET. In the event that the Contractor shall owe an obligation of any type whatsoever to the City at any time during the term of this Agreement or after termination of the relationship created hereunder, the City shall have the right to offset any amount so owned by the Contractor against any compensation due the Contractor from the City. SECTION 16. LAWS. 16.1 Comoliance. Contractor shall comply with all applicable City, County, State, and Federal ordinances, statutes, rules and regulations. Contractor shall also cause the Street Furniture to comply fully with Titles I, II, and III of the ADA and comparable Florida law (553.501 to 553.513 Florida Statutes in Chapter 760, Florida Statutes) and related regulations. 19 16.2 Governing Law. This Agreement shall be deemed to have been made and shall be construed and interpreted in accordance with the laws of the State of Florida. In case of any inconsistency between the terms of this Agreement and any applicable general or special law, said general or special law shall govern. 16.3 Equal Emolovment Oooortunity. Neither Contractor nor any affiliate of Contractor performing services hereunder, or pursuant hereto, will discriminate against any employee or applicant for employment because of race, creed, sex, color, national origin, disability (as defined in Title 1 of ADA), or sexual orientation. Contractor will take affirmative steps to utilize local firms (i.e. in the South Florida area) in the work force and in correlative business enterprises. Additionally, Contractor shall use its best efforts to, whenever possible, employ City of Miami Beach residents and/or local (i.e. South Florida) firms for the services to be provided pursuant to this Agreement, including installation of the Street Furniture. 16.4 Venue. 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 and all the terms or conditions herein, exclusive venue for the enforcement of same shall lie in Miami-Dade County, Florida. SECTION 17. MISCELLANEOUS. 17.1 Relationshio. Nothing contained in this Agreement shall constitute or be construed to be or create a partnership or joint venture between the City and Contractor. 17.2 Modifications. This Agreement cannot be changed or modified except by agreement in writing executed by all parties hereto. Contractor acknowledges that no modification to this Agreement may be agreed to by the City unless approved by 20 the Mayor and City Commission, except where such authority has been expressly provided herein to the City Manager or his designee. 17.3 Complete Agreement. This Agreement, together with all exhibits incorporated hereto, constitutes all the understandings and agreements of whatsoever nature or kind existing between the parties. 17.4 Request for Proposal No. 116-95/96, together with all amendments, and Contractor's proposal in response thereto (collectively, the Proposal Documents), are deemed as being incorporated by reference in this Agreement and made a part hereof; provided, however, that in the event of an express conflict between the Proposal Documents and this Agreement, this Agreement shall prevail. 17.5 The section and paragraph nHEADINGSn contained herein are for convenience of reference only and are not intended to define, limit, or describe the scope or intent of any provision of this Agreement. 17.6 Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. 17.7 Clauses. The illegality or invalidity of any term or any clause of this Agreement shall not affect the validity of the remainder of the Agreement, and the Agreement shall remain in full force and effect as if such illegal or invalid term or clause were not contained herein unless the elimination of such provision detrimentally reduces the consideration that either party is to receive under this Agreement or materially affects the continuing operation of this Agreement. 17.8 Severability. If any provision of this Agreement or any portion of such provision or the application thereof to any person or circumstance shall be held to be 21 invalid or unenforceable, or shall become a violation of any local, State, or Federal laws, then the same as so applied shall no longer be a part of this Agreement but the remainder of the Agreement, such provisions and the application thereof to other persons or circumstances, shall not be affected thereby and this Agreement as so modified shall. 17.9 Sub-consultants/Sub-contractors. When the term "Contractor" is used in this Agreement, it shall be deemed to include any subconsultants, subcontractors, and any other person or entity acting under the direction or control of Contractor. Any subconsultants or subcontractors retained by Contractor pursuant to this Agreement must receive the prior written approval of the City. SECTION 18. LIMITATION OF CITY'S LIABILITY FOR BREACH OF CONTRACT. The City desires to enter into this Agreement only if in so doing the City can place a limit on its liability for any cause of action for breach 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 a $10,000 limitation on recovery for any action for breach of contract. Accordingly, and in consideration of the separate consideration of $10.00, the receipt of which is hereby acknowledged, the City shall not be liable to Contractor for damages to Contractor in an amount in excess of $10,000, for any action 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 paragraph or elsewhere in this Agreement is in any way intended to be a waiver of limitation placed upon the City's liability as set forth in Florida Statutes, Section 768.28. 22 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed by their duly authorized representatives the day and year first above written: ATTEST: CITY OF MIAMI BEACH, FLORIDA ~p~ City Clerk By: 1fJ1 Mayor ADSHEL INC. By ~ I., f. ~"" \ Name: t)o~6c..As 8. I.ooOA tr:5 Title: ~S\J)&MT" ~nature r:'I / ~cMct"'6 C!'<.l9ro.!:o!:oQ Print Name f:\atto\agur\agreements\adshel.ful.agr .doc APPROVED AS TO FORM & LANGUAGE & FOR EXECUTION Al1i!!Jd!--/.y-M- O! . A1torMY~ ' Oats 23 EXHIBIT A ADSHEL WILL: Q' Provide and maintain Directory Structures and Street and Block Number Signs designed by world-renowned architect Laurinda Spear of Arquitectonica in collaboration with the City of Miami Beach in order to create the most desirable designs for the City of Miami Beach while assuring that these designs interact positively with the existing Lincoln Road streetscape. Provide a minimum of ten (10) Directory Structures to be installed in the Lincoln Road area. Two (2) 4-sided structuies to be located at the intersection of Lincoln Road/Washington A venue and Lincoln Road/Alton Road. Eight (8) 2-sided structures to be located on Lincoln Road at the head of each street beginning at Collins A venue and ending at Lenox Avenue. One face of the structure will carry locator map information for Lincoln Road, the other face will carry commercial advertising, of which three (3) full panels will be designated for public service advertising for use by non-profit cultural organizations. This will produce a total of24 sign faces broken down as follows: 10 directories of Lincoln Road businesses with locator maps 2 "Welcome to Lincoln Road" signs (1 on each 4-sided structure) 3 cultural calendars dispersed throughout advising of events, etc. 9 Ad faces (signs) to be sold for commercial use Q' Adshel's most important concern is that its designs for Directory Structures in the Lincoln Road area, interact with the existing streetscape. Q' Provide ten (10) Street and Block Number Signs to be installed at ten intersections of Lincoln Road from Collins A venue to Alton Road. Adshel will also fabricate and install same to ensure identification of cross streets and block numbers here to fore missing from Lincoln Road. T:\AGENDA \2001 IAPR 180 1 lREGULARII12-9900.EXH EXHIBIT B CAVEATS WITH REGARD TO ADVERTISING: Advertisin~ Rates A. Lincoln Road businesses B. Commercial (non-Lincoln Road) C. Not-for-Profit Cultural Calendars $600/month. $850/month. 3 ad faces will be free of charge as a public service ~ Adshel is confident that the advertising potential of the Miami Beach market will produce revenue substantial enough to meet the financial needs ofMiarni Beach's Directory Structure program. Adshel and their global outdoor advertising sales and marketing units have studied the local marketing potential and have developed a strategy for the Miami Beach program that will: ... Focus sales activities towards sales to local advertisers and Lincoln Road merchants. ... Make use of cutting-edge research methodologies. ... Maximize the use of their large national and international sales forces. ... Devise and implement flexible and varied advertising campaigns. ... Aggressively and creatively increase revenues to the City. ... Produce aesthetically pleasing directory structures and street and block number designs. ~ Adshel's Miami based advertising sales team consists often sales executives, who have a thorough understanding of the Miami Beach market place and whose priority will be the advertising sales to local customers. Q' Priority of assignment relative to advertisements will be to Lincoln Road merchants on an equal basis, with a designated cut-off date for approval prior to Adshel expanding is solicitations for advertisers. II? Adshel will undertake every effort to sell its advertising space to advertisers located on Lincoln Road. However, no Lincoln Road merchant may at any time, request more than three (3) sign faces. T:IAGENDAI2001IAPRI801IREGULARI112-9900.EXH II? Advertisements shall comply with all Federal, State, County and City rules, regulations and ordinances pertaining to billboards, signs, and outdoor advertisements. Q' Adshel's proposed design concepts by Arquitectonica meet the challenges of Miami Beach's pedestrian malls like Lincoln Road. Q' The structures will become a 'tool' used by residents and visitors on a daily basis and at the same time will be admired for their outstanding design which is so much part of Miami Beach's tradition in design excellence. or Suggested materials are powder-coated steel and concrete; all transparent components -like display panels-are made of safety glass, highly resistant to vandalism. Q' Display boxes are edge lit. This exclusive Adshel technology allows for very slim display panels while providing maximum illumination and using less energy than conventional lighting systems. All materials are American-made of the highest quality to insure durability. Q' The Street and Block Number Signs for Lincoln Road will display Lincoln Road and its cross streets as well as the block numbers. The pole has elliptical cutouts and the part for street and block number signage is curved, thus being less obtrusive and creating a perfect match to Lincoln Road's active life. Q' All designs are subject to City of Miami Beach Design Review Board process. T:\AGENDA\2001IAPRI801 IREGULAR\112-9900.EXH EXHIBIT C MINIMUM MAINTENANCE STANDARDS-ADSHEL WILL: ~ Use up-to-the minute technology, including hand-held computers that translate bar codes into maintenance records, Adshel continually cleans and checks every structure to be certain of maintaining the highest standards of cleanliness and pedestrian safety. Even the effects of the most unpredictable occurrences are kept to an absolute minimum by Adshel's careful and frequent attention to detail. Their unusually high standards are impressed upon their local employees so that they qualify as skilled professionals sharing the accumulated experience of hundreds of thousands offield service jobs performed each year. ~ Supervisors will check every structure every day to be certain that all work is being performed following their standards. Their on-site reports will be made available to the City of Miami Beach at any time through a dedicated website that is constantly being updated. In addition, Adshel will maintain a toll-free telephone line 24 hours a day to handle public inquiries and damage reports. Q' Place an updated directory in each structure a minimum of six times per year. Q' Inspect and clean the interior and exterior surfaces as needed, but no less often than once per week. Q' Adshel will maintain an agreement with the Miami Firm Arquitectonica to design directory structures and street and block number signs. Q' Update of static directory/information maps six times a year or more often if needed. or Adshel shall maintain all directories and advertisements in good condition and repair and shall be solely responsible for the maintenance, cleaning, repair and replacement of the same and each part thereof. Q' In the event any directory or advertisement is damaged or defaced in any manner, Adshel shall, within three (3) days of notification of such damage or defacement, remedy the damage or defacement at no cost to City. T:\AGENDAI2001\APRI801\REGULARII12-9900.EXH ATTACHMENT A CITY OF MIAMI BEACH LINCOLN ROAD - ADSHEL SIGNAGE Adshel will pay to the City on a quarterly basis for years I and 2 and thereafter at the beginning of each year; a Minimum Annual Guarantee (MAG) of$I,300 per structure per year for years 1-3 and thereafter, $2,000 per structure per year at beginning of each new year or a percentage of net revenue, whichever is greater on an escalating scale Year 1 Year 2 Year 3 Year 4 Year 5 Years 6-10 20% 25% 25% 28% 28% 30% T:\AGENDA\2001 IAPR180 lIREGULARIADSHEL.AT A TECHNICAL PROPOSAL "'-- :~,1;;>: .~ .:!I ~ a. II ! i ! ~8~ ;; ~ : I ;i; ~ . . ~ . ~ ~ ~ 8. '" 0; u .~ .'.~i~ /v- - .c.. ...... ....... = = ....... = -.:;:JO - ...... .= -- TECHNICAL PROPOSAL - .c.. ...... ....... = = ....... = -.:;:JO ...... .= ~ " ~ - . . - . "j !.~ ~ P ~.~ " . . . , . = . ~ Il ! i ~ ~ ! ! ~ ! 5 : is ~ ~ E --