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Res. No. 021-97-9992RESOLUTION NO.21-97-9992 A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF SOUTH MIAMI,FLORIDA,AUTHORIZING THE CITY MANAGER TO ENTER INTO A REVENUE GENERATING AGREEMENT WITH BENCH ADS MEDIA,INC.FOR INSTALLATION AND MAINTENANCE OF BUS STOP BENCHES AT BUS STOPS AND PARKS WITHIN THE CITY. WHEREAS,theprovision of busstopbenchesatcitybusstopsand parksisa convenience which enhances the quality oflifeof residents and visitors,and; WHEREAS,busstopbencheswith advertisements arepresently installed at several County thoroughfares inandaroundthecity,and; WHEREAS,theoption of providingbencheswithoutadvertisement displays forparksandother appropriate locations isofferedbythe firm proposedforthisagreement;and, WHEREAS,the agreement results in useful revenue totheCity without requiring any expenditures or commitment of resources;and, WHEREAS,thebus bench firm proposed has current agreements with many local governments in the South Florida region,including the cities of Miami,Miami Springs,Hialeah,Hollywood,Sunrise,and Metropolitan Dade County. NOWTHEREFORE,BEITRESOLVEDBYTHEMAYORAND CITY COMMISSION OF THE CITY OF SOUTH MIAMI,FLORIDA: Section1.TheCityManagerbe,andisherebyauthorizedtoenter intoan agreement withBenchAds Media,Inc.for installation and maintenance of busbenchesatCitybusstopsandparks. Page 2 of Res.#21-97-9992 Section 2.The above referenced agreement is similar to those in placeatthe municipalities listedabove,andshall guarantee theCity minimumannual revenues rangingfrom $6,075.00 thefirst year to $7,920.00 thefifthandlastyear. Note:Revenues are based on the installation of a minimum 90 benches with advertisement. Additional annual revenues,basedonnetaddisplayrevenuestothe contractor,are estimaled to rangebetween$8,200to$15,500.ThesefiguresaresummarizedinExhibitAoftheattached contract. Section 3.The above referenced agreement shallbeforafive year periodwithanoptiontorenew,if mutually agreedtobybothparties,for additional five year periods. Section 4.That this resolution be effective immediately and after adoption thereof. PASSED AND ADOPTED this 18th day of February,1997 APPROVED: ^Ltc^Ls*'Wl&^pz^ VICE-MAYOR COMMISSION VOTE:4-0 ATTEST-i Vice Mayor Robaina:Yea Z/\0 Commissioner Price:Yea /)L4aJl*>sJGMs&lj Commissioner Bethel:Yea 77 Commissioner Young:Yea READ AND APPROVED AS TO FORM r1 City Attorney TO: FROM: CITY OF SOUTH MIAMI INTER-OFFICE MEMORANDUM Mavsrand Commission DATE:February 18,1997 L.Dennis Whitt /gfo^ City Manager RE:Agenda Item# Commission Meeting, February 18,1997 REVENUE GENERATING CONTRACT -INSTALLATION AND MAINTENANCE OF BUS STOP BENCHES The attached resolution seeks authorization to enter into a contract with Bench Ads Media,Inc.for the installation and maintenance ofbus benches on a city wide basis This firm already has agreements in place with many Dade and Broward County cities as well as Metro-Dade,These type of benches are seen all over bus routes in unincorporated Dade,various municipalities,and along thoroughfares within our city which are under Metro-Dade jurisdiction.. The proposed contract calls for placement of bus benches with advertisement displays at 90 bus stop locations across the city (Attachment 1).The City will realize a two-fold benefit from this agreement.First,residents and visitors will enjoy the convenience of benches at bus stops and parks,Secondly,the contract provides for a set payment to the City for each bench installed,in addition to a percentage of the net monthly revenue realized by the contractor.Both the flat payment per bench and the percentage figure increase after the first year of the agreement. These benches will generate aguaranteed revenue to $6,075.00 to the City the first year and up to $7,920.00 the fifth year.However,it is estimated that the total figure will approach twice these amounts due to the percentage of net sales due to the City.For instance,the projected revenue to the City for the first year is $14,328.00.Attachment 2 shows the payment structure and the projected revenues to the City. Under the terms of the attached contract,several important issues are addressed.The City must approve any and all additional locations beyond those originally agreed to in \continued.. MAYORANDCOMMISSION PAGE TWO FEBRUARY 18,1997 Attachment 1 Note that this list excludes benches without advertisement displays to be placed in parks and other non-bus route points.These benches will be installed at the uty s request;however,no revenue will be derived from them.The type of advertisement displayed on the bus stop benches are strictly restricted by the contractObjectionablematter"shall be prohibited in the displays.These include liquor and tobacco ads,ads for massage parlors,adult theater,pornographic items.Beyond these the City retains the right to determine what is objectionable matter.All benches will conform to American with Disabilities Act (ADA)standards.Litter and other debris will be removed from the bench area by the contractor once per week. In summary,this contract will not require any expenditure by the City,while resulting in guaranteed annual revenues and estimated five year total revenues of $96 000 The benches will serve to enhance the quality of life for our residents and visitors.'The terms ot the agreement are flexible and give the City control over bench placement.I therefore recommend to the Commission that authorization be granted to execute the contract. Attachments V lFEB.ll.199 5:51Pf^HBBUS OPERATIONS DIV ATTACHMENT, pag*159 Dates Jan.27*1997 MDTA Dus Stop Inventory Miami 1.OOO0 SW 57 AV/SW 50 ST 3.0000 SW 57 AV/SW ^S ST -4.0000 SU 57 AV/SU 63 ST 5,0000 SU S7 AV/US 1 5-O10O SU 57 AV/SAN REMO AV 6.0000 SU 57 AV/SU 74 TE 7.0000 SU 57 AV/SU 77 TE 8.OO0O SW 57 AV/SU 80'ST 9.OOO0 SU 57 AV/SU S3 ST 10.0000 SU 57 AV/SU SB ST 12.0100 SW 59 FL/SW 64 ST 13.0000 SU 59 FL/SW 67 St 14.0000 SU 59 FL/SW 69 ST 15.0000 SU 59 FL/SW 71 ST 17.0000 SU 59 FL/SW 69 ST 16.0000 SU 59 FL/SU 68 ST 19.0000 SU 59 FL/SU SA ST 19.0100 SU 69 PL/SW 64 ST 20.0100.SU 62 AV/SU 64 ST 22.0000 SU 6Z AV/SW 6S ST 22.0100 SW 62 AV/SW 70 ST 22-0300 SU 62 AV/SW 72 ST 23.OO00 SU 62 AV/SU 74 ST 24.0000 SW 62 AV/SW 74 ST 24.020O SW 62 AV/SU 70 ST 24.0300 SU 62 AV/SU 68 ST S4.0400 SW 62 AV/SU 64 ST 25.0000 SW 67 AV/SW 60 ST 26.0000 SW 67 AV/SW 69 TE 27.0000 SW 67 AV/#7000 28.0000 SW 67 AV/SW 72 ST 29.0000 SW 67 AV/SW 75 TE 30.0000 SW 67 AV/SW 77 TE 31.0000 SW 67 AV/SU SO ST 32.0000 SW 67 AV/SU SO ST 32*0100 SU 67 AV/SU 78 T£ 33.0000 SU 67 AV/SU 76 TE 34.0000 SU 67 AV/SW 74 ST 34.0100 SU A7 AV/SW 72 ST 35,0000 SU 67 AV/SW 69 TE 36.0000 SW 67 AV/SU 67 ST 37.0000 SU 67 AV/SU 65 TE 38.0000 SW 67 AV/SU 64 ST 39-0000 SW 67 AV/SU 62 TE P.1/2 S-Fs R. S-Ni R. S~Na R. S-Ni -*R- S-Ns R. E-Ni R. W-Ms R. EHMs Qf 1R.v S-Ni 72. S-N*72. S-Nt 72. S-Fs 72* S-Fi%72. S^-Fi 57. S-Nb 57. S-IM*57. S-Ns 57* S-Ns 57. 3-Ft 37. S-Na 37 n 48 »52. S-F*37.4S«52. S-NS 371 48 a BZ. N-Ni 37f 48 f 82. N-Fs 37f 481 52. N-Ni 37i 481 52. N-Ni 37.• S-Fi 37. S-N»37 a ^-Fi 371 52>ST;1 S-Ffi 52. S-Ff 52. hHF*52. N-Fi 37. N«F:37. N-Ni 37. 6-Ft 73. S-Fi 73 » S-Ft 73. S-F:73. S-Nfl 73. S-Ns 73. S-Ns 73. N-Fb 73. N-Nj 73. IM-Fa 73. N-Fi 73. N-Ff 73. N-F*73- N-Nfc 73. N-N*73. N-Nv 73. N-Ni 73- 02/11/9717:46 TX/RX X0.6819 P.001 "f 1V\A OUOOOJOOO^ FEB.11.1997 5:51PM bus OPERATIONS DIV ATTACHMENT 1 page 160 Batei Jan.271 1997 MDTA Bus Stop Inventory 40-OOOO SW 67 AV/SW 61 ST 40.O1OO SW 67 AV/SW 60 ST 41.0O0O SW 67 AV/SW 57 TE 42.OOOO SW 67 AV/SW 54 ST 42*0100 SW 67,AV/SW 52 TE 42.0300 SW 67 AV/SW 50 TE 42-0500 SW 67 AV/SW 43 ST 43.0000 US l/#6290 44.0000 US 1/SW 80 ST 47.OOOO SW 40 ST/SW 64 AV 47.010O SU 40 ST/SW 62 CT 48.OOOO SU 40 ST/SU 59 AV 50.0000 SU 40 ST/SW 57 AV 52.00O0 SU 56 ST/SU 65 AV 53.OOOO SU 56 ST/SU 64 AV 54.0006 SW 56 ST/SU 63 AV 55.OOOO SW-56 ST/SU 62 AV 158.OOOO SU 56 ST/SU 64 PL 68.0050 SW.56 ST/SU 67 AV 58.0100 SW 64 ST/SU 60 AV 58.0400 SU 64 ST/SU 60 AV 59.OOOO SU 66 ST/SW 58 PL 60.0100 SU 66 ST/SU 57 AV 60.99O0 SU 66 ST/SU 57 CT 61.0O00 SU AS ST/SU 57 PL 61.O100 SW ^6 ST/SU 58 AV 62.OOOO SU ^S ST/SU 59 AV 64.0000 SU 72 ST/SU 68 CT 65.0000 SU 72 ST/SU 67 AV 66.OOOO SW 72 ST/SW 64 CT 67.OO00 SW 72 ST/SW 62 PL 68.OOOO SW 72 ST/SW 61 CT 69.OOOO SW 72 ST/SW 59 AV 70.0000 SW 72 ST/SW 57 CT 72.0000 SW 72 ST/SW 58 CT 72«OlO0 SW 72 ST/SW 59 73.OOOO SU 72 ST/SU SZ 74.OOOO SU 72 ST/SU 63 CT 75.OOOO SW 72 ST/SW 65 AV 76.0000 SW 72 ST/SW 67 AV 77.OOOO SW 72 ST/SW 68 CT 78.OOOO SW 72 ST/SW 69 CT 79.OOOO SWSO ST/SW 68 AV 79„OlQ0 SW SO ST/SW 67 AV 79.0200 SW 80 ST/SW 69 AV 80.OOOO SOUTH MIAMI STA/5949 SW 72 ST PL AV i&J u u ,i P.2/2 N-F:73. N-Fs 73. N-Ni 73. M-Ne 73. N-Ns 73. N-Ni 73. N-Ni 73. S-Ns 52. S-N:52. E-Fs 40. E-Nt 40. E-Ft 40. E-Ni 40. E-F«56. E-Ft 5*. E-Ni 56. E-Nt 56. W-Ns 56. W-Ns 56. W-F«37. E-NJ 37. E-F*4©f 52. E-Wb 48,52. W-Ni 48*52. W-Ft 43.52. W-F«48 »52. W-F»48*52. E-Fa 72. E-F»72.. E-Ni 72. E-Mt 72. E-Fs 37 *52»57* E-Fs 37 »57»72, E-Fi 37 >57. W-F»37*57?72, W-F»37- W-Fe 72. W-Ns 72. W-Ni 72. W-Ni 72. W-Fs 72. W-Fs 72. W-Ne 52. W-Wt 52. W-Ns 52. T-Te 3TJ_4&52* 02/11/97 17:46 TX/RX NO.6819 P.002 *L ATTACHMENT 2 *The maximum number of bus and convenience benches to be installed shall be 90 at approved and agreeduponlocations. *Minimum Guaranteed Payment,see schedule,per installed bench,per annum with escalation. *Minimum Guaranteed is based upon the actual number ofbenches installed. *Additional revenue is based upon all boards being sold for each twelve month period of the contract.The percentage rates are First year at twelve (12%)percent,Second year thirteen (13 %)percent,Third year at Fourteen (14 %)percent,Fourth year at fifteen (15 %).Fifth year at sixteen (16 %)percent.The revenue calculation shall be on Net Collected Revenues per quarter, less the quarterly MGP. Based on the Full number of Benches (Payment based upon number of installed benches with advertising.) Year #Benches 90 90 90 90 90 Fee Per Bench $67.50 $72.50 $77.00 $82.50 $88.00 Annual Fee MGP + $6,075.00 $6,525.00 $6,930.00 $7,425.00 $7,920.00 + + + + Estimated 5year Revenue totheCity 13 Projected Additional Revenue $8,253.00 $10,810.00 $12,519.00 $13,972.00 $15,552.00 Projected Annual Gross Revenue $14,328.00 $17,335.00 $19,449.00 $21,397.00 $23,472.00 $95,981.00 4 ATTACHMENT2 'The maximum number ofbus and convenience benches ,o be installed shall be 90 at approved and agreeduponlocations. •Minimum Guaranteed Payment,see schedule,per installed bench,per annum with escaiation Mnumum Guaranteed is based upon the actual number of benches installed. «Additional revenue is based upon all boards being sold for each twelve month period of the contract.The percentage rates are Firs,year at twelve (12%)percent,Second year thirteen (,3 /•)percent,Thtrd year at Fourteen (14 %)percent,Fourth year at fifteen (15 %).Fifth year at sixteen (16 %)percent.The revenue calculation shall be on Net Collected Revenues per quarter less the quarterly MGP. Based on the Full number nfp..,.^. (Payment based upon number of installed benches with advertising.) Year #Benches Fee Per Renrh Annual Fee MGP + Projected Additional Revenue Projected Annual Gross 1 90 $67.50 $6,075.00 +$8,253.00 neveniie $14,328.00 2 90 $72.50 $6,525.00 +$10,810.00 $17,335.00 3 90 $77.00 $6,930.00 4-$12,519.00 $19,449.00 4 90 $82.50 $7,425.00 +$13,972.00 $21,397.00 5 90 $88.00 $7,920.00 +$15,552.00 $23,472.00 Estimated 5yearRevenuetothe City $95,981.00 ¥ ATTACHMENT 2 *The maximum number ofbus and convenience benches to be installed shall be 90 at approved and agreeduponlocations. *Minimum Guaranteed Payment,see schedule,per installed bench,per annum with escalation. *Minimum Guaranteed is based upon the actual number of benches installed. *Additional revenue is based upon all boards being sold for each twelve month period of the contract.The percentage rates are First year at twelve (12%)percent,Second year thirteen (13 %)percent,Third year at Fourteen (14 %)percent,Fourth year at fifteen (15 %).Fifth year at sixteen (16 %)percent.The revenue calculation shall be on Net Collected Revenues per quarter, less the quarterly MGP. Based onthe Full number of Benches (Payment based upon number of installed benches with advertising.) Year #Benches 1 2. 3 4 5 90 90 90 90 90 Fee Per Bench $67.50 $72.50 $77.00 $82.50 $88.00 Annual Fee MGP + Projected Additional Revenue $6,075.00+$8,253.00 $6,525.00+$10,810.00 $6,930:00+$12,519.00 $7,425.00 +$13,972.00 $7,920.00+$15,552.00 Estimated 5 year Revenue to the City 13 Projected Annual Gross Revenue $14,328.00 $17,335.00 $19,449.00 $21,397.00 $23,472.00 $95,981.00 V Proposal to Citv of South Miami From Bench Ads of Southwest Dade February 9,1997 ¥ Table of Contents PAGE Agreement /Purpose and Use /Installation 1 Installation /Construction and Design /Bench and Receptacle Maintenance 2 Bench and Receptacle Maintenance /Bench Advertising 3 Bench Advertising /Original Term and Renewal 4 Original Term and Renewal /Payments to City /Records,Accounts and Statements 5 Records,Accounts and Statements /Reports /Insurance 6 Insurance /Indemnification /Supervision /of Contractor Performance /Independent Contractor 7 Independent Contractor /Uncontrollable Circumstances ("Force Majure")8 Uncontrollable Circumstances ("Force Majure")/Assignment /Permits /Conformity to Law /9 Notices Notices /Default /Final Repository /Intent 10 Intent /Non-waiver /Indemnity Against Assets and Changes /Legislative Venue 11 Exhibit A 13 f AGREEMENT TfflS IS AN AGREEMENT,made and entered into this day of 1997, byandbetween: CITYOFSOUTH MIAMI,a municipal corporation of theStateof Florida,hereinafter referred toas "City"; AND BENCH ADS OF SOUTH WEST DADE INC.,a Florida Corporation, hereinafter referred to a "Contractor". The City Council of the CITY OF SOUTH MIAMI,by motion at its meeting of authorized the proper City officials to enter into this Agreement. In consideration ofthe Mutual promises,covenants and agreements,and other good and valuable consideration,the receipt and adequacy of which are hereby acknowledged,the parties agree as follows: 1.PURPOSE AND USE The Contractor shall have the non-exclusive right to furnish and maintain Bus and Convenience Benches with advertising,for the use of the public,at locations approved by the City Manager /orthe designated appointed City official.Additionally,the Contractor shall have the non-exclusive right to furnish and maintain public trash receptacles with advertising,at locations approved bythe aforementioned.All costs associated therewith shall be borne solely bythe Contractor and the City shall have no liability for any such costs. The proposed locations shall be public bus stops,parks,plazas,shopping centers,business zones,regional activity centers,school busstopsandinother similar areaswheretheyare needed for the accommodation and convenience of the public.All locations and bench installations must conform to federal,state and municipal law,ordinances,and rules and regulations. 2.INSTALLATIONS Permission mustbeobtained from theCity Manager orthe appointed designee priortothe installation of benches proposed tobe located on public property,and the Contractor shall obtain 1 H all necessary permits at its sole cost and expense.Bench installations must adhere to all federal, state and local laws,ordinances and regulations. The Contractor shall provide written consent from a property owner approving the installation ofa bench on the owner's property.Such written consent shall be submitted with the Contractor's application for permission from the City Manager or the appointed designee to install the bench. On or before March 31,1997,or thereabouts Contractor shall install a minimum 45 benches at those locations approved by the City.The City Manager or the appointed designee and Contractor may mutually agree upon additional or substitute bench locations as the need may arise. 3.CONSTRUCTION AND DESIGN (a)All benches shall be constructed oftop grade materials and shall be painted in agreed upon colors for the City.Each bench shall be identified with a number,the name of the Contractor and a local telephone number.The initial installation shall be of the conventional bus bench,however the contractor shall have the option to install it's new mono-pole bench during the term of the contract. (b)The parties acknowledge that certain sections of the City have unique charm and character and Contractor may propose the installation and use of a different bench design,type and construction more compatible to those areas.All requests by the Contractor for approval to deviate from the standard bench or mono -pole construction and design shall be made to the City Manager or the appropriate designee who will approve or reject such deviation in whole or in pan at his sole discretion,provided,however,that the City Manager may refer any request to the City Manager forits formal approval. 4.BENCH AND RECEPTACLE MAINTENANCE The Contractor shall,at his sole cost and expense,maintain all benches in good and serviceable condition during the entire term ofthis Agreement.The Contractor shall routinely monitor and inspect each bench location at least one time each week,andto remove anv trash found on or around the surrounding grounds area of the bench or receptacle,and to repair. 4 recondition or replace each bench found to be damaged or in disrepair.The Contractor shall maintain log book records of the inspections it provides,and these records shall be available for the review of appropriate City personnel. The Contractor shall have during working hours sufficient personnel to answer the phone for citizens who wish to call concerning benches.Alog of complaints about benches including the subject of the complaint and the action taken,shall be kept and made available upon City request. The City reserves the right periodically to inspect such benches to determine their condition.The Contractor shall replace or recondition,to the satisfaction of the City Manger or appointed designee any benches which the City Manager or appointed designee determines are no longer in good or serviceable condition.The style and construction of any replacement bench shall be the same as the bench replaced,unless prior approval is received as provided in Paragraph 3(a)and(b). In the event the City Manager or appointed designee shall determine thata bench should be repaired,replaced,or removed for noncompliance with this Agreement,he shall repair,replace or remove the bench within ten (10)working days of receipt of such notice. Inthe event the City Manager or appointed assignee determines thata bench constitutes a hazard to persons or property or seriously disrupts the public right of way,the contractor shall remove the bench no later than (3)working days from receipt of such notice.In the event the contractor fails to repair,replace or remove the bench within the above specified periods,the City Manager or appointed assignee shall have the right to repair,replace or remove the said bench atthe expense of thecontractor. 5.BENCH ADVERTISING The Contractor is authorized to sell advertising to be placed upon the benches only in the manner provided herein.Advenising of liquor,tobacco,massage parlors,adult book stores,adult theaters,adult escort services,pornographic,obscene or objectionable matters are prohibited. The determination of objectionable matter shall be at the sole discretion of the City Manager whose decision shallbefinal. V The advenising panel shall have a solid background with lettering composed ofnot more than two additional colors,plus any logo or trademark colors.Day-glow paints or any psychedelic painting is expressly prohibited.The advenising panel shall have a maximum size of twenty-four (24)inches by seventy two (72)inches and be constructed of masonite or plywood or other suitable materials approved by the City Manager or appointed assignee.All advertising including any illustrations,design,arrows,characters,numbers,letters and similar markings shall only be placed on the back ofthe bench and not on any other part ofthe bench.No more than (60%)of the area reserved for advertising shall have letters or numbers larger than (12)inches. An artificially lighted advertising panel is expressly prohibited.All request by the Contractor for approval to deviate from the standard advertising panel design and construction shall be made to the City Manager or appointed assignee who may approve or reject such deviation in whole or in pan at his sole discretion,provided,however,that the City Manager may refer any questions to the City Commission for its formal approval. 6.ORIGINAL TERM AND RENEWAL The initial term ofthis Agreement shall be for a period offive years from May 1,1997 through April 30,2002.Prior to the end of this term,the City Manager or appointed designee and Contractor may by mutual agreement renew this Agreement for additional periods offive years upon such terms and conditions as may be agreed to between the parties. The payments for subsequent terms shall be subject to negotiation between the parties for each extension term and shall reflect the current economic conditions in the City,number of benches proposed,and anticipated revenues from those benches for the extension term.The Contractor shall submit to the City its proposed adjustments to the payments at least ninety (90) days prior tothe expiration of the initial contact term,or the contract term then in effect. The City may,after examination,refuse to accept the proposed adjustments if thev are not properiy documented,increases are considered tobe insufficient,or decreases are considered to V be excessive.In the event the City does not wish to accept the adjusted annual payments,and the matter cannot be resolved to the satisfaction of the City,the City reserves the right to cancel the Agreement upon giving thirty (30)days advanced written notice tothe Contractor..After the elapse of such thirty (30)day period,the Agreement shall terminate and the Contractor shall have fifteen (15)days in which to remove all existing benches and receptacles that have been installed pursuanttothisAgreement. 1.PAYMENTS TO CITY: All payments required to be made by this Agreement be sent or personally delivered to the following address: City Treasurer CITY OF SOUTH MIAMI CityHall South Miami,Fl 33023 The Contractor shall pay the Guaranteed Minimum Annual Payment for bus and convenience benches as scheduled below in quarterly installments in advance of the quarter: See Exhibit A In addition tothe above payments.Contractor agrees topay City an annuai override based on Net Collected receipts from the sale of bench advenising pursuant to this Agreement,as follows: 8.RECORDS.ACCOUNTS.AND STATEMENTS Contractor shall keep ata location within Broward /Dade,Florida,approved by CITY,true,accurate,and complete records and accounts of all advenising sales,expenses,and other business being transacted under this Agreement throughout the term of the Agreement, including any option terms,and for three (3)years following its expiration or cancellation. V The contractor agrees to and shall give City or City's representative access during reasonable business hour upon three (3)business days'notice to examine and audit such records and accounts.Such records shall be maintained as an independent certified public accountant would need in order to examine the records pursuant to generally accepted auditing standards. Within sixty (60)days after each fiscal year,Contractor shall deliver to the City a written annual financial statement pertaining to their operations under this Agreement.Said statement shall be prepared in accordance with generally accepted auditing standards and shall be certified as true,accurate and complete by Contractor,by and through authorized independent Certified Public Accountant. 9.REPORTS The Contractor shall submit to the City a Quarterly report within (15)business days after the end ofeach Agreement quarter.Each report shall contain the following: (a)The location and date of installation of benches installed during the prior quarter. (b)The location and date ofremoval of benches removed during the prior quarter. (c)A listing of all benches located within the City,including bench identifying numbers and locations at the end of the prior quarter. (d)Application for permission to install benches during the upcoming quarter.The form of the application to be approved and provided by the Citv. All reports,including the annual financial statement,shall be sent to the City Manager or appointed designee.The form ofthe report to be developed by the Contractor is subject to the prior approval of the City Manager or appointed designee. 10.INSURANCE At all times during the term of this Agreement,the Contractor,at it's sole cost and ¥ expense,shall maintain in full force and effect,public liability insurance with coverage as follows: (a)Not less than one million dollars ($1,000.000)for death of,or injury to.any one personinanyone occurrence. (b)Not less than one million dollars ($1,000,000)for death of,or injury to,two or more persons inany one occurrence. (c)Not less than one million dollars ($1,000,000)property damage in any one occurrence. Certificates of such insurance shall be delivered to City prior to the beginning of any operations under the Agreement;such policies shall name CTTY OF SOUTH MTAMT as additional insured and shall provide that City's Risk Manager be given at least thirty (30)days advance written notice of cancellation or material modification. 11.INDEMNIFICATION The Contractor covenants and agrees to identify and hold the City harmless for any death ofor injury to persons or damage to or loss ofproperty which may occur as a result ofthe Contractor's performance under this Agreement.The Contractor also specifically agrees to defend the City in the event any claim is made against the City as result of any such death,injury or damage,and to pay all costs,judgments and fees,including attorney's fees,which may be incurred by the City as a result ofsuch a claims Ifcalled upon by City,the Contractor shall assume and defend not only itself but also City in connection with any suit or cause of action in connection with such claim,and such defense shall be at no cost or-expense whatsoever to City. 12.SUPERVISION OF CONTRACTOR PERFORMANCE The City Manager shall administer the Agreement for the City.The City Manager may delegate to other City staff all or a part ofthe supervision ofContractor's performance under this Agreement.The appropriate designee(s)shall be identified to the contractor. 13.INDEPENDENT CONTRACTOR The Contractor is an independent contractor under this Agreement.Personal services 7 * provided by the Contractor shall be by employees of the Contractor and subject to supervision by the Contractor,and not as officers,employees,or agents of the City.Personnel policies,tax responsibilities,social security,health insurance,employee benefits,purchasing policies and other similar administrative procedures applicable to goods and services rendered under this Agreement shall bethose of theContractor. It is the intent ofthe parties that the Contractor's principals or senior management personnel will be available for the entire initial contract term.Personnel of equal or higher qualifications say replace such personnel,subject to prior City Manager or appointed designee's approval,which shall not be unreasonably withheld.The City acknowledges that Contractor may subcontract all or part of its obligations under this Agreement.Substitution of subcontractors shall be done only with the prior written approval of the City Manager or appointed designee, which approval shall not be unreasonably withheld. 14.UNCONTROLLABLE CIRCUMSTANCES ("Force Majeure") The City and Contractor will be excused from the performance oftheir respective obligations under this Agreement when and to the extent that their performance is delayed or prevented by any circumstances beyond their control including,fire,flood,explosion,strikes or other labor disputes,act of God or public emergency,war,riot,civil commotion,malicious damage,act or omission of any governmental authority,delay or failure or shortage of any type of transportation,equipment,or service from a public utility needed for their performance,provided that: (a)The non performing party gives the other party prompt written notice describing the particulars of the Force Majeure including,but not limited to,the nature of the occurrence and its expected duration,and continues to furnish timely reports with respect thereto during the period ofthe Force Majeure; (b)The excuse of performance is of no greater scope and of no longer duration than is required bythe Force Majeure: (c)No obligations of either party that arose before the Force Majeure causing the excuse of performance are excused asa result of the Force Majeure:and 8 4 (d)The non performing party uses its best efforts to remedy its inability to perform. Notwithstanding the above,performance shall not excused for a period in excess oftwo (2) months,provided extenuating circumstances,the City may excuse performance for a longer term. Economic hardship of the Contractor will not constitute Force Majeure.The term ofthe Agreement shall be extended by a period equal to that during which either party's performance is suspended under this provision ofthe Agreement. 15.ASSIGNMENT Neither this Agreement,nor any portion thereof unless otherwise authorized herein,shall be assigned without the formal consent ofthe City Manager or appointed designee.No such approval will be construed as making the City a party ofor to such assignment,or subjecting the City to liability of any kind to any assignee even if subcontracting is authorized herein.No subcontracting agreement shall,under any Circumstances,relieve the Contractor of any liability or obligation under this Agreement. 16.PERMITS Contractor shall have the sole responsibility,at its sole cost and expense,to secure all necessary,Dade County,Stateand Federal licenses and permits forthe installation ofthe benches. 17.CONFORMITY TO LAW Contractor shall comply with all applicable laws,ordinances,regulations,and orders of Federal,State,County and municipal authorities pertaining to Contractor's performance under this Agreement.The Contractor covenants and agrees that there will be no discrimination asto race, color,creed or national origin in the Contractor's performance of the Agreement. 18.NOTICES All notices required by law and by this Agreement to be given by one party to the other shall be in writing and sent by certified mail,return receipt requested to the parties at the following addresses: ¥ City:City Manager CITYOFSOUTHMIAMICity Hall South Miami,Florida Contractor:BENCHADSOFSOUTHDADEINC. 475 E.Okeechobee Road Hialeah,Fl 33010 orto such other addresses asthe parties may by writing tothe other designate. 19.DEFAULT In the event ofthe breach of any ofthe covenants ofthe Agreement by the Contractor, and such breach is not cured or corrected within thirty (30)days after receipt of written notice of the breach,then the City shall have the right to terminate this Agreement at the expiration of the thirty (30)day notice. 20.FINAL REPOSITORY The parties mutually represent and warrant to each other that this Agreement,consisting of paragraphs 1 through 24,inclusive,constitutes the final repository of the parties on its subject matter and may notbe changed,modified,discharged or extended except by written instrument duly executed by the parties.The parties agree that no previous representations or warranties shall be binding upon either party nor has the execution of this Agreement been induced onthe partof any party except as expressed in writing in this Agreement. 21.INTEREST All delinquent payments tothe City shall bear interest attherate equivalent tothe periodic composite of current annual interest rateson five (5)year United States Government agency issues in effect asofthe date of delinquency,but not less than tenper cent (10%)per annum. Such interest shall be calculated from thedue date,exclusive of any grace period,tothedateof payment,onadailybasis,andwillbedueandpayablewhen billed. 22.NONWAIVER Failure oftheCitytoinsistuponthestrictperformance of any of thecovenants,conditions and agreements ofthis Agreement inanyoneormore instances,shall notbeconstruedasa 10 f waiver or relinquishment in the future of any such covenants,conditions and agreements. 23.INDEMNITY AGAINST COSTS AND CHARGES In the event of any litigation concerning this Agreement,the prevailing party shall be entitled to recover from the losing party all reasonable costs and attorneys'fees through all appeals. 24.LITIGATION VENUE The parties waive the privilege of venue and agree that all litigation between them in the state courts shall take place inDade County,Florida,andthat all litigation between theninthe federal courts shall take place in the Southern District in and fortheStateof Florida. 11 v IN WITNESS OF THE FOREGOING,the parties have set their hands and seals the day and year first written above. CITY WITNESSES: CITY OF SOUTH MIAMI (CORPORATE SEAL) WITNESSES: (CORPORATE SEAL) By: Bv: ATTEST: CityClerk Approved astoform: City Attorney CONTRACTOR By: ATTEST: H Exhibit A: *The maximum number ofbus and convenience benches to be installed shall be 90 at approved and agreeduponlocations. *Minimum Guaranteed Payment,see schedule,per installed bench,per annum with escalation. *Minimum Guaranteed is based upon the actual number of benches installed. *Additional revenue is based upon all boards being sold for each twelve month period of the contract.The percentage rates are First year at twelve (12%)percent,Second year thirteen (13 %)percent.Third year at Fourteen (14 %)percent,Fourth year at fifteen (15 %).Fifth year at sixteen (16 %)percent.The revenue calculation shall be on Net Collected Revenues per quarter, less the quarterly MGP. Based on the Full number of Benches (Payment based uponnumberof installed benches with advertising.) Year #Benches Fee Per Bench Annual Fee MGP + Projected Additional Revenue Projected Annual Gross Revenue 1 90 $67.50 $6,075.00 +$8,253.00 $14,328.00 2 90 $72.50 $6,525.00 +$10,810.00 $17,335.00 •> j 90 $77.00 $6,930.00 $12,519.00 $19,449.00 4 90 S 82.50 $7.425.00 $13,972.00 S 21,397.00 5 90 $88.00 $7,920.00 $15.552.00 S 23.472.00 Estimated 5 year Revenue to the City $95,981.00 13 ¥