HomeMy WebLinkAboutConcesson Agreement for South Pointe Park Washington Avenue Entrance French Market2.o2c,-3ti33S
Concession Agreement for
South Pointe Park Washington Avenue Entrance
French Market
INDEX
SECTION
TITLE
PAGE
1.
TERM..................................................................................................................4
2.
CONCESSION AREA..........................................................................................4
3.
USE(S)................................................................................................................5
3.1.1
Facilities Design.............................................................................................5
3.1.2
Placement of Facilities...................................................................................5
3.1.2.1
Compliance with American with Disabilities Act(ADA)...................................55
3.1.3
Set Up.......................................................................................................
3.1.4
Park...............................................................................................................6
3.3
Field Monitor (Intentionally Omitted)..............................................................7
3.4
Off -Duty Police (Intentionally Omitted............................................................7
3.5
Street Closure Permits (Intentionally Omitted)...............................................7
3.6
Parking (Bagging Parking Meters) (Intentionally Omitted) ..............................7
3.7
Vendor Selection / First Priority to Miami Beach Merchants...........................7
3.8
Removal of Concession Facilities..................................................................8
3.9
Hurricane Evacuation Plan.............................................................................8
3.10
City Occupational Licenses............................................................................8
4.
CONCESSION FEES............................................................................................8
4.1
Security Deposit (Intentionally Omitted) .......................... ...............................
a
4.2
Percentage of Gross (PG) vs. Minimum Guarantee (MG)
(Intentionally Omitted)....................................................................................8
4.3
Minimum Guarantee (MG) (Intentionally Omitted)..........................................8
4.4
Use of Electricity (Intentionally Omitted).........................................................8
4.5
Sales and Use Tax (Intentionally Omitted)....................................................8
5.
MAINTENANCE AND EXAMINATION OF RECORDS........................................8
6.
INSPECTION AND AUDIT.................................................... ......... ......................
8
7.
TAXES, ASSESSMENTS, AND UTILITIES.........................................................9
7.1.1
Electricity (Intentionally Omitted)....................................................................9
7.2
Ad Valorem Taxes.........................................................................................9
7.3
Utilities...........................................................................................................9
8.
EMPLOYEES AND INDEPENDENT CONTRACTORS.......................................9
9.
SCHEDULE OF OPERATION......................................................... I.................
10
9.1
Day(s) of Operation.......................................................................................
10
9.2
Operating Hours............................................................................................
10
10.
MAINTENANCE................................................................................................
10
10.2
Garbage Receptacles..................................................................................
10
10.3
Pressure Cleaning.......................................................................................
11
10.4
Compliance with CDC Guidelines...............................................................
11
10.5
Orderly Operation........................................................................................
11
10.6
No Dangerous Materials..............................................................................
11
10.7
Security....................................... ........ ...................... ...... ............
................. 11
10.8
Vehicles on Public Right -of -Way .................................................................
12
10.9
Inspection....................................................................................................
12
SECTION
TITLE
CASE
11.
INSURANCE.....................................................................................................
12
12.
INDEMNITY.......................................................................................................
13
13.
DEFAULT AND TERMINATION........................................................................
13
13.1
Bankruptcy...................................................................................................
14
13.2
Default in Payment......................................................................................
14
13.3
Non -Monetary Default..................................................................................14
13.4
City's Remedies for Concessionaire's Default ..............................................
14
13.6
Termination for Convenience/Partial Termination ........................................
15
13.7
Surrender of Concession Area.....................................................................
16
14.
PERFORMANCE BOND OR ALTERNATE SECURITY (Intentionally Omitted).
16
15.
ASSIGNMENT...................................................................................................
16
16.
SPECIAL EVENTS............................................................................................
17
16.2
City Special Events......................................................................................
17
17.
NO IMPROPER USE.........................................................................................
17
18.
PRICE SCHEDULES.........................................................................................
18
19.
NOTICES..........................................................................................................
18
20.
LAWS................................................................................................................
18
20.1
Compliance ..................................................................................................
18
20.2
Governing Law.............................................................................................
18
20.3
Equal Employment Opportunity ...................................................................
18
20.4
No Discrimination.........................................................................................
19
21.
FORCE MAJEURE...............................................................................
19
22.
CONCESSIONAIRE'S COMPLIANCE WITH FLORIDA PUBLIC RECORDS LAW 20
22.4
Request for Records. . ........... ........................................................... ....
21
22.5
Civil Action...........................................................................................
21
23.
PROHIBITIONS REGARDING SALE OR USE OF EXPANDED POLYSTYRENE
FOOD SERVICE ARTICLES..................................................................
22
24.
INSPECTOR GENERAL AUDIT RIGHTS.................................................23
25.
E-VERIFY..........................................................................................
24
26.
LIMITATION OF LIABILITY..............................................................................25
27.
VENUE..............................................................................................................
25
28.
CONFLICT OF INTEREST................................................................................
25
29.
COMPLIANCE WITH ANTI -HUMAN TRAFFICKING LAWS ..............................
25
30.
PROHIBITION ON CONTRACTING WITH A BUSINESS ENGAGING IN A
BOYCOTT.........................................................................................................
25
31.
PROHIBITION ON CONTRACTING WITH INDIVIDUAUENTITY
WHICH I4AS PERFORMED SERVICES FOR COMPENSATION TO A
CANDIDATE FOR CITY ELECTED OFFICE .....................................................
25
32.
PROHIBITION AGAINST CONTRACTING WITH FOREIGN COUNTRIES OF
CONCERN WHEN AN INDIVIDUAL'S PERSONAL IDENTIFYING
INFORMATION MAY BE ACCESSED...............................................................
26
33.
PEPSI AND RED BULL EXCLUSIVITY.............................................................
26
34.
MISCELLANEOUS............................................................................................
26
34.1
No Partnership.............................................................................................
26
34.2
Modifications................................................................................................
26
34.3
Complete Agreement...................................................................................
27
34.4
Headings.....................................................................................................
27
34.5
Binding Effect...............................................................................................
27
34.6
Clauses........................................................................................................
27
34.7
Severability..................................................................................................
27
34.8
Right of Entry ...............................................................................................
27
34.9
Not a Lease.................................................................................................
27
34.10
Signage.......................................................................................................
27
34.11
Use of Park/Right-of-Way ............................................................................
27
34.12
Conflict of Interest........................................................................................
28
34.13
Reasonableness..........................................................................................
28
34.14
Procedure for Approvals and/or Consents ...................................................
28
34.15
No Waiver....................................................................................................
28
34.16
No Third Party Beneficiary ...........................................................................
28
CONCESSION AGREEMENT
BETWEEN
CITY OF MIAMI BEACH, FLORIDA
AND
FRENCH AMERICAN ASSOCIATION OF CRAFTS & TRADES CORP.
FOR MANAGEMENT AND OPERATION OF THE
FRENCH MARKET
THIS CONCESSION AGREEMENT (this "Agreement') is made the day of
2026, with an effective date of April 6, 2025 ("Effective Date") between the CITY OF
MIAMI BEACH, a municipal corporation of the State of Florida (hereinafter called the "City"), having its
principal address at 1700 Convention Center Drive, Miami Beach, Florida, 33139, and FRENCH
AMERICAN ASSOCIATION OF CRAFTS & TRADES CORP., a Florida not -for -profit corporation, with
offices at 387 NE 16r Street, North Miami Beach, Florida 33162 (hereinafter called "Concessionaire").
WITNESSETH
WHEREAS, on March 19, 2025, the Mayor and City Commission adopted Resolution No. 2025-
33566, accepting the recommendation of the Public Safety and Neighborhood Quality of Life Committee
and authorizing the City Manager to negotiate and execute a Concession Agreement between the City and
Concessionaire for the management and operation of a French Market at the South Pointe Park,
Washington Avenue entry plaza, during a six -moth pilot program ("Pilot Program"), commencing on April
6, 2025, and waiving payment of concession fees to the City during the Pilot Program; and should the Pilot
Program prove to be successful, the City Commission of the City of Miami Beach ("City Commission") may
waive the formal competitive bidding requirements, as set forth in Section 2-367(e) of the City Code, and
approve an extended term with modified business terms.
NOW THEREFORE, in consideration of the premises and the mutual covenants and conditions
herein contained and othergood and valuable consideration, the receipt and adequacy ofwhich are hereby
conclusively acknowledged, it is agreed by the parties to incorporated as part of this Agreement the above
recital as true and correct, and further agree as follows:
SECTION 1. TERM.
This Agreement shall be for an initial term of six Months (6), commencing on April 6, 2025 (the
"Commencement Date") and ending on October 5. 2025. Further, as authorized pursuant to Resolution
No. 2025-33566, this Agreement may be extended further at the sole discretion of the City Commission
for subsequent renewal tenn(s) pursuant to a bid waiver, based upon modified business terms. The initial
term and any renewal terms approved by the City Commission shall be collectively referred to herein as
the "Term".
SECTION 2 CONCESSION AREA
The City hereby grants to the Concessionaire the exclusive right, during the Term of this Agreement, to
operate a concession for an open-air street market, as described herein, in the following area (hereinafter
referred to as the "Concession Area"):
2.1 South Pointe Park
Concessionaire shall also have the right to utilize the South Point Park ("Park") entrance
area at Washington Avenue, around the Mark Overton Fountains, as more particularly
depicted in Exhibit 2.1 ("Concession Area").
Notwithstanding the use of the Concession Area granted to Concessionaire above,
Concessionaire herein understands, agrees, and acknowledges that the Concession Area,
along with any and all other Park areas, including public right-of-way area(s) not specifically
identified herein, are public and, as such, must remain available for the use and enjoyment
of the general public whether or not the public chooses to purchase any of Concessionaire's
goods, or otherwise partake of any of the services it provides. In the event that a member
of the public is within a particular area of the Concession Area, Concessionaire agrees to
allow for his/her continued peaceful enjoyment of said area.
SECTION 3. USE(S).
The Concessionaire is hereby authorized to conduct the following kind(s) of business(es) within the
Concession Area, as provided below, all at its sole cost and expense:
3.1 Concessionaire shall operate and manage an open-air street market, commonly known and
referred to herein as the "French Market" (the "Market"), which shall provide a venue for
vendors to sell and/or provide the following: diverse selection of local and French artisans
offering handmade goods, including French pastries, jewelry and accessories and other
artisan products, as more particularly described in Exhibit 3.1, attached hereto and
incorporated into this Agreement.
3.1,1 Facilities Design:
The design, type, material, and color of any and all booths, tenants, tables, signs
and other facilities ("collectively, the "facilities") to be placed on the Concession Area
shall be approved in writing by the City's Planning Department prior to the
Commencement Date of this Agreement. A photo or photo(s) of City -approved
facilities is incorporated herein as Exhibit 3.1.1. Thereafter, Concessionaire shall
not change, alter, or modify said City -approved design, type, material and color of
any facilities without the prior written consent of the City Manager or City Manager's
designee, and, if so approved, an updated Exhibit 3.1.1 will be made a part of and
incorporated into this Agreement. As referenced in this Agreement, the City
Manager's designee shall be the Director of Parks and Recreation Department.
3.1.2 Placement of Facilities:
All respective facilities within the Concession Area shall be placed substantially in
accordance with an approved site plan, to be approved in writing by the City
Manager or City Manager's designee, which will be attached hereto and
incorporated herein as part of Exhibit 2.1. The maximum allowable tent Spaces is,
30, subject to change by City, at City's sole discretion. Concessionaire shall not
deviate from or alter the approved site plan without the prior written consent of the
City Manager or City Manager's designee.
3.1.2.1 Compliance with American with Disabilities Act (ADA) and any other
applicable accessibility standards:
Concessionaire agrees and acknowledges that during all periods when
its Market is in operation, including set-up and break -down periods, it
shall comply with ADA standards, Florida Accessibility Code standards,
and any other applicable accessibility standards required by law,
including the provisions of the City's "Special Events Disability Access
Punch List", attached hereto and incorporated as Exhibit 3.1.2.1 herein.
Concessionaire's compliance with the provisions set forth in the attached
Exhibit 3.1.2.1, includes, but shall not be limited to, any and all
responsibilities associated with "Event Producer" as described therein.
3.1.2.2 The Concessionaires responsibility to comply with the aforementioned
provisions in Subsection 3.1.2.1 include, but are not limited to, ensuring
that there is an accessible path of travel from the handicap designated
parking spaces and public transportation stops within the boundary of,
areas associated with, and entrances to South Pointe Park.
Concessionaire shall:
a. maintain accessible path(s) of travel that permit the unobstructed access
to the entryways of all buildings, facilities, elements and spaces along
the Park areas;
b. maintain an unobstructed accessible path of travel on both the east
sidewalk and the west sidewalk of the Park; and
c. maintain an unobstructed accessible path(s) of travel from the north
walkway to the south walkway of the Park.
3.1.2.3 Notwithstanding the above, Concessionaire's responsibility to comply
with the requirements of this Section 3.1.2.1 and Section 3.1.2.2 shall be
limited to those areas within the Concession Area as provided in Section
2.1 herein.
3.1.3 Set Uo:
The set up of facilities to be placed within the Concession Area, substantially in the
vicinity of the fountain area shall be in accordance with the days and hours of
operation in Section 9. Placement of vendor facilities shall be in accordance with
and shall not exceed the maximum number of 30 (10' x 10") tent spaces.
3.1.4 Park:
The City and Concessionaire agree and acknowledge that the public's use of the
Park is a prime consideration and must be balanced accordingly with
Concessionaire's proposed operations, as set forth herein. Accordingly,
notwithstanding the site plans and maximum numbers (as provided for in the Set Up
period) set forth in Subsection 3.1.3, Concessionaire further agrees that,
notwithstanding its right to set up its maximum numbers, it will not alter or modify its
site plans without the prior written consent of the City Manager or his designee.
Notwithstanding the preceding paragraph, City and Concessionaire may, from time
to time, meet to review and, subject to City's prior written consent, revise the
maximum numbers (as provided for in the Set -Up period) set forth in Subsection
3.1.3.
3.1.5 The condition and quality of Concessionaire's facilities shall at all times be
maintained in a manner that is consistent with the condition and quality of similar
facilities in first class open air markets located in other world class areas. It is the
City's intent, and Concessionaire hereby agrees and acknowledges same, to
develop and promote word class open air street marketfacilities and operations that
would be comparable to those found in other word class public areas. Accordingly,
Concessionaire shall not only, at a minimum, ensure that all facilities placed within
the Concession Area are well maintained and in usable condition, but shall adhere,
as indicated in this Subsection, to high ongoing maintenance standards for same
consistent with the aforementioned condition and quality.
3.1.6 Quality of goods and services offered will be first-rate and comparable to that
available in open air markets in otherword class areas on par with the City of Miami
Beach or, at a minimum, to the quality and pricing of goods and services provided
by privately owned businesses selling like goods and services within the City of
Miami Beach.
3.1.7 In addition to Concessionaire's general maintenance obligations for the Concession
Area, as set forth in Section 10 hereof, all portions of the Concession Area shall at
all times be maintained in a clean and sanitary manner.
3.1.8 The concession operations shall be offered to patrons at all times during the days
and hours of operation set forth in Section 9 herein. However, if the City, at its sole
discretion, deems that there is a decrease in demand for the concession operations,
or if the Concessionaire provides the City with written notice that it is desirous of
reducing its hours of operation, (i) the City shall provide Concessionaire with a
minimum of two (2) weeks prior written notice, requesting the specific decrease in
Concessionaire's operation, or (ii) Concessionaire shall provide the City with, at
minimum, two weeks prior written notice, requesting to reduce said hours, for the
City's written approval prior to implementing said schedule of reduced hours of
operation. Said notice to the City shall include the newly proposed schedule of
operation. In the event the City requests that Concessionaire decrease its
operations pursuant to this Subsection, then the partial termination provisions of
Subsection 13.6.3 shall apply.
Similarly, if Concessionaire is desirous of increasing its hours of operation in the
Concession Area then, in that event, the Concessionaire shall obtain the City's prior
written consent.
Concessionaire agrees and acknowledges that any Concessionaire requested
reduction in the scheduled hours of operation as may be provided herein shall not
in any way reduce Concessionaire's financial responsibility to the City, as required
in Section 4, except if same is deemed by the City to be a partial termination
pursuant to Subsection 13.6.3.
3.2 In the event that the City Manager or his designee determines, at his sole option
and discretion, that all or a portion of Concessionaire's proposed uses, pursuant to
Subsection 3.1 and as defined in Section 3.2, are no longer desired, then the City
may revoke Concessionaire's right to provide all or a portion of said uses, without
cause, upon thirty (30) days written notice to Concessionaire.
3.3 Field Monitor.
Intentionally omitted.
3.4 Off -Duty Police.
Intentionally omitted during initial term of this Agreement.
3.5 Street Closure Permits.
Intentionally omitted during initial term of this Agreement.
3.6 Parking (Baggin Parking Meters).
Intentionally omitted during initial term of this Agreement
3.7 Vendor Selection/First Priority to Miami Beach Merchants.
Notwithstanding the foregoing, and for purposes of this Section 3.7, in the event that the
number of responsive Miami Beach licensed merchants desirous of participating in the
Market would cause Concessionaire to displace any vendors who have been and are
currently and actively participating in the Market as of the date of execution of this
Agreement, and such displacement is directly due to lack of available space within the
Concession Area, then in such event Concessionaire and the City agree to meet and
discuss, in good faith, and make reasonable efforts to resolve this matter. It is understood
by the parties herein, that the intent of this Subsection 3.7 is not to displace vendors who
are currently and actively participating in the Market but to provide opportunities for those
Miami Beach licensed merchants who desire to participate in the Market.
3.8 Removal of Concession Facilities.
Concessionaire agrees that all its facilities or other items used in the concession operations
will be removed from the Park/Conoession Area and said removal shall be done on a daily
basis, in compliance with the time parameters) set forth in Subsection 9.2 herein.
3.9 Hurricane Evacuation Plan.
Concessionaire agrees that all its facilities or other items used in the concession operations
will be removed from the Park/Concession Area and said removal shall immediately begin
no later than upon the issuance of a Hurricane Warning by the Miami -Dade County Office
of Emergency Management, and stored at a private, off -site location.
3.10 City Occupational Licenses.
Concessionaire shall obtain, at its sole cost and expense, any occupational licenses
required by City law, as amended from time to time, for its proposed operations, as
contemplated in Section 3 of this Agreement. For purposes of this Agreement,
Concessionaire shall obtain the applicable "Agents, Broker, Dealers..." category City
occupational license.
Intentionally Omitted/Waived during the initial term of this Agreement.
4.1 Security Deposit. (Intentionally Omitted)
4.2 Peroentace of Gross (PG) vs Minimum Guarantee (MG). (Intentionally Omitted)
4.3 Minimum Guarantee (MG). (Intentionally Omitted)
4.4 Use of Electricity. (Intentionally Omitted)
4.5 Sales and Use Tax. (Intentionally Omitted)
SECTION 5. MAINTENANCE AND EXAMINATION OF RECORDS.
Intentionally Omitted/Waived during the initial term of this Agreement.
SECTION 6. INSPECTION AND AUDIT.
Concessionaire shall maintain its financial and other records pertaining to its operations under this
Agreement for a period of three (3) years after the conclusion of the Term, and such records shall be open
and available to the City Manager or his designee, as deemed necessary by the City Manager or City
Manager's designee. Concessionaire shall maintain all such records at its principal office, currently located
at 387 N.E. 16711` Street, North Miami, Florida, 33162; however, at the request of the City Manager or City
Manager's designee, all such records shall be relocated, at Concessionaire's expense, to a location within
the City of Miami Beach, within ten (10) days written notice from the City that the City desires to review
said records.
The City Manager or City Manager's designee shall be entitled to audit Concessionaire's records pertaining
to its operation as often as it deems reasonably necessary throughout the Term of this Agreement, and
three (3) times within the three (3) year period following 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, unless Concessionaire is required to
pay the City payments based upon a percentage of gross receipts (PG) under this Agreement and the
audit(s) reveals a deficiency of five percent (5%) or more in Concessionaire's statement of gross receipts
for any year or years audited, in which case Concessionaire shall pay to the City, within thirty (30) days of
the audit being deemed final (as specified below), the cost of the audit and a sum equal to the amount of
the deficiency revealed by the audit, plus interest; provided, however, the audit shall not be deemed final
until Concessionaire has received the audit and has had a reasonable opportunity to review the audit and
discuss the audit with the City. Nothing contained within this Section shall preclude the City's audit rights
for resort tax collection purposes.
In the event Concessionaire is required to submit PG payments to the City, Concessionaire shall submit,
within ninety (90) days from the end of each calendar year (December 3151) during the Term, an audited
annual statement of gross receipts for the Markel, in a form consistent with generally accepted accounting
principles.
It is Concessionaire's intent to stay informed of comments and suggestions by the City regarding
Concessionaire's performance under this Agreement. Within thirty (30) days after the end of the initial term
and the end of each calendar year for each complete year during the Term, Concessionaire and City may
meet to review Concessionaire's performance under this Agreement. At the meeting, Concessionaire and
City may discuss quality, operational, maintenance and any other issues regarding Concessionaire's
performance under this Agreement.
SECTION 7 TAXES ASSESSMENTS AND UTILITIES.
7.1 Concessionaire agrees to and shall pay before delinquency all taxes (including, but not
limited to, resort taxes) and assessments of any kind assessed or levied upon
Concessionaire by reason of this Agreement or by reason of the business or other activities
and operations of Concessionaire upon or in connection with the Concession Area.
Concessionaire will have the right, at its own expense, to contest the amount or validity, in
whole or in part, of any tax and/or assessment by appropriate proceedings diligently
conducted in good faith. Concessionaire may refrain from paying a tax or assessment to
the extent it is contesting the assessment or imposition of same in a manner that is in
accordance with law; provided, however, if, as a result of such contest, additional
delinquency charges become due, Concessionaire shall be responsible for such
delinquency charges, in addition to payment of the contested tax and/or assessment if so
ordered.
Concessionaire shall also pay for any fees imposed by law for licenses or permits for any
business, activities, or operations of Concessionaire upon the Concession Area.
7.2 Procedure If Ad Valorem Taxes Assessed.
Notwithstanding Subsection 7.1 above, the parties agree that the concession operations
contemplated herein are for public purposes and, therefore, no ad -valorem taxes should be
assessed by the Miami -Dade County Tax Appraiser. If, however, said ad -valorem taxes are
assessed, any assessment associated with Concessionaire's operations shall be the
responsibility of Concessionaire.
7.3 Utilities.
The City will not be installing any new utility outlets or other utility infrastructure in the
Concession Area. Concessionaire acknowledges that the Concession Area in its existing
condition is acceptable and meets Concessionaire's operational needs.
SECTION 8 EMPLOYEES AND INDEPENDENT CONTRACTORS.
8.1 In connection with the performance of its responsibilities hereunder, Concessionaire may
hire its own employees and/or independent contractors, who will be employees and/or
independent contractors of Concessionaire and not employees or agents of the City.
Additionally, Concessionaire's vendors shall not be considered agents or employees of the
City. Concessionaire shall select the number, function, qualifications, compensation,
including benefits (if any), and may, at its discretion and at any time, adjust or revise the
terms and conditions relating to its employees and/or independent contractors.
8.2 Concessionaire shall ensure that all its employees and/or independent contractors observe
all the graces of personal grooming. The Concessionaire shall hire people to work in its
concession operation who are neat, clean, well-groomed and shall comport themselves in
a professional and courteous manner and ensure that its vendors and/or independent
contractors comply with same. Neither Concessionaire nor any employees, agents or
anyone selected by Concessionaire as a vendor for the Market shall have been convicted
of a felony. If Concessionaire materially fails to comply with this provision, the City may
default Concessionaire pursuant to Section 13 herein.
8.3 Concessionaire supervisory/management employee shall be on duty and on -site within the
Concession Area, or available via telephone, at all times during which the Market is
operating, including but not limited to Set -Up and Move -Out periods, as defined in
Subsection 9.2 herein.
SECTION 9 SCHEDULE OF OPERATION.
Concessionaire's operations shall be open on the Concession Area, in accordance with the schedule
outlined below, weather or events of force majeure permitting.
9.1 Davis) of Operation: first Sunday of each month
9.2 Operatino Hours:
Set -Up:
Must not begin ear ier than 6:00 AM and end by 10:00 AM
Market operating hours:
Daylight Savings Time: 9:00 AM to 6:00 PM
Eastern Standard Time: 9:00 AM to 5:00 PM
Move -Out:
Daylight Savings Time: 5:00 PM to 7:00 PM
Eastern Standard Time: 4:00 PM to 6:00 PM
Any change in the days or hours of operation require the prior written consent of the City Manager
including, but not limited to, change in the days and hours of operation requested pursuant to Subsection
3.1.10.
SECTION 10. MAINTENANCE.
10.1 The Concessionaire accepts the use of the Concession Area provided in this Agreement in
its "as is" condition. Concessionaire assumes sole responsibility and expense for
maintenance of the Concession Area and its facilities therein. This shall include daily
removal of litter, garbage and debris, said removal to be the sole responsibility and expense
of Concessionaire. Daily maintenance shall be accomplished on all days and hours
Concessionaire operates. Concessionaire agrees, also at its sole cost and expense, to pay
for all garbage disposal generated by its operations.
10.2 Garbage Receptacles.
With respect to litter, garbage and debris removal, the Concessionaire shall provide, at its
sole cost and expense, receptacles within the confines of the Concession Area and shall
provide a sufficient number of these receptacles for its own use and for the use of the public
that patronizes the Market. Disposal of the contents of said receptacles and removal of litter,
garbage and debris within the Concession Area, shall be accomplished by the end of the
day on all days on which the Concessionaire operates, and shall be the sole responsibility
10
of the Concessionaire. Any costs for removal of the contents of said trash receptacles by
the City, because of the Concessionaire's failure to do the same, will be charged to, and
become the responsibility of, the Concessionaire. The dumping or disposal of any refuse,
discards, trash or garbage, generated by, or as a result of the concession operations, into
any City trash receptacles by the Concessionaire (including its staff, employees and/or
vendors) shall be strictly prohibited. Determination of the "number" of receptacles shall at
all times be within the City's sole discretion, and Concessionaire shall agree to be bound
by same.
10.3 Pressure Cleaning.
Intentionally Omitted/Waived during the initial term of this Agreement.
10.4 Compliance with CDC Guidelines
Concessionaire shall comply with all applicable CDC Guidelines, as may be amended from
time to time.
10.5 Orderly Operation.
The Concessionaire shall have a neat and orderly operation at all times and shall be solely
responsible for the necessary housekeeping services to property maintain the Concession
Area and all facilities incident thereto. The Concessionaire shall make available all
operations and facilities within the Concession Area (including but not limited to vendor
facilities) for examination during days and hours of operation by the City Manager or his
authorized representative.
10.6 No Danaerous Materials.
10.6.1 The Concessionaire agrees not to use or permit in the Concession Area and/or
facilities the storage and/or use of gasoline, fuel oils, diesel, illuminating oils, oil
lamps, cornbustible powered electricity producing generators, turpentine, benzene,
naphtha, propane, natural gas, or other similar substances, combustible materials,
or explosives of any kind, or any substance or thing prohibited in the standard
policies of fire insurance companies in the State of Florida. Any such substances or
materials found within the Concession Area and/or facilities shall be immediately
removed.
10.6.2 Notwithstanding any contrary provisions of this Agreement, Concessionaire, after
the Commencement Date, shall indemnify, defend and hold City harmless from any
loss, damage, cost, or expense of the City, including, without limitation, reasonable
attorney's fees, incurred as a result of, arising from, or connected with the placement
by Concessionaire, and/or its employees, vendors, agents and/or subcontractors,
after the Commencement Date, but during the Term of this Agreement, of any
hazardous substance or petroleum products on, under, in or upon the Concession
Area as those terms are defined by applicable Federal and State Statute, or any
environmental rules and environmental regulations promulgated thereunder;
provided, however, Concessionaire shall have no liability in the event of the gross
negligence of the City, its agents, servants or employees. The provisions of this
Subsection 10.6 shall survive the termination or earlier expiration of this Agreement.
10.7 Security.
The Concessionaire shall be responsible for and provide reasonable security measures
which may be required to protect the Concession Area and any of the facilities, goods and/or
other equipment thereon. Under no circumstances shall the City be responsible for any
stolen or damaged goods, facilities, materials and/or other equipment, nor shall City be
responsible for any stolen or damaged personal property of Concessionaire's employees,
vendors, patrons, guests, invitees, andlor other third parties.
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10.8 Vehicles on the Public Riaht-of-Way.
Concessionaire's employees, vendors, patrons, guests, invitees, and/or other third parties
vehicles and/or trailers shall only be allowed on the street adjacent to Concession
Area/public right-of-way for purposes of setting up the concession operations, and to
remove same at the close of operations each day, and any and all such vehicles for
purposes thereon must be removed from the public right-of-way immediately thereafter.
Concessionaire shall contractually require that anyone operating a vehicle for, or on behalf
of Concessionaire and/or its employees, agents, and/or vendors, must have a current valid
Florida Driver's License. Said set-up and move -out operations shall only be permitted during
regular hours for same, pursuant to Subsection 9.2 herein, and shall be completed safely
and expeditiously. No vehicular traffic or parking will be permitted on the Park property or
adjoining public right-of-way during concession hours of operation, pursuant to Subsection
9.2 herein. Access to the Park shall only be permitted via specifically designated points
authorized for such use and the nearest authorized access to a concession vendor's
operation.
Vehicles operated on the public right-of-way near the Concession Area shall not exceed 5
M.P.H. and shall only operate in the immediate vicinity of the Concession, or to -and -from
the nearest predetermined and assigned access point. After transporting facilities, goods,
merchandise, equipment, and/or other items to the Concession Area, the vehicles shall be
removed from the public right-of-way and parked in a legally authorized location. Driving on
the public right-of-way shall be kept to a minimum. No vehicular traffic will be permitted on
the public right-of-way, at any time or for any purpose, other than as stated herein. No
vehicular traffic shall be permitted on the Park grounds.
Vehicle operator must inspect the vehicles perimeter and surrounding area, prior to turning
the vehicles ignition switch, to assure a clear path of egress and only proceed with extreme
caution.
10.9 Inspection.
The Concessionaire agrees that the Concession Area and all facilities and operations
thereon, including but not limited to vendor booths, may be inspected at any time during
days and hours of operation bythe City Manager or his designee, or by any other Municipal,
County, State officer, or agency having responsibilities for inspections of such operations.
The Concessionaire hereby waives all claims against the City for compensation for loss or
damage sustained by reason of any interference with the concession operation by any
public agency or official in enforcing their duties or any laws or ordinances. Any such
interference shall not relieve the Concessionaire from any obligation hereunder.
SECTION 11. INSURANCE.
Concessionaire shall maintain, at its sole cost and expense, the following types of insurance coverage at
all times throughout the Term of this Agreement.
a. Comprehensive General Liability in the minimum amount of One Million Dollars
($1,000,000) per occurrence for bodily injury and property damage. This policy must also
contain coverage for premises operations, products and contractual liability.
b. Workers Compensation Insurance shall be provided as required under the Laws of the State
of Florida.
Failure to procure or maintain the required insurance program shall, at the City's discretion,
either (i) constitute an automatic default of the Concession Agreement underwhich the City
may, upon written notice to Concessionaire, immediately terminate this Agreement; or (if)
the City, in its sole discretion, may obtain the insurance itself, in which case said insurance
shall be charged back to the Concessionaire as provided in the following paragraph.
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The policies of insurance referred to above shall not be subject to cancellation or changing
coverage except upon at least thirty (30) days prior written notice to the City, and then only subject
to the prior written approval of the City Manager or his designee. Prior to the Commencement Date
of this Agreement, Concessionaire shall provide City with a Certificate of Insurance for each such
policy. ALL POLICIES (EXCEPT FOR WORKERS COMPENSATION COVERAGE) SHALL NAME
THE CITY OF MIAMI BEACH FLORIDA AS AN ADDITIONAL NAMED INSURED. All such policies
shall be obtained from companies authorized to do business in the Stale of Florida with an A.M.
Best's Insurance Guide (latest edition) rating acceptable to the City's Risk Manager, and any
replacement or substitute company shall also be subject to the approval of the Citys Risk Manager.
Should Concessionaire fail to obtain, maintain or renew the policies of insurance referred to above,
in the required amounts, the City may, at its sole discretion, automatically terminate this Agreement
or, in the alternative, deem to obtain such insurance, and any sums expended by City in obtaining
said insurance, shall be repaid by Concessionaire to City, plus ten percent (10%) of the amount of
premiums paid to compensate City for its administrative costs. If Concessionaire fails to repay Citys
expenditures within fifteen (15) days of demand, the total sum owed shall accrue interest at the
rate of eighteen percent (18%) per annum or the highest rate allowed by Florida law, whichever is
less, from the due date of payment until such time as payment is actually received by the City, or,
at its option, the City may declare this Agreement in default pursuant to Section 13 herein.
SECTION 12. INDEMNITY
12.1 In consideration of a separate and specific consideration of Ten ($10.00) Dollars and other
good and valuable consideration the receipt and sufficiency of which are hereby
acknowledged, Concessionaire shall indemnify, hold harmless and defend the City, its
agents, servants and employees from and against any claim, demand or cause of action of
whatsoever kind or nature arising out of error, omission, or negligent act of Concessionaire,
and/or its vendors, agents, servants, employees and/or subcontractors in the performance
of services under this Agreement.
12.2 In addition, in consideration of a separate and specific consideration of Ten ($10.00) Dollars
and other good and valuable consideration the receipt and sufficiency of which are hereby
acknowledged, Concessionaire shall indemnify, hold harmless and defend the City, its
agents, servants or employees, from and against any claim, demand or cause of action of
whatever kind or nature arising out of any misconduct of Concessionaire, and/or its vendors,
agents, servants, employees and/or subcontractors not included in the paragraph in the
Subsection above and for which the City, its agents, servants or employees are alleged to
be liable.
12.3 Subsections 12.1 and 12.2 shall survive the termination or expiration of this Agreement.
Subsections 12.1 and 12.2 shall not apply, however, to any such liability, that arises as a
result of the gross negligence of the City, its agents, servants or employees.
12.4 Subrogation.
The terms of insurance policies referred to in Section 11 shall preclude subrogation claims
against Concessionaire, the City and their respective officers, employees and agents.
SECTION 13. DEFAULT AND TERMINATION.
Subsections 13.1 through 13.3 shall constitute events of default under this Agreement. An event of default
by Concessionaire shall entitle City to exercise any and all remedies described as City's remedies under
this Agreement, including but not limited to those set forth in Subsection 13.4. An event of default by City
shall entitle Concessionaire to exercise any and all remedies described as Concessionaire's remedies
under this Agreement, including but not limited to those set forth in Subsection 13.5.
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13.1 Bankruptcy.
If either the City or Concessionaire 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.
13.2 Default in Payment.
In the event Concessionaire fails to submit any payment within five (5) days of its due date,
there shall be a late charge of $50.00, in addition to interest at the rate of eighteen percent
(18%) per annum or the highest rate allowable by Florida law, whichever is less. If any
payment and accumulated penalties are not received within fifteen (15) days after the
payment due date, and such failure continues three (3) days after written notice thereof,
then the City may, without further demand or notice, terminate this Concession Agreement
without being prejudiced as to any remedies which may be available to it for breach of
contract.
13.3 Non -Monetary Default.
In the event that Concessionaire or the City fails to perform or observe any of the covenants,
terms or provisions under this Agreement, and such failure continues thirty (30) days after
written notice thereof from the other party hereto, 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. In the event that a default is not reasonably susceptible to being cured
within such period, the defaulting party shall not be considered in default if it shall, within
such period, commence with due diligence and dispatch to cure such default and thereafter
completes with dispatch and due diligence the curing of such default, but in no event shall
such extended cure period exceed ninety (90) days from the date of written notice thereof.
In the event Concessionaire cures any default pursuant to this Subsection, it shall promptly
provide City with written notice of same.
13.4 Citv's Remedies for Concessionaire's Default.
If any of the events of default by Concessionaire, as set forth in this Section 13, shall occur,
the City may, after notice (if required) and the expiration of cure periods (as provided above),
at its sole option and discretion, institute such proceedings as in its opinion are necessary
to cure such defaults and to compensate City for damages resulting from such defaults,
including but not limited to the right to give to Concessionaire a notice of termination of this
Agreement. If such notice is given, the Term of this Agreement shall terminate upon the
date specified in such notice from City to Concessionaire. On the date so specified,
Concessionaire shall then quit and surrender the Concession Area to City pursuant to the
provisions of Subsection 13.7. Upon the termination of this Agreement, all rights and interest
of Concessionaire in and to the Concession Area and to this Agreement, and every part
thereof, shall cease and terminate and City may, in addition to any other rights and remedies
it may have, retain all sums paid to it by Concessionaire under this Agreement. In addition
to the rights set forth above, City shall have the rights to pursue any and all of the following:
a. the right to injunction or other similar relief available to it under Florida law against
Concessionaire; and or
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b. the right to maintain any and all actions at law or suits in equity or other proper
proceedings to obtain damages resulting from Concessionaire's default.
13.5 If an event of default by the City, as set forth in this Section 13, shall occur, the
Concessionaire may, after notice (if required) and the expiration of the cure periods (as
provided above), at its sole option and discretion, terminate this Agreement upon written
notice to the City and/or sue for damages, subject to the limits set forth in Section 26. Said
termination shall become effective upon receipt of a written notice of termination by the City,
but in no event shall Concessionaire specify a termination date that is less than sixty (60)
days from the date of the written termination notice. On the date specified in the notice,
Concessionaire shall quit and surrender the Concession Area to City pursuant to the
provisions of Subsection 13.7.
13.6 Termination for Convenience/Pardal Termination.
13.6.1 Notwithstanding the provisions of this Section 13, this Agreement may be terminated
by the City, for convenience and without cause, upon the furnishing of thirty (30)
days prior written notice to Concessionaire. Additionally, in the event of a public
health, welfare or safety concern, as determined by the City Manager, in the City
Manager's sole discretion, the City Manager, pursuant to a verbal or written
notification to Concessionaire, may immediately suspend the services under this
Agreement for a time certain, or in the alternative, terminate this Agreement on a
given date.
Conversely, this Agreement may be terminated by the Concessionaire, for
convenience and without cause, upon the furnishing of thirty (30) days prior written
notice to City.
13.6.2 Concessionaire acknowledges that the City may develop a schedule of capital
improvements for the right-of-way or other improvements within the Park, including
all or a portion of the Concession Area, which may entail a closure of all or a portion
of the right-of-way, Park and/or Concession Area. In the event that the City closes
down the Park or any other portion of the Concession Area, for the purpose of
undertaking a capital improvement plan thereon, then the parties agree that the this
Agreement may be terminated or, in the alternative, the portion of this Agreement
referencing said individual Concession Area shall be partially terminated for
convenience, without cause and without penalty to either party, and only as to that
portion of the Concession Area which has been dosed. Such a termination shall
become effective upon thirty (30) days prior written notice to Concessionaire.
13.6.3 In the event of termination or partial termination by City of this Agreement pursuant
to this Subsection, Concessionaire herein acknowledges and agrees that it shall not
have any claim, demand, or cause of action of whatsoever kind or nature, against
the City, its agents, servants and employees (including, but not limited to, claims for
interference in business or damages for interruption of services or interference in its
concession operations by Concessionaire or its vendors). However, if it is
determined, via a contract year end -review, that a termination or partial termination
results in a decrease to the gross revenues derived by the Concessionaire and
Concessionaire is required under this Agreement to make a MG payment to the City,
then Concessionaire's MG amount due to the City, pursuant to Section 4.3, if any,
shall be reduced proportionately equal to the percentage of Concession Area that
was terminated or partially terminated and for the period of time of said partial
termination.
13.6.4 In the event of termination for convenience by Concessionaire pursuant to
Subsection 13.6.1, Concessionaire herein acknowledges and agrees that it shall not
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have any claim, demand, or cause of action of whatsoever kind or nature, against
the City, its agents, servants and employees. Moreover, Concessionaire's MG
amount due to the City, pursuant to Section 4.3, shall be reduced proportionately
equal to the period of time remaining on the current Term of this Agreement.
13.7 Surrender of Concession Area.
At the expiration of this Agreement, or in the event of a partial termination or termination of
the entire Agreement, Concessionaire shall surrender the Concession Area (or portion
thereof in the event of a partial termination) in the same condition as the Concession Area
was prior to the commencement of this Agreement, reasonable wear and tear excepted.
Concessionaire shall remove all its facilities, equipment, fixtures, personal property, etc.
upon two (2) hours written notice from the City Manager or his designee unless a longer
time period is agreed to by the City. Concessionaire's obligation to observe or perform this
covenant shall survive the expiration or other termination of this Agreement. Continued
occupancy of the Concession Area (or portion thereof) after termination (or partial
termination) of this Agreement shall constitute trespass by the Concessionaire, and may be
prosecuted as such. In addition, the Concessionaire shall pay to the City One Thousand
($1,g00) Dollars per day as liquidated damages for such trespass and holding over.
SECTION 14. PERFORMANCE BOND OR ALTERNATE SECURITY.
Intentionally Omitted.
SECTION 16. ASSIGNMENT.
Except as otherwise provided in this Subsection, or in this Agreement, Concessionaire shall not assign,
sublease, grant any concession or license, permit the use of by any other person other than
Concessionaire, or otherwise transfer all or any portion of this Agreement and/or of the Concession Area
(all of the forgoing are herein after referred to collectively as "transfers"), without the prior written consent
of the City.
Concessionaire shall notify the City Manager or his designee of any proposed transfer, prior to
consummation of same and the City or the City Manager or City Manager's designee, as applicable, shall
respond within thirty (30) days. In the event that any such transfer is approved, the transferee shall agree
to be bound by all the covenants of this Agreement required of the transferor hereunder. Any transfer made
without complying with this Section shall be null, void, and of no effect and shall constitute an act of default
under this Agreement. Notwithstanding any such consent, or any permitted transfer under any provision of
this Section, unless expressly released by the City, Concessionaire shall remain jointly and severally liable
(along with each approved transferee, who shall automatically become liable for all obligations of the
transferor hereunder with respect to that portion of this Agreement so transferred), and the City shall be
permitted to enforce the provisions of this Agreement directly against Concessionaire and/or any transferee
of the Concessionaire without proceeding in any way against any other person.
For purposes of this Section 15, Concessionaire's selection of vendors for the Market shall not be deemed
a transfer.
SECTION 16. SPECIAL EVENTS
16.1 Concessionaire's proposed uses, as set forth in Section 3 herein, do not contemplate the
production, promotion or sponsorship bythe Concessionaire of special events in any portion
of the Concession Area. In the event Concessionaire does produce, promote or sponsor a
special event in the Concession Area, it shall abide by the Citys Special Events Permit
Requirements and Guidelines, as same may be amended from time to time. For any use,
other than those provided for in this Agreement, a Special Events Permit may be required
and shall be obtained through the City's Department of Tourism, Culture and Economic
Development Department. The City Managers authorization must be obtained for any such
special event.
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The City Administration shall evaluate requests for Special Events Permits on a case by
case basis, in accordance with the City's Special Event Permit Requirements and
Guidelines, as same may be amended from time to time.
In the event that a special event and/or film permit is requested by an entity, other than the
Concessionaire, and the proposed special event and/or film production is scheduled to
occur within all or a portion of the Concession Area, the Concessionaire agrees to cooperate
with the City and the special event permit applicant to allow use of the Concession Area
during the period of the special event, including set-up and break -down time.
16.2 City Special Events.
Notwithstanding Subsection 16.1 above, and in the event that the City, at its sole discretion,
deems that it would be in the best interest of the City, the City reserves the right to displace
the Concessionaire for City produced special events and/or other City produced
productions. In such cases, the City may request that the Concessionaire cease and desist
operations during the Term of, and in the area of, the special event and/or production, and
the Concessionaire shall cease and desist during said term. In the event that it is
determined, via a contract year end -review, that ceasing and desisting of concession
operations, as slated herein, results in a decrease to the estimated gross revenues derived
by the Concessionaire, and Concessionaire is obligated to make an MG payment to the
City under this Agreement, then Concessionaire's MG amount due to the City, pursuant to
Section 4.3, if any, shall be reduced proportionately equal to the percentage of reduced
hours of operation caused by said special event and/or production. If the Concessionaire is
not required to close or chooses to remain open without interference to the special event
and/or production, Concessionaire agrees to cooperate with the City. If the Concessionaire
is allowed to remain open during special events and/or productions, the Concessionaire
may be allowed to have in operation its normal daily complement of facilities and vendors.
"Normal" shall be defined as facilities and vendors, as approved by the City, that the
Concessionaire has available for the public on a normal business day. Such facilities and
vendors shall not be increased or altered during special events and/or productions without
the prior written permission of the City Manager or his designee. To the extent that the
normal business day complement of facilities and vendors is displaced by the special event
and/or production, the Concessionaire may reallocate such displaced facilities and vendors
on a pro-rata basis within an area of the Concession Area not being utilized by the special
event and/or production.
For purposes of this Section 16, "normal business day" shall be defined as set forth in
Section 9 herein, entitled "Schedule of Operations.
16.3 Notwithstanding anything to the contrary, if a City special event occurs in all or any portion
of any Concession Area, Concessionaire shall not be liable for any charge, fee or other
expense, governmental or otherwise, in connection with such special event.
SECTION 17. NO IMPROPER USE.
The Concessionaire will not use, nor suffer or permit any person to use in any manner whatsoever, the
Concession Area, operations, or facilities for any improper, immoral or offensive purpose, or for any
purpose in violation of any Federal, State, County, or Municipal ordinance, rule, order or regulation, or of
any governmental rule or regulation now in effect or hereafter enacted or adopted. The Concessionaire
will protect, indemnify, defend and forever save and keep harmless the City, its agents, employees and
contractors from and against damage, penalty, fine, judgment, expense or charge suffered, imposed,
assessed or incurred for any violation, or breach of any law, ordinance, rule, order or regulation occasioned
by any act, neglect or omission of the Concessionaire, its vendors, employees, agents, and/or
subcontractors regarding the Concession. In the event of any violation by the Concessionaire, or if the City
or its authorized representative shall deem any conduct on the part of the Concessionaire, its vendors,
agents, employees and/or subcontractors, to be objectionable or improper, the City shall have the option,
17
at its sole discretion, to either (1) automatically terminate this Agreement, upon prior written notice to
Concessionaire, or to (ii) suspend the concession operations should the Concessionaire fail to correct any
such violation, conduct, or practice to the satisfaction of the City within twenty-four (24) hours after
receiving written notice of the nature and extent of such violation, conduct, or practice, and such
suspension shall continue until the violation is cured. The Concessionaire further agrees not to commence
operations during the suspension until the violation has been corrected to the satisfaction of the City and
confirmed in writing by the City Manager.
SECTION 18. PRICE SCHEDULES.
Intentionally OmittedlWaived during the initial term of this Agreement.
SECTION 19. NOTICES.
All notices from the City to the Concessionaire shall be deemed duly served upon receipt, if mailed by
registered or certified mail, return receipt requested, by overnight delivery or courier services to the
Concessionaire at the following address:
French American Association of Crafts & Trades Corp.
387 NE 16r Street
North Miami Beach, Florida 33162
All notices from the Concessionaire to the City shall be deemed duly served upon receipt, if mailed by
registered or certified mail, return receipt requested, by overnight delivery or courier services to the City of
Miami Beach at the following addresses:
John Reber, Director
Parks and Recreation Department
City of Miami Beach
1700 Convention Center Drive
Miami Beach, FL 33139
with copies to: Eric T. Carpenter, City Manager
City of Miami Beach
1700 Convention Center Drive
Miami Beach, FL 33139
The Concessionaire and the City may change the above mailing address at any time upon giving the other
party written notification. All notices under this Agreement must be in writing and deemed received upon
receipt of the notice. Notices to the other party in connection with the administration of this Agreement
may be provided to the other party through email.
SECTION 20. LAWS.
20.1 Compliance.
Concessionaire shall comply with all applicable City, Miami -Dade County, State, and
Federal ordinances, statutes, rules and regulations, including but not limited to all applicable
environmental City, County, State, and Federal ordinances, statutes, rules and regulations.
20.2 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, unless otherwise provided herein.
20.3 Equal Employment Opportunity.
Neither Concessionaire nor any affiliate of Concessionaire performing services hereunder,
or pursuant hereto, will discriminate against any employee or applicant for employment
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because of race, creed, sex, color, national origin, sexual orientation, and disability, as
defined in Title I of ADA. Concessionaire will take affirmative steps to utilize minorities and
females in the work force and in correlative business enterprises.
20.4 No Discrimination.
The Concessionaire agrees that there shall be no discrimination as to race, sex, sexual
orientation, color, creed, national origin, familial status, religion or handicap, in its
employment practice or in the operations referred to by this Agreement; and further, there
shall be no discrimination regarding any use, service, maintenance, or operation within the
Concession Area. All concession operations and services offered shall be made available
to the public, subject to the right of the Concessionaire and the City to establish and enforce
rules and regulations to provide for the safety, orderly operation and security of the
operations and the facilities.
20.4.1 Additionally, Concessionaire, by executing this Agreement, certifies that it
will comply fully with the City of Miami Beach Human Rights Ordinance,
codified in Chapter 62 of the City Code, as may be amended from time to
time, prohibiting discrimination in employment (including independent
contractors), housing, public accommodations, public services, and in
connection with its membership or policies on account of actual or
perceived race, color, national origin, religion, sex, intersexuality, gender
identity, sexual orientation, marital and familial status, age, disability,
ancestry, height, weight, hair texture and/or hairstyle, domestic partner
status domestic partner status, labor organization membership, familial
situation, or political affiliation.
SECTION 21. FORCE MAJEURE
21.1 "Force Majeure" event is an event that (i) in fact causes a delay in the performance of the
Concessionaire or the City's obligations under this Agreement, and (ii) is beyond the
reasonable control of such party unable to perform the obligation, and (III) is not due to an
intentional act, error, omission, or negligence of such party, and (iv) could not have
reasonably been foreseen and prepared for by such party at any time prior to the occurrence
of the event. Subject to the foregoing criteria, Force Majeure may include events such as war,
civil insurrection, riot, fires, epidemics, pandemics, terrorism, sabotage, explosions, embargo
restrictions, quarantine restrictions, transportation accidents, strikes, strong hurricanes or
tornadoes, earthquakes, or other acts of God which prevent performance. Force Majeure
shall not include technological impossibility, inclement weather, or failure to secure any of the
required permits pursuant to this Agreement.
21.2 If the City or Concessionaire's performance of its contractual obligations is prevented or
delayed by an event believed by to be Force Majeure, such party shall immediately, upon
learning of the occurrence of the event or of the commencement of any such delay, but in
no case within fifteen (15) business days thereof, provide notice of (i) of the occurrence of
event of Force Majeure, it) of the nature of the event and the cause thereof, (iii) of the
anticipated impact on this Agreement, (iv) of the anticipated period of the delay, and (v) of
what course of action such party plans to take in order to mitigate the detrimental effects of
the event. The timely delivery of the notice of the occurrence of a Force Majeure event is a
condition precedent to allowance of any relief pursuant to this section; however, receipt of
such notice shall not constitute acceptance that the event claimed to be a Force Majeure
event is in fact Force Majeure, and the burden of proof of the occurrence of a Force Majeure
event shall be on the requesting party.
21.3 No party hereto shall be liable for its failure to carry out its obligations under this Agreement
during a period when such party is rendered unable, in whole or in part, by Force Majeure to
carry out such obligations. The suspension of any of the obligations under this Agreement
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due to a Force Majeure event shall be of no greater scope and no longer duration than is
required. The party shall use its reasonable best efforts to continue to perform its obligations
hereunder to the extent such obligations are not affected or are only partially affected by the
Farce Majeure event, and to correct or cure the event or condition excusing performance
and otherwise to remedy its inability to perform, to the extent its inability to perform is the
direct result of the Force Majeure event, with all reasonable dispatch.
21.4 Obligations pursuant to this Agreement that arose before the occurrence of a Force Majeure
event causing the suspension of performance shall not be excused as a result of such
occurrence unless such occurrence makes such performance not reasonably possible. The
obligation to pay money in a timely manner for obligations and liabilities which matured prior
to the occurrence of a Force Majeure event shall not be subject to the Force Majeure
provisions.
21.5 Notwithstanding any other provision to the contrary herein, in the event of a Force Majeure
occurrence, the City may, at the sole discretion of the City Manager, suspend the City's
payment obligations under this Agreement, and may take such action without regard to the
notice requirements herein. Additionally, in the event that an event of Force Majeure delays
a party's performance under this Agreement for a time period greater than thirty (30) days,
the City may, at the sole discretion of the City Manager, terminate this Agreement, on a given
date, by giving written notice to Concessionaire of such termination, following which the City
shall be discharged from any and all liabilities, duties, and terms arising out of, or by virtue
of, this Agreement.
21.5.1 Waiver of Loss from Hazards.
The Concessionaire hereby expressly waives all claims against the City for loss or
damage sustained by the Concessionaire resulting from an event of Force Majeure,
and the Concessionaire hereby expressly waives all rights, claims, and demands
against the City and forever releases and discharges the City of Miami Beach,
Florida, from all demands, claims, actions and causes of action arising from any of
the aforesaid causes.
22.1 Concessionaire shall comply with Florida Public Records law under Chapter 119, Florida
Statutes, as may be amended from time to time.
22.2 The term "public records" shall have the meaning set forth in Section 119.011(12), which
means all documents, papers, letters, maps, books, tapes, photographs, films, sound
recordings, data processing software, or other material, regardless of the physical form,
characteristics, or means of transmission, made or received pursuant to law or ordinance or in
connection with the transaction of official business of the City.
22.3 Pursuant to Section 119.0701 of the Florida Statutes, if Concessionaire meets the definition of
"Contractor" as defined in Section 119.0701(1)(a), Concessionaire shall:
a. Keep and maintain public records required by the City to perform the service;
b. Upon request from the City's custodian of public records, provide the City with a copy of the
requested records or allow the records to be inspected or copied within a reasonable time
at a cost that does not exceed the cost provided in Chapter 119, Florida Statutes or as
otherwise provided by law;
C. Ensure that public records that are exempt or confidential and exempt from public records
disclosure requirements are not disclosed, except as authorized by law, for the duration of
the contract term and following completion of this Agreement if Concessionaire does not
transfer the records to the City;
d. Upon completion of this Agreement, transfer, at no cost to the City, all public records in
possession of Concessionaire or keep and maintain public records required by the City to
20
perform the service. If Concessionaire transfers all public records to the City upon
completion of this Agreement, Concessionaire shall destroy any duplicate public records
that are exempt or confidential and exempt from public records disclosure requirements. If
Concessionaire keeps and maintains public records upon completion of this Agreement,
Concessionaire shall meet all applicable requirements for retaining public records. All
records stored electronically must be provided to the City, upon request from the City's
custodian of public records, in a format that is compatible with the information technology
systems of the City.
22.4 Request for Records; Noncompliance.
a. A request to inspect or copy public records relating to the City's contract for services must
be made directly to the City. If the City does not possess the requested records, the City
shall immediately notify Concessionaire of the request, and Concessionaire must provide
the records to the City or allow the records to be inspected or copied within a reasonable
time.
b. Concessionaire's failure to comply with the City's request for records shall constitute a
breach of this Agreement, and the City, at its sole discretion, may: (1) unilaterally terminate
this Agreement, following written notice to Concessionaire, pursuant to the notice provisions
of this Agreement, and Concessionaire failing to comply with the Public Records Request
within eight (8) business days; (2) avail itself of the remedies set forth under this Agreement;
and/or (3) avail itself of any available remedies at law or in equity
c. If Concessionaire fails to provide the public records to the City within a reasonable time
may be subject to penalties under s. 119.10.
22.5. CIVIL ACTION.
a. If a civil action is filed against a Concessionaire to compel production of public records
relating to the City's contract for services, the court shall assess and award against
Concessionaire the reasonable costs of enforcement, including reasonable aftomeys' fees,
iC
1. The court determines that Concessionaire unlawfully refused to comply with the public
records request within a reasonable time; and
2. At least 8 business days before filing the action, the plaintiff provided written notice of
the public records request, including a statement that Concessionaire has rat complied
with the request, to the City and to Concessionaire.
b. A notice complies with subparagraph (ax2) if it is sent to the City's custodian of public
records and to Concessionaire at Concessionaire's address listed on its contract with the
City or to Concessionaire's registered agent. Such notices must be sent by common carder
delivery service or by registered, Concessionaire Express Guaranteed, or certified mail,
with postage or shipping paid by the sender and with evidence of delivery, which may be in
an electronic format.
C. If Concessionaire complies with a public records request within 8 business days after the
notice is sent, Concessionaire shall not be liable for the reasonable costs of enforcement.
22.6. IF CONCESSIONAIRE HAS QUESTIONS REGARDING THE
APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO
CONCESSIONAIRE'S DUTY TO PROVIDE PUBLIC RECORDS RELATING
TO THIS AGREEMENT, CONTACT THE CUSTODIAN OF PUBLIC
RECORDS AT:
21
CITY OF MIAMI BEACH
ATTENTION: RAFAEL E. GRANADO, CITY CLERK
1700 CONVENTION CENTER DRIVE
MIAMI BEACH, FLORIDA 33139
E-MAIL: RAFAELGRANADO@MIAMI BEACH FL.GOV
PHONE: 305-673-7411
23.1. Concessionaire hereby agrees and acknowledges that, pursuant to Section 82-7 of the City Code,
as may be amended from time to time, Concessionaire shall not sell, use, provide food in, or offer
the use of expanded polystyrene food service articles (as defined in City Code Section 82-7) in City
facilities or on City property, in connection with any services performed pursuant to this Agreement.
A violation of this section shall be deemed a default under the terms of this Agreement.
Notwithstanding the above, this section shall not apply to expanded polystyrene food service
articles used for prepackaged food that have been filled and sealed prior to receipt by
Concessionaire.
23.2. Additionally, Concessionaire agrees and acknowledges that, pursuant to Section 82-8 of the City
Code, as may be amended from time to time, Concessionaire shall not sell, use, provide food in,
or offer the use of single -use plastic beverage straws or single -use plastic stirrers (as defined in
City Code Section 82-8) in City facilities or on City property, in connection with any services
performed pursuant to this Agreement. A violation of this section shall be deemed a default under
the terms of this Agreement. Notwithstanding the above, the requirements of Section 82-8 shall not
restrict Concessionaire from providing a beverage with, or offering the use of, a single -use plastic
beverage straw or single -use plastic stirrer to an individual with a disability or medical condition that
impairs the consumption of beverages without a single -use plastic beverage straw or single -use
plastic stirrer.
23.3. Additionally, Concessionaire agrees to comply with Section 46-92(c) of the City Code, which
provides that it is unlawful for any person to carry any expanded polystyrene product, single -use
plastic beverage straw, or single -use plastic stirrer onto any beach or park within the City, or onto
any city marina, pier, dock, or boat ramp. It is also unlawful for any business to provide single -use
plastic beverage straws or single -use plastic stirrers with the service or delivery of any beverage to
patrons on any beach within the City. Notwithstanding the above, the provisions In Section 46-92(c)
that pertain to single -use plastic beverage straws and single -use plastic stirrers shall not apply to
a person or patron with a disability or medical condition that impairs the consumption of beverages
without a single -use plastic beverage straw or single -use plastic stirrer.
23.4. As additional consideration for this Agreement, independent of the requirements set forth in
Sections 82-7, 82-8 and 46-92(c) of the City Code, Concessionaire agrees to:
a. not sell, use, provide food in, or offer the use of expanded polystyrene food service articles
in any Concession Area. A violation of this section shall be deemed a default under the
terms of this Agreement. Notwithstanding the above, this section shall not apply to
expanded polystyrene food service articles used for prepackaged food that have been filled
and sealed prior to receipt by Concessionaire; and
b. not sell, use, provide food in, or offer the use of single -use plastic beverage straws or single -
use plastic stirrers in any Concession Area. A violation of this section shall be deemed a
default underthe terms of this Agreement. Notwithstanding the above, Concessionaire shall
be permitted to provide a beverage with, or offering the use of, a single -use plastic beverage
straw or single -use plastic stirrer to an individual with a disability or medical condition that
22
impairs the consumption of beverages without a single -use plastic beverage straw or single -
use plastic stirrer; and
c. not carry any expanded polystyrene product, single -use plastic beverage straw, or single -
use plastic stirrer onto any beach or park within the City, or onto any city marina, pier, dock,
or boat ramp.
SECTION 24. INSPECTOR GENERAL AUDIT RIGHTS.
24.1. Pursuant to Section 2-256 of the Code of the City of Miami Beach, the City has established the
Office of the Inspector General which may, on a random basis, perform reviews, audits, inspections
and investigations on all City contracts, throughout the duration of said contracts. This random
audit is separate and distinct from any other audit performed by or on behalf of the City.
24.2. The Office of the Inspector General is authorized to investigate City affairs and empowered to
review past, present and proposed City programs, accounts, records, contracts and transactions.
In addition, the Inspector General has the power to subpoena witnesses, administer oaths, require
the production of witnesses and monitor City projects and programs. Monitoring of an existing City
project or program may include a report concerning whether the project is on time, within budget
and in conformance with the contract documents and applicable law. The Inspector General shall
have the power to audit, investigate, monitor, oversee, inspect and review operations, activities,
performance and procurement process including but not limited to project design, bid specifications,
(bid/proposal) submittals, activities of the Concessionaire, its officers, agents and employees,
lobbyists, City staff and elected officials to ensure compliance with the contract documents and to
detect fraud and corruption. Pursuant to Section 2-378 of the City Code, the City is allocating a
percentage of its overall annual contract expenditures to fund the activities and operations of the
Office of Inspector General.
24.3 Upon ten (10) days written notice to the Concessionaire, the Concessionaire shall make all
requested records and documents available to the Inspector General for inspection and copying.
The Inspector General is empowered to retain the services of independent private sector auditors
to audit, investigate, monitor, oversee, inspect and review operations activities, performance and
procurement process including but not limited to project design, bid specifications, (bid/proposal)
submittals, activities of the Concessionaire its officers, agents and employees, lobbyists, City staff
and elected officials to ensure compliance with the contract documents and to detect fraud and
corruption.
24.4 The Inspector Geneal shall have the right to inspect and copy all documents and records in the
Concessionaire's possession, custody or control which in the Inspector General's sole judgment,
pertain to performance of the contract, inducing, but not limited to original estimate files, change
order estimate files, worksheets, proposals and agreements from and with successful
subcontractors and suppliers, all project -related correspondence, memoranda, instructions,
financial documents, construction documents, (bid/proposal) and contract documents, back -
change documents, all documents and records which involve cash, trade or volume discounts,
insurance proceeds, rebates, or dividends received, payroll and personnel records and supporting
documentation for the aforesaid documents and records.
24.5 The Concessionaire shall make available at its office at all reasonable times the records, materials,
and other evidence regarding the acquisition (bid preparation) and performance of this Agreement,
for examination, audit, or reproduction, until three (3) years after final payment under this
Agreement or for any longer period required by statute or by other clauses of this Agreement. In
addition:
a. If this Agreement is completely or partially terminated, the Concessionaire shall make
available records relating to the work terminated until three (3) years after any resulting final
termination settlement; and
23
b. The Concessionaire shall make available records relating to appeals or to litigation or the
settlement of claims arising under or relating to this Agreement until such appeals, litigation,
or claims are finally resolved.
24.6 The provisions in this section shall apply to the Concessionaire, its officers, agents, employees,
subcontractors and suppliers. The Concessionaire shall incorporate the provisions in this section
in all subcontracts and all other agreements executed by the Concessionaire in connection with the
performance of this Agreement.
24.7 Nothing in this section shall impair any independent right to the City to conduct audits or
investigative activities. The provisions of this section are neither intended nor shall they be
construed to impose any liability on the City by the Concessionaire or third parties.
SECTION 25. E-VERIFY
25.1 Concessionaire shall comply with Section 448.095, Florida Statutes, "Employment Eligibility" ("E-
Verify Statute'), as may be amended from time to time. Pursuant to the E-Verity Statute,
commencing on January 1, 2021, Concessionaire shall register with and use the E-Verify system
to verify the work authorization status of all newly hired employees during the Term of this
Agreement. Additionally, Concessionaire shall expressly require any subcontractor performing
work or providing services pursuant to this Agreement to likewise utilize the U.S. Department of
Homeland Security's E-Verify system to verify the employment eligibility of all new employees hired
by the subcontractor during the contract Term. If Concessionaire enters into a contract with an
approved subcontractor, the subcontractor must provide the Concessionaire with an affidavit
stating that the subcontractor does not employ, contract with, or subcontract with an unauthorized
alien. Concessionaire shall maintain a copy of such affidavit for the duration of this Agreement or
such other extended period as may be required under this Agreement.
25.2. Termination Rights.
a. If the City has a good faith belief that Concessionaire has knowingly violated Section
448.09(1), Florida Statutes, the City shall terminate this Agreement with Concessionaire for
cause, and City shall thereafter have or owe no further obligation or liability to
Concessionaire.
b. If the City has a good faith belief that a subcontractor has knowingly violated Section (a),
but the Concessionaire otherwise complied with such section, the City will promptly notify
the Concessionaire and order the Concessionaire to immediately terminate this agreement
with the subcontractor. Concessionaire's failure to terminate a subcontractor shall be an
event of default under this Agreement, entitling City to terminate the Concessionaire's
Agreement for muse.
C. A contract terminated under the foregoing Subsections 25.2(a) or 25.2(b) is not in breach
of contract and may not be considered as such.
d. The City or Concessionaire or a subcontractor may file an action with the Circuit or County
Court to challenge a termination under the foregoing Subsections 25.2 (a) or 25.2 (b) no
later than 20 calendar days after the date on which the contract was terminated.
e. If the City terminates this Agreement with Concessionaire under the foregoing Subsection
25.2 (a), Concessionaire may not be awarded a public contract for at least 1 year after the
date of termination of this Agreement.
f. Concessionaire is liable for any additional costs incurred by the City as a result of the
termination of this Agreement under this Section 25.
24
SECTION 26. LIMITATION OF LIABILITY.
The City desires to enter into this Agreement only it 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 Ten Thousand ($10,000.00) Dollars. Concessionaire hereby expresses its willingness to enter
into this Agreement with a $10.000.00 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 Concessionaire for damages to Concessionaire in an amount
in excess of $10,000.00, 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.
SECTION 27. 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. CITY AND CONCESSIONAIRE
HEREBY KNOWINGLY AND INTENTIONALLY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY
ACTION OR PROCEEDING THAT CITY AND CONCESSIONAIRE MAY HEREIN AFTER INSTITUTE
AGAINST EACH OTHER WITH RESPECT TO ANY MATTER ARISING OUT OF OR RELATED TO THIS
AGREEMENT OR THE CONCESSION AREA(S).
SECTION 28. CONFLICT OF INTEREST
Concessionaire herein agrees to adhere to and be governed by all applicable Miami -Dade County
Conflict of Interest Ordinances and Ethics provisions, as set forth in the Miami -Dade County Code, as
may be amended from time to time; and by the City of Miami Beach Charter and Code, as may be
amended from time to time; both of which are incorporated by reference as if fully set forth herein.
Concessionaire covenants that it presently has no interest and shall not acquire any interest, directly or
indirectly, which could conflict in any manner or degree with the performance of the Services.
Concessionaire further covenants that in the performance of this Agreement, Concessionaire shall not
employ any person having any such interest.
Concessionaire agrees to comply with Section 787.06, Florida Statutes, as may be amended from time to
time, and has executed the Anti -Human Trafficking Affidavit, containing the certification of compliance with
anti -human trafficking laws, as required by Section 787.06(13), Florida Statutes, a copy of which is
attached hereto as part of Exhibit B (City s Affidavits and Certifications), incorporated herein by reference
and attached hereto.
Concessionaire warrants and represents that it is not currently engaged in, and will not engage in, a
boycott, as defined in Section 2-375 of the City Code. In accordance with Section 2-375.1(2)(a) of the City
Code, Concessionaire hereby certifies that Concessionaire is not currently engaged in, and forthe duration
of this Agreement, will not engage in a boycott of Israel, as evidenced from the signed certification
incorporated herein by reference and attached hereto as part of Exhibit B.
Concessionaire warrants and represents that, within two (2) years prior to the Effectiv
Concessionaire has not received compensation for services performed for a candidate for City
office, as contemplated by the prohibitions and exceptions of Section 2-379 of the City Code.
For the avoidance of doubt, the restrictions on contracting with the City pursuant to Section 2-379 of the
City Code shall not aooly to the following:
25
(a) Any individual or entity that provides goods to a candidate for office.
(b) Any individual or entity that provides services to a candidate for office if those same services are
regularly performed by the individual or entity in the ordinary course of business for clients or
customers other than candidates for office. This includes, without limitation, banks, telephone or
internal service providers, printing companies, event venues, restaurants, caterers, transportation
providers, and office supply vendors.
(c) Any individual or entity which performs licensed professional services (including for example, legal
or accounting services).
Concessionaire hereby agrees to comply with Section 287.138, Florida Statutes, as may be amended from
time to time, which states that as of January 1, 2024, a governmental entity may not accept a bid on, a
proposal for, or a reply to, or enter into, a contract with an entity which would grant the entity access to an
individual's personal identifying information (Pit), unless the entity provides the governmental entity with
an affidavit signed by an officer or representative of the entity under penalty of perjury attesting that the
entity does not meet any of the criteria in Paragraphs 2(a){c) of Section 287.138, Florida Statutes: (a) the
entity is owned by a government of a foreign country of concern; (b) the government of a foreign country
of concern has a controlling interest in the entity; or (c) the entity is organized under the laws of or has its
principal place of business in a foreign country of concern (each a "Prohibited Entity'). A foreign country
of concern is defined in Section 287.138 (1xc), Florida Statutes, as may be amended from time to time,
as the People's Republic of China, the Russian Federation, the Islamic Republic of Iran, the Democratic
People's Republic of Korea, the Republic of Cuba, the Venezuelan regime of Nicolas Maduro, or the Syrian
Arab Republic, including any agency of or any other entity of significant control of such foreign country of
concem. Additionally, beginning July 1, 2025, a governmental entity may not extend or renew a contract
with a Prohibited Entity. Concessionaire warrants and represents that it does not fall within the definition
of a Prohibited Entity, and as such, has caused an authorized representative of Concessionaire to execute
the "Prohibition Against Contracting with Entities of Foreign Countries of Concern Affidavit", incorporated
herein by reference and attached hereto as part of Exhibit 8.
SECTION 33. PEPSI AND RED BULL EXCLUSIVITY.
Notwithstanding anything to the contrary contained anywhere in this Agreement, any approved sale of ran -
alcoholic beverages in Section 2 (Uses) shall be subject to, and shall not, in any event, conflict with or
otherwise violate the City's exclusive vending contracts, as may be amended from time to time, which
currently include the City's exclusive pouring rights agreement with PepsiCo d/b/a PepsiCo Beverage
Sales, L-C, for all non-alcoholic beverage categories, including but not limited soda, water, juice, iced tea
and isotonics; and an exclusive pouring rights agreement with Red Bull for the energy drink beverage
category, as such, the dispensing or sale of any competing products is prohibited under this Agreement.
The current product list for Pepsi and Red Bull are incorporated herein by reference and attached hereto
as Exhibit A. Additionally, Concessionaire will be required to purchase these exclusive products from the
distributors designated by the City. The City will provide Concessionaire with written notice of any changes
to, or terminations of, the City Vending Contracts.
SECTION 34. MISCELLANEOUS.
34.1 No Partnership.
Nothing contained in this Agreement shall constitute or be construed to be or create a
partnership or joint venture between the City and Concessionaire.
34.2 Modifications.
This Agreement cannot be changed or modified except by agreement in writing executed
by all parties hereto. Concessionaire acknowledges that no modification to this Agreement
may be agreed to by the City unless approved by the Mayor and City Commission except
where such authority has been expressly provided herein to the City Manager or his
designee.
26
34.3 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
with respect to Concessionaire's operations, as contemplated herein.
34.4 Headings.
The section, subsection and paragraph headings 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.
34.5 Bindino Effect.
This Agreement shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
34.6 Clauses.
The illegality or invalidity of any term or any clause of this Agreement shall not affect the
validity of the remainder of this Agreement, and this 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.
34.7 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 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 this Agreement, such provisions and the
application thereof to other persons or circumstances, shall not be affected thereby and this
Agreement as so modified shall remain in full force and effect.
34.8 Right of Entry.
The City, at the direction of the City Manager, shall at all times during days and hours of
operation, have the right to enter into and upon any and all parts of the Concession Area
for the purposes of examining the same for any reason relating to the obligations of parties
to this Agreement.
34.9 Note Lease.
It is expressly understood and agreed that no part, parcel, building, facility, equipment or
space is leased to the Concessionaire, that it is a concessionaire and not a lessee; that the
Concessionaire's right to operate the concession shall continue only so long as this
Agreement remains in effect.
34.10 Sianaae.
Concessionaire shall provide, at its sole cost and expense, any required signs at its
concessions. All advertising, signage and postings shall be approved, in writing, by the City
in its proprietary capacity, and shall be in accordance with all applicable Municipal, County,
Stale and Federal laws and regulations. Any signage posted by Concessionaire on its
facilities and equipment shall be subject to the prior approval of the City as to size, shape
and placement of same.
34.11 Use of the Park/Right-of-Way.
The Park and right-of-way adjacent to the Park are for the use and enjoyment of the
public and the public's right to such use shall not be infringed upon by any activity
of the Concessionaire. Upon execution of this Agreement, Concessionaire
acknowledges that all of the Park areas within the Concession Area and adjoining
27
right-of-way areas are public, and as such, concession operations must not restrict,
or appear to restrict, access to the general public, or in any way limit the public nature
or ambiance of the adjacent Park areas or right-of-way areas. The Concessionaire
will conduct its operations so as to maintain a reasonably quiet and tranquil
environment for the adjacent area, and make no public disturbances.
34.12 Conflict of Interest.
Concessionaire shall perform its services underthis Agreement and conduct the concession
operations contemplated herein, in a manner so as to show no preference for other
concession operations/facilities owned, operated, managed, or otherwise controlled by
Concessionaire with regard to its responsibilities pursuant to this Concession Agreement.
34.13 Reasonableness.
Intentionally Omitted.
34.14 Procedure for Approvals and/or Consents.
Intentionally Omitted,
34.15 No Waiver.
No waiver of any covenant or condition of this Agreement by either party shall be deemed
to imply or constitute a waiver in the future of the same covenant or condition or of any other
covenant or condition of this Agreement.
34A6 No Third Party Beneficiary.
Nothing in this Agreement shall confer upon any person or entity, including, but not limited
to subcontractors, other than the parties hereto and their respective successors and
permitted assigns, any rights or remedies by reason of this Agreement.
[Signature Page Follows]
9
IN WITNESS WHEREOF,the parties hereto have caused their names to be signed and their seals
to be affixed,all as of the day and year first above written,indicating their agreement.
Attest:Zif
Rafael E.Granado,City Clerk
JLIl 1 1 202
Date
Attest:
de (Er)f Baal
Name:·
06.22 9
Date
CITY OF MIAMI BEACH
FRENCH AMERICAN ASSOCIATION OF CRAFTS
AND TRADES CORP.
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29
APPROVED AS TOFORM&LANGUAGE
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EXHIBIT 2.1
CONCESSION AREA AND SITE PLAN
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EXHIBIT 3.1.2.1
(Page 1 of 2)
SPECIAL EVENTS DISABILITY ACCESS PUNCH LIST
Special Events Disability Access Punch List
1, Ensure curb cuts and cross walks are kept free and clear for usage, with a
continuous accessible route of 44 inches in width.
2. The Event Producer must ensure that any nearby accessible on- or off-
street parking ("handicapped parking") is not obstructed by vehicles
loadingfunloading equipment, etc. if such obstructions occur, the Event
Producer must we that such obstructions are removed immediately.
Accessible parking spaces shall be ccrxrected to the site's continuous
accessible route, with no obstructions between the accessible parking
spaces and the curb ramps that serve those spaces.
3. Any and all accessible routes created and/or installed by the Event
Producer, or under the Event Producer's supervision, must have no abrupt
change In level in excess of % inch. Where such changes in level are
present, property bevel the change In level at a 1:2 ratio or provide a ramp
with a slope not to exceed a 1:12 ratio. This is necessary to allow passage
of wheelchairs or strollers and prevent tripping or the catching of walkers
and canes. Any ramps provided must be in compliance with all Florida
Accessibility Code requirements, Including, but not limited to,
requirements regarding edge protection, handrails, and surface.
4. Provide a smooth transition between temporary pathways and any ramps,
sidewalks, streets, or parking lots. This means no change in level
exceeding V. Inch. Any change exceeding '/. inch requires beveling at a
1:2 ratio or the installation of a ramp with a slope not to exceed a 1!12
ratio. Any ramps provided must be in compliance with all Florida
Accessibility Code requirements, including, but not limited to,
requirements regarding edge protection. handrails, and surface.
5. All cashier counters (counters where money transactions occur) must be
no higher than 36 inches maximum above finish floor, for a minimum
length of 36 inches.
6. Maintain an accessible route for access to merchandise that is both within
a vendor space, as well as merchandise not contained within a vendor
space. If the overflow of merchandise for patron viewing is placed behind
a booth, then provide adjacent access to the merchandise via a curb
ramp, as well as the placement of a pathway with a stable and firm
surface necessary for the use of wheelchairs and mobility aids.
7. Merchandise for display should be within a line of sight no higher than 48
inches for persons of short stature or wheelchair users. If merchandise is
32
EXHIBIT 3.1.2.1
(Page 2 of 2)
SPECIAL EVENTS DISABILITY ACCESS PUNCH LIST
displayed higher than 48 inches, merchant must provide assistance to
disabled customers in order to reach items.
8. All vendor spaces shall be located on an accessible route that is a
minimum of 44 inches wide.
9. It tables and seating are provided for the consumption of food, all aisles
adjacent to accessible fixed seating shall provide 30 Inch by 48 inch clear
floor space for wheelchairs. Where thero are open positions along both
sides of such aisles, the aisles shall be not less than 52 inches wide.
10.For wheelchair seating spaces provided at tables or counters, knee
spaces at least 27 inches high. 30 inches wide, and 19 inches deep shall
be provided. The tops of accessible tables and counters shall be from 28
inches to 34 inches above the finish floor or ground.
11.Where food or drink Is served at counters exceeding 34 inches in height
for consumption by customers seated on stools or standing at the counter,
a portion of the main counter which is 60 inches in length minimum shall
be provided in compliance with the requirements of Items 09 and #10
above, or service shall be available at accessible tables within the same
area.
12. Where portable toilets are provided, an accessible route shall be provided
to the toilets. Five percent of the total number of toilets must be
accessible. If clusters of portable tollets are distributed throughout the site,
then each cluster must have accessible units.
13.It general assembly seating or standing space is provided for audience
members attending a public performance at a special event, reserved
wheelchair seating must be provided. Such seating must be provided in a
location that allows wheelchair users an unobstructed line of sight to the
stage. If seating capacity accommodates greater than 300 persons, then
accessible seating shall be dispersed throughout the venue.
33
EXHIBIT 3.2.1
PRODUCT LIST
diverse selection of local and French artisans offering handmade goods, including French pastries,
jewelry and accessories and other artisan products.
34
EXHIBIT A
(Page 1 of 3)
PEPSI-COLA AND RED BULL PRODUCT LIST
35
2025 PEPSI BEVERAGES PORTFOLIO K.SI
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EXHIBIT B
CITY'S AFFIDAVITS AND CERTIFICATIONS
Concessionaire shall initial each section included in this Exhibit. The act of Initialing confirms
Concessionaire's review of, and agreement to, the statements contained therein. Concessionaire shall
also sign and notarize the acknowledgment at the and of this Exhibit, affirming the truth and accuracy of
all Initialed statements.
This Exhibit must be completed by a person authorized to make the following attestations on behalf of
Concessionaire:
SECTIONAFFIDAVIT
Initials 1�5
In accordance with Section 787.06(13), Florida Statutes, incorporated herein by reference, the
undersigned, on behalf of Concessionaire, hereby attests under penalty of perjury that Concessionaire
does not use coercion for labor or services as defined in Section 787.06, Florida Statutes, entitled "Human
Trafficking".
FOREIGNSECTION 2 — PROHIBITION AGAINST CONTRACTING WITH
• OF •AFFIDAVIT
Initials
In accordance with Section 287.138, Florida Statutes, incorporated herein by reference, the undersigned,
on behalf of hereby attests under penalty of perjury that Concessionaire does not meet any of the
following criteria in Paragraphs 2(a)-(c) of Section 287.138, Florida Statutes: (a) Concessionaire is owned
by a government of a foreign country of concern; (b) the government of a foreign country of concern has a
controlling interest in Concessionaire; or (c) Concessionaire is organized under the laws of or has its
principal place of business in a foreign country of concern.
SECTION• OF •ANTI -BOYCOTT
REQUIREMENTS
In accordance with Section 2-375.1(2)(a) of the City Code, Concessionaire hereby certifies that
Concessionaire is not currently engaged in, and for the duration of this Agreement, will not engage in a
boycott of Israel. "Boycott of Israel" as referred to herein means engaging in refusals to deal, terminating
business activities, or other similar commercial actions that are intended to limit commercial relations with
persons or entities doing business in Israel or in Israeli -controlled territories, when such actions are taken:
(i) in compliance or adherence to calls for a boycott of Israel, other than those boycotts to which 50
App. U.S.C. §2407(c) applies; or
(ii) In a manner that discriminates on the basis of nationality, national origin, religion, or other
unreasonable basis.
[SIGNATURE PAGE FOLLOWS]
36
Docusign Envelope ID: 2FD2191ES3C3-8EA74032-95239819937A
MIAMIBEACH
South Pointe Park Washington Avenue Entrance French Market (Retroactive Agreement Annl
2W5-October 2026)
Parks, Facilities, Fleet a nd Beaches
French American Association of Crafts and Trade Corp.
oo<„ aia.aa ay:
Mark Taxis
John Rebar
ei—Skil 2.54 PM EDT
Type t- Contract, amendment, change order, or task order resulting from a procurementcesued competitive sollcitanon.
x
Type 2-Any other contractamendment change ortler, or task order that does not result from a vocurement-Issued competitive solicitation.
Type 3- Independent Contractor Agreement fl[n)
Type 6-TenantAgreement
Type 4- Gram agreements with the City as thereolplem
TYpe ]- Imm;overnmentalagenaagreemena
Type S-Grant agreements with thectwas the tremor
TypeB-Cher:
Execution of retroactive agreement between the City of Miami Beach and the French American Association of Crafts and
Trades Corp for the establishment of a French Market at South Pointe Park.
On March 19, 2025, the Mayor and City Commission adopted Resolution No. 2025-33566, accepting the recommendation
of the PSNOLC and authorizing the City Manager to negodale and execute a Concession Agreement with the French
American Association of Crafts & Trades Corp. ("FAACT FL Chapter') for the management and operation of the French
Merkel during the six-month pilot program commencing Atoll 6, 2025.
Resolution No. 2025-33566 further authorized the City Commission to waive the formal compel bidding requirements
and approve an extended term with modified business lemma should the pilot program prove successful.
The French Market has been successfully hosted an South Pointe Park since Al 2025, featuring local and French artisans,
supporting womenownetl small businesses, and providing a culturally vibrant axnmunily, experience without interfering with
normal park operations or violating the Operational Guidelines for South Pointe Park established under Resolution No.
2010-27375.
All rental fees associated with use of the space at South Pointe Park will be waivetl. There is no fiscal impact to the Coy.
Grant Funded: Yes x No State Federal Other:
NA Yes No
2
Yes
No
3 Yes No
I. For contracts longer than live years, contact the Procurement Department. 2. Attach any supporting explanation needed. 3. Budget
approval indotes approval for the content fiscal year only. Future years are subject to CM Cummins ix, approval of the annual
adopted operating budget
City Commission Approved: Ves No Resolution No.: CC Agenda Item No.: I CC Mel Date:
R]E June 24, 2026
If no, explain why CC approval is not required:
Legal Form Approved: x I Yes No If no, explain below why form approval is not necessary:
Procurement: NA Grams: NA
gristy Bade
Docusign Envelope ID: 2FD2191 E33C3-SEA7-8032-95239819937A
Budge Analysh
NA
Information Techrology:
NA
Budget Director:
Tameka Otto Stewart
Risk Management:
NA
Fleet & Facilities:
NA
Marc Chevalier
Insurance Type:
Human Resources:
NA
Other:
1. Every field must be completed. If the requested information is not applicable, enter N/A.
2. Prior to routing a document, it is advisable to confirm the authority to sign, funding/account information, risk
management compliance, and controlled purchases (IT or Fleet/Facilities) with the appropriate department.
3. Attach all supporting documentation (e.g., resolutions, commission memorandums, etc.) when routing.
4. When creating the workflow in DocuSign, in addition to the department head and applicable assistant/deputy city
manager, make sure the individuals (or designees) indicated in the Required Compliance Approvals section below
are included in the approval path. Note that compliance approvers must approve prior to the ACM.
S. The City Manager does not need to sign the cover sheet.
6. If you have any questions, contact the Procurement Department.
When routing documents for approval by the city manager, in addition to the department head and applicable city manager,
make sure the following Individuals (or designees) are included in the approval path, depending on each contract type.
Type 1— Contract, amendment, or task order for the purchase of goods or services resulting from a competitive solicitation.
• Chief Procurement Officer
• Office of Management& Budge Director, plus 'department assigned" Budget Analyst
(Except for non-monetorycontracts, amendments, and consent of assignments; remove OMB)
• Grants Management Division Director— if the purchase is grant -funded.
• Controlled purchases —
o Facilities and Flee Director — if the purchase involves a "facilities" or "vehicle" item.
o Information Technology Director —if the purchase involves a technology item.
Type 2 — Other contracts or amendments for the purchase of goods or services not resulting from a procurement -issued
competitive solicitation.
• Chief Procurement Officer(Exceptfor Bid Waivers; remove Procurement Signature)
• Office of Management& Budget Director,plus"department assigned' Budget Analyst
(Exceptfornon-monetary contracts, amendments, and consent ofossignments; remove OMB)
• Human Resources Senior Risk Officer
• Grants Management Division Director— if the purchase is grant -funded.
• Controlledpurchases—
o Facilities and Fleet Director — if the purchase involves a "facilities" or "vehicle" item.
o Information Technology Director— if the purchase involves a technology item.
Type 3 — Independent Contractor Agreements
• Human Resources Director
• lice of Management & Budget Director, plus 'department assigned" Budget Analyst
• Note: ICAS must include a resume of the individual selected.
Type 4—Grant agreements when the City is the recipient.
• Grants Management Division Director
Type 5— Grant agreements when the City is the grantor.
• As appropriate, depending on the grant type.
Docusgn Envelope ID: 2FD2191 E33C3-BEA7-8032-95239819937A
Type 6 —Tenant agreements
Facilities and Fleet Director
Type 7 — Inter -governmental agency agreement
• Chief Financial Officer
Type 8—Other (e.g., scholarships, utilities, educational initiatives, etc.)
• Office of Management&Budge Director, plus 'department assigned" Budget Analyst
For any other type, contact the Procurement Department for assistance.
aw.vss
e
BY SIGNING AND NOTARIZING THIS PAGE, YOU ARE ATTESTING TO THE AFFIDAVITS
AND CERTIFICATIONS IN SECTIONS 1.3 OF THIS EXHIBIT.
I understand that 1 am swearing or affirming under oath, under penalties of perjury, to the
truthfulness of the claims made in this Exhibit and that the punishment for knowingly making a
false statement may include fines aril/or imprisonment.
The undersigned is authorized to execute this affidavit on behalf of Concessionaire:
FRENCH AMERICAN ASSOCIATION OF CRAFTS & TRADES CORP.
-5 AJEll ti :�r shAhtR m &Ri
Signature a W ze ,presentative (Address)
nn ^ /3 3 34,6 2
Name/Title: YRPCk�IOU� %'niAO inn �(`y CFF9�J�hQ "c
State of i oI"J4
County of tt'a `r� l C4,
The foregoing instrument was acknowledged before me by means of.k(Physical presence or ❑
online notarization, this L'L day of n 202G by
Corinne euelhadf Engel President as of FRENCH
AMERICAN ASSOCIATION OF CRAFTS & TRADES CORP., a Florida rot -for -profit corporation,
)Sol+gr _ fR `; to a the person described herein, or who produced
i�'�4 as identification, and who did/dld not take an oath.
NOT PUBLIC:
(I` m
(Print Name)
My commission expires: 0
xvxEa.E eEwuo¢
1
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sd6,
vy Comm. Esehe vrY 6, 3d10
cm., ph, 20
APPROVED AS TO
FORM &LANGUAGE
& FOR EXECUTIONr�y,..�+.'ur
CIN AI�t� p�(g