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Collins Park St. Market Agreements ~% ~~~ 9 Concession Agreement for the Operation of the Collins Park Street Market INDEX SECTION TITLE PAGE 1 TERM ............................................................................. .....................................................5 2. CONCESSION AREA ..................................................... .....................................................5 2.1 22nd Street ........................................................ .....................................................5 3. USE(S)......: ..................................................................... .....................................................5 3.1.1 Facilities Design ................................................ .....................................................6 3.1.2 Placement of Facilities ....................................... .....................................................6 3.1.2.1 Compliance with American with Disabilities Act (ADA) ..........................................6 3.1.3 Set Up ................................................................ .....................................................7 3.1.4 Public Right-of-Way ........................................... .....................................................7 3.1.5 Interaction and Coordination with Other Collins Park Operations & Events..........8 3.1.6 Conflict Resolution ............................................. .....................................................8 3.2 Permitted Concession Operations /Uses ......... ...................................................10 3.2.1 Cut Flowers and Plants ..................................... ...................................................10 3.2.2 Fruits, Vegetables, Other Edible Products ........ ...................................................10 3.2.3 Cooked and Prepared Food Items .................... ...................................................10 3.2.4 Live Entertainment ............................................. ...................................................11 3.3 Intentionally Omitted .......................................... ...................................................11 3.4 Intentionally Omitted .......................................... ...................................................11 3.5 Intentionally Omitted .......................................... ...................................................11 3.6 Off-Duty Police .................................................. ...................................................11 3.6.1 Off-Duty Police .................................................. ...................................................11 3.6.1 Supervision ........................................................ ...................................................11 3.7 Vendor Selection /First Priority to Miami Beach Merchants ................................12 3.8 Removal of Concession Facilities ...................... ...................................................13 3.9 Hurricane Evacuation Plan ................................ ...................................................13 3.10 Business Tax Receipt ........................................ ...................................................13 4. CONCESSION FEES ..................................................... ...................................................13 4.1 Security Deposit ................................................. ...................................................13 4.2 Percentage of Gross (vs.) MG (PG) .................. ...................................................13 4.3 Minimum Guarantee (MG) ................................. ...................................................14 4.4 Cost for Use of Electricity .................................. ...................................................14 4.5 Interest for Late Payment .................................. ...................................................14 4.6 Sales and Use Tax ............................................ ...................................................14 5. MAINTENANCE AND EXAMINATION OF RECORDS .. ...................................................14 6. INSPECTION AND AUDIT ............................................. ...................................................15 7. TAXES, ASSESSMENTS, AND UTILITtES ................... ...................................................16 7.1.1 Electricity ........................................................... ...................................................16 7.2 Procedure if Ad Valorem Taxes Assessed ........ ...................................................16 8. EMPLOYEES AND INDEPENDENT CONTRACTORS . ...................................................16 9. SCHEDULE OF OPERATION ........................................ ...................................................17 9.1 Day(s) of Operation ........................................... ...................................................17 9.2 Operating Hours ................................................. ..................................................17 10. MAINTENANCE .............................................................. ..................................................17 10.2 Garbage Receptacles ......................................... ..................................................18 10.3 Pressure Cleaning .............................................. ..................................................18 10.4 Facilities .............................................................. ..................................................18 10.5 Orderly Operation ............................................... ..................................................18 10.6 No Dangerous Materials ..................................... ..................................................18 10.7 Security ............................................................... ..................................................19 10.8 Vehicles on Public Right-of-Way ........................ ..................................................19 10.9 Inspection ........................................................... ..................................................20 2 SECTION TITLE PAGE 11. INSURANCE ...................................................................................................................... 20 12. INDEMNITY ....................................................................................................................... 21 12.4 Subrogation .......................................................................................................... 22 12.5 Force Majeure ...................................................................................................... 22 12.6 Labor Dispute ....................................................................................................... 22 12.7 Waiver of Loss from Hazards ............................................................................... 22 13 DEFAULT AND TERMINATION ........................................................................................ 22 13.1 Bankruptcy ............................................................................................................ 23 13.2 Default in Payment ............................................................................................... 23 13.3 Non-Monetary Default ........................................................................................... 23 13.4 City's Remedies for Concessionaire's Default ...................................................... 23 13.6 Termination for Convenience/Partial Termination ................................................ 24 13.7 Surrender of Concession Area ............................................................................. 25 14. ASSIGNMENT ................................................................................................................... 26 15 SPECIAL EVENTS ............................................................................................................ 26 15.1 City Special Events ............................................................................................... 27 15.2 Street Vendors /Street Performers ...................................................................... 27 16. NO IMPROPER USE ......................................................................................................... 27 17. PRICE SCHEDULES ......................................................................................................... 28 18. NOTICES ........................................................................................................................... 28 19. LAWS ................................................................................................................................ 29 19.1 Compliance ........................................................................................................... 29 19.2 Governing Law ...................................................................................................... 29 19.3 Equal Employment Opportunity ............................................................................ 29 19.4 No Discrimination ................................................................................................. 29 20. MISCELLANEOUS ............................................................................................................ 30 20.1 No Partnership ...................................................................................................... 30 20.2 Modifications ......................................................................................................... 30 20.3 Complete Agreement ............................................................................................ 30 20.4 Headings .............................................................................................................. 30 20.5 Binding Effect ....................................................................................................... 30 20.6 Clauses ................................................................................................................. 30 20.7 Severability ........................................................................................................... 31 20.8 Right of Entry ........................................................................................................ 31 20.9 Not a Lease .......................................................................................................... 31 20.10 Signage ................................................................................................................. 31 20.11 Use of the Right-of-Way ....................................................................................... 31 20.12 Conflict of Interest ................................................................................................. 31 20.13 Reasonableness ................................................................................................... 32 20.14 Procedure for Approvals and/or Consents ........................................................... 32 20.15 No Waiver ............................................................................................................. 32 20.16 No Third Party Beneficiary .................................................................................... 32 20.17 Attorneys' Fees ..................................................................................................... 32 21. LIMITATION OF LIABILITY ............................................................................................... 32 22. VENUE .............................................................................................................................. 33 EXHIBITS Exhibit 2.0 ............................................................................................................ 34 Exhibit 3.1 ............................................................................................................ 35 Exhibit 3.1.1 ......................................................................................................... 36 Exhibit 3.1.2.1 ...................................................................................................... 37 Exhibit 3.2.1 ......................................................................................................... 39 ..................................................................:........................................................... 40 3 CONCESSION AGREEMENT BETWEEN THE CITY OF MIAMI BEACH, FLORIDA AND THE MARKET COMPANY, INC. FOR THE MANAGEMENT AND OPERATION OF THE COLLINS PARK STREET MARKET THIS AGREEMENT made the /~ day of (~~009, between the CITY OF MIAMI BEACH, a munici al cor oratidn of the State of Florida hereinafter called "Ci " , p p ( tY ) having its principal address at 1700 Convention Center Drive, Miami Beach, Florida, 33139, and THE MARKET COMPANY, INC., a corporation established pursuant to the laws of the State of Florida, with offices at 238 East San Marino Drive, Miami Beach, Florida 33139 (hereinafter called "Concessionaire"). WITNESSETH WHEREAS, on October 14, 2009, the Mayor and City Commission adopted Resolution No. 2009-27235, waiving, by 5/7cns vote, the competitive bidding requirement, finding such waiver to be in the best interest of the City, and approving in substantial form, an agreement with the Concessionaire to operate a street market in the area adjacent to Collins Park, to be located on 22"d Street, between Collins Avenue and Liberty Avenue, for a term of one(1) year, commencing on January 1, 2010 and ending on December 31, 2010; WHEREAS, Concessionaire and the City have negotiated the foregoing Concession Agreement. NOW THEREFORE, in consideration of the premises and the mutual covenants and conditions herein contained and other good and valuable consideration, the receipt and adequacy of which are hereby conclusively acknowledged, it is agreed by the parties hereto as follows: The City hereby grants to the Concessionaire, and the Concessionaire hereby accepts from the City, the right to operate the following described concession within the Concession Area, (as defined herein), in conformance with the purposes and for the period stated herein, and subject to all the terms and conditions herein contained and fairly implied by the terms hereinafter set forth. SECTION 1. TERM. 1.1 This Agreement shall be for a term of one (1) year, commencing on January 1, 2010 (the "Commencement Date"), and ending on December 31, 2010. SECTION 2. CONCESSION AREA. The City hereby grants to the Concessionaire the right to operate a concession for an open air street market, (as further described herein), in the following area(s) (hereinafter referred to collectively as the "Concession Area" and as more specifically delineated in Exhibit 2.0 herein): 2.1 22"d Street. This Concession Area is limited to the public right-of-way bounded on the north by a line parallel to and 10.5 ft south of the northernmost line of the 22nd Street right-of-way; bounded on the south by a line parallel to and 10.5 ft north of the southernmost line of 22nd Street right-of--way; bounded on the east by a line parallel to and 45.5' west of the westernmost line of Collins Avenue right-of-way; and bounded on the west by the easternmost line of Liberty Avenue right-of-way. The Concession Area does not include those portions of the public right-of-way where fountains, seating, or other public amenities or other uses authorized/licensed/permitted by the City are currently located or may be located in the future. 2.2 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 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. SECTION 3. USE(S). The Concessionaire is hereby authorized to conduct the following kind(s) of uses within the Concession Area, 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 "Collins Park Street Market" (the Market), which shall provide a venue for Concessionaire's vendors to sell and/or provide the following (as each is more specifically defined in Section 3.2): a) Plants and cut flowers; b) Fruits, vegetables, and other edible products and related food items; c) Cooked and prepared food items; d) Non-alcoholic beverages, coffee and tea; and e) Certain live entertainment. 5 This shall also generally include the rental of booths, tents, tables, signs or space(s) (collectively the "Facilities"), in conformance with the attached site plan (Exhibit 2.0). The City herein approves the rental of the aforestated Facilities, and the prices for same, all as set forth in Exhibit 3.1, and as provided in Section 18. Any amendments to Exhibit 3.1 must be approved in writing by the City Manager or his designee and, prior to implementation of same, a new Exhibit 3.1 shall be incorporated herein. 3.1.1 Facilities Design: The design, type, material, and color of any and all Facilities shall be approved in writing by the City's Planning Department prior to the Commencement Date. 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 the design, type, material and color of any such City-approved Facilities without the prior written consent of the City Manager or his/her designee (and, if so approved, an updated Exhibit 3.1.1 will be made a part of and incorporated into this Agreement). For purposes of this Agreement, the City Manager's Designee shall be the City's Asset Manager. 3.1.2 Placement of Facilities: All respective Facilities within the Concession Area shall be placed substantially in accordance with the attached site plans, herein approved by the City and attached hereto and incorporated as Exhibit 2.0 hereto. Concessionaire shall not deviate from or alter the approved site plans without the prior written consent of the City Manager or his/her 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 and incorporated as Exhibit 3.1.2.1 hereto. 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. 6 3.1.2.2 The Concessionaire's 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 22nd Street. 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 22"d Street; b) maintain an unobstructed accessible path of travel on both the north sidewalk and the south sidewalk of 22nd Street; and c) maintain an unobstructed accessible path(s) of travel from the north walkway to the south walkway of 22nd Street. 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. 3.1.3 -Set Up: The set up of Facilities to be placed within the Concession Area, shall be substantially in accordance with the site plan(s) approved pursuant to Exhibit 2.0, with the days and hours of operation in Section 9. Placement of Facilities shall not exceed the maximum number set forth in Exhibit 2.0. 3.1.4 Public Right-of-Wav: The City and Concessionaire agree and acknowledge that the public's use of the public right-of way is a prime consideration and must be balanced accordingly with Concessionaire's proposed operations. Accordingly, notwithstanding the site plans and maximum numbers set forth in Subsection 3.1.3, Concessionaire further agrees that it will not alter or modify its site plans without the prior written consent of the City Manager or his/her designee. 3.1.5 Interaction and Coordination with Other Collins Park Area Operations and Events: Concessionaire agrees and understands that there are other businesses, establishments, operations, and events which are ongoing, or may occur from time to time, within or in close proximity to the Concession Area. As such, Concessionaire agrees that it will use its best efforts to cooperate and coordinate with said businesses, establishments, operations and events so as to minimize the impact to the respective parties. 3.1.6 Conflict Resolution: Concessionaire recognizes and understands that conflicts with one or more of the following entities, groups, and/or individuals may arise during the term of this Agreement, or any extensions thereof: • conflicts between Collins Park area merchants/businesses and Concessionaire; • conflicts between vendors and Concessionaire; • conflicts between vendors and the general public; and/or • conflicts between the general public and Concessionaire As such, Concessionaire further recognizes and understands that notice of said conflicts may be directed to the attention of Concessionaire or the City. In the event a notice of conflict is communicated to the City, whether verbally or in writing, the City will communicate same to the Concessionaire, as soon as practicable. Whenever a conflict arises, upon Concessionaire's receipt of notice of same, whether written or verbal, between any of the aforestated entities, groups, or individuals, with any of Concessionaire's operations, resolution to said conflicts will be addressed in the following manner: Concessionaire shall meet with the conflicted party and, using its best good faith efforts, endeavor to resolve the conflict to the satisfaction of all parties concerned, within fourteen (14) calendar days from receipt of notice. 2. In the event the conflict cannot be resolved (as stated in Number 1 above), then the Concessionaire shall provide written notice to the conflicted party, with copy to the City Manager or his/her designee, with a date on which to meet with the City Manager's designee, to address the conflict. At that time, the City Manager's designee will recommend a resolution. The City Manager's designee shall endeavor to set a meeting date within fourteen (14) calendar days of receipt of a copy of the written notice to the conflicted party. For purposes of this subsection, the City Manager's designee shall be the Asset Manager of the City. 3. In the event the resolution recommended by the City Manager's designee is not acceptable to the Concessionaire or the conflicted party, the City Manager's designee shall inform the City Manager, and provide him/her with the pertinent details of the conflict. The City Manager may make a determination as to whether he/she concurs with the designee's recommendation; offer an alternate resolution; or choose to meet with Concessionaire and the conflicted party to get additional information, prior to making a final determination. Notwithstanding the foregoing, the City Manager's determination will be binding upon all parties. Concessionaire agrees and understands that the above referenced conflict resolution language is not applicable to any conflicts that may arise between the City and the Concessionaire pursuant to this Agreement, or conflicts outside of the City's purview, control or jurisdiction. 3.1.7 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. It is the City's intent, and Concessionaire hereby agrees and acknowledges, to develop and promote a world class open air market that would be comparable to those found in other first class resorts and beach communities on par with the City of Miami Beach. Accordingly, Concessionaire shall, at a minimum, ensure that all Facilities placed within the Concession Area are well maintained and in usable condition, but shall also adhere to the high ongoing maintenance standards for same, consistent with the aforementioned condition and standard of quality. 3.1.8 Quality of goods and services offered will befirst-rate and comparable to those available in open air markets in other first class resorts and beach communities 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). 3.1.9 All portions of the Concession Area shall at all times be maintained in a clean and sanitary manner. 3.1.10 The Concessionaire's 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 Manager, in his/her 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 (2) weeks prior written notice, requesting to reduce said hours. Additionally, option (ii) shall be subject to the City's Manager's written approval (which shall not be unreasonably withheld), prior to implementation of any schedule of reduced hours 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 the Concessionaire must also obtain the City Manager's prior written consent, prior to implementation of same, Concessionaire agrees and acknowledges that any Concessionaire requested reduction in the scheduled hours of operation shall in no way reduce Concessionaire's financial responsibility to the City, as required in Section 4. 3.2 Permitted Concession Operations /Uses. 3.2.1 Cut Flowers and Plants: This shall generally include the sale of flowers, either individually or in bunches that have been cut from their base, and potted plants. 3.2.2 Fruits, Vegetables. Other Edible Products: This shall generally include the sale of those edible items defined as, and generally including, fresh fruits, dried fruits, vegetables, nuts, preserves, pickled items, jams, jellies, juices, smoothies, and non- alcoholic beverages. 10 3.2.3 Cooked and Prepared Food Items: This shall generally include the sale of prepared and cooked food items, including, but not limited to, ethnic cuisine, pastas, salads, cooking demonstrations, etc., and ready-to-eat foods items such bar- be-cue, hamburgers and hotdogs. 3.2.4 Live Entertainment: 3.2.4.1 Any live entertainment that is provided by Concessionaire shall be limited to: solo, duo andlor trio performers, unless otherwise approved, in writing, by the City Manager or his/her designee. 3.2.4.2 For purposes of this Agreement, the term "performers" shall include individuals who provide live entertainment by means of musical instruments, singing, dancing, theatrical and dramatic interpretation, mimes, etc. Notwithstanding, the foregoing, Concessionaire must comply with the City's Noise Ordinance and any other applicable regulation, at all times. 3.2.5 In the event that the City Manager orhis/her designee determines, at his/her sole option and discretion, that all or a portion of Concessionaire's permitted uses are no longer desired, then the City Manager may revoke Concessionaire's right to provide all or a portion of such uses, upon thirty (30) days prior written notice to Concessionaire. Any percentage of gross (PG) paid by Concessionaire (pursuant to Subsections 4.2 and 4.3) to City with regard to a discontinued use, shall be prorated and/or adjusted accordingly, as of the date of termination of said use. 3.3 Intentionally Omitted. 3.4 Intentionally Omitted. 3.5 Intentionally Omitted. 11 3.6 Off-Duty Police and Supervision. 3.6.1 Off-Duty Police: Off-duty police services are not contemplated as of the Commencement Date. However, in the event the City Manager deems, in his/her reasonable discretion, that off-duty police officer services are required, as same may be warranted by changes in Market conditions or operations, the parties herein agree to meet and discuss said proposed changes. 3.6.2 Event Supervision 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. 3.7 Vendor Selection /First Priority to Miami Beach Merchants. 3.7.1 The Concessionaire shall be solely responsible for selection, oversight and supervision of any vendor operating within the Concession Area as part of the Market. Notwithstanding the preceding, within thirty (30) days from the Commencement Date, and for a period of thirty (30) days thereafter, the Concessionaire shall offer Miami Beach licensed merchants the opportunity to participate (a booth space) in the Market as vendors before opening its search to the general public or other networks. The Concessionaire will use best efforts to ensure that all Miami Beach licensed merchants are contacted and that announcements regarding booth availability are disseminated throughout the City of Miami Beach: including, but not limited to, advertising in a local newspaper, placing information on the Market on websites, etc. 3.7.2 Intentionally Omitted 3.7.3 The. Concessionaire will keep and make available to the City for inspection, upon notice by the City, carefully detailed records, including the name, address, telephone numbers, qualifications, experience, and the proposed goods and services to be offered for sale by its vendors, and will pay particular attention to matching vendors and booths with appropriate locations. 3.8 Removal of Concession Facilities. Concessionaire agrees that any Facilities (or other items) used in .the concession operations wil{ be removed from the public right-of- way/Concession Area, in compliance with the time parameter(s) set forth in Subsection 9.2 herein. 12 3.9 Hurricane Evacuation Plan. Concessionaire agrees that any Facilities (or other items) used in the concession operations will be immediately removed from the public right-of- way/Concession Area upon the issuance of a Hurricane Warning by the Miami-Dade County Office of Emergency Management; to be stored by Concessionaire at a private, off-site location. 3.10 Business Tax Receipt. Concessionaire shall obtain, at its sole cost and expense, any business tax receipts required by the City for its proposed operations. For purposes of this Agreement, Concessionaire shall obtain the "Promoters" business tax receipt. SECTION 4. CONCESSION FEES. 4.1 Security Deposit. Upon execution of this Agreement, and in any event no later than the Commencement Date, Concessionaire shall furnish the City with a Security Deposit, in the amount of Eight Hundred Sixty Six ($866) Dollars. Said Security Deposit shall serve to secure Concessionaire's performance in accordance with the provisions of this Agreement. In the event the Concessionaire fails to perform in accordance with said provisions, the City may retain the Security Deposit, as well as pursue any and all other legal remedies provided herein, or as may be provided by applicable law. The parties agree and acknowledge that the foregoing condition is intended to be a condition subsequent to the City's approval of this Agreement. Accordingly, in the event that Concessionaire does not satisfy the aforestated condition within the time period provided herein, then the City Manager or his/her designee may immediately, without further demand or notice, terminate this Agreement, without liability to the City and without being prejudiced as to any remedies which may be available to the City for breach of contract. 4.2 Minimum Guarantee (MG). Inconsideration of the City executing this Agreement and granting the rights provided in this Agreement, Concessionaire shall pay to the City, on a monthly basis, within thirty (30) calendar days from the end of each month during the Term, a Minimum Guaranteed Concession Fee (MG) of Eight Hundred Sixty Six Dollars and Sixty Seven Cents ($866.67) per month (or $10,400 annually). 13 4.3 Percentage of Gross (PG). During the Term, Concessionaire shall pay the City, on a monthly basis, and within thirty (30) calendar days from the end of each month, an amount equal to fifteen (15%) percent of Concessionaire's gross receipts (PG). In the event that the annual PG is less than the Minimum Guarantee (MG), then the Concessionaire shall also pay to the City, upon demand, the difference between the PG amount and the MG. The term "gross receipts" is understood to mean all income, whether collected or accrued, derived by the Concessionaire under the privileges granted by this Agreement, excluding amounts of any Federal, State, or City sales tax, or other tax, governmental imposition, assessment, charge or expense of any kind, collected by the Concessionaire from customers and required by law to be remitted to the taxing or other governmental authority. Except as otherwise provided, with regard to a special event under Subsection 16.1 hereof in which Concessionaire is not permitted to continue operating, the pro-rata share due to the City for the event days will be abated. 4.4 Cost for Use of Electricity. Concessionaire shall provide City with a list, updated every month during the Term, if its vendors which are using or intend to use electricity to operate their booths. Concessionaire shall remit to the City, along with its monthly payments required under Sections 4.2 and 4.3, an amount equal to two dollars ($2.00) per Market day, for each vendor location that proposes to use electricity. (Note: This amount is net of any applicable sales or use tax, which shall also be Concessionaire's responsibility). 4.5 Interest for Late Payment. Any payment which Concessionaire is required to make to City which is not paid on or before the respective date provided for in this Agreement shall be subject to interest at the highest rate allowable under Florida Law, from the due date of payment until such time as payment is actually received by the City. 4.6 Sales and Use Tax. It is also understood that, any required Florida sales and use tax shall be added to Concessionaire's payments and forwarded to the City as part of said payments. It is the City's intent that it is to receive all payments due from Concessionaire (including MG and PG) as net of such taxes. SECTION 5. MAINTENANCE AND EXAMINATION OF RECORDS. Concessionaire shall maintain current, accurate, and complete financial records, on an accrual basis, of accounting related to its operations pursuant to this Agreement. Systems and procedures used to maintain these records shall include a system of internal controls and all accounting records shall be maintained in accordance with generally accepted accounting principles, and shall be open to inspection and audit by the City Manager or 14 his/her designee upon reasonable prior notice and during normal business hours. Such records and accounts shall include a breakdown of gross receipts, expenses, and profit and loss statements, and shall be maintained as would be required by an independent CPA in order to audit a statement of annual gross receipts and profit and loss statement pursuant to generally accepted accounting principles. A monthly report of gross receipts must be submitted to the City, through the Finance Department's Revenue Manager, no later than thirty (30) days after the close of each month during the Term herein SECTION 6. INSPECTION AND AUDIT. Concessionaire shall maintain its financial records (pertaining to its operations) 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. Concessionaire shall maintain all such records at its principal office, currently located at 428 Espanola Way, Miami Beach, Florida, 33139 or, if moved to another location, 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 it desires to review said records. The City Manager orhis/her designee shall be entitled to audit Concessionaire's records pertaining to its operation as often as it deems reasonably necessary throughout the Term, and three (3) times within the three (3) year period following termination of the Agreement, regardless of whether such termination results from the natural expiration of the term or for any other reason. The City shall be responsible for paying all costs associated with such audits, unless the audit(s) reveals a deficiency of five percent (5%) or more in Concessionaire's statement of gross receipts for any year or years audited; in which case the Concessionaire shall pay to the City, within thirty (30) days of the audit being deemed final by the City, the cost of the audit and a sum equal to the amount of the deficiency revealed by the audit, plus interest. Concessionaire shall submit at the end of the Term, an audited annual statement of gross receipts, in a form consistent with generally accepted accounting principles. Nothing contained within this Section shall preclude the City's audit rights for resort tax collection purposes. 15 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. Concessionaire shall pay before delinquency any and all charges for utilities used by, for, or on behalf of the operations contemplated herein (including, but not limited to, water, electricity, gas, heating, cooling, sewer, telephone, trash collection, etc.). 7.1.1 Electricity: City acknowledges that Concessionaire may require electrical outlets to operate some vendor locations for registers, lighting fixtures, etc. Any usage of electricity from City-owned sources shall be reimbursed to the City in accordance with the provisions outlined in Section 4.4 herein. 7.2 Procedure If Ad Valorem Taxes Assessed. Notwithstanding Subsection 7.1, 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 taxes are assessed, City and Concessionaire shall use reasonable efforts to address payment of same. 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 and/or sub-concessionaires shall not be considered agents or employees of the City. Concessionaire shall select the number, function, 16 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 its employees, agents and contractors, including any vendors selected by Concessionaire for the Market, observe all the graces of personal grooming and shall comport themselves in a professional and courteous manner. Neither Concessionaire or any of its 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 The Concessionaire shall have an experienced manager or managers overseeing the concession operations at all times. 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 Day(s) of Operation: Sundays only 9.2 Operating Hours: Set-Up: Must not begin earlier than 6:30 AM and end by 9:00 AM Market operating hours: 9:00 AM to 6:00 PM Move-Out: 6:00 PM to 7:00 PM Any change in the days or hours of operation shall require the prior written consent of the City Manager or his/her designee. SECTION 10. MAINTENANCE. 10.1 The Concessionaire accepts the use of the Concession Area and any and all other public property and/or right-of-ways provided or used by Concessionaire in conjunction with this Agreement, in its/their "AS IS" condition. Concessionaire assumes sole responsibility and expense for maintenance of the Concession Area. This shall include, at a minimum, daily removal of litter, garbage and debris. 17 10.2 Garbage Receptacles. With respect to litter, garbage and debris removal, the Concessionaire shall also 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 its vendors) and for the use of the public that patronizes the Market. [Determination of the "number" of receptacles shall at all times be within the City Manager's sole discretion, and Concessionaire shall agree to be bound by same]. 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 which the Concessionaire operates). 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 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 employees, contractors and/or vendors) shall be strictly prohibited. 10.3 Pressure Cleaning. Concessionaire shall be responsible, at its sole cost and expense, for the pressure cleaning of the Concession Area, including all abutting sidewalks and public right-of-ways. adjacent thereto, at least once every three (3) months during the Term. 10.4 Facilities. Intentionally Omitted. 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 properly maintain the Concession Area and all Facilities incident thereto. 10.6 No Dangerous 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, combustible 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. 18 10.6.2 Concessionaire shall indemnify 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 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 willful misconduct or 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 solely responsible providing any security , as it may deem required in its judgment and discretion, to protect the Concession Area and any of the Facilities and vendor goods, merchandise and/or other property. Under no circumstances shall the City be responsible for any stolen or damaged goods, merchandise, Facilities, and/or any other property, nor shall City be responsible for any stolen or damaged personal property of Concessionaire's employees, contractors, vendors, patrons, guests, and/or other third parties. 10.8 Vehicles on the Public Ripht-of-Wad Concessionaire's (including its employees, contractors, agents, vendors, 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, 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 pursuant to this subsection and/or the purposes herein, shall have a current valid Florida Driver's License. No vehicular traffic or parking will be permitted on the public right-of-way during concession hours of operation. Access to the public right-of-way shall only be permitted via specifically designated points authorized for such use at the nearest authorized access to a concession vendor's operation. Vehicles operated on the public right-of-way 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 any other items to and from the Concession Area, the vehicles shall be removed from the public right-of-way and parked in a legally authorized location. 19 10.9 Inspection. 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 by the City Manager or any authorized City representative, or by any other State or County officer or agency having responsibilities for inspections of such operations. The Concessionaire hereby waives any and 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 throughout the Term, at its sole cost and expense, the following types of insurance coverage: 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. c. Automobile Insurance for any vehicles used for, or associated with concessionaire's operations shall be provided covering all owned, leased, and hired vehicles and non-ownership liability for not less than the following limits: Bodily Injury $1,000,000 per person Bodily Injury $1,000,000 per accident Property Damage $1,000,000 per accident 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 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 State 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 City's Risk Manager. 20 Failure to procure or maintain the required insurance shall, at the City's sole option and discretion, (i) constitute an immediate default of the Concession Agreement for which the City may, upon 24 hours written notice to Concessionaire, terminate the Agreement (without liability to the City hereunder); or (ii) allow the City, to obtain the insurance itself, in which case said insurance shall be charged back to the Concessionaire. 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 City's expenditures within fifteen (15) days of demand, the total sum owed shall accrue interest at the highest rate allowable under Florida Law, until paid, or, at its option, the City may declare the Agreement in default pursuant to Section 13 herein. SECTION 12. INDEMNITY. 12.1 In consideration of a separate and specific consideration of $10.00 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 and/or sub- concessionaires pursuant to, as a result of, or in connection with the operations contemplated under this Agreement. 12.2 In addition, in consideration of a separate and specific consideration of $10.00 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 and/or subconcessionaires, 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 willful misconduct or gross negligence of the City, its agents, servants or employees. 21 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. 12.5 Force Majeure. Neither party shall be obligated to perform hereunder and neither party shall be deemed to be in default if performance is prevented by: a. fire which renders at least thirty percent (30%) of the Concessionaire's cumulative facilities and operations unusable and which is not caused by negligence of Concessionaire; b. earthquake; hurricane; flood; act of God; civil commotion occurring on the Concession Area during or in connection with any event or other matter or condition of like nature; or c. any law, ordinance, rule, regulation or order of any public or military authority stemming from the existence of economic or energy controls, hostilities, or war. 12.6 Labor Dispute. In the event of a labor dispute which results in a strike, picket or boycott affecting the Concession Area or operation described in this Agreement, Concessionaire shall not thereby be deemed to be in default or to have breached any part of this Agreement, unless such dispute shall have been caused by illegal labor practices or violations by Concessionaire of applicable collective bargaining agreements and there has been a final determination of such fact which is not cured by Concessionaire within thirty (30) days. 12.7 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 fire, water, natural disasters/acts of God (e.g. hurricane, tornado, etc.), civil commotion, riot, or any other Force Majeure contemplated in Subsection 12.5 and Labor Dispute in Subsection 12.6 above, 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. 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. 22 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 per day for such late payment, in addition to interest at the highest rate allowable by Florida law. 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 City's Remedies for Concessionaire's Default. If any of the events of default, 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 23 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 underthis 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 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. 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/Partial 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 priorwritten notice to Concessionaire. 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, including all or a portion of the Concession Area, which may entail a closure of all or a portion of the' right-of-way and Concession Area, at the City Manager's sole discretion. In the event that the City closes down the right-of-way, or any other portion of the Concession Area, for the purpose of undertaking a capital improvement plan thereon, then the parties 24 agree that that portion of the 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 closed. 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 the 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, then Concessionaire's MG amount due to the City, pursuant to Section 4.3, 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 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 orhis/her 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 the Agreement shall constitute trespass by the Concessionaire, and may be prosecuted as such. In addition, the Concessionaire shall pay to the City one thousand dollars ($1,000) per day as liquidated damages for such trespass and holding over. 25 SECTION 14. ASSIGNMENT. Except as otherwise provided in this Subsection, or in the 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 without the prior written consent of the City Manager, which consent, if given at all, shall be at his/her sole discretion. 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 his 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 the Agreement so transferred), and the City shall be permitted to enforce the provisions of this Agreement directly against Concessionaire or any transferee of the Concessionaire without proceeding in any way against any other person. For purposes of this Section 14, Concessionaire's selection of vendors forthe Market shall not be deemed a transfer. SECTION 15. SPECIAL EVENTS. Concessionaire's proposed uses, as set forth in Section 3 herein, do not contemplate the production, promotion or sponsorship by the 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 City's Special Events Permit Requirements and Guidelines, as same may be amended from time to time. For any use, other than those permitted for in this Agreement, a Special Events Permit maybe required and shall be obtained through the City's Department of Tourism and Cultural Development. The City Manager's authorization must be obtained for any such special event. 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 during Concessionaire's hours of operation, 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. 26 15.1 City Special Events. Notwithstanding Section 15 hereof, and in the event that the City Manager, in his/her 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 time of, and in the area of, the special event and/or production, and the Concessionaire shall not operate during said time. If the Concessionaire is not required to close, Concessionaire shall only be allowed to have in operation its normal daily complement of Facilities and vendors. "Normal" shall be defined as Facilities and vendors that the Concessionaire has available for the public on a normal Market day. Such Facilities and vendors shall not be increased during special events and/or productions without the prior written permission of the City Manager or his/her designee. Notwithstanding anything to the contrary, if a 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. 15.2 Street Vendors /Street Performers. Any locations within the Concession Area identified by the City for non- Concessionaire sponsored street vendors and/or street performers, in accordance with City of Miami Beach Ordinance No. 2002-3366, as may be amended from time to time, or otherwise in accordance with the City's respective rules, regulations, and guidelines associated therewith, as same may also be amended from time to time, are excluded from this Agreement, and Concessionaire shall not interfere or otherwise prohibit said street vendors and/or street performers' activities upon such designated portions of the public right-of-way. Similarly, Concessionaire shall not prohibit or otherwise interfere with the activities of any street vendors and/or street performers who may not be part of a City of Miami Beach permitted process, but who may have certain constitutionally protected rights to perform and/or offer for sale their wares on public rights-of-way. SECTION 16. 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, 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 27 subcontractors, to be objectionable or improper, the City shall have the option, at its sole discretion, to either (i) automatically terminate the 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. SECTION 17. PRICE SCHEDULES. Concessionaire agrees that prices charged for facilities and or space (booth) rental, be consistent with the price schedule(s) herein submitted by the Concessionaire and approved by the City and incorporated herein as Exhibit 3.1 to this Agreement. All subsequent price increases and amendments to Exhibit 3.1 must be approved in writing by the City Manager, or his designee, and prior to such changes being implemented within the Concession Area a new updated Exhibit 3.1 will be incorporated into this Agreement. Notwithstanding the foregoing, Concessionaire agrees and acknowledges that any discounted prices it may offer for the rental of facilities shall not in any way reduce the amount of remuneration due to the City, including but not limited to the Percentage of Gross (Section 4.2), which shall be based and calculated on the prices set forth in said Exhibit 3.1 The City shall have the final right of approval for all such prices and changes, but said right shall not be arbitrarily or unreasonably exercised. The Concessionaire agrees to refrain from the sale or rental of any item identified as prohibited by City law and/or other applicable law and to sell only those items approved by the City. SECTION 18. NOTICES. All notices from the City to the Concessionaire shall be deemed duly served upon receipt, if mailed by registered or certified mail with a return receipt to the Concessionaire at the following address: Ms. Claire Tomlin, President The Market Company 238 East San Marino Dr Miami Beach, Florida 33139 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, to the City of Miami Beach at the following addresses: City Manager City of Miami Beach 1700 Convention Center Drive Miami Beach, FL 33139 With copies to: 28 Asset Manager Department of Real Estate, Housing and Community Development 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 Concession Agreement must be in writing. SECTION 19. LAWS. 19.1 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. 19.2 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. 19.3 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 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. 19.4 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 Concession 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. 29 19.4.1 Pursuant to Sections 62-90 and 62-91, of Chapter 62, of the Miami Beach City Code entitled "Human Relations", Concessionaire, by executing this Agreement, certifies that it does not discriminate in its membership or policies based on race, color, national origin, religion, sex, sexual orientation, familial status or handicap. SECTION 20. MISCELLANEOUS. 20.1 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. 20.2 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. 20.3 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. 20.4 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. 20.5 Binding Effect. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. 20.6 Clauses. The illegality or invalidity of any term or any clause of this Agreement shall not affect the validity of the remainder of the Agreement, and the Agreement shall remain in full force and effect as if such illegal or invalid term or clause were not contained herein unless the elimination of such provision detrimentally reduces the consideration that either party is to receive under this Agreement or materially affects the continuing operation of this Agreement. 30 20.7 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 the Agreement, such provisions and the application thereof to other persons or circumstances, shall not be affected thereby and this Agreement as so modified remains in full force and effect. 20.8 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. 20.9 Not a 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. 20.10 Signage. 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, State 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. 20.11 Use of the Right-of-Wav. The right-of-way is 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 rights-of-way within the Concession Area 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 area. 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. 20.12 Conflict of Interest. Concessionaire shall perform its services under this 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. 31 20.13 Reasonableness. Notwithstanding anything to the contrary in this Agreement, including but not limited to references to "sole option" or "sole discretion" or words of similar meaning, in each instance in which the approval or consent or other action of the City Commission or the City Manager or his designee is allowed or required in this Agreement, such approval, consent or other action shall not be unreasonably withheld, conditioned or delayed. 20.14 Procedure for Approvals and/or Consents. Intentionally Omitted. 20.15 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. 20.16 No Third Party Beneficiary. Nothing in this Agreement shall confer upon any person or entity, including, but not limited to subconcessionaires, other than the parties hereto and their respective successors and permitted assigns, any rights or remedies by reason of this Agreement. 20.17 Attorneys' Fees. If it becomes necessary for City or Concessionaire to enforce their respective rights under this Agreement or any part hereof through litigation, Concessionaire and City agree that the prevailing party shall be entitled to recover from the other party all costs and expenses of such litigation, including a reasonable attorneys' fee and costs, for all trial and appellate proceedings. SECTION 21. LIMITATION OF LIABILITY. The City desires to enter into this Agreement only if in so doing the City can place a limit on its liability for any cause of action for breach of this Agreement, so that its liability for any such breach never exceeds the sum of $10,000.00. 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 68.28. 32 SECTION 22. 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). 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. PASSED AND ADOPTED THIS CSC 1-~' 1 ~ , 2009. Attest: )~~ ~- ~~ CITY CLERK Robert Parcher Attest: ignature/ ecretary ~o~ ~2~~~(~vr~ Print Name JMG/CMC/JD/rlr F:\DDHP\$ALL\ASSET\Markets\Collins Park market Agreement.doc 33 CITY OF MIAMI BEACH AYO Matti Herrera Bower THE MARKET COMPANY, INC. Signature/President o ~` Print Name APPROVED AS TO FORM & LANGUAGE e~.FOR EXECUTION rrr ~` `1 Cil~/ I~O ~at9 EXHIBIT 2.0 Site Plan 34 EXHIBIT 3.1 COLLINS PARK MARKET FEE SCHEDULE PENDING CONCESSIONAIRE 35 EXHIBIT 3.1.1 COLLINS PARK MARKET FACILITIES DESIGN/LAYOUT PENDING CONCESSIONAIRE 36 EXHIBIT 3.1.2.1 (Page 1 of 2) (Special Events Disability Access Punch List) Special Events aisabilFty Access Punch I.tst 1. Ensure curb cats and cross walks are kept free and dear for usage, with a continuous accessible route of 44 inches in width. ~. The Event Producer must ensure that any nearby accessible on- or off- street parking ("handicapped parking"} is not obstructed by vehicles loadingfunloading equipm®nt, etc. If such obstructions occur, the Event Producer must see that such obstructions are removed immediately. Accessible parking spaces shall be connected to the site's continuous accessible route, with no obstructions between the .accessible parking spaces and #~e curb ramps that serve those spaces. 3. Any and all accessible routes created andlor installed by the Event Producer, or under the Event Produces supervision, must have no abnrpt change in level in excess of f/~ inch. Where such changes in level are present, properly bevel the chang® in level at a 1:2 tatio or provide a ramp with a slope not to exceed a 1:1 ~ 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 Cade 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 !n level exceeding 1~a inch. Any change exceeding '~i inch requires beveling at a 1:2 ratio or the installation of a ramp with a slope not to exc®ed a i : i 2 rati©. Any ramps provided mast be in compliance with all Florida Accessibility Cvda requirements, including, but not limited to, requirements regarding edge protection, handrails, and surface. 5. Alt cashier counters (counters where money transactions occur} must be no higher than 36 inches rnaximam 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 wel! as mer,c#~andise not contained within a vendor space, It 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 tirm surface necery for the use of wheelchairs, and mobility aids. ~- merchandise for display should be within a line of sight no higher than 48 inches for persons of short stature or wheelchair users. ff merchandise is 37 EXHIBIT 3.1.2.1 (Page 2 of 2) (Special Events Disability Access Punch List) displayed higher ti~an 48 inches, merchant must provide assistance to disaubled customers in order to read items. 8. All vendor spaces shall be located on an accessible route that is a minimum of 44 inches wide. 5, if tables end seating are provided for the c+~nsumption of food, all aisles adjacent to accessible fixed seating shall provide 30 inch by 48 inch clear floor space for wheelchairs, Where #here are open positions along both sides of surd aisles, the aisles shall be not less than ~2 inches wide. 14. For w~he~elchair seating spaces provided at tables or counters, knee spaces at Feast 27 inches high, ~3D inches wide, and ~9 inches deep shall be provided. The taps of accessible tables at~d counters shah be from 28 inches to 34 inches above the finish Hoar or ground. 11. Where foots or drink is served at counters exeeedirig 34 inches in height for consumption by customers seated on stools or standing at the counter, a portion of the main counter which is Ba inches in length minimum shall be provided in compliance with the requirements of Items #9 and #1+D above, or service shall be available at accessible tables within the same area. 12. Where portable toilets are provided, an accessible route shah b® provided to the toilets. Five percent of the total number of toilets must be accessible. If clue;ere cif portable toilets ene distributed throughout the site, then each cluster must have accessible units. 13.If general assernbiy seating or standing space is provided for audience members attending a public performanc$ at a special event, reserved wheelchair seating must be provided. $uch seating must be provided~in a location that allows wheelchair users an unobstructed line arf sight to the stage. If seating capacity accommodates greeter than ~QO persons, thQn accessible seating shall be dispersed throughout the veraua. 38 EXHIBIT 3.2.1 (Product List) COLLINS PARK MARKET PROPOSED PRODUCT LIST Fresh organic and conventionally grown products Fresh baked bread and other baked products Cheese Vinegars, oils, marinades, sauces, jams and jellies Imported products (olives, sun-dried tomatoes, artichokes, etc.) Coffee, tea and spices Fresh seafood Candy and chocolate Honey Nuts Kettle pop corn Soap Candles Potpourri Cut Flowers Plants Silk plants and flowers Prepared foods (ethnic cuisine, pastas, salads, cooking demonstrations, etc.) Ready-to-eat foods (bbq, hamburgers and hotdogs, etc.) Drinks (water, soft drinks, coffees, tropical fruit smoothies, lemonade, juice, etc.) Community information (Library, Chamber of Commerce, City, etc.) Live music 39 EXHIBIT A (Page 1 of 6) (Vendor Guidelines) The Market Company, Inc. 428 EspaBola way -Miami Beaci~, Fl 33139 (303} 331-0038 t. - (305) 532-0082 f. Vendor Guidelines Definition of Vendor: All parsons participating in a mazket. Merchains who awn stores and participate in a market are also vendors and ttaust follow vendor gtridelints. ' kei Lacation• ^ Lincoln Road ^ Espanola ^ North Beach ^ FestivArt ^ Other Market llg„vs: ^ Friday U Sat>aday ^ Sunday ® Monday . arket ours: a.m. to p.m. Sales stop at ciasittg tittle. or. p.m. to a.m. Sales stop at closing time. Market Set-no: as early as: a.m. Street must be char by p.m. or. p.m. Street must be clear by a.m. The Market Company has a pern»t with the City of Miami Beach which designates set-up and break-down times. It is imperative that vendors follow these time guidelines. Vendors who do not follow the auidelinea .will be fined $50 for the first offense 5100 for the second offense and thereafter will not be allowed to return to the market ~ • Fee; $- _ _ + Sales Tax: $ + Insurance: $ =Total: $ Market Fees: Market fees must be paid in advance by the close of the day on the Thursday before the mazket is to be held. Fees can be paid in cash, check or coedit card (automatic credit card deductions can be arranged). Payment is made at The Market Company. office aY 428 Espanola Way. This paymem guarantees . a reserved space in the market. If a vendor cannot attend a market for which payment has been made, cancellation made 48 hours in advance will transfer paid funds to the next market date. Funds will, be forfeited if cancellation is not made. 'Vendors who do not pay in advance but choose to came acid obtain an unreserved space will pay prior to set up and will be assigned a space on a first came first served basis determined 6y the number of spaces available, Markets U~erate Rafn or Shige. If a vendor elects to set up for product sales,- even if rain reduces sales, a minimum fee of 50% will bus charged. In the case of advanced payment, if a vendor questions whether a market will ~be set up due to rain,, he should call the mazket coordinator to protect his funds. Vendor Spaces are Assiguett by The Market ~'omuanv Vendors are expected to attend each weekend. Yf a vendor misses two market days without notice his assigned space will be forfeited and he will re-apply for a market space. 40 EXHIBIT A (Page 2 of 6) (Vendor Guidelines) Additional ~: Vendors are welcomed to participate in multiple utarkkets. For a vendor m be eligible to be in additional markets he must be prepared to stay is his original marketplace and apply to the additional markets. Vendor Disafav Area: Vendors furnish their own tents, umbrellas, tables, cloths, carts, chairs, displays, trash cans, brooms and trash bags. Market standards are white lOxl4 tettts (Insta- shade, EZUp}, green market umbrellas with stands and green table skirts (Dade Towel - 3051751-1284 $ 3.75 linear foot). Marloet aesthetics are very important, Describe your area: Teats and Umbrellas: Vendor's tarots and umbrellas rr4ust be weighed down immediate Vendors Who Need Electricity: Vendors who need electri~y_ av make a request to The Market Comnanv rearesentative for access to sa antmoved electrical outlet. Vendors must provide heavy-duty,grounded cords and aheavy-duty grounded connector Cotds exnased on the sideyvalk ar street must be covered with nlastie hea-vv~ity covers and dnck-tagged in,~ace Vendors who provide light can use up to 304 watts per 10'x14' boatlt, if a vendor does not follow the guidelines for the use of clectriciri the following fines will be instituted^ $50/first ~'enaE S 100/second offense and thereafter the vendo will net he tsertnitted p~ation Vendors Are Allowed A IQ'a10' Saace,=„All tables must fit within.the 10'x14' space. Vendor Behavior: Veadars must dress appropriately with shirts on at all times. Alcoholic beverage consumption by vendors is not allowed. Please see Vendor Rules 8~ Regulations. Vendor Clean-ua: Vendors are responsible for removal of all trash related to their stand. They are not to.use public trash caws. They are to remove trash .from the street. Vendors are advised to bring their own trash receptacle and broom. If a vendor leaves trash he will be fined $50/first ot1'ense. A second offense will cost $100. Thereafter the vendor wiU not be allowed to participate in the market. Vendor ?2entai Procedure: An appointment must be made with The Market Company to review the guidelines. The Market Company application and agreement must be completed and signed. Upon acceptance vendor will be allowed bo participate in the market. Stsas/Prieins: No hattdwxitten signs are allowed. Products must be priced either individually, by basketlcrate or on a posted sign. Signs will be on white background only. The Market Company can tucommend n sign maker. State Sates Tarr and Food Handlinr Permits• Vendors must provide The Market Company with a copy of ail such licenses required prior to joining the market. In the case of a food handling license, vendors must .provide monthly renewal prior to returning to the market if a vendor does not follow the state guidelines for food handling they must leave the market. Parkins: Following loadingJunloading, vendor's vehicles must be removed from Ioadinglunloadixtg atua. 41 EXHIBIT A (Page 3 of 6) (Vendor Guidelines) AQreemcnt with ite{avant Assncistions: The madcats arc designed as econor»ic development . for the area in which they are located. if there is a complaint from a business about $ particular . vendor selling products that interfere with his business The Markel Company may have to ask a vendor to no longer participate in the event. Lincoln Road, North BeBCh, Trspanala Way and Espanola Way FestivArt and other marloety. I~osu>rance: The lylarkei Company has liability insurance in the amount of $ 1,004,040 pursuant io permit requirements of the City of Miami Beach. Vendors must rnnvide uroof of insurance for their participation in tht market which oovers,proQert~dama egc personal iaitny and produce !labile in the amount oaf $l 000 000 This p~af of itrs ce zrrusi at~omn$nx vendor's application. Most farmlbusinese trol'rcies cover activities act the miarket. trheck with vour insurance carrier. If a vendor does Hunt have insurance and cannot provide proof he will be responsible far paying.Thc Market Company $ 5.00 each day to cover his property damage and personal injury liability. If he sells edible pmducts which require product liability he will be r~ponsibie for paying $ 8.00 each day which includes property damage, personal injury and product Liabiiity..,Coverage is nP to one million dollars in liability. Each vendor wil! sign an agreement accepting respoffiibiliiy for any damages over one million dollars noel agrrees to hold harmless and indemnify The Iv4arket Company, its owners, agents and employees acrd The City of Miauri Beach from any and all liability arising from participation and sales in the market. 42 EXHIBIT A (Page 4 of 6) (Vendor Guidelines) ~. ~ company Mivmi's Premier spspal c°vgrts a„d rl Company 428 Eep88ols R+ay - Miami 13en~, FL 33139 -305331.0038 Addendum to the fiAarket ComaanY Vender Guidelines Vendor Rules ~ Receulations In order to provide a safe, secure and pleasant environment, Tha Market Company requests your cooperation in complying wkh the toltowing vendor notes and regulations: 1. The use of profanity, loud, rude, d~ruptive or threatening behavior by eny vendor ar participant in the market is strit~ly prohibited. 2. Appropriate dress, including shirts and shoes a sandals, must be worn at ail times. 3. No booth may be left unattended at anytime. 4. Smoking while manning a booth is stric~y prohibiked. 5. The playing of loud radios that disturb the pleasant shopping experience is strictly prohibited. 6. Taking unauthorized photosraphs or videos of vendors or their property is strictly prohibited. 7. The drspiay, selling or soliciting of anything pornographic in nature is strictly prohibited. 8. Possessian/oonsumption of atcoholic beverages antUor illegal substances is strictly prohib[ted. 9. The carrying of weapons} of any kind, possession of any item defined as a weapon, whether illegal or not is strictly prohibited. 1 understand and accept the condttifons set forth In the Market Company Vendor Gutdelinea and the tlAaricet Company Vendor Rules and Regulations. Signed• ~ ~~. Your cooperation ii~t abiding by the Market Company Vendor Guidelines and Vendor Rules and Reputations is appreciated. The MaMcet Company or its deslBnee, -es~en-e$,~Q,rlght to request that those wha refuse to comply with the shave con~lil~po~ i q1e market imm~diately.- 43 EXHIBIT A (Page 5 of 6) (Vendor Guidelines) ~t . company ~mi~:~cr The Market Company, Inc. - 428 Espafiola Way -Miami Beach, k'lorida 33139 SUBJEC°I': LETTER OF TERMIPiATION AS A VENDOR IN THE MARKET. To Whom It May Concern: This is to advise yon that I, do hereby resign my right to participate as a vendor in the nlsrket(e) presented by The Market Company, eti=ectrve immcdiateiy, because i have viarlated the terms of agreement as set forth in the Vendor Guidelines and Vender Rules and Regatations. Snch terms were agreed upon in the Last Chance Agreement which I signed on Sineereij+, 44 EXHIBIT A (Page 6 of 6) (Vendor Guidelines) The Market Company, Inc. 428 E>ipaHala Way -Miami Beach, I+1 33139 (305) 531-0038 t. - (305} 532-0082 f. APPLICATION & AGREEMENT Applicant: Address: City: State: 2IP CODE: Business Name: sari ar~a~ sru~ rmr a: Phane• lrmail: Fax: Pager: Cell: North Beach ~ Lincoln Rd ^ FesdvArt Q Espa>mla Way ~ Other Merchandise to be sold: (Please continue on back of ibis page if necessary and initial your work). I hereby agree to sell only such itctna which are Ustcd oa the applieatioo. l swear that all information is correct and cwnplete. I hereby affirm that 1 have read the restttationa end policies es otulined and agree to abide by alt rules esteblisbes for the operation of the markets. I further acl~nowledge that 1 am ~ indepeadea2 contractor and take full responsibility for all activities conducted througho~u the term of this permit and have property damage, personal injury end pmdua liability insurance in the amount of 51,400,000 and ague to 6otd harmless and mdetnnify 'Itte Matter Company, its owners, agents and employees, and the City of Miami Beach from any and all liability arising from pazticipatiom and salts in the market. Fee: $ + Tax: $ + Insurance: $ =Total $ Name: Signature: Date• I I Approved: Claire TatttlinlThe Mat4cet Company, Inc. !Vote: V iotatioa or falsification of say of the conditions, set forth in this legal agreement will result in tht immediate and potmanent loss of permission m sell airy product at s mattet spa~ored by The Market Company. htc. 45