First Class Parking Concession AgreementFIRST CLASS PARKING, LLC
Concession Agreement
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UN DEX
SECTION
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TERM .
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USES ...... ........................... .................................................................................................
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CONCESSION FE
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MAINTENANCE AND EXAMINATION OF RECORDS .......................
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INSPECTION AN --------.--.-----_._----
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TAXES ASSESSMENTS, AND UTILITIES ........... ................................
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` EMPLOYEES AND INDEPENDENT CONTRACTORS .................................................
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IMPROVEMENTS NAN RE OPERATION -.�
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|N5U�ANCE--------_---------.__,--_'---_-�_.------'11
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D EFAULT AND TERMINATION ---.----------_.------_
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PERFORMANCE BOND OR ALTERNATE SECURITY ...................................................
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ASS|GNMENT. ._--.'-
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NO IMPROPER USE .................. : .............................................. ........................................
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PRICE SCHEDULES ..................... .......................................... ,__-^,---...............
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NOTICES.. -_.----'------_.---.'----.-'--.^.------_--.'
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LAWS _,-..:--�------------.-`-.----------------..----18
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MISCELLANEOUS .......................................................................... : ..................
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` L|MD7\T|[>N OF LIABILITY.: .'------.-_----------_-_-------'21
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VENUE ................................ ----..----,`._.'..'^---.--'--`^`-'21
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N{} LIENS '�
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STORAGE .............................................................................................
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CITY VVITHOR/AWLOF CITY PROPERTY .......................................
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RFP INCORPORATED ...................................... '.....................................
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PUBLIC BENEFIT -'---_-----�----_--.--_-
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AUTOMATED- VALET SYSTEM IMPLEMENTATION '-,---..--------''_-.22
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BETWEEN THE CITY OF MIAMI BEACH
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FIRST CLASS PARKING, LLC.
TO PROVIDE VALET PARKING SERVICES
AT .THE FILLMORE AT THE JACKIE GLEASON THEATER OF THE PERFORMING
ARTS, MIAMI BEACH CONVENTION CENTER, AND OTHER CITY PROPERTIES, AS
MAY BE REQUIRED, PURSUANT TO REQUEST FOR PROPOSALS NO. 40 -07/08
THIS AGREEMENT made this Is k day of X2010, between the CITY.OF
MIAMI BEACH, a municipal corporation of the State of Florida (City), and FIRST CLASS
PARKING, `LLC, a Florida limited liability company, with offices at 12550 Biscayne
Boulevard, Suite 207, Miami, Florida, 33181 (Concessionaire).
WITNESSETH
WHEREAS, on Julyr 16, 2008, the Mayor and City Commission authorized the
issuance of Request for Proposals (RFP) No. 40 -07/08 for Valet, Parking Services on City-
owned Property (the RFP); and
WHEREAS, pursuant to Resolution No. 2009 - 27017, on February 25, 2009, the
Mayor and bty Commission authorized the Administration to enter into negotiations with
Concessionaire, as the successful proposer pursuant_to the RFP, accordingly, City and
Concessionaire have negotiated the following, agreement.
NOW THEREFORE, in consideration of the premises and the mutual covenants and
conditions herein contained, 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 maintain, "manage and operate a valet parking
concession for the City properties set forth in Section 2 hereof, for the term stated herein
and subject to all terms and conditions herein contained: -
SECTION 1. TERM.
1.1 This Agreement shall have an initial term of three (3) years, commencing on the 1 st
day of October, 2010 (Commencement Date), and ending on the 30th day .of
September, 2013.
The .City may, at its sole discretion, extend the Agreement, under the same terms
and conditions _.contained herein (except that the City reserves its right to re-
negotiate the concession fee, as provided in Section 3.5 of the Agreement), for one
(1) additional two -year term, upon written notice to Concessionaire, which notice
shall be provided .not less than sixty (60) days prior to the end of the initial term.
SECTION 2. USES.
2.1
The City hereby grants to Concessionaire the right, during the Term herein, to
"maintain, manage and operate, at its sole cost and responsibility, a valet parking
concession(s) for the following City properties (hereinafter, the properties in this
Section 2.1 (a) — (c) may also be referred to as the "Venues "):
(a) The Fillmore at the Jackie Gleason Theater of the Performing Arts (the
Fillmore), located at 1700 Washington Avenue, Miami Beach, Florida, 33139;
(b) Miami Beach Convention Center (MBCC), located at 1901 Convention
Center Drive, Miami Beach, Florida, 33139;. and
'(c)- such other City properties, as may be authorized, in writing, by the City
Manager, in his sole discretion.
2.2
In, operating the valet parking concession for the Venues, the Concessionaire shall
be entitled to use up to one hundred (100) parking spaces in the City Hall_Garage
(CHG), located at 1755 Meridian Avenue. immediately west of City Hall on the
northeast corner of Meridian Avenue and 17 Street.
Concessionaire shall park vehicles only within those designated spaces in the CHG,
which spaces shall be located on the rooftop parking level (seventh parking level) of
the CHG. The Concessionaire shall park vehicles consistent with the designated
traffic 'circulation pattern within the CHG. Notwithstanding' the . preceding,
Concessionaire shall have the option of parking vehicles in a backed -in position. If
unauthorized vehicles are parked in spaces made available for the Concessionaire's
use, the Concessionaire shall immediately contact the City for resolution. Under no
circumstances shall the Concessionaire use parking spaces outside of the
designated locations.
2.3.
At his /her sole discretion, the City Manager may make additional spaces available
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for use by Concessionaire at Municipal Parking Lot No. 29, located on the northeast
corner of Convention Center Drive and 17 Street for (i), high - volume events where
the capacity is expected to exceed the assigned capacity available in the CHG; or
(ii) where the anticipated high volume will create an unacceptable diminution of valet
service levels for such events:
2.4
With regard to the. provision of valet parking services at MBCC, Concessionaire
shall set -up, operate, and provide passenger loading and unloading at one of two
(2) mutually agreed upon areas. Individuals and /or firms who contract to use all or a
"portion of MBCC (an MBCC User) for a convention, trade show, or other event (an.
MBCC Event) shall have the option of selecting either of the two (2) aforestated
passenger locations.
When providing valet parking for an MBCC Event, no valet stand shall be set up in a
location which will interfere with bus service provided for the Event.
2:5 , `
Upon request by an MBCC User, and subject to the prior written approval of the City
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Manager, Concessionaire may provide pre -paid group 'valet parking. The
Concessionaire, City and the MBCC User shall mutually agree upon a
- predetermined number of valet parking coupons. The MBCC User shall pre -pay all
coupons seven (7) days in advance of the first "show" day of the MBCC Event.'- The
MBCC User shall forfeit the value of any non - redeemed coupons and shall not be
entitled to a refund. The MBCC User may purchase additional coupons (referred to
hereinafter as a subsequent purchase) if needed. The, MBCC User shall be entitled
to ,refunds of unused coupons of subsequent purchases. Concessionaire. shall
refund the amount for unused coupons derived from subsequent purchases within
seven (7) days of the last "show" day of the MBCC Event:
Notwithstanding anything in this subsection 2.5 or the Agreement, valet parking
coupon payment, creation, control, accountability, and verification shall be the sole.
responsibility of the Concessionaire.
2.6 The - Concessionaire shall attend any and all planning meetings for any event at the
Venues where valet parking services are to be provided. Concessionaire
acknowledges that. such' meetings may be scheduled by the City; or, for MBCC
Events, by Global Spectrum LLP (the City's manager for MBCC); or, for events at
_The Fillmore, by Live Nation Worldwide, Inc. (the City's - manager for The Fillmore).
Said meetings shall be held in order for Concessionaire to become aware of the
user's needs, requests, and requirements for the event, and for Concessionaire's
input'and recommendations. While the City (or Global or Live Nation, as the case
.may, be) may solicit input .and recommendations from Concessionaire, all final
operational decisions shall ultimately rest with, and be within the exclusive purview =
of, Ahe City. Concessionaire's failure to have representation and /or participate at any
pre -event planning meetings shall be deemed a waiver by Concessionaire to
challenge any and all operational decisions made with regard to the event.
2.7 Concessionaire shall provide valet parking services at a Venue whenever there is
an event where people' including, without limitation, members of the public, are
expected to be in attendance. The Concessionaire shall not be required to provide
valet parking services at a Venue where: (i) prior to commencement of the event,
the Concessionaire is expressly directed, in writing, by either the City (for any
Venue); or by Global (for MBCC); or, by Live Nation (for the - Fillmore), that its
services will not be required; or (ii) following commencement of an event, where the
Concessionaire parks no more than ten (10) cars in any day for such event, in which
case Concessionaire shall not be required to provide valet parking servicesfor the
remainder of that event.
2.8 Lincoln Road - Should the City elect, at any time during the Term, to have
Concessionaire provide valet parking services for all or any portion of Lincoln Road
Mall, the City will provide the Concessionaire with not less than two (2) ramp
locations on Lincoln Road (from where. such services can be provided), as well as
reasonable trailblazing signage in areas approaching Lincoln Road notifying the
public of valet parking (with the manner and locations of all signage to be
determined solely by the City Manager, in his /her discretion).
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2.9 ' Special Events - During the Term. herein, the Concessionaire shall provide free
valet parking services for at least four (4) events per contract year, at such Venues
as shall be determined by the City Manager, at his /her sole judgment and discretion.
City acknowledges that the Concessionaire currently provides free valet parking
services for the Cleveland Clinic's Annual Charitable Event at MBCC; accordingly
this event shall count as one of the four (4) required events per year, so long as the
event continues to be held annually at MBCC.
SECTION 3. CONCESSION FEE.
3.1 Commencing on October 1 S , 2010, and thereafter at the beginning of each month
during the Term, The Concessionaire shall pay to the City fixed monthly minimum
payment, in the amount of $13,416.66 (equating to $161,000 annually). The
monthly minimum payment shall be submitted to the attention of the City's Parking,
Director, and must be received no later than the fifteen (15 ") day of each month:
3.2 Interest for Late Payment.
Any payment which Concessionaire is required to make to the City which is not paid
on or before the due date provided for in this Agreement shall be.subject to interest
at the rate of eighteen (18 %) percent per annum, orthe maximum amount allowable
under Florida law, whichever is greater, from the due date of payment until such
time as payment is actually received by the City.
3.3 Sales and Use Tax.
It is also understood that the required" Florida State 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 the monthly minimum payment
due from Concessionaire as net of such Florida State Sales and Use Tax.
3.4 City Business Tax Receipts.
Concessionaire shall obtain, at its sole expense and responsibility, any business tax
receipts required by the City for the proposed use(s) contemplated herein. To the
extent required by the applicable sections of the City. Code (as same may be
amended from time to time), business tax receipts shall be obtained for each Venue
serviced by Concessionaire pursuant to this Agreement.
3.5 NOTWITHSTANDING THE ABOVE, OR ANY OTHER TERM OR CONDITION OF
THIS AGREEMENT, THE CITY RESERVES THE RIGHT, AT ITS SOLE
JUDGMENT AND DISCRETION, TO RENEGOTIATE THE CONCESSION FEE
(i.e. THE MINIMUM MONTHLY PAYMENT) AT ANY TIME DURING THE TERM
HEREIN; PROVIDED, HOWEVER, THAT, EXCEPT IN CASES WHERE A
RENEGOTIATION OF THE FEE IS RELATED TO A VALET PARKING RATE
INCREASE BY THE CITY COMMISSION, THE CITY SHALL NOT OTHERWISE
INCREASE - THE CONCESSION FEE MORE THAN ONCE DURING EACH
CONTRACT YEAR THROUGHOUT THE TERM HEREIN. IN EVENT THE
PARTIES ARE UNABLE TO SUCCESSFULLY NEGOTIATE AN INCREASE IN
THE CONCESSION FEE,, THEN THE CITY, AT ITS SOLE OPTION AND
DISCRETION, AND THROUGH ITS CITY MANAGER, MAY ELECT TO
TERMINATE THIS AGREEMENT, FOR CONVENIENCE AND WITHOUT CAUSE,
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IN ACCORDANCE WITH SUBSECTION 13.6.
SECTION 4. MAINTENANCE AND EXAMINATION OF RECORDS.
Concessionaire shall maintain current, accurate, and complete financial records, on an
accrual .basis, related to its operations pursuant to this Agreement. Systems and
procedures used to maintain these records shall include a system of internal controls. All
accounting records shall be maintained in accordance with generally accepted accounting
principles, during customary business hours, and shall be open to inspection, copying, and
audit by the City Manager or his /her designee, upon reasonable verbal or written notice.
Concessionaire shall maintain all such records at its principal office, currently located at
1,2550 Biscayne Boulevard, Suite 207, Miami, Florida, 331811 or, if moved to another
location, all such records shall be relocated, at Concessionaire's sole expense, to a
location in Miami Beach, within five (5) days from notice of - request for inspection by the
City. Financial;, records and accounts shall include, at a minimum, a breakdown of gross
receipts, expenses, and profit and loss statements. Concessionaire shall maintain accurate
receipt- printing cash registers (or a like alternative) for each which will record and
show the payment for every sale made or service provided at said Venue. Other financial
records 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. Concessionaire's records shall be maintained for a period
of three (3) years following expiration (or other termination) of this Agreement (regardless
of whether such termination results from the expiration of. the Term or for any .other
reason).
A monthly report of activities shall be submitted to the City's Parking Director bythe 15th of
each month, for the preceding month. At a minimum, this report shall contain a.
chronological listing of events serviced, including the event name, date,.`time, exact
.location(s), number of transactions (vehicles), gross receipts per location, and gross
receipts totals.
Concessionaire shall submit to the City's Parking Director, within sixty (60) days of the end
of each contract year, an annual statement of gross receipts, in a form consistent with
generally accepted accounting principles. Such statement shall be accompanied by a
report from an independent CPA firm certifying the report.
For purposes of this Agreement, the term "gross receipts" is understood to mean all income
'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)
collected by the Concessionaire and required by law to be remitted to the taxing authority.
SECTION 5. INSPECTION AND AUDIT.
During the Term, the City Manager or his designee shall be entitled to audit any and all of
Concessionaire's records (financial or otherwise) pertaining to its operations pursuant to
this Agreement, as often as he /she deems necessary ;and three (3) times within the three
` (3) year period following expiration (or other termination) of this Agreement. The City shall
be responsible for paying all costs associated with such audit(s), unless the audit(s) reveals"
a deficiency of five (5 %) percent or more in Concessionaire's statement of gross receipts
for any year or years audited, in which case Concessionaire shall pay to the City, within
thirty (30) days of demand from the City deeming, the cost of the audit and a sum equal to
the. amount of the deficiency revealed by the audit, plus interest. The aforestated audits are
in addition to periodic City audits of Resort Tax collections and payments (which are
performed separately). Nothing contained within this Section shall preclude the City's audit
rights for Resort Tax collection purposes.
It is. Concessionaire's intent to stay informed of comments and suggestions by the City
regarding Concessionaire's performance under the Agreement. Within thirty (30) days after
the end of each contract year, Concessionaire and the City's Parking Director may meet to
review Concessionaire's performance under the Agreement for the previous contract year.
At the meeting, Concessionaire and the City may discuss quality, operational, maintenance
and any.other issues regarding Concessionaire's performance under the Agreement.
SECTION 6. TAXES, ASSESSMENTS, AND UTILITIES.
Concessionaire agrees and shall pay, before delinquency, all taxes and assessments of
any kind (including, without limitation, ad valorem taxes [if assessed] and /or Resort Taxes)
levied or assessed upon Concessionaire, and /or upon any City property, & portion thereof,
used by Concessionaire for the purpose of providing the valet parking services required
under this Agreement, or by reason of any other business, operations, and /or activities of
Concessionaire upon or in connection with the servicing of the Venues. -
Concessionaire shall 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, which
Concessionaire shall conduct diligently and continuously, in good faith. Concessionaire
may refrain from paying a tax to the extent it is contesting the 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 (if so ordered).
Concessionaire shall be solely responsible for, and shall promptly pay when due, all
charges for any utilities (including, without limitation, (and as applicable charges for gas,
electricity, water, sewer, cable, telephone, trash collection, and any other utility service, as
well as any hook -up fees and impact fees related thereto) used by Concessionaire in
connection with the provision valet parking services and operations at the Venues. In
addition to other rights and remedies hereinafter reserved-to the City, uponthefailure of
Concessionaire to pay for any utility services when due, the City may elect to pay same, in
which case Concessionaire shall promptly reimburse the City upon demand.
In no`event shall the City.be liable, whether to Concessionaire or to third parties, for an
interruption or failure in the supply of any utilities services to any City property (including,
without limitation, any City property located at, on , or within a Venue, and /or any City
garages and /or lots to�which Concessionaire is granted the use of in order to conduct its
operations pursuant to this Agreement).
SECTION 7. EMPLOYEES AND INDEPENDENT CONTRACTORS.
7.1 Concessionaire shall select, train, employ (or otherwise hire or retain) such number
of employees and /or independent contractors as is necessary and appropriate for
Concessionaire to satisfy its responsibilities under this Agreement, and as
necessary to maintain the same levels of service as exist in similar first class valet
parking concession facilities and operations. Concessionaire's employees and /or
independent contractors shall be employees and /or independent contractors of
Concessionaire and not of the City; and Concessionaire shall be solely responsible,
for their supervision, daily direction and control. Concessionaire shall be solely
responsible for, and have the sole authority to hire, terminate and discipline any and
all employees and /or contractors employed or retained by Concessionaire.
':7.2 Concessionaire and its employees and /or . independent contractors shall wear
identification badges and uniforms approved by ,the City. All employees and /or
independent contractors shall observe all the graces of personal grooming.
Concessionaire shall hire /retain people to work in its operation who are neat, clean,
well groomed, and comport themselves in a professional and courteous manner.
Concessionaire and any persons hired and /or retained by Concessionaire shall
never have been convicted of a felony.
7.3 Concessionaire have an experienced manager or managers overseeing the
concession operations at all times.
7.4 The Concessionaire and its employees and /or contractors are - considered
ambassadors" of the City and, shall (at a minimum) comport themselves as follows
in the discharge of their duties: greet patrons upon arrival and departure; make
every attempt to quickly and courteously expedite the transfer of the patron's
vehicle; and attempt to accommodate any reasonable request of patrons in
connection with the provision of the valet parking services. Employees shall not
smoke, drink and /or eat while actively serving, patrons; shall speak English; and
shall not solicit tips, or solicit the use of curbside, parking for a.fee higher than the
approved City valet ,parking rate.,
The Concessionaire shall be responsive to all persons .(whether . patrons or,
otherwise) who believe that they or their vehicle were injured or damaged (or
personal items taken) by the Concessionaire( "Claimant "). In the event a Claimant
advises- the Concessionaire (or any staff of , the Concessionaire) of any such
damage, injury or loss (a "Claim "), the Concessionaire shall, within twenty four (24)
hours of such notice, fill out a Claim form_ and submit same to the City's Parking
Director. The Concessionaire shall immediately investigate each Claim; shall
respond to the Claimant by telephone or in writing within forty eight (48) hours of the
Claim; and shall provide the City's Parking Director with a written summary as to the
resolution or other disposition of the Claim. Notwithstanding anything in this
subsection 7.5, the Concessionaire shall not be required to pay or satisfy any Claim
that Concessionaire, after good faith reasonable investigation, determines not to be
its responsibility.
''SECTION 8. IMPROVEMENTS MAINTENANCE REPAIR and OPERATION.
Concessionaire accepts the use of any and all City property to which it is granted the use
of to carry out the stated purpose(s) of this Agreement (including, without limitation,.any
City located_at, on, or within the Venues and /or any City.garages and/or lots used
by Concessionaire), in its "AS. IS" "WHERE IS" condition.
Concessionaire assumes sole responsibility and expense for the day to day maintenance
of any such City property while being used by Concessionaire (including any furnishings,
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fixtures,. equipment and any other improvements thereon). This, shall include, without
limitation, removal of litter, garbage and debris. Concessionaire shall also be responsible
for all garbage disposal generated by its operations.
8.1 Equipment.
8.1.1. The Concessionaire shall provide and maintain, at its sole cost and expense,
valet parking'stand(s), kiosk(s), booth(s), and any other related furnishings,
fixtures and equipment (collectively the Equipment), as necessary, to provide
and maintain the valet parking services contemplated herein, consistent with
the. same levels of service that exist in similar valet parking facilities and
operations in first -class facilities. All Equipment shall be new and in excellent
condition.. The height and the color of the Equipment (including stands,
kiosks, and booths) shall be the, same at each valet parking location for all
Venues. Uniforms and badges shall also be standardized for all Venues. All ,
Equipment must be approved; in writing, by the City's Parking Director prior
to being put into use. Storage of all Equipment shall be the sole
responsibility of Concessionaire.
8.2 Garbage Receptacles.
With respect to litter, garbage and debris removal, Concessionaire shall provide, at
its sole expense, a. sufficient number of trash receptacles for its operations and for .
the use of patrons. Determination of the "number" of receptacles shall at all times
be within the sole and reasonable judgment and discretion of the City Parking
Director.. Dumping of receptacles' and removal of trash, rubbish and garbage in
connection with Concessionaire .'s operations, shall be the sole responsibility of the
Concessionaire, but shall be coordinated with the respective managers at MBCC,
the Fillmore, and /or any other Venues. Any costs for removal of the contents of said
trash receptacles by the City, because of the Concessionaire's failure to do so, will
be charged to Concessionaire, and payment shall immediately. be due upon
demand by City.
8.3 Maintenance /Repair.
Concessionaire shall maintain, at its sole expense and responsibility, all Equipment
required to operate the concessions. In the event any Equipment is lost, stolen, or
_ damaged, it shall be replaced or. repaired - promptly, at Concessionaire's sole
expense. If Concessionaire fails to make any repairs', . restoration and /or
replacement, the City may elect to do so, and all sums spent and expenses incurred
by the City shall be paid by Concessionaire within ten (10) days after receipt of a bill
or statement thereof. Notwithstanding that the City may elect to make such repairs,
restoration, and /or replacement, the City shall have no obligation and /or affirmative
duty to do so:
8.4" No Dangerous Materials.
Concessionaire agrees not to use or permit 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 on Concessionaire's operatios,
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whether at a Venue or on any City property being utilized by Concessionaire, shall be
immediately removed.
In consideration of a separate and specific consideration of Ten ($10.00) Dollars and
other good and valuable consideration, the receipt, and sufficiency of which are
hereby acknowledged, Concessionaire shall indemnify and hold the 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 of any ``hazardous substance" or "petroleum
products" on, under, in or upon any property (whether City -owned or otherwise being
utilized by Concessionaire for its operations hereunder, as those terms are defined
by applicable Federal . and State statutes, or any environmental rules and
environmental regulations promulgated thereunder. The provisions of this subsection
10.4 shall, survive the termination or earlier expiration of this Agreement.
8.5: Security,
The Concessionaire shall be solely responsible for providing any security measures,
if and as it deems necessary, in its reasonable business judgment, to protect the
concession areas from loss or theft including, without limitation, any of the
Equipment thereon.
8.6 Inspection.
Concessionaire agrees that its operations at any or all' ,of the Venues may be :
inspected at any time by the City Manager or his designee, or by any other
municipal, County or officer, or other agency having responsibility and /or
jurisdiction for inspection of such operations. Concessionaire hereby waives all
claims against the City for compensation for loss or damage` sustained by reason of
any interference with the concession operations, whether by the City or by any public
agency or official, in enforcing their respective duties, or enforcing compliance with
any applicable laws, or-ordinances, or regulations.
SECTION 9. INSURANCE.
Concessionaire shall maintain, at all times throughout the Term, at its sole expense and
responsibility, the following types of insurance coverage:
a. Commercial General Liability or Garage Liability insurance in the minimum
amount of one million dollars ($1,000,000) per occurrence and per location' .
covering bodily injury and property damage, resulting from valet parking
operations (including Concessionaire's activities connected with the handling
of vehicles on public property).
b. Garage Keepers Legal Liability insurance to provide Collision and
Comprehensive coverage for vehicles under control of the. valet parking
. operation, with minimum limits of $300,000 per location, .with a maximum
Self - insured Retention (SIR) or deductible of $1,000.
'c: Worker's Compensation and Employers' Liability. as required to meet the
statutory requirements of the State of Florida,.
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The policies of insurance referred to above shall not be subject to cancellation or
changing coverage except upon at least thirty (30) days prior written notice to the
City, and then only subject to the prior written approval of the City Manager or his
designee: Prior to the Commencement Date of this Agreement, Concessionaire
shall provide the 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.
Should Concessionaire fail to obtain, ,maintain or renew the policies of insurance
referred to above, in the required amounts, the City 'may, at its sole discretion,
- obtain such insurance, and any sums expended by the City in obtaining said .
insurance, shall be repaid by Concessionaire to the City, plus ten (10 %) percent of
the amount of premiums paid to compensate* the City for its administrative costs. If
Concessionaire fails to repay the City's expenditures following written demand from
the City (and' within the time specified in the City's demand notice), such failure shall
be deemed an event of default hereunder and the total. sum owed shall accrue
interest at the rate of eighteen (18 %) percent or the highest, rate allowable by law,
whichever is greater, until paid.
SECTION 10. INDEMNITY.
10.1 In consideration of a separate and specific consideration of Ten ($10.00) Dollars
and-other good and valuable consideration the receipt and sufficiency of which are
hereby acknowledged, Concessionaire shall indemnify, hold harmless and'defend.
the City, its officers, employees, contractors, agents or servants 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, its officers, employees,
contractors, agents or servants in connection with its operations and /or the
performance of the services contemplated under this Agreement (including, without
limitation, its use of any City property at, on, or within the Venues and /or any City
garage and /or parking lot used herein).
10.2 In addition, and in consideration of a separate and specific consideration of Ten
($10.00) Dollars and other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, Concessionaire shall indemnify, hold.
harmless and defend the City, its officers, employees, contractors, agents or
servants from and against any claim, demand or cause of action of whatever kind or
nature arising out of any misconduct of Concessionaire, its officers, employees,
contractors, agents or servants not included in Subsection 12.1 herein and for which
the City, its officers, employees, contractors, agents or servants are alleged to be
liable,
10.3 to consideration of a separate and specific consideration of Ten ($10.00)Dollars,
and other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the Concessionaire shall also indemnify, hold harmless and
defend Live Nation Worldwide, Inc. (Live Nation), its officers, employees, and
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agents, from any and all claims, liability, losses, and causes of action which may
arise out of the Concessionaire's negligent acts or omissions under this Agreement
and shall pay all claims and losses of any nature whatsoever in connection
therewith and shall defend all`suits, in the name of the Live Nation when applicable,
and shall pay all cost (including attorney's fees) and judgments which may issue
thereon. This indemnification shall not be limited in anyway by the type or amount
of insurance carried by the Concessionaire.
10.4 Subsections 10.1, 10.2, and 10.3 shall survive the termination or expiration of this
Agreement. Subsections 10. 1, 10.2, and 10.3 shall not apply, however, to any such
liability, that arises as'a result of the willful misconduct or gross negligence of the
City, its officers, employees, contractors, agents or servants, and (as to 10.3) of Live
Nation, its officers, employees, and agents.
10:5
Subrogation. �
The terms of insurance policies referred to in Section 9 shall preclude subrogation
claims against Concessionaire, the City and their respective officers, employees,
contractors, agents or servants.
10.6 Force Majeure.
Whenever a period of time is herein prescribed for the taking of any action by the
City or Concessionaire (as applicable), the City or Concessionaire (as applicable),
shall not be liable or responsible for; and there shall be excluded from the
computation of such period of time, any delays due to strikes, riots, acts of God,
shortages of labor or materials, war, or governmental laws, regulations, or
restrictions in the nature of a prohibition or moratorium, or any bona fide delay
beyond the reasonable control of City or Concessionaire (as applicable). The
foregoing shall not apply. to any payments of money due under this Agreement.
Notwithstanding_ the preceding paragraph, in the event that damage to or .
;destruction of (i) a Venue or Venues; or (ii) to Concessionaire's Equipment; or (iii)
to the City Hall Garage (CHG) or Municipal Parking Lot No. 29 ((i) and (iii) shall
hereinafter be referred to as a "Facility" or the "Facilities "), due to a Force Majeure
event (as defined herein) results in the closure of said Facility or Facilities, or in
material damage to the majority of Concessionaire's Equipment, to the extent that
(in the City Manager's sole and reasonable : discretion and. determination)
Concessionaire's provision /performance of the services is either rendered
impossible, unnecessary, or economically impracticable, then Concessionaire and
the City shall mutually agree upon a proportionate (prorated) adjustment of the
monthly minimum payment during the pendency of the event of Force Majeure but,
in any event, not to exceed 180 days from the occurrence thereof, whichever is
less. If the event of Force Majeure continues for a period in excess of 180 days,
then either party may terminate this Agreement upon sixty (60) days written notice
to the other. In the event of a termination pursuant to this subsection, the City shall
not be liable to Concessionaire; nor have any further obligation (financial or
otherwise) to Concessionaire under this Agreement; nor shall the City be liable to
concessionaire for any. indirect, incidental, or special costs, lost profits, or
consequential damages. If an event of Force Majeure causes the City to close or
limit the Concessionaire's use of the CHG or Municipal Parking Lot No. 29, the City
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Manager shall use commercially reasonable efforts to provide the Concessionaire
with the use of parking spaces in another municipal parking facility or lot in a
location equally convenient as the parking facility affected by the Force Majeure
10.7 Waiver of Loss from Hazards.
Concessionaire hereby expressly waives all claims against the City for loss or
damage sustained by the Concessionaire resulting from an event of Force Majeure
_ (as defined herein),- and the Concessionaire hereby expressly waives all rights,
claims, and demands against the.City and forever releases and discharges the City
from all demands, claims, actions and causes of action. arising from any of the
aforesaid causes.
SECTION 11. DEFAULT AND TERMINATION.
'Subsections 11.1 through 11.3 shall constitute events of default under this Agreement. An
event of default by Concessionaire shall entitle the City to exercise any and all remedies
described as the City's remedies under this Agreement, including but not limited to those ;
set forth in Subsection 11.4 and Section 12 hereof. An event of default by the 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
11.5.
11.1 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 - underthe 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.
1' 1.2 Default in Payment.
In the event Concessionaire fails to submit any payment and accumulated penalties
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 Agreement without being prejudiced as to any remedies which
may be available to it for breach of contract, and may begin procedures to collect
the Performance Bond.required in Section 12 herein.
11.3 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
fifteen (15) days after written notice thereof from the other party hereto, such non-
defaulting party may immediately or at anytime thereafter, and without further
demand or notice, terminate this Agreement. 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 sixty (60) days from the. date of written notice thereof. In the
event Concessionaire cures any default pursuant to this subsection, it shall promptly
provide the City with written notice of same.
11.4 City's Remedies for Concessionaire's Default.
If any of the events of default, as set forth in this Section, 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 default(s) and to compensate the City for damages resulting from such
default(s), including but not limited to the right to give to Concessionaire a notice of
termination of this Agreement 1f such notice is given, the Term_ of this Agreement
shall terminate upon the date specified in such notice from the City to .
Concessionaire. On the date so specified, Concessionaire shall then quit and
surrender any and all City property pursuant to the provisions of subsection 11.8.
Upon the termination of this Agreement by the City, all rights and interest of
Concessionaire in and to this Agreement (and including, Concessionaire's right to
remain on any City property used by Concessionaire to provide the services under
the Agreement) shall cease and terminate and the City may, in addition to any other
rights and remedies it may have, retain all sums paid to it by Concessionaire under
this Agreement, including but not limited to, beginning procedures to collect the
Performance Bond in Section 12 herein.
In addition to the rights set forth above_,, the 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.
11.5 Concessionaire's Remedies for City's Default.
If "an event of default, as set forth in this Section, by the City shall occur,
- Concessionaire may, 'after the expiration of the cure period, terminate 'this,
Agreement upon written notice.to the City. Said termination shall become effective
- upon receipt of the written notice of termination by the City. On the date specified in
the notice, Concessionaire shall quit and surrender any and all City property
pursuant to the provisions of subsection 11.8:
11.6 - Termination for Convenience.
11.6.1 NOTWITHSTANDING - ANY OTHER PROVISION OF THIS SECTION 11 OR
OF THE AGREEMENT, THIS AGREEMENT MAY BE TERMINATED, IN
- 15 _
WHOLE OR IN PART, BY THE CITY, FOR'CONVENIENCE AND WITHOUT
CAUSE, UPON THE - FURNISHING OF THIRTY (30) DAYS PRIOR
WRITTEN NOTICE TO CONCESSIONAIRE.
11.6.2
In the event of termination by the City pursuant to. this subsection 11.6,
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 any start -up costs, interference in business or damages for interruption of
services, or interference in its concession operations). In no event shall the
City be liable to Concessionaire for any indirect, incidental, special, lost
profits or consequential damages.
11.7 Habitual Default
In the event that Concessionaire has defaulted in the performance of, or breached
any of the terms, covenants and conditions required herein to, be kept and
performed by Concessionaire, a total of four (4) times during any contract year
throughout the Term, at the City's sole_option and discretion, and regardless of
whether Concessionaire has cured each individual condition of breach or default,,
the Concessionaire.may be determined by the City to be a "habitual violator". At the
time such determination is made, the City shall issue to Concessionaire a written
notice advising.of such determination and citing the circumstances therefor e...Such
notice shall also advise the Concessionaire that there shall be no further notice or
grace periods to correct a fifth (5 ") breach or. default, and that such breach or
default, of whatever nature, taken with the previous four (4) breaches and defaults,
shall be considered cumulative and, collectively, shall constitute a condition of non
curable` default and grounds for termination of this Agreement. In the event of any
such fifth (5 breach or default within a contract year, this Agreement shall
terminate, upon written notice of termination to the Concessionaire, such
termination to be effective upon the tenth (10 day following the date of receipt
thereof; all payments due hereunder shall be payable to said date; and
Concessionaire shall have no further rights hereunder. In such case, the City may
also avail itself of the remedies set forth in subsection 11.4 hereof.
11.8 Surrender of 'City Property /Venues.
Upon (or earlier termination) of this Agreement, Concessionaire shall surrender any
and all City property(ies) utilized be Concessionaire in the performance of the valet
parking operations hereu in the same condition as such property(ies) was /were
prior to the Commencement Date, reasonable wear 'and tear excepted.
Concessionaire shall remove all its Equipment, and any other personal property,
upon forty -eight (48) hours written notice from the City Manager or his designee
unless a longer time period is agreed to by the City. Concessionaire's obligation to
observe or perform this covenant shall survive the expiration or other termination of
this Agreement. Continued occupancy of any City property after 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
($1;000.00) Dollars per day as liquidated damages for such trespass and holding
over.
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SECTION 12. PERFORMANCE BOND OR ALTERNATE SECURITY.
Concessionaire shall, on or before the Commencement Date of this Agreement, furnish to
the City Manager a Performance Bond in the penal sum as stated below for the payment of
which Concessionaire shall bind itself for the faithful performance of the terms and
conditions of this Agreement. A Performance Bond, in the amount of Thirteen Thousand
Five Hundred ($13,500.00) Dollars,_shall be required and be in faithful observance of this
Agreement. A cash deposit, irrevocable letter of credit, or certificate of deposit may also
suffice, as determined by the City Manager, in his sole and reasonable discretion. The form
of the Performance Bond or letterof credit shall be as required by the City Manager. In 'the
event that a Certificate of Deposit is approved, it shall be a Thirteen. Thousand Five
Hundred ($13,500.00) Dollars one -year Certificate of Deposit in favor of the City, which
shall be automatically renewed, the original of which shall be held by the City's Chief
Financial Officer: Concessionaire shall be so required to maintain said Performance Bond
or'alternate security_(as accepted by the City Manager), in full force and effect throughout
the Term of this Agreement. Concessionaire shall have an affirmative duty to notify the City
Manager., in writing, in the event said Performance Bond or alternate security lapses or
otherwise expires, All interest that accrues in connection with any financial instrument or
sum of money referenced above shall be the property of. Concessionaire, except in an
event of default, in which case the City shall be entitled to all interest that accrues after the
date of default.
SECTION 13. ASSIGNMENT.
The Concessionaire may not sublet or assign this Agreement, or any part thereof, under
any circumstances, without the prior written consent of the.City which consent, if given at
ail, shall be in the City's sole judgment and discretion.
SECTION 14. NO IMPROPER USE.
Concessionaire will not use, nor suffer or permit any person to use, in any manner
whatsoever, any City property(ies) or portion thereof granted to Concessionaire for the
uses set forth in this Agreement, 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. Concessionaire will protect, indemnify, and forever save and keep harmless the
City, its officers, employees, contractors, agents or servants, 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 Concessionaire, or any of its officers, employees., contractors,
agents or servants. In the event of any violation by Concessionaire, or if the City shall
deem any conduct on the part of Concessionaire to be objectionable or improper, the City
Manager shall have the right to suspend the concession operations should the -
Concessionaire fail to correct any such violation, conduct, or practice to the satisfaction of
the City Manager, within twenty- four(24) hours after` receiving written or verbal notice of
the nature and extent of such violation, conduct, or practice; such suspension to continue
until the violation is cured. Concessionaire further agrees not to commence operations
during the suspension until the has been corrected to the satisfaction of the City
'Manager.
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SECTION 15. PRICE SCHEDULES.
Concessionaire agrees that prices and fees charged for valet parking services (the "Valet
Fee ") shall not exceed those established by the Mayor and Commission. The parties
acknowledge that the Concession Fee, as set forth.in Section 3 hereto, is based upon the
Valet Fee in effect as of the Commencement Date, which is $15.00 per vehicle, and $20.00
per vehicles during the following events: Antique Show; Jewelry Show; NMMA
International Boat Show; Graphics of the Americas; Home Design Show (March); Home
Design Show (September); Sea Trade Cruise Shipping; and Art Basel-Miami Beach.
Notwithstanding the preceding, the City Commission reserves the right, at its sole
discretion and judgment, at any time during the Term hereof, to review the Valet Fee, and
to amend said Fee, as (and if) deemed in the best interest of the City.
The Concessionaire may also request that the City increase the Valet Fee (the "Fee
Increase ") which Fee Increase shall be considered and granted (if at all) by the City
Commission, in its sole and absolute discretion. Prior to the Concessionaire's request for a
Fee Increase, the Concessionaire and the City Manager, or his %her authorized designee,
shall meet and shall use their best efforts to mutually agree on a recommendation (for the
Commission) for a Fee Increase and corresponding increase adjustment in the Concession
Fee.
SECTION 16. NOTICES.
All notices from the City to Concessionaire shall be deemed duly served upon receipt, if
mailed by registered or certified mail with a return receipt to Concessionaire at the following
addresses:
First Class Parking, LLC
12550 Biscayne Boulevard, Suite 207
Miami, Florida 33181
Attn: Jorge Zuluaga, Director
All notices from 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:
Office of the City Manager
1700 Convention Center Drive
Miami Beach, FL. 33139
Attn: City Manager
and
City of Miami Beach Parking Department
1755 Meridian Ave., Suite 200
Miami Beach, FL. 33139
Attn: Parking Director
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Concessionaire and the City may change the above mailing addresses at any time upon
giving the other party written notification. All notices under this Agreement must be in
Writing.
SECTION 17. LAWS.
17.1 Compliance.
Concessionaire shall comply with all applicable City, County, State, and Federal
ordinances, statutes, rules and regulations (including but not limited to all
environmental City, County, State, and Federal ordinances, statutes, rules and
regulations, as same may be amended from time to time.
17.2 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, sex, sexual orientation, gender identity, color,
creed, national origin, familial status, religion or handicap. Concessionaire will take
affirmative steps to utilize minorities and females in the work force and in correlative
business enterprises.
17.3 No Discrimination.
Concessionaire agrees that there shall be no discrimination as to race, sex, sexual
orientation, gender identity, color, creed, national origin, familial status, religion or
handicap, in its employment practice or in the operations referred to by this
Agreement. All facilities and services offered shall be made available to the public.
SECTION 18. MISCELLANEOUS.
18.1 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.
18.2 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.
18.3 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._
18.4 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.
18:5 - Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the parties hereto
19
and their respective successors and permitted assigns.
18.6 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.
18.7 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 shall be so
modified
. 18.8 Right of Entry.
The City, at the direction of the City Manager, shall at all, times during hours of
operation, have the right to enter into and upon any and all parts of the Concession
Area for the purpose of examining the same for any reason relating to the obligations
of parties to this Agreement.
1.8.9 Not a Lease.
It is expressly understood and agreed that no part, parcel, building, structure,
equipment or space is leased to Concessionaire; that this Agreement is a concession
= agreement and not a lease, and that Concessionaire's right to operate, manage, and
maintain the concession shall continue only so long as Concessionaire complies with
the undertakings, provisions, agreements, stipulations and conditions of this
Agreement.
Accordingly, Concessionaire hereby agrees and acknowledges that. in the event of
termination of this Agreement, whether due to a default by Concessionaire .or
otherwise, Concessionaire shall surrender and yield unto the City any City property
then being used by Concessionaire for the provision, of services herein, in
accordance with subsection 11.8 hereof, and the City shall in no way be required to
evict and /or otherwise remove Concessionaire from any such area as if this were a
tenancy under Chapter 83,,Florida Statutes, nor shall Concessionaire be afforded
any other rights afforded to nonresidential tenants pursuant to said Chapter (the
parties having herein expressly acknowledged that this Agreement is intended to be
a concession agreement and is in no way intended to be a lease).
18.10 Signage.
' Concessionaire shall provide, at its sole expense and responsibility, any required
signs at its concession locations. All advertising, signage and postings shall be
approved by .the City, and shall be in accordance with all applicable Municipal,
County, State and Federal laws and regulations. Any signage , posted by
20
Concessionaire shall be subject to the prior approval of the City Manager or his
designee as to size, shape and placement of same.
18.11 Conflict of Interest.
Concessionaire shall perform its services under this Agreement and conduct the.
concession operation(s) contemplated herein, in a manner 'so as to show no
preference for other concession operations /facilities owned, operated, managed, or
otherwise controlled by Concessionaire.
18.12 No Waiver.
18.12.1 It is mutually covenanted and agreed by and between the parties
hereto that the failure of the City to insist upon the strict performance
of any of the conditions, covenants, terms or provisions of this
Agreement, or to exercise any option herein conferred, will not be
considered or construed as a waiver or relinquishment for the future
of any such conditions, covenants, terms, provisions or options but
the same shall continue and remain in full force and effect.
18.12.2 A waiver of any term expressed herein shall not be implied by any
neglect of the City to declare a forfeiture on account of the violation of
such term if such violation by continued or repeated subsequently and
any express waiver shall not affect any term other than the one
specified in such waiver and that one only for the time and in the
manner specifically stated.
18.12.3 The receipt of any sum paid by' Concessionaire to the City after
breach of any condition, covenant, term or provision herein contained
shall not be deemed a waiver of such breach, but shall be taken,
considered and construed as payment for 'use and occupation (and
not as rent), unless such breach be expressly waived in Writing by the
City.
18.13 No Third Party Beneficiary.
Nothing in this Agreement shall confer upon any person or entity, other than the
parties hereto and their respective successors and permitted assigns, any rights - or
remedies by reason of this Agreement.
SECTION 19. LIMITATION OF LIABILITY.
The City desires to enter into this Agreement only if so doing the City can place a limit on
its liability for any cause of action for breach of this Agreement, so that its liability for any
such breach never exceeds the sum of Ten Thousand ($10,000.00) Dollars.
Concessionaire hereby expresses its willingness to enter into this Agreement with a Ten
Thousand ($10,000.00) Dollar limitation on recovery for any action for breach of contract.
Accordingly, and. in consideration of the separate consideration of Ten Thousand
($10,000:00) Dollars, 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 Ten
Thousand ($10,000.00) Dollars, for any action for breach of contract arising out of the
performance or non- performance of any obligations imposed upon the City by this
21
Agreement. Nothing contained in this paragraph or elsewhere in this Agreement is in any
way intended to be a waiver of limitation placed upon the City's liability as set forth in
Florida Statutes, Section 768.28.
SECTION 20. VENUE.
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. 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. THE CITY
AND CONCESSIONAIRE HEREBY KNOWINGLY AND .INTENTIONALLY WAIVE THE
RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING THAT THE CITY AND
CONCESSIONAIRE MAY HEREIN AFTER INSTITUTE AGAINST EACH OTHER WITH
RESPECT TO ANY MATTER ARISING OUT OF OR RELATED TO THIS AGREEMENT.
SECTION 21. CITY LIEN
It is expressly agreed that the City shall have a continuing lien on all personal property of
the Concessionaire, for all sums which may from time to become due and unpaid to
the City under this Agreement, and upon default of payment by the Concessionaire and
failure cure after, the expiration of the applicable grace period, the City shall have the
right to take possession of and retain the same until the full amount due shall be paid, or to
sell the same at public auction and, after deducting the expense of such sale, apply the
balance of the-proceeds to such payment and if there should be any deficiency, to resort to
any other legal remedy available to it.
SECTION 22. NO LIENS
Concessionaire agrees that it will not suffer or through its actions or anyone under its
control or supervision, cause to be filed upon the property any lien or encumbrance of any
kind. In the event any lien is filed, Concessionaire agrees to cause such lien to be
discharged within ten (10) days of said filing and in accordance with the applicable law and
policy:
SECTION 23. STORAGE
Concessionaire agrees that there will be no on -site or on- premises storage of any kind, of
Concessionaire's Equipment.
SECTION 24. CITY WITHDRAWAL OF CITY PROPERTY
The City retains the right to withdraw all or any portion of the City property/Venues set forth
herein from the terms and conditions of .the Agreement. The City shall. give the .
Concessionaire thirty (30) days written notice in the event of such withdrawal_ In the event
the City .withdraws all of the City property and /or Venues, the Agreement shall
automatically terminate, without liability to either party herein.. In the .event the City
withdraws less than all of the City property and /Venues, then the remaining
:. property /Venues shall continue within the scope of the Agreement, and the City agrees to
make a proportionate adjustment in the Concession Fee amount due.
SECTION 25. RFP INCORPORATED
Request for Proposals No. 40= 07/08, together with any and all amendments thereto, and
the Concessionaire's proposal in response thereto, are hereby incorporated by reference
22
into this Agreement, to the extent that they are not inconsistent-with any terms.herein. In _
the event of any inconsistency, this Agreement shall prevail.
SECTION 26. PUBLIC BENEFIT.
The Concessionaire agrees to continue its past practice to donate` toys, or make- a
monetary donation, in support of the City Parking Department's annual- holiday toy drive
benefitting Miami Beach residents.
SECTION 27. AUTOMATED VALET SYSTEM IMPLEMENTATION.
The Concessionaire agrees to implement an automated valet system in accordance with
the following schedule`.
- i. Vendor Selection — Within thirty (30) days of the Commencement Date,
Concessionaire will finalize selection of 'vendor for the provision of . an
automated valet system. The Concessionaire will provide,the City Manager
with notice its selection, in writing.
H. Vendor Meeting — Within sixty (60) days of the Commencement Date, the
Concessionaire will hold a meeting with the City Manager, the City Parking .
Director, and the automated valet system vendor to discuss system
implementation and identify and agree upon any necessary on -site facility `
modifications to City property. The Concessionaire will bear all costs related
to the automated valet system implementation, with the exception of on -site
facility modifications needed for system deployment on City - owned property,
which shall be a City cost.
iii.. Final Implementation — Within one hundred and eighty (180) days of the
- Commencement Date, implementation of the automated valet system will be
completed and the system shall be operational. Final implementation shall
be conditioned on the completion of the agreed upon on -site modifications to
City- owned property. The Concessionaire shall not be responsible in the
event implementation delays result from the City's failure to timely complete
permitting and /or construction of the agreed _upon facility modifications to
City -owned property.
IN WITNESS WHEREOF, the parties hereto have caused their names to be signed
and their seals to be affixed, all as of the day and year first above written, indicating their
agreement.,''
Attest: CITY OF MIAMI BEACH,_ FLORIDA
Robert Parcher, CITI CLERK Matti Herrera Bower, MAYOR
Attest: FIRS ASS PARKING, LLC
i ature /Secretary Jorge Zulua kESl1DENT
(Print Name)
CORPORATE SEAL
(affix seal here)
APPROVED AS TO
FORM & LANGUAGE
& FnR EXECUTION
4orne
ate
24