Bettoli Trading Corp - Concession Agreement ,alr aoN —a7776
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Agreement for
Operation of
knack Machines
by
��ttoli Trading Corp.
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S ��� TITLJE PAGE
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1 TERM .................................................................................. ............................................... 4
.2. CONCESSION LOCATIONS .................................................................. ......................... 4
3. U8E0S\ .................................................................... .----,-----4
' 3.2 Scope ofSanices-----------------.-------------_'5
3.21 Snack K8och�em------------------------_--------6
3.2.1.1 Oefnb�n--------------------.-----------
� 3.2.1.2 Controls ............................................................... .................................................. 5
3 .21.3 Conditions .............................................................................................................. 5
3.2.1.4 Design ................................................................. ................... ................................ 5
� 3.21.5 Placement ............... .............................................................................................. G
3.2].6 Quality of Products ................................................................................................. G �
3.217 Cleanliness ............................................................................................................. O .
3.2.1.8 Operation Schedule 7
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3.2.2 Changes Machines ................................................................................................. 7 ---
3.2.21 Definition .................................................................................................... —........ T
3.2.2.3 Placement ............................................................................................................... 7
8.2.3 Maintenance of Snack Machines and Change Machines ...................................... 7
3.2.4 Refund Procedure .................................................................................................. 9
3.2.5 Pricing and Availability of Services ......................................................................... S
3.2.6, � Concessionaire's Supervisory / Management Employee ..................................... 1O
3.27 Removal of Snack Machines and/or Change Machines ...................................... 1O
` 3.2.8 Hurricane Evacuation Plan .......... ........................................................................ 1O
' 3 City Business Tax Receipts ................................... ................. ............................ 11
4. CONCESSION FEES ........................................... 11
` 41 Security Deposit .................................................................... .............................. 11
� �4.2 Minimum Guarantee (W4G) ................................................................................... 11
4.3 Percentage of Gross Metered Receipts (PGK8F) ........................ ........................ 12 .
4.4 Non-Cash Remuneration ................................................ ..................................... 12
4]5 Interest For Late Payment .................................................................................... 12
4.6 Sales and Use Tax ............................................................................................... 12
5. MAINTENANCE AND EXAMINATION OF RECORDS ..................................................... 13
G. INSPECTION AND AUDIT ................................................................................................. 13
- 7. TAXBS.ASGEG8K8ENTS.AND UTILIT -----------------..-----.14
7.2 Utilities _-----------------------------__----'14
7.3 Procedure �AdVa�rem Taxes Aoaeooed.------------.------'14
8- EMPLOYEES AND INDEPENDENT CONTRACTORS .................................................... 15 �
. S. SCHEDULE [)FOPERATION .------------------------------15
, 18. MAINTENANCE OF CONCESSION LOCATIONS ........................................................... 15
10.2 Garbage Receptacles ........................................................................................... 18
103, Pressure Cleaning ................................................................................................ 16
� 10.4 Facilities `----' -----_-------..--_—_'----------.1G
10.5 Orderly Operation --------------------------------.1O
10.8 No Dangerous Materials .................. .................................................................... 18 �
107 Security .---------------------_-----..--------.17
10.8 Maintenance �Vehicles .......................................................................................... 17 �
10.9 . Inspection .................... i ........................................................................................ 17
` 11. INSURANCE ...................................................................................................................... 17
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12. ' INDEMNITY .................................................................................................................... ... 18
12.4 Subrogation ....................................................................... --.......... ............... 1S
12 .5 Force K8ajeura .................................................................... -....... .................. 1S
12.6 Labor D�pute-------------------------'--------. 1Q
` 127 Waiver of Loss from Hazordo---.--------------.----'---' 18
13 DEFAULT AND TERMINATION ....................................................................................... 2O
131 . Bankruptcy ........................................................................................................... 28
� 13.2 Default in Payment ............................................................................................... 2O
� 13.3 Non-Monetary Default .......................................................................................... 2U
13.4 City's Remedies for Concessionaire's Default ..................................................... 21
� 13.0 Termination for Convenience/Partial Termination ................................................ 22
13.7 Surrender of Concession Locations ..................................................................... 22
14. PERFORMANCE BOND OR ALTERNATE SECURITY ................................................... 23
15.
ASSIGNMENT ................................................................................................................... 23
, 18. SPECIAL EVENTS ............................................................................................................ 33
' 17. NO IMPROPER USE ........................................................................................................ 23
18 . PRICE SCHEDULES ............................................................................................. ........... 23
19. NOTICES .......................................................................................... ............................... 24
20. LAWS ..... --------------------'------------_.................... 24
� 20.1 Compliance ......................... ---.-----.------_--............. ........... 24
20.2 Governing Law ........................................ -....................................................... 25
20.3 Equal Employment Opportunity ........................ ................................................... 25
20.4 No Discrimination .................................................................................................. 25
' 20.5 Compliance with American with Disabilities Act A\DA>--------_----.25
21. yW|GCELLANEOUG-------._---------------------------25
211 No Partnership ----------.----------------------'25
21.2 W1odi�oaUons--------------_---'-------.--------25
- 21�3 �onlp�baAgreenlerd-------------------------_----2G
21.4 Headings ................................... ... ..... ... ....... ............... - ..... .... -- ............. 2G
21 .5 Binding Effect ................................................................................... -- ........... 2G
21.6 Clauses ..................................................... .................. ....................................... 2S
217 Saverobi|hy ........................................................................................................... 2G
21.8 Right of Entry ........................................................................................................ 2G
21.9 Not o Lease .......................................................................................................... 2O
2110 8ignage .......................... ..................................................................................... 27
2111 Use of the Rk] ----------------------------.27
21.12 Conflict of Interest ................. -------------------------'27
21]3 Reasonableness -----------------'---.-----------..27
2114 Procedure for Approvals and/orConoenba-------------------'27
21.15 No Waiver ....... - ................................................................................................ 27
- 21.16 No Third Party 8ennficiary ............................................................................... 27
2117 Attorneys' Fees . .................................................................................................... 27
22. LIMITATION OF LIABILITY ............................................................................................... 28
23. VENUE-------------------------------'---------'2O
EXHIBITS
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Exhibit 2.0
Exhibit 3.21.4
Exhibit 3.2.5.1
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Exhibit 5.0
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CONCESSION AGREEMENT BY AND BETWEEN
CITY OF MIAMI BEACH, FLORIDA, AND BETTOLI TRADING CORP.
FOR OPERATION OF SNACK MACHINE CONCESSIONS AT
VARIOUS LOCATIONS ON CITY OF MIAMI BEACH PROPERTIES
PURSUANT TO REQUEST FOR PROPOSALS #44 -10/11
THIS AGREEMENT made the3= day of 2012, between the CITY OF MIAMI
BEACH, a municipal corporation of the State of Florida (hereinafter called "City "), having its
principal address at 1700 Convention Center Drive, Miami Beach, Florida, 33139, and
BETTOLI TRADING CORP., a corporation established pursuant to the laws of the State of
Florida, with offices at 6095 NW 167 Street, Suite D, Miami, Florida 33015 (hereinafter
called "Concessionaire ").
WITNESSETH
WHEREAS, on July 13, 2011, the Mayor and City Commission approved the issuance of
Request for Proposals (RFP) No. 44- 10/11 to solicit proposals for the operation of snack
vending machine concessions at various locations on City -owned properties and facilities;
and
WHEREAS, on August 5, 2011, said RFP was issued, with an original opening date of
September 7, 2011; and
WHEREAS, on October 19, 2011, the Mayor and City Commission adopted Resolution
No. 2011 - 27776, accepting the recommendation of the City Manager pertaining to the
ranking of proposals, and authorizing the Administration to enter into negotiations with
Bettoli Trading Corp. d /b /a Bettoli Vending (Concessionaire), as the successful proposer,
for the operation of said snack machine concessions; and
WHEREAS, the Administration has successfully negotiated the foregoing Concession
Agreement with Concessionaire.
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 exclusive right to operate the following described concession within the
Concession Locations, 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.
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SECTION 1. TERM.
1.1 This Agreement shall be for an initial term of five (5) years, commencing on
May 1, 2012 (the "Commencement Date "), and ending on April 30, 2017.
1.2 Provided that the Concessionaire is not in default under Section 13 hereof,
and at the City's sole discretion, the- City, through its City Manager, may
extend the term of this Agreement, upon the same terms and conditions as
set forth herein, for five (5) additional one (1) year terms, by providing written
notice to Concessionaire no later than sixty (60) days prior to the expiration
of the initial term or of a renewal term (as the case may be).
1.3 For purposes of this Agreement, the "Term" shall be defined as the initial
term and renewal term (if exercised by the City), and a "Contract Year" shall
be defined as each one (1) year period during the Term, commencing on the
Commencement Date, or the anniversary of the Commencement Date, and
ending one year thereafter.
SECTION 2. CONCESSION LOCATIONS.
The City hereby grants to the Concessionaire the exclusive right, during the Term of this
Agreement, to operate snack vending machine concessions, in the locations delineated in
Exhibit 2.0 herein (hereinafter referred to as the "Concession Locations ").
SECTION 3. USE(S).
The Concessionaire is hereby authorized to conduct the following kind(s) of business(es) in
the Concession Locations, as provided below, all at its sole cost and expense:
3.1 Concessionaire shall install, operate, manage, service and maintain Snack
Vending Machines (as defined in Subsection 3.2.1.1) and Change Machines
(as defined in Subsection 3.2.2.1), at the Concession Locations, which shall .
provide snack services for patrons, employees, and the general public at City
owned properties and facilities throughout the of this Agreement, in
accordance with the scope of services delineated in Section 3.2.
The City hereby approves the use of the Concession Locations, for the
placement of the specific Snack Machines, as reflected in Exhibit 2.0, which
shall offer for sale the specific products at the specific prices reflected in
Exhibit 3.2.5.1.
Any amendment to any Exhibit attached hereto must be approved in writing
by the City Manager or his designee prior to implementation of same, and, if
approved, a new and /or updated Exhibit shall be attached and incorporated
herein.
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3.2 Scope of. Services.
3.2.1 Snack Machines.
3.2.1.1 Definition.
Snack Machine shall be defined as any and all equipment that
is used to hold and dispense products to be offered for sale as
provided pursuant to this Concession Agreement, which shall
accept United States paper currency in one dollar ($1.00), five
dollar ($5.00), and ten dollar ($10.00) denominations, and will
provide change in United States coins in one dollar ($1.00),
quarters ($0.25), dimes ($0.10) and nickels ($0.05).
3.2.1.2 Controls.
Each Snack Machine must be equipped with a non - resetting
transaction counter, or other control acceptable to the City, and
must be licensed as provided in Subsection 3.2.9 and as may
also be required by other applicable law (as provided in
Section 20.1), and shall include DEX resident capabilities.
3.2.1.3 Condition.
As of the Commencement Date, all equipment including,
without limitation, any and all Snack Machines, installed under
this Agreement shall be new or remanufactured in excellent
condition prior to installation. The City, at its sole discretion,
may also request that vandal proof and weather proof Snack
Machines be provided at certain outdoor City parks and other
venues that may be subjected to the natural elements (i.e.
wind, rain, sand, salt -air, etc.).
3.2.1.4 Design.
The design, type, material, and color and exterior facades of
any and all Snack Machines, as defined in Subsection 3.2.1.1,
shall be approved in writing by the City prior to the
Commencement Date. A photo or photo(s) of City- approved
Snack Machines are incorporated herein as Exhibit 3.2.1.4.
Thereafter, Concessionaire shall not change, alter, or modify
such City- approved design, type, material and color of any
Snack Machine without the prior written consent of the City
Manager or his designee and, if so approved, a new or
updated Exhibit 3.2.1.4 will be made a part of and incorporated
into this Agreement..
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3.2.1.5 Placement.
Placement of Snack Machines shall be in accordance with and
shall not exceed the maximum numbers and types, as set forth
at the Concession Locations referenced in Exhibit 2.0.
3.2.1.5.1 Concessionaire shall obtain written approval from the
City Manager, or the City Manager's designee, prior to
the installation, 'transfer or removal of any Snack
Machine.
3.2.1.5.2 Notwithstanding Subsection 3.2.1.5, City and
Concessionaire may, from time to time, meet to review
and, subject to the City Manager's prior written consent,
revise the maximum numbers set forth in Exhibit 2.0.
3.2`.1.6 Quality of Products.
Quality of products offered in Snack Machines will be first-rate
and comparable to that available in other public vending
machines located in public facilities in other world class cities
on par with the City of Miami Beach or, in the alternative, and
at a minimum, comparable to the quality of. products provided
by privately owned businesses selling like products within the
City of Miami Beach. No product shall be offered for sale with a
"sell by" date that has expired.
3.2.1.6.2 Snack Vending Options.
Snack vending options should include healthy snacks
such as whole grain, multigrain or vegetable chips and
crackers; nuts; reduced fat popcorn; backed or popped
chips; sugar free chewing gum; fruit trail mix; nutrition,
granola, or trail bars; fresh fruits and yogurt. The City's
Parks and Recreation Department will review and
approve any product to be sold in the Snack Machines
placed in the City's parks and youth centers prior to
such product(s) being initially offered for sale in the
Machines.
3.2.1.7 Cleanliness.
In addition to Concessionaire's general maintenance
obligations for the Snack Machines and Change Machines, as
set forth in Section 3.2.3, and the Concession Locations, as
set forth in Section 10 hereof, all portions of the Snack
Machines, Change Machines, and Concession Locations,
retrospectively, shall at all times be maintained in a clean and
sanitary manner.
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3.2.1.8 Operation Schedule.
Snack Machines and Change Machines shall be operable
during the days and hours of operation set forth in Section 9
herein.
3.2.2 Change Machines.
3.2.2.1 Definition.
Change Machine shall be defined as any and all equipment
that is required pursuant to this Concession Agreement that is
capable of providing change, primarily for the purposes of use
in a Snack Machine, which will accept United States paper
currency in one dollar ($1.00), five dollar ($5.00), and ten dollar
($10.00) denominations, and will provide change in United
State coins in one dollar ($1.00), quarters ($0.25), dimes
($0.10) and nickels ($0.05).
For purposes of this Subsection, and this Agreement, Snack
Machines, as defined herein, that are equipped and capable of
providing change (without the requirement that a purchase be
made) shall also be considered Change Machines.
3.2.2.2 Placement.
Change Machines shall be provided by Concessionaire at each
interior (i.e. not subject to the natural elements) Concession
Location where two (2) or more Snack Machines are situated.
Concessionaire shall obtain written approval from the City
Manager, or the City Manager's designee, prior to the
installation, transfer or removal of any Change Machine.
3.2.3 Maintenance of Snack Machine and Change Machines.
3.2.3.1 The condition and quality of Concessionaire's Snack Machines
shall at all times be maintained in a manner that is consistent
with the condition and quality of similar public vending
machines located in public facilities in other world class cities
on par with the City of Miami Beach. Accordingly,
Concessionaire shall not only, at a minimum, ensure that all
Snack Machines placed in the Concession Locations are well
maintained and in usable condition, but shall adhere, as
indicated in this subsection, to high ongoing maintenance
standards for same, consistent with the aforementioned
condition and quality.
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3.2.3.2 The Concessionaire shall be responsible for all maintenance
and repair of Snack Machines and Change Machines,
including but not limited to:
3.2.3.2.1 Cleaning and polishing of Snack Machines and Change
Machines, and removal of litter within and surrounding
the Concession Location(s) created by filling, servicing,
and /or maintaining of Machines. The Concessionaire
shall ensure that each route driver's schedule allows for
time to thoroughly and appropriately clean each
Machine as it is replenished, maintained and /or
serviced. This includes cleaning with a sanitizing
solution, the interior and exterior of each Machine, each
time that Machines are re- stocked, serviced, or
maintained.
3.2.3.2.2 All Snack Machines and Change Machines shall be
checked weekly and accurate records of service calls
(including time and date, location, machine type and
serial number) are to be maintained, and forwarded to
the City, along with the monthly report (see Section 5)
that shall be provided to the City within thirty (30) days
of the end of each month.
3.2.3.2.3 The Concessionaire shall maintain all Snack Machines
and Change Machines in good working order and shall
repair or replace any equipment that is not immediately
repairable, within two (2) business days, if found to be
inoperable.
3.2.3.2.4 Concessionaire shall post and maintain
Concessionaire's information, including a contact name
and toll free customer service telephone number,
immediately adjacent to the coin slot, of a size no less
than 4" x 6 ", on each Snack Machine and Change
Machine, to facilitate responding to refunding, re-
stocking, maintenance, and repair related problems that
may arise.
3.2.3.2.5 Concessionaire shall maintain an inventory of all Snack
Machines and Change Machines, with corresponding
identification information.
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3.2.4 Refund Procedure.
3.2.4.1 In addition to any other remuneration provided herein,
Concessionaire shall provide two "banks," each of one
hundred dollars ($100.00) in cash, to the City. One shall be
held by the City Finance Department's City Hall Cashier, and
the other shall be held by the Parks Department Administrative
Office, located at the 21 Street Recreation Center, 2100
Washington Avenue, for the purpose of distributing refunds
due to any malfunction of the Snack Machines. An individual
itemized refund list, including the amounts and names of the
persons the funds were refunded to, will be maintained by the
City Hall Cashier and by the Parks Department, respectively,
and will be submitted to the Concessionaire upon requested
replenishment of the "bank" funds by the City.
3.2.4.2 Malfunctions of Snack Machines that are. reported to the
Concessionaire shall be forwarded to the City, in writing,
including the amounts and names of the persons the funds
were refunded to, on a monthly basis, along with (and at the
same time) all other reporting documents required under this
Agreement.
3.2.5 Pricing and Availability of Services.
3.2.5.1 initial prices for Snack Machine products shall be in
accordance with the attached schedule in Exhibit 3.2.5.1. Any
subsequent changes proposed by Concessionaire to said
prices must be submitted in writing to the City Manager or his
designee, and prior written approval must be secured from the
City before implementing any changes to same.
3.2.5.1.1 The City Manager or his designee may request services
at additional locations and /or request additional
products for Snack .Machines at any time during the
Term. The Concessionaire may, at its sole cost and
expense, test market these additional locations and /or
products for a sixty day (60) period. If the
Concessionaire demonstrates to the City Manager or
his designee's satisfaction that the commercial demand
does not exist for the additional locations and /or
products, the Concessionaire will not be obligated to
continue the additional locations and /or products.
3.2.5.2 In the event that the City Manager or his designee
determine, in their respective sole option and discretion,
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that all or a portion. of Concessionaire's proposed
services, pursuant to Subsection 3.1 (and as delineated in
Subsection 3.2) are no longer desired, then the City may
revoke Concessionaire's right to provide all or a portion of
said services, and terminate all or a portion of this
Agreement, without cause, and without liability to the City,
upon sixty (60) days written notice to Concessionaire.
3.2.6 Concessionaire's Supervisory /Management Employee.
On or before the Commencement Date of this Agreement
Concessionaire shall designate (and provide notice of same in writing
to the City), a supervisory/management employee who shall be
authorized and responsible to act on behalf of Concessionaire with
respect to directing, coordinating, and administering all aspects of
Concessionaire's day to day operations pursuant to this Agreement.
Concessionaire's supervisory/management employee shall be
available via telephone, at all times during which the Snack Machines
at all Concession Locations are operating, as provided in Section 9
herein.
3.2.7 Removal of Snack Machines and /or Change Machines.
Concessionaire acknowledges that there may be circumstances under
which the City Manager may require the removal of any or all of the
Snack Machines and /or Change Machines. As such, Concessionaire
agrees that any or all of its Snack Machines and Change Machines
used in the concession operations will be removed from the
Concession Locations upon fifteen (15) days written notice to
Concessionaire, and said removal shall be done in compliance with
the applicable section(s) as set forth herein, and without liability to the
City.
3.2.8 Hurricane Evacuation Plan.
Concessionaire agrees that upon the issuance of a Hurricane
Warning by the Miami -Dade County Office of Emergency
Management, it shall ensure that all exterior Snack Machines and
Change Machines, and any and all other items used in the
concession operations shall be secured. Additionally, and
notwithstanding the foregoing, Concessionaire agrees that upon
receipt of notification from the City Manager or his designee, whether
in writing or verbally, which may be communicated to Concessionaire
via telephone, fax and /or email, all exterior Snack Machines and
Change Machines, and any and all other items used in the
concession operations shall be removed from the Concession
Locations and stored at a private, off -site location, within 24 hours of
said notification.
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Concessionaire's failure to remove Snack Machines, Change
Machines, or any and all other items used in the concession
operations upon notice from the City Manager or his designee
within the time period provided in this Subsection may, at the
City's sole discretion, constitute an automatic default of the
Agreement under which the City may, upon written notice to
Concessionaire, immediately terminate this Agreement.
3.2.9 City Business Tax Receipts..
Concessionaire shall obtain, and maintain current and in good
standing throughout the Term of this Agreement, at its sole cost and
expense, any Business Tax Receipts required by City law, as
amended from time to time, for its proposed uses, as contemplated in
Section 3 of this Agreement. For purposes of this Agreement,
Concessionaire shall obtain the applicable "Coin Vending Distributor"
and /or "25 Cents and Over Machine" category City Business Tax
Receipts.
SECTION 4. CONCESSION FEES.
4.1 Security Deposit.
Concessionaire shall furnish to the City Manager or his /her designee a
Security Deposit, in the amount of Three Thousand Dollars ($3,000), ,as
security for the faithful performance of the terms and conditions of this
Concession Agreement, to be remitted on or before the Commencement
Date.
4.2 Minimum Guarantee (MG).
In consideration of the City executing this Agreement and granting the rights
provided in this Agreement, commencing May 1, 2012, and thereafter on
May 1 st of each year during the Term of this Agreement, the Concessionaire
shall pay to the City a Minimum Guaranteed (MG) Annual Concession Fee of
Twelve Thousand Dollars ($12,000), plus applicable Sales and Use Taxes
(as provided in Section 4.6 herein); said MG shall be subject to the annual
increases in Subsections 4.2.1.and 4.2.2 below.
4.2.1 Commencing with the third Contract Year, said MG shall be
automatically increased annually, on the anniversary of the
Commencement Date, by the greater of (i) the Consumer Price Index
(CPI), or (ii) three percent (3 %). "CPI" shall mean that consumer price
index established by the Bureau of Labor Statistics of the United
States department of Labor which is entitled "Consumer Price Index,
All Urban Consumers, City Average All Items; (1982 -84 = 100)" or, in
the event said index is no longer provided by said Bureau of Labor
Statistics, the index furnished by said Bureau or other agency which is
. 11
most accurate, completely replaces, and /or is the equivalent of the
above referenced index, whichever is greater.
'4.2.2 Additionally, commencing with the first anniversary of this Agreement,
the MG shall be increased annually in the event the number of Snack
Machines is increased pursuant to Subsection 3.2.1.5.2. of this
Agreement. The MG shall be increased based on the projected
classification (Low = $150, Medium = $300 and High = $500) of each
additional Snack Machine, as contained in Exhibit 2.0.
4.2.3 IN NO EVENT SHALL THE MG BE LESS THAN $12,000
ANNUALLY.
4.3 Percentage of Gross Metered Receipts (PGMR)
During the Term of this Agreement, in the event that the amount equal to
twenty percent (20 %) of Concessionaire's annual Gross Metered Receipts
(PGMR) exceeds the Minimum Guarantee (MG) provided in Section 4.2
above (as increased annually pursuant to Subsection 4.2.1.), then the
Concessionaire shall also pay to the City within thirty (30) days of the
anniversary of this Agreement, the difference between the amount of the
PGMR and the MG amount, each year during the Term of this Agreement,
including any renewal terms.
The term "gross metered receipts" is understood to mean all income
registered at each and every Snack Machine, whether collected or accrued,
derived by the Concessionaire under the privileges granted by this
Agreement. Any amounts that may be due for any Federal, State, or City
sales tax, or other tax, governmental imposition, assessment, charge or
expense of any kind and required by law to be remitted to the taxing
authority, or other governmental authority, shall be the sole responsibility of
Concessionaire.
4.4 intentionally Omitted.
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 rate of twelve percent (12 %) per annum, or the
highest rate allowed pursuant to Florida law, whichever is greater, 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 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 all payments due
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from Concessionaire as net of such Florida State Sales and. Use Tax.
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, but not photocopying, by
the City Manager or his designee upon reasonable prior request and during normal
business hours. Such records and accounts shall include a breakdown of gross receipts,
expenses, and profit and loss statements, and such 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.
A monthly report of gross metered receipts, as well as CompuVend data in a format
consistent with Exhibit 5.0, must be submitted to the City, through the Finance
Department's Revenue Manager, to be received no later than thirty (30) days after the
close of each month.
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 initial term, or (if approved) the last renewal
term, and such records shall be open and available to the City Manager or his designee, as
they may deem necessary. Concessionaire shall maintain all such records at its principal
office, currently located at 6095 NW 167 Street, Suite D4, Miami, Florida, 33015 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 Manager or his designee that the City desires to review.said records.
The City Manager or his designee shall be entitled to audit Concessionaire's records
pertaining to its operation as often as it deems reasonably necessary throughout the Term
of this Agreement, and three (3) times within the three (3) year period following termination
of 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 firm shall pay to the City, within thirty (30) days of the audit being
deemed final (as specified below), the cost of the audit and a sum equal to the amount of
the deficiency revealed by the audit, plus interest; provided, however, the audit shall not be
deemed final until Concessionaire has received the audit and has had a reasonable
opportunity to review the audit and discuss the audit with the City. Nothing contained within
this Section shall preclude the City's audit rights for resort tax collection purposes.
Concessionaire shall submit at the end of the initial term (and, if approved, any renewal
term), a certified audited annual statement of gross receipts, in a form consistent with
generally accepted accounting principles.
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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 the initial term (and, if approved, each renewal term), Concessionaire and City
may meet to review Concessionaire's performance under the Agreement. At the meeting,
Concessionaire and City may discuss quality, operational, maintenance and any other
issues regarding Concessionaire's performance under the Agreement.
SECTION 7. TAXES, ASSESSMENTS, AND UTILITIES.
7.1 Concessionaire agrees to and shall pay before delinquency all taxes
(including but not limited to resort taxes) and assessments of any kind
assessed or levied upon Concessionaire by reason of this Agreement or by
reason of the business or other activities and operations of Concessionaire
upon or in connection with the Snack Machines and /or the Concession
Locations. 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 Locations, as permitted pursuant to this Agreement.
7.2 Utilities.
Electrical service, including maintenance of outlets, shall be provided by the
City at the Concession Locations at no cost to the Concessionaire, if and
where feasible. No water service will be provided by the City in connection
with the operation of Snack Machines under this Concession Agreement.
If, not currently existing, requests for installation of new and /or additional
outlets shall be submitted in writing to the City Manager or his /her designee,
for review and approval. If approved by the City Manager or his /her
designee, installation of new and /or additionally outlets will be performed by
the City and /or an electrical contractor approved by the City, in writing, to
perform said work on the City's behalf, at Concessionaire's sole cost and
expense.
7.3 Procedure If Ad Valorem Taxes Assessed.
Notwithstanding Subsection 7.1 herein, the parties contemplate that the
concession uses and operations contemplated under this Agreement are for
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public purposes and, therefore, no ad valorem taxes should be assessed by
the Miami -Dade County Tax Appraiser as a result of such operations. If,
however, said taxes are assessed, Concessionaire shall be solely
responsible for payment of same, in the same manner as taxes due pursuant
to Subsection 7.1 herein.
SECTION 8. EMPLOYEES AND INDEPENDENT CONTRACTORS.
8.1 In connection with the performance of its responsibilities hereunder,
Concessionaire may hire its own employees who will be employees of
Concessionaire and not employees or agents of the City. Additionally,
Concessionaire's vendors (i.e. entities who provide products and /or Snack
and Change Machines to Concessionaire) shall not be considered agents or
employees of the City. Concessionaire shall select the number, function,
qualifications, compensation, including benefits (if any), and may, at its
discretion and at any time, adjust or revise the terms and conditions relating
to its employees and /or independent contractors.
8.2 Concessionaire shall ensure that all its employees and vendors while
working at or within the Concession Locations. observe all the graces of
personal grooming. The Concessionaire shall hire people to work in its
concession operation who are neat, clean, well groomed and shall comport
themselves in a professional and courteous manner, and ensure that its
vendors comply with same. The Concessionaire and any persons hired by
same, shall never 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.
SECTION 9. SCHEDULE OF OPERATION.
Snack Machines-and Change Machines shall be made available to patrons twenty four (24)
hours a day, seven days a week, based on the particular hours of operation of each
individual Concession Location, events of force majeure permitting. Any change in the days
or hours of operation shall require the prior written consent of the City Manager or his
designee.
SECTION 10. MAINTENANCE OF CONCESSION LOCATIONS.
1.0.1 The Concessionaire accepts the Concession Locations in their "AS IS"
"WHERE IS" condition. Concessionaire assumes sole responsibility and
expense for maintenance of the immediate confines surrounding the
Concession Locations. This shall include removal of litter, garbage and
debris, said removal to be the sole responsibility and 'expense of
Concessionaire. Daily maintenance shall be accomplished on all days and
hours Concessionaire operates. Concessionaire agrees, also at its sole cost
and expense, to pay for all garbage disposal generated by its operations.
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10.2 Intentionally Omitted.
10.3 Intentionally Omitted.
10.4 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 Snack Machines, Change Machines and Concession
Locations. The Concessionaire shall make available all Snack Machines and
Change Machines within the Concession Locations for examination during
days and hours of operation by the City Manager or his authorized
representative(s).
10.6 No Dangerous Materials.
10.6.1 The Concessionaire agrees not to use or permit in the Concession
Locations 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 being used within or in the vicinity of the
Concession Locations shall be immediately removed and shall be
considered cause for default and /or termination.
10.6.2 Notwithstanding any contrary provisions of this Agreement,
Concessionaire, after the Commencement Date, 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, after the Commencement Date, but during the term of
this Agreement, of any hazardous substance or petroleum products
on, under, in, upon, or in the vicinity of the Concession Locations 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.
10.6.3 The provisions of this Subsection 10.6 shall survive the termination or
earlier expiration of this Agreement.
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10.7 Securitv.
The Concessionaire shall be responsible for and provide reasonable security
measures which may be required to protect the Snack Machines and
Change Machines at all Concession Locations. Under no circumstances
shall the City be responsible for any stolen or damaged goods, materials
and /or other equipment, including but not limited to the Snack Machines and
Change Machines, nor shall City be responsible for any stolen or damaged
personal property of Concessionaire's employees, vendors, patrons, guests,
invitees, and /or other third parties.
10.8 Maintenance Vehicles.
Concessionaire shall not permit the use of any vehicle, in any way that
violates any Municipal, County, State or Federal Laws. Vehicles may only be
driven and /or parked in areas designated for such purposes and as provided
for by applicable law.
10.9 Inspection.
The Concessionaire agrees that the Snack Machines, Change Machines and
Concession Locations may be inspected at any time during days and hours
of operation by the City Manager or his designee, or by any other municipal,
County, State officer, or agency having responsibilities for inspections of
such operations. The Concessionaire hereby waives all claims against the
City for compensation for loss or damage sustained by reason of any
interference (which interference, if by the City, must be reasonable) with the
concession operation by any public agency or official in enforcing their duties
or any laws or ordinances. Any such interference (which interference, if by
the City, must be reasonable) shall not relieve the Concessionaire from any
obligation hereunder.
SECTION 11. INSURANCE.
Concessionaire shall maintain, at its sole cost and expense, the following types of
insurance coverage at all times throughout the term of this Agreement.
a. Comprehensive General Liability in the minimum amount of One Million
Dollars ($1,000,000) per occurrence for bodily injury and property damage.
This policy must also contain coverage for premises operations, products,
completed operations and contractual liability (with hold harmless
endorsement).
b. Workers Compensation Insurance and Employers Liability 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
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Bodily Injury $1,000,000 per person
Bodily Injury $1,000,000 per accident
Property Damage $1,000,000 per accident
Failure to procure or maintain the required insurance program shall, at the City's
discretion, either (i) constitute an automatic default of the Concession Agreement
under which the City may, upon written notice to Concessionaire, immediately
terminate the Agreement; or (ii) the City, in its sole discretion, may obtain the
insurance itself, in which case said insurance shall be charged back to the
Concessionaire as provided in the following paragraph.
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, and
any replacement or substitute 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
of B+ VI. Should Concessionaire fail to obtain, maintain or renew the policies of insurance
referred to above, in the required amounts, the City may, at its sole discretion,
automatically terminate this Agreement or, in the alternative, deem to obtain such
insurance, and any sums expended by City in obtaining said insurance, shall be repaid by
Concessionaire to City, plus ten percent (10 %) of the amount of premiums paid to
compensate City for its administrative costs. If Concessionaire fails to repay City's
expenditures within fifteen (15) days of demand, the total sum owed shall accrue interest at
the rate of twelve percent (12 %) until paid, or, at its option, the City may declare the
Agreement in default pursuant to Section 13 herein.
Said policies of insurance shall be primary to and contributing with any other insurance
maintained by Concessionaire or City. Concessionaire shall file and maintain certificates of
all insurance policies with the City's Risk Management Department showing said policies to
be in full force and effect at all times during the course of the contract.
If any of the required insurance coverages contain aggregate limits, or apply to other
operations or tenancies of Concessionaire outside this Agreement, Concessionaire shall
give City prompt written notice of any incident, occurrence, claim settlement or judgment
against such insurance which may diminish the protection such insurance affords the City.
Concessionaire shall further take immediate steps to restore such aggregate limits or shall
provide other insurance protection for such aggregate limits.
SECTION 12. INDEMNITY.
t
12.1 In consideration of a separate and specific consideration of $10.00 and other
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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 in the performance of services 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.
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. earthquake; hurricane; flood; act of God; civil commotion occurring on
the Concession Locations during or in connection with any event or
other matter or condition of like nature; or
b. 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 Intentionally Omitted.
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 above, and
the Concessionaire hereby expressly waives all rights, claims, and demands
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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 herein.
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 being subject to interest at the rate of twelve percent
(12 %) per annum or at the highest rate allowable by Florida law, whichever is
greater. 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
20
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
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
Locations 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 Locations and to this Agreement, and every part thereof,
shall cease and terminate and City may, in addition to any other rights and
remedies it may have, retain all sums paid to it by Concessionaire under this
Agreement. In addition to the rights set forth above, City shall have the rights
to pursue any and all of the following:
a. the right to injunction or other similar relief available to it under Florida
law against Concessionaire; and or
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 Locations to City pursuant to the
provisions of Subsection 13.7.
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13.6 Termination for Convenience /Partial Termination.
13.6.1 Notwithstanding the provisions of this Section 13, this Agreement may
be terminated, in whole or in part, by the City, for convenience and
without cause, upon the furnishing of thirty (30) days prior written
notice to Concessionaire.
13.6.2 Concessionaire acknowledges that the City may develop a schedule
of capital improvements, including all or a portion of the Concession
Locations, which may entail a closure of all or a portion of the
Concession Locations, at the City's sole discretion. In the event that
the City closes down any Concession Location, or a portion thereof,
for the purpose of undertaking a capital improvement thereon, then
the parties agree that the portion of the Agreement referencing said
individual Concession Locations shall be partially terminated for
convenience, without cause and without penalty to either party, and
only as to the Concession Location, or portion thereof, which have
been closed. Such a termination shall become effective upon thirty
(30) days prior written notice to Concessionaire.
. E
13.6.3 Notwithstanding Subsections 13.6.1 and 1.3.6.2 above, the City and
Concessionaire acknowledge that the City also has certain rights in
Subsections 3.2.5.2 and 3.2.7, which, if exercised by the City may
necessitate a termination of a portion or all of the Agreement. In that
event, the City shall also have no liability to Concessionaire, in the
same manner as provided in Subsection 13.6.4 below.
13.6.4 In the event of termination or partial termination by City of the
Agreement pursuant to this Subsection 13.6, 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 interference in business or damages for interruption of services or
interference in its concession operations by Concessionaire or its
vendors).
13.7' Surrender of Concession Locations.
At the expiration of this Agreement, or in the event of termination or partial
termination of the Agreement, Concessionaire shall surrender the
Concession Locations in the same condition as the Concession Locations
were prior to the Commencement Date of this Agreement, reasonable wear
and tear excepted. Concessionaire shall remove all its Snack Machines,
Change Machines, and any and all other equipment, fixtures, personal
property, etc. upon thirty (30) days written notice from the City Manager or
his designee unless a longer time period is agreed to by the City.
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Concessionaire's obligation to observe or perform this covenant shall survive
the expiration or other termination of this Agreement. Continued occupancy
of the Concession Locations (or portions 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.
SECTION 14. Intentionally Omitted.
SECTION 15. ASSIGNMENT.
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 Locations without the prior written consent of the
City Commission.
SECTION 16. Intentionally Omitted.
SECTION 17. NO IMPROPER USE.
The Concessionaire will not use, nor suffer or permit any person to use in any manner
whatsoever, the Concession Locations, 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
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 18. PRICE SCHEDULES.
Concessionaire agrees that prices charged for goods /products in the Snack Machines shall
be consistent with the price schedule(s) herein submitted by the Concessionaire and
approved by the City and incorporated herein as Exhibit 3.2.5.1 to this Agreement. All
subsequent price increases and amendments to Exhibit 3.2.5.1 must be approved in
writing by the City Manager, or his designee, and prior to such changes being implemented
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within the Concession Locations a new updated Exhibit 3.2.5.1 will be incorporated into this
Agreement.
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 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 19. 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:
Mr. Maurizio L. Bettoli
Bettoli Trading Corp. d /b /a Bettoli Vending
6095 NW 167" Street, Suite D -4
Miami, Florida 33015
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:
Office of Real Estate, Housing & Community Development
City of Miami Beach
1700 Convention Center Drive
Miami Beach, FL 33139
Attention: Anna Parekh / Director
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 20. LAWS.
20.1 Compliance.
Concessionaire shall comply with all applicable City, Miami -Dade County,
State, and Federal ordinances, statutes, rules and regulations, including but
24
not limited to all applicable environmental City, County, State, and Federal
ordinances, statutes, rules and regulations.
2.0.2 Governing Law.
This Agreement shall be deemed to have been made and shall be construed
and interpreted in accordance with the laws of the State of Florida. In case of
any inconsistency between the terms of this Agreement, and any applicable
general or special law, said general or special law shall govern, unless
otherwise provided herein.
20.3 Equal Employment Opportunity.
Neither Concessionaire nor any affiliate of 'Concessionaire performing
services hereunder, or pursuant hereto, will discriminate against any
employee or applicant for employment because of race, creed, sex, color,
national origin, religion, sex, gender identity, sexual orientation, disability,
marital or familial status or age. Concessionaire will make good faith efforts
to utilize minorities and females in the work force and in correlative business
enterprises.
20.4 No Discrimination.
The Concessionaire agrees that there shall be no discrimination as to race,
color, national origin, religion, sex, gender identity, sexual orientation,
disability, marital and familial status, or age, 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 Locations. All concession operations and
services offered shall be made available to the public, subject to the right of
the Concessionaire and the City to establish and enforce rules and
regulations to provide for the safety, orderly operation and security of the
operations and the facilities.
20.5 Compliance with American with Disabilities Act (ADA) and any other
applicable accessibility standard
Concessionaire agrees and acknowledges that, if applicable, it shall comply
with ADA standards, Florida Accessibility Code standards, and any other
applicable accessibility standards required by law.
SECTION 21. MISCELLANEOUS.
21.1 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.
21.2 Modifications.
This Agreement shall not be changed or modified except by agreement in
writing executed by all parties hereto. Concessionaire acknowledges that no
25
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.
21.3 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.
21.4 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.
21.5 Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns.
21.6 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.
21.7 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.
21.8 Right of Entry.
The City, at the direction of the City Manager or his designee, 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 Locations for the purposes of
examining the same for any reason relating to the obligations of parties to
this Agreement.
21.9 Not a Lease.
It is expressly understood and agreed that no part, parcel, building, facility,
26
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.
21.10 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 within each
Concession Location, and /or on its Snack Machines and Change Machines
shall be subject to the prior approval of the City as to size, shape and
placement of same.
21.11 Intentionally Omitted.
21.12 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.
21.13 Intentionally Omitted.
21.14 Intentionally Omitted.
21.15 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.
21.16 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.
21.17 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,
27
including a reasonable attorneys' fee and costs, for all trial and appellate
proceedings.
SECTION 22. 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.
SECTION 23. 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 LOCATIONS.
[The remainder of this page has been left intentionally blank]
28
-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
CITY CLERK ....E3 AYO "
Attest: ' INCGPIGFiATED TTOLI TRADING CORP.
b/a BETTOLI VENDING
Signature Secretary— Signature / R+es
v Be7o
Print Name Print Name
F: \RHCD \$ ALL \ECON \$ALL\ASSET \VENDING \Bettoli Vending Contract (For Form Approval 4- 6- 12).doc
APPROVED AS TO
FORM & LANGUAGE
& Fn ECUTION
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,.--cit ttorney ate
29
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EXHIBIT 5.0
BETTOLI VENDING
6095 N.W. 167TH STREET SUITE D -5
HIALEAH, FL, 33015
TEL 305 -626 -0740
FAX 305- 623 -0108
Full Line Vending
Snack, Soda, Juice, Food, Coffee, Water.
Customer; OKEEHEELEE M.S.
Address 2200 PINEHURST DR.
Greenacres, FL, 33413
Vending Machines Commissions for : January -12
Type Percentage Sold Commission
Teacher's Lounge 25.00% $$$$$$.$$
Soda 5170 25.00% $$$$$$,$$ $$$.$$
Soda 5171 25.00%
Soda 5172 25.00% $$$$$$,$$
Soda 5176 25.00 %'
Soda 5177 25.00%
Soda 5178 25.00% $$$$$$.$$
Snack 3253 20,00%
Total Sales $$$$ $$.$,$
Total Commissions Due
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