Concession Agreement with Productions Sud, Inc. for the Operation of Lincoln Road Antique and Collectibles Market av-a8s�3
Management and
Operation Agreement
for the
Lincoln Road
Antique & Collectibles
Market
INDEX
SECTION TITLE PAGE
1. TERM ..................................................................................................................................4
2. CONCESSION AREA..........................................................................................................5
2.1 Lincoln Road between Meridian Avenue and Alton Road ......................................5
2.2 Michigan Avenue between South Lincoln Lane and North Lincoln Lane................5
2.2 Michigan Avenue between South Lincoln Lane and North Lincoln Lane................5
2.3 Jefferson Avenue between South Lincoln Lane and North Lincoln Lane...............5
3. USE(S) ................................................................................................................................6
3.1.1 Facilities Design .....................................................................................................6
3.1.2 Placement of Facilities.................:..........................................................................7
3.1.2.1 Compliance with American with Disabilities Act(ADA)..........................................7
3.1.3 Set Up.....................................................................................................................8
3.1.4 Public Right-of-Way................................................................................................8
3.1.5 Interaction and Coordination with Other Lincoln Road Operations and Events .....8
3.1.6 Conflict Resolution..................................................................................................8
3.2 Permitted Concession Operations/Uses ............................................................11
3.2.1 Antiques................................................................................................................11
3.2.2 Vintage Goods......................................................................................................11
3.2.3 Collectibles...........................................................................................................11
3.3 Intentionally Omitted.............................................................................................11
3.4 Intentionally Omitted.............................................................................................11
3.5 Intentionally Omitted.............................................................................................11
3.6 Off-Duty Police/Field Monitor..............................................................................12
3.6.1 Off-Duty Police .....................................................................................................12
3.6.2 Field Monitor.........................................................................................................12
3.7 Vendor Selection/First Priority to Miami Beach Merchants ................................12
3.8 Removal of Concession Facilities ........................................................................13
3.9 Hurricane Evacuation Plan...................................................................................13
3.10 City Occupational Licenses..................................................................................14
4. CONCESSION FEES........................................................................................................14
4.1 Security Deposit..........................
..........................................................................
4.2 Percentage of Gross (PG)vs. Minimum Guarantee(MG)...................................14
4.3 Minimum Guarantee(MG)....................................................................................15
4.4 Use of Electricity...................................................................................................15
4.5 Interest for Late Payment......................................:..............................................15
4.6 Sales and Use Tax..................................................................................:............16
4.7 Public Parking Meters...........................................................................................16
5. MAINTENANCE AND EXAMINATION OF RECORDS.....................................................16
6. INSPECTION AND AUDIT................................................................................................16
7. TAXES, ASSESSMENTS, AND UTILITIES......................................................................17
7.1.1 Electricity..............................................................................................................17
7.2 Procedure if Ad Valorem Taxes Assessed...........................................................18
8. EMPLOYEES AND INDEPENDENT CONTRACTORS....................................................18
9. SCHEDULE OF OPERATION...........................................................................................18
9.1 Day(s)of Operation..............................................................................................18
9.2 Operating Hours...................................................................................................18
10. MAINTENANCE ................................................................................................................19
10.2 Garbage Receptacles...........................................................................................19
10.3 Pressure Cleaning................................................................................................19
10.4 Facilities................................................................................................................20
10.5 Orderly Operation.................................................................................................20
10.6 No Dangerous Materials.......................................................................................20
10.7 Security.................................................................................................................20
10.8 Vehicles on Public Right-of-Way..........................................................................21
10.9 Inspection.............................................................................................................21
2
SECTION TITLE PAGE
11. INSURANCE .....................................................................................................................22
12. INDEMNITY.......................................................................................................................23
12.4 Subrogation..........................................................................................................23
12.5 Force Majeure......................................................................................................23
12.6 Labor Dispute.......................................................................................................24
12.7 Waiver of Loss from Hazards...............................................................................24
13. DEFAULT AND TERMINATION........................................................................................24
13.1 Bankruptcy............................................................................................................24
13.2 Default in Payment...............................................................................................25
13.3 Non-Monetary Default ..........................................................................................25
13.4 City's Remedies for Concessionaire's Default.....................................................25
13.6 Termination for Convenience/Partial Termination................................................26
13.7 Surrender of Concession Area.............................................................................27
14. PERFORMANCE BOND OR ALTERNATE SECURITY...................................................27
15. ASSIGNMENT...................................................................................................................27
16. SPECIAL EVENTS............................................................................................................28
16.2 City Special Events...............................................................................................28
17. NO IMPROPER USE.........................................................................................................29
18. PRICE SCHEDULES.........................................................................................................30
19. NOTICES...........................................................................................................................30
20. LAWS................................................................................................................................31
20.1 Compliance...........................................................................................................31
20.2 Governing Law.....................................................................................................31
20.3 Equal Employment Opportunity............................................................................31
20.4 No Discrimination .................................................................................................31
21.0 MISCELLANEOUS............................................................................................................32
21.1 No Partnership......................................................................................................32
21.2 Modifications.........................................................................................................32
21.3 Complete Agreement ...........................................................................................32
21.4 Headings ..............................................................................................................32
21.5 Binding Effect.......................................................................................................32
21.6 Clauses.................................................................................................................32
21.7 Severability...........................................................................................................32
21.8 Right of Entry........................................................................................................33
21.9 Not a Lease..........................................................................................................33
21.10 Signage ................................................................................................................33
21.11 Use of the Right-of-Way.......................................................................................33
21.12 Conflict of Interest.................................................................................................33
21.13 Reasonableness...................................................................................................33
21.14 Procedure for Approvals and/or Consents...........................................................33
21.15 No Waiver.............................................................................................................34
21.16 No Third Party Beneficiary....................................................................................34
21.17 Attorneys' Fees.....................................................................................................34
22. LIMITATION OF LIABILITY...............................................................................................34
23. VENUE..............................................................................................................................34
24. Concessionaire's Compliance with Florida Public Records Law..................................34
25. Prohibitions Regarding Sale or Use of Expanded Polystyrene Food Service Articles.....35
EXHIBITS
Exhibit2.1 ............................................................................................................37
Exhibit2.2 ............................................................................................................40
Exhibit2.3 ............................................................................................................41
Exhibit3.1 .............................................................................................................42
Exhibit3.1.1 .........................................................................................................43
Exhibit3.1.2.1 ......................................................................................................44
Exhibit9.1.............................................................................................................46
3
CONCESSION AGREEMENT BETWEEN
CITY OF MIAMI BEACH, FLORIDA AND
PRODUCTIONS SUD, INC.
FOR MANAGEMENT AND OPERATION OF THE
LINCOLN ROAD ANTIQUE AND COLLECTIBLES MARKET
THIS AGREEMENT made the ?O day of /ZWewil!�1 , 2014, between the
CITY OF MIAMI BEACH, a municipal corporation of the State of Florida, having its
principal address at 1700 Convention Center Drive, Miami Beach, Florida, 33139
(hereinafter called "City"), and PRODUCTIONS SUD, INC., a corporation established
pursuant to the laws of the State of Florida, with offices at 1360 Marseilles Drive, Miami
Beach, Florida, 33141 (hereinafter called "Concessionaire").
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 Area, as defined herein, in conformance with the purposes and for the period
stated herein, and subject to all the terms and conditions herein contained and fairly
implied by the terms hereinafter set forth.
WITNESSETH
WHEREAS, on April 23, 2014,the Mayor and City Commission adopted Resolution
No. 2014-28573, accepting the recommendation of the City Manager pertaining to the
ranking of proposals, pursuant to Request for Proposals("RFP") No. 2013-317ME, for the
management and operation of street markets, including green markets at Lincoln Road,
Collins Park, Normandy Village Isle and South of 5th Street, and an antiques and
collectibles market on Lincoln Road; and
WHEREAS, Concessionaire, although the sole proposer for the operation of an
antiques and collectibles market on Lincoln Road ("Lincoln Road Antiques and Collectibles
Street Market"or"Market"), has been operating this Market since October 1, 2006 and was
recommended by the City Manager as the successful proposer for the Lincoln Road
Antiques and Collectibles Market; and
WHEREAS, Concessionaire and the City have negotiated the foregoing Concession
Agreement.
NOW THEREFORE, in consideration of the premises and the mutual covenants and
conditions herein contained and other good and valuable consideration, the receipt and
adequacy of which are hereby conclusively acknowledged, it is agreed by the parties
hereto as follows:
SECTION 1. TERM.
1.1 This Agreement shall be for an initial term of three (3) years, retroactively
commencing on October 1, 2014 (the "Commencement Date"), and ending
on September 30, 2017 ("Initial Term").
4
1.2 Provided that the Concessionaire is not in default under Section 13 hereof,
and at the City's sole discretion, commencing upon written notice from
Concessionaire to the City, which notice shall be given no later than 90 days
prior to the expiration of the Initial Term of the Agreement. The City may
extend the term of.this Agreement for an additional two (2) year period,
commencing on October 1, 2017, and ending on September 30, 2019
("Renewal Term").
SECTION 2. CONCESSION AREA.
The City hereby grants to the Concessionaire the exclusive right, during the term of this
Agreement, to operate a concession for an open air street market, as described herein, in
the following area(s) (hereinafter referred to collectively as the "Concession Area"), as
more specifically delineated in Exhibits 2.1, 2.2, and 2.3, attached hereto and incorporated
herein:
2.1 Lincoln Road between Lenox Avenue and Meridian Avenue.
This Concession Area is limited to the public right-of-way bounded on the
south by the southernmost line of the Lincoln Road right-of-way; bounded on
the north by the northernmost line of the Lincoln Road right-of-way; bounded
on the east by the westernmost line of Meridian Avenue right-of-way; and
bounded on the west by the easternmost line of Lenox Avenue right-of-way.
f
The Concession Area does not include those portions of the right-of y
used by vehicular traffic except for Michigan Avenue as described in Section
2.2 and Jefferson Avenue as described in section 2.3.
The Concession Area does not include those portions of the public right-of-
way where fountains, seating, or other public amenities or other uses
authorized/licensed/permitted by the City are currently located or may be
located in the future.
2.2 Michigan Avenue between South Lincoln Lane and North Lincoln Lane.
This Concession Area is limited to the public right-of-way bounded on the
south by the northernmost line of the South Lincoln Lane right-of-way;
bounded on the north by the southernmost line of the North Lincoln Lane
right-of-way; bounded on the west by a line located six (6) feet east of and
parallel to the westernmost line of Michigan Avenue right-of-way; and
bounded on the east by a line located six(6)feet west of and parallel to the
easternmost line of Michigan Avenue right-of-way, attached hereto and
incorporated as Exhibit 2.2. Michigan Avenue is to be utilized as a load in
and load out zone.
2.3 Jefferson Avenue between South Lincoln Lane and North Lincoln Lane.
This Concession Area is limited to the public right-of-way bounded on the
south by the northernmost line of the South Lincoln Lane right-of-way;
bounded on the north by the southernmost line of the North Lincoln Lane
right-of-way; bounded on the west by a line located six (6) feet east of and
parallel to the westernmost line of Jefferson Avenue right-of-way, attached
5
hereto and incorporated as Exhibit 2.3. Jefferson Avenue is to be utilized as
a load in and load out zone.
2.4 Notwithstanding the use of the Concession Area(s) granted to
Concessionaire above, Concessionaire herein understands, agrees, and
acknowledges that the Concession Area, along with any and all other public
right-of-way area(s)not specifically identified herein,are public and, as such,
must remain available for the use and enjoyment of the general public
whether or not the public chooses to purchase any of Concessionaire's
goods, or otherwise partake of any of the services it provides. In the event
that a member of the public is within a particular area of the Concession
Area, Concessionaire agrees to allow for his/her continued peaceful
enjoyment of said area.
SECTION 3. USE(S).
The Concessionaire is hereby authorized to conduct the following kind(s)of business(es)
within the Concession Area, as provided below, all at its sole cost and expense:
3.1 Concessionaire shall operate and manage an open air street market,
commonly known and referred to herein as the "Lincoln Road Antique and
Collectibles Market"(the Market),which shall provide a venue for vendors to
sell and/or provide the following (as each is more specifically defined in
Section 3.2):
a) Antiques;
b) Vintage Goods; and
c) Collectibles.
This shall also generally include the rental of booths, tents, tables, signs or
space(s) (collectively the "facilities"), in conformance with the attached site
plans (Exhibits 2.1, 2.2, and 2.3). The City herein approves the rental of the
aforestated facilities, and the prices for same, as provided in Section 18.
3.1.1 Facilities Design:
The design, type, material, and color of any and all facilities, as
defined in Subsections 3.1 and 3.2, shall be approved in writing by the
City's Planning Department prior to the Commencement Date of this
Agreement. A photo or photo(s) of City-approved facilities is
incorporated herein as Exhibit 3.1.1. Thereafter, Concessionaire shall
not change, alter, or modify said City-approved design, type, material
and color of any facilities without the prior written consent of the City
Manager or his designee, and, if so approved, an updated Exhibit
3.1.1 will be made a part of and incorporated into this Agreement. As
referenced in this Agreement, the City Manager's designee shall be
the Director of Tourism, Culture and Economic Development
Department.
6
3.1.2 Placement of Facilities:
All respective facilities within the Concession Area shall be placed
substantially in accordance with the attached site plans, herein
approved by the City and attached hereto and incorporated as
Exhibits 2.1, 2.2, and 2.3 herein. Concessionaire shall not deviate
from or alter the approved site plans without the prior written consent
of the City Manager or his designee.
3.1.2.1 Compliance with American with Disabilities Act(ADA) and
any other applicable accessibility standards:
Concessionaire agrees and acknowledges that during all
periods when its Market is in operation, including set-up
and break-down periods, it shall comply with ADA
standards, Florida Accessibility Code standards, and any
other applicable accessibility standards required by law,
including the provisions of the City's "Special Events
Disability Access Punch List", attached hereto and
incorporated as Exhibit 3.1.2.1 herein. Concessionaire's
compliance with the provisions set forth in the attached
Exhibit 3.1.2.1, includes, but shall not be limited to, any and
all responsibilities associated with "Event Producer" as
described therein.
3.1.2.2 The Concessionaire's responsibility to comply with the
aforementioned provisions in Subsection 3.1.2.1 include,
but are not limited to, ensuring that there is an accessible
path of travel from the handicap designated parking spaces
and public transportation stops within the boundary of,
areas associated with, and entrances to, Lincoln Road.
Concessionaire shall:
a) maintain accessible path(s)of travel that permit the
unobstructed access to the entryways of all
buildings, facilities, elements and spaces along
Lincoln Road;
b) maintain an unobstructed accessible path of travel
on both the north sidewalk and the south sidewalk of
Lincoln Road; and
c) maintain an unobstructed accessible path(s) of
-travel from the north walkway to the south walkway
of Lincoln Road.
3.1.2.3 Notwithstanding the above, Concessionaire's responsibility
to-comply with the requirements of Subsections 3.1.2.1 and
3.1.2.2 shall be limited to those areas within the
Concession Area as provided in Subsections 2.1, 2.2 and
2.3 herein.
7
3.1.3 Set Up:
The set up of facilities to be placed within the Concession Area,
substantially in accordance with the site plan(s)approved pursuant to
Exhibits 2.1, 2.2, and 2.3 shall be in accordance with the days and
hours of operation in Section 9, not to exceed 125, 10' x 10', tent
spaces. Placement of vendor facilities shall be in accordance with and
shall not exceed the maximum number of tent spaces at the locations
set forth in Exhibits 2.1, 2.2, and 2.3 attached hereto and incorporated
herein.
3.1.4 Public Right-of-Way:
The City and Concessionaire agree and acknowledge that the public's
use of the public right-of way is a prime consideration and must be
balanced accordingly with Concessionaire's proposed operations, as
set forth herein. Accordingly, notwithstanding the site plans and
maximum numbers (as provided for in the Set Up period) set forth in
Subsection 3.1.3, Concessionaire further agrees that, notwithstanding
its right to set up its maximum numbers, it will not alter or modify its
site plans without the prior written consent of the City Manager or his
designee.
Notwithstanding the preceding paragraph, City and Concessionaire
may, from time to time, meet to review and, subject to City's prior
written consent, revise the maximum numbers(as provided for in the
Set-Up period) set forth in Subsection 3.1.3.
3.1.5 Interaction and Coordination with Other Lincoln Road Operations and
Events:
Concessionaire agrees and understands that there are other
businesses, establishments, operations and events which are
ongoing, or may occur from time to time within, or in close proximity to
the Concession Area. As such, Concessionaire agrees that it will use
its best efforts to cooperate and coordinate with said businesses,
establishments, operations and events so as to minimize the impact
to the respective parties.
3.1.6 Conflict Resolution:
Concessionaire recognizes and understands that conflicts with one or
more of the following entities, groups, and/or individuals may arise
during the Term of this Agreement, or any extensions thereof:
• Conflicts between Lincoln Road (or other)
Merchants/Businesses and Concessionaire
• Conflicts between Vendors and Concessionaire
• Conflicts between Vendors and the General Public
• Conflicts between General Public and Concessionaire
8
As such, Concessionaire further recognizes and understands that
notice of said conflicts may be directed to the attention of
Concessionaire or the City. In the event a notice of conflict is
communicated to the City, the City will communicate same to the
Concessionaire, as soon as practicable.
Whenever a conflict arises, upon Concessionaire's receipt of notice of
same, whether written or verbal, between any of the aforestated
entities, groups, or individuals, with any of Concessionaire's
operations, resolution to said conflicts will be addressed in the
following manner:
1. Concessionaire shall meet with the conflicted party and
endeavor, using its best efforts and good faith, to resolve the
conflict to the satisfaction of all parties concerned within
fourteen (14) calendar days from receipt of notice.
2. In the event the conflict cannot be resolved as stated in
Number 1 above,then the Concessionaire shall provide written
notice to the conflicted party, (with copy to the City Manager's
designee) with a date on which to meet with the City
Manager's designee, to address the conflict. At that time, the
City Manager's designee will recommend a resolution.The City
Manager's designee shall endeavor to set a meeting date
within fourteen (14) calendar days of receipt of a copy of the
written notice to the conflicted party.
3. In the event the resolution recommended by the City
Manager's designee is not acceptable to the Concessionaire or
the conflicted party, the City Manager's designee shall inform
the City Manager, and provide him with the pertinent details of
the conflict.The City Manager may make a determination as to
whether he concurs with the designee's recommendation;offer
an alternate resolution; or choose to meet with Concessionaire
and the conflicted party to get additional information prior to
making a final determination.
Notwithstanding the foregoing,the City Manager's final determination,
will be binding upon Concessionaire, and Concessionaire shall agree
to be bound by same.
Concessionaire agrees and understands that the above referenced
conflict resolution language is not applicable to any conflicts that may
arise between the City and the Concessionaire pursuant to this
Agreement, or conflicts outside of the City's purview, control or
jurisdiction.
9
3.1.7 The condition and quality of Concessionaire's facilities shall at all
times be maintained in a manner that is consistent with the condition
and quality of similar facilities in first class open air markets located in
other world class areas. It is the City's intent, and Concessionaire
hereby agrees and acknowledges same, to develop and promote
world class open air street market facilities and operations that would
be comparable to those found in other world class public areas.
Accordingly, Concessionaire shall not only, at a minimum,ensure that
all facilities placed within the Concession Area are well maintained
and in usable condition, but shall adhere, as indicated in this
Subsection, to high ongoing maintenance standards for same
consistent with the aforementioned condition and quality.
3.1.8 Quality of goods and services offered will be first-rate and comparable
to that available in open air markets in other world class areas on par
with the City of Miami Beach or, at a minimum, to the quality and
pricing of goods and services provided by privately owned businesses
selling like goods and services within the City of Miami Beach.
3.1.9 In addition to Concessionaire's general maintenance obligations for
the Concession Area, as set forth in Section 10 hereof, all portions of
the Concession Area shall at all times be maintained in a clean and
sanitary manner.
3.1.10 The concession operations shall be offered to patrons at all times
during the days and hours of operation set forth in Section 9 herein.
However, if the City, at its sole discretion, deems that there is a
decrease in demand for the concession operations, or if the
Concessionaire provides the City with written notice that it is desirous
of reducing its hours of operation, (i) the City shall provide
Concessionaire with a minimum of two (2)weeks prior written notice,
requesting the specific decrease in Concessionaire's operation,or(ii)
Concessionaire shall provide the City with, at minimum, two weeks
prior written notice, requesting to reduce said hours, for the City's
written approval (which shall not be unreasonably withheld) prior to
implementing said schedule of reduced hours of operation. Said
notice to the City shall include the newly proposed schedule of
operation. In the event the City requests that Concessionaire
decrease its operations pursuant to this Subsection, then the partial
termination provisions of Subsection 13.6.3 shall apply.
Similarly, if Concessionaire is desirous of increasing its hours of
operation in the Concession Area then, in that event, the
Concessionaire shall obtain the City's prior written consent.
Concessionaire agrees and acknowledges that any Concessionaire
requested reduction in the scheduled hours of operation as may be
10
provided herein shall not in any way reduce Concessionaire's financial
responsibility to the City, as required in Section 4, except if same is
deemed by the City to be a partial termination pursuant to Subsection
13.6.3.
3.2 Permitted Concession Operations / Uses.
3.2.1 Antiques:
This shall generally include the sale of items created at least 100
years prior to the execution of this Agreement.
3.2.2 Vintage Goods:
This shall generally include the sale of items of high style and quality
created at least 25 years prior to the execution of this Agreement.
3.2.3 Collectibles:
This shall generally include.the sale items including, but not limited to,
jewelry, bric-a-brac, reproductions, memorabilia, art, and creative
uses of recycled components, etcetera, in the spirit of antique and/or
vintage.
3.2.4 In the event that the City Manager or his designee determines, at his
sole option and discretion, that all or a portion of Concessionaire's
proposed uses, pursuant to Subsection 3.1 and as defined in Section
3.2, are no longer desired,then the City may revoke Concessionaire's
right to provide all or a portion of said uses,without cause, upon thirty
(30) days written notice to Concessionaire. Any percentage of gross
paid by Concessionaire (pursuant to Subsections 4.2 and 4.3)to City
with regard to a delete/discontinued use, shall be prorated and/or
adjusted accordingly as of the date of termination of said use, and no
further payment shall be required for same during the term of this
Agreement, unless the City reinstates the use, at which time the
payment provisions of Subsections 4.2 and 4.3 shall once again
apply.
3.3 Intentionally Omitted.
3.4 Intentionally Omitted.
3.5 Intentionally Omitted.
3.6 Off-Duty Police / Field Monitor/ Parking.
3.6.1 Off-Duty Police:
Concessionaire agrees to provide Off-duty Police services as same is
required pursuant to City of Miami Beach policy or as may be required
in accordance with applicable law. Notwithstanding the foregoing,
Concessionaire, at minimum, shall provide, at its sole cost and
11
expense, at least one (1) Off-duty Police Officer during hours of
operation, including set-up and break down periods,on the day(s)that
the Market is scheduled to operate. Concessionaire shall remit
payment for the use of the off-duty police officer expense directly to
the City of Miami Beach and under no circumstances shall remit
payment directly to the officer.
3.6.2 Field Monitor:
Monitoring Fee: Concessionaire agrees to pay a monitoring fee, in
the amount of $40.00 per market day operated in the Concession
Area in order to defray the monitoring costs of the City related to the
Concessionaire's operation at the Market. This monitoring fee shall
be paid along with the PG payment due pursuant to Subsection 4.2
herein. The City, through its designated staff, will monitor the
Concession Area in the frequency deemed appropriate by the City, in
its sole discretion.
In the event that the City, at its sole discretion, chooses to extend the
term of this Agreement for the additional two (2)year Renewal Term,
the monitoring fee during the Renewal Term shall be automatically
increased, by five percent(5%)from the Initial Term's monitoring fee.
3.6.3 Concessionaire supervisory/management employee shall be on duty
and on-site within the Concession Area at all times during which the
Market is operating, including but not limited to Set-Up and Move-Out
periods, as defined in Subsection 9.2 herein.
3.6.4 Parking (Bagging Parking Meters). If the use of parking spaces at the
Concession Area is required in connection with the operation of the
Market, Concessionaire will be required to pay the City for any parking
meters bagged.
3.7 Vendor Selection / First Priority to Miami Beach Merchants.
3.7.1 Within thirty (30) days from the Commencement Date of this
Concession Agreement, and for a period of thirty(30)days thereafter,
the Concessionaire shall offer Miami Beach licensed merchants the
opportunity to participate (a booth space in the Market) as vendors
before opening its search to the general public or other networks.The
Concessionaire will establish this "pool" and will also serve as the
clearinghouse for booth availability and vendor applicants. The
Concessionaire shall commit to use this clearinghouse during the
initial availability of booth space before expanding its search to other
networks.
The Concessionaire will use best efforts to ensure that all Miami
12
Beach licensed merchants are contacted and that announcements
regarding booth availability are disseminated throughout the City of
Miami Beach, as quickly as possible so as to take optimum advantage
of the thirty (30) day availability period, including but not limited to,
advertising in a local newspaper, placing information on the Market or
other websites, or other similar efforts.
The Concessionaire will make itself available to answer any questions
potential applicants may have about the Market.
3.7.2 Notwithstanding the foregoing, and for purposes of this Section 3.7, in
the event that the number of responsive Miami Beach licensed
merchants desirous of participating in the Market would cause
Concessionaire to displace any vendors who have been and are
currently and actively participating in the Market as of the date of
execution of this Agreement, and such displacement is directly due to
lack of available space within the Concession Area, then in such
event Concessionaire and the City agree to meet and discuss, in
good faith, and make reasonable efforts to resolve this matter. It is
understood by the parties herein,that the intent of this Subsection 3.7
is not to displace vendors who are currently and actively participating
in the Market but to provide opportunities for those Miami Beach
licensed merchants who desire to participate in the Market.
3.7.3 The Concessionaire will keep and make available to the City for
inspection, upon notice by the City, carefully detailed records,
including the name, address, telephone numbers, qualifications,
experience, and the proposed goods and services to be offered for
sale by its vendors, and will pay particular attention to matching
vendors and booths with appropriate locations.
3.8 Removal of Concession Facilities.
Concessionaire agrees that all its facilities or other items used in the
concession operations will be removed from the public right-of-
way/Concession Area and said removal shall be done on a daily basis, in
compliance with the time parameter(s) set forth in Subsection 9.2 herein.
3.9 Hurricane Evacuation Plan.
Concessionaire agrees that all its facilities or other items used in the
concession operations will be removed from the public right-of-
way/Concession Area and said removal shall immediately begin no later than
upon the issuance of a Hurricane Warning by the Miami-Dade County Office
of Emergency Management, and stored at a private, off-site location.
3.10 City Occupational Licenses.
Concessionaire shall obtain, at its sole cost and expense, any occupational
licenses required by City law, as amended from time to time,for its proposed
13
operations, as contemplated in Section 3 of this Agreement. For purposes of
this Agreement, Concessionaire shall obtain the applicable"Agents, Broker,
Dealers..." category City occupational license.
3.11 Street Closure Permits
Concessionaire shall obtain, at its sole cost and expense, any requisite street
closure permits, on an annual basis, as required by City law, as amended
from time to time, for its proposed operations, as contemplated in Section 3
of this Agreement. Any street closures, lane reductions must submit a
Certified Maintenance of Traffic (MOT) plan and obtain approvals from the
City's Police Department, Public Works Department, and City Manager's
Office. This plan must be from a certified traffic safety company and/ or
licensed barricade company. If you impact a State Road in any capacity you
will have to obtain approvals from Florida Department of Transportation
(FDOT).
SECTION 4. CONCESSION FEES.
4.1 Security Deposit.
Upon execution of this Agreement Concessionaire shall furnish the City with
a Security Deposit, in the amount of Five Thousand and 00/100($5,000.00)
Dollars. Said Security Deposit shall serve to secure Concessionaire's
performance in accordance with the provisions of this Agreement. In the
event the Concessionaire fails to perform in accordance with said provisions,
the City may retain said Security Deposit, as well as pursue any and all other
legal remedies provided herein, or as may be provided by applicable law.
The parties agree and acknowledge that the foregoing condition is intended
to be a condition subsequent to the City's approval of this Agreement.
Accordingly, in the event that Concessionaire does not satisfy the
aforestated condition within the time periods provided herein, then the City
Manager or his designee may immediately,without further demand or notice,
terminate this Agreement without being prejudiced as to any remedies which
may be available to him for breach of contract.
4.2 Percentage of Gross (PG) vs. Minimum Guarantee (MG).
During the Initial Term, and any Renewal Term, of the Agreement,
Concessionaire shall pay the City, on a monthly basis, and within thirty(30)
calendar days from the end of each month during the term herein, an amount
equal to twelve and one half (12.5%) percent of Concessionaire's gross
receipts (PG).
The term "gross receipts" is understood to mean all income, whether
collected or accrued, derived by the Concessionaire under the privileges
granted by this Agreement, excluding amounts of any Federal, State, or City
sales tax, or other tax, governmental imposition, assessment, charge or
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expense of any kind, collected by the Concessionaire from customers and
required by law to be remitted to the taxing or other governmental authority.
Except as otherwise provided, with regard to a special event under
Subsection 16.1 hereof in which Concessionaire is not permitted to continue
operating, the pro-rata share due to the City for the event days will be
abated.
4.3 Minimum Guarantee (MG).
Notwithstanding the PG payment required pursuant to Subsection 4.2, and in
consideration of the City executing this Agreement and granting the rights
provided in this Agreement, Concessionaire shall pay to the City a Minimum
Guaranteed Annual Concession Fee (MG) of Thirty-Two Thousand Four
Hundred Thirteen and 50/100 ($32,413.50) Dollars for the Initial Term, and
shall be paid annually in accordance with Sections 4.2 and 4.3, as
applicable.
In the event that the annual PG is less than the MG, then the Concessionaire
shall also pay to the City, on an annual basis,the difference between the PG
amount and the MG amount, no later than thirty (30) days from the end of
each fiscal year during any Term hereunder.
In the event that the City, at its sole discretion, chooses to extend the Term
of this Agreement for the additional two(2)year Renewal Term,the Renewal
Term MG shall be automatically increased, by five percent (5%) from the
Initial Term's MG, and shall be due and payable to the City, in accordance
with Sections 4.2 and 4.3, as applicable.
4.4 Use of Electricity.
Neither Concessionaire, nor its Vendors shall use, or have the right to use,
any electrical outlet located on any City right-of-way or City-owned property,
nor shall use, or have the right to use, any other means by which to access
electricity from any City public right-of-way, or any City-owned property.
In the event Concessionaire and/or its Vendor(s) intend to access and use
electricity from any privately-owned property or source, same must be in
accordance with applicable law, including the procurement of all applicable
permits and authorization related to same.
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 eighteen percent (18%) per annum or the
highest rate allowed by Florida law, whichever is less, from the due date of
payment until such time as payment is actually received by the City.
4.6 Sales and Use Tax.
It is also understood that, if applicable, the required Florida State Sales and
Use Tax shall be added to Concessionaire's payments and forwarded to the
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City as part of said payments. It is the City's intent that it is to receive all
payments due from Concessionaire as net of such Florida State Sales and
Use Tax.
4.7 Public Parking Meters
If public parking meters will be required to be covered during the time the
Lincoln Road Antiques & Collectables Market is operating, the
Concessionaire shall be responsible for covering the requisite meters and
paying the City for the use of said parking spaces.
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 receipts 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 Renewal
Term, and such records shall be open and available to the City Manager or his designee,
as deemed necessary by the City Manager or his designee. Concessionaire shall maintain
all such records at its principal office, currently located at 1360 Marseille Drive, Miami
Beach, Florida, 33141 or, if moved to another location, all such records shall be relocated,
at Concessionaire's expense, to a location within the City of Miami Beach, within ten (10)
days written notice from the City that 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
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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, within ninety (90) days from the end of each calendar year
during the Initial Term(and, if approved, the Renewal Term), an audited annual statement
of gross receipts for the Market, in a form consistent with generally accepted accounting
principles.
It is Concessionaire's intent to stay informed of comments and suggestions by the City
regarding Concessionaire's performance underthe Agreement.Within thirty(30)days after
the end of the Initial Term (and, if approved, the 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 Concession Area. Concessionaire will have
the right, at its own expense, to contest the amount or validity, in whole or in
part, of any tax and/or assessment by appropriate proceedings diligently
conducted in good faith. Concessionaire may refrain from paying a tax or
assessment to the extent it is contesting the assessment or imposition of
same in a manner that is in accordance with law; provided, however, if, as a
result of such contest, additional delinquency charges become due,
Concessionaire shall be responsible for such delinquency charges, in
addition to payment of the contested tax and/or assessment if so ordered.
Concessionaire shall also pay for any fees imposed by law for licenses or
permits for any business, activities, or operations of Concessionaire upon the
Concession Area.
Concessionaire shall pay before delinquency any and all charges for utilities
used by, for, or on behalf of the operations contemplated herein (including,
but not limited to, water, electricity, gas, heating, cooling, sewer, telephone,
trash collection, etc.).
7.1.1 Electricity:
Intentionally Omitted.
7.2 Procedure If Ad Valorem Taxes Assessed.
Notwithstanding Subsection-7.1 above,the parties agree that the concession
operations contemplated herein are for public purposes and,therefore, no ad
valorem taxes should be assessed by the Miami-Dade County Tax
Appraiser. If, however, said taxes are assessed, City and Concessionaire
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shall use reasonable efforts to address payment of same.
SECTION 8. EMPLOYEES AND INDEPENDENT CONTRACTORS.
8.1 In connection with the performance of its responsibilities hereunder,
Concessionaire may hire its own employees and/or independent contractors,
who will be employees and/or independent contractors of Concessionaire
and not employees or agents of the City. Additionally, Concessionaire's
vendors shall not be considered agents or employees of the City.
Concessionaire shall select the number, function, qualifications,
compensation, including benefits (if any), and may, at its discretion and at
any time, adjust or revise the terms and conditions relating to its employees
and/or independent contractors.
8.2 Concessionaire shall ensure that all its employees and/or independent
contractors observe all the graces of personal grooming.The Concessionaire
shall hire people to work in its concession operation who are neat, clean,well
groomed and shall comport themselves in a professional and courteous
manner, and ensure that its vendors and/or independent contractors comply
with same. Neither Concessionaire nor any employees, agents or anyone
selected by Concessionaire as a vendor for the Market shall have been
convicted of a felony. If Concessionaire materially fails to comply with this
provision, the City may default Concessionaire pursuant to Section 13
herein.
8.3 The Concessionaire shall have an experienced manager or managers
overseeing the concession operations at all times.
SECTION 9. SCHEDULE OF OPERATION.
Concessionaire's operations shall be open on the Concession Area, in accordance with the
schedule outlined below, weather or events of force majeure permitting.
9.1 Day(s) of Operation: Sundays only, as more specifically delineated in
Exhibit 9.1, attached hereto and incorporated
herein, as same may be amended from time to
time.
9.2 Operating Hours:
Set-Up: Must not begin earlier than 2:00 AM and end by 7:00 AM
Market operating hours:
Daylight Savings Time: 8:00 AM to 6:00 PM
Eastern Standard Time: 8:00 AM to 5:00 PM
Move-Out:
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Daylight Savings Time: 5:00 PM to 7:00 PM
Eastern Standard Time: 4:OO-PM to 6:00 PM
Any change in the days or hours of operation require the prior written consent of the City
Manager including, but not limited to, change in the days and hours of operation requested
pursuant to Subsection 3.1.10.
SECTION 10. MAINTENANCE.
10.1 The Concessionaire accepts the use of the Concession Area provided in this
Agreement in its "as is" condition. Concessionaire assumes sole
responsibility and expense for maintenance of the Concession Area and its
facilities therein. This shall include daily removal of litter,garbage and debris,
said removal to be the sole responsibility and expense of Concessionaire.
Daily maintenance shall be accomplished on all days and hours
Concessionaire operates. Concessionaire agrees, also at its sole cost and
expense, to pay for all garbage disposal generated by its operations.
10.2 Garbage Receptacles.
With respect to litter, garbage and debris removal, the Concessionaire shall
provide, at its sole cost and expense, receptacles within the confines of the
Concession Area and shall provide a sufficient number of these receptacles
for its own use and for the use of the public that patronizes the Market.
Disposal of the contents of said receptacles and removal of litter, garbage
and debris within the Concession Area, shall be accomplished by the end of
the day on all days on which the Concessionaire operates, and shall be the
sole responsibility of the Concessionaire. Any costs for removal of the
contents of said trash receptacles by the City, because of the
Concessionaire's failure to do the same, will be charged to, and become the
responsibility of, the Concessionaire. The dumping or disposal of any refuse,
discards, trash or garbage, generated by, or as a result of the concession
operations, into any City trash receptacles by the Concessionaire (including
its staff, employees and/or vendors)shall be strictly prohibited. Determination
of the "number" of receptacles shall at all times be within the City's sole
discretion, and Concessionaire shall agree to be bound by same.
10.3 Pressure Cleaning.
Concessionaire shall reimburse the City on a quarterly basis throughout the
Term of this Agreement, in the amount of One Hundred ($100) Dollars; said
reimbursement represents the City's cost to pressure clean the Concession
Area, as defined herein.
10.4 Facilities.
Intentionally Omitted.
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10.5 Orderly Operation.
The Concessionaire shall have a neat and orderly operation at all times and
shall -be solely responsible for the necessary housekeeping services to
properly maintain the Concession Area and all facilities incident thereto.The
Concessionaire shall make available all operations and facilities within the
Concession Area (including but not limited to vendor facilities) for
examination during days and hours of operation by the City Manager or his
authorized representative.
10.6 No Dangerous Materials.
10.6.1 The Concessionaire agrees not to use or permit in the Concession
Area and/or facilities the storage and/or use of gasoline, fuel oils,
diesel, illuminating oils, oil lamps, combustible powered electricity
producing generators,turpentine, benzene, naphtha, propane, natural
gas, or other similar substances, combustible materials, or explosives
of any kind, or any substance or thing prohibited in the standard
policies of fire insurance companies in the State of Florida. Any such
substances or materials found within the Concession Area and/or
facilities shall be immediately removed.
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 or upon the Concession Area as those terms are defined
by applicable Federal and State Statute, or any environmental rules
and environmental regulations promulgated thereunder; provided,
however, Concessionaire shall have no liability in the event of the
willful misconduct or gross negligence of the City, its agents, servants
or employees. The provisions of this Subsection 10.6 shall survive the
termination or earlier expiration of this Agreement.
10.7 Security.
The Concessionaire shall be responsible for and provide reasonable security
measures which may be required to protect the Concession Area and any of
the facilities, goods and/or other equipment thereon. Under no circumstances
shall the City be responsible for any stolen or damaged goods, facilities,
materials and/or other equipment, nor shall City be responsible for any stolen
or damaged personal property of Concessionaire's employees, vendors,
patrons, guests, invitees, and/or other third parties.
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10.8 Vehicles on the Public Right-of-Way.
Concessionaire's employees,vendors, patrons,guests, invitees, and/or other
third parties vehicles and/or trailers shall only be allowed on the street
adjacent to.Concession Area/public right-of-way for purposes of setting up
the concession operations, and to remove same at the close of operations
each day, and any and all such vehicles for purposes thereon must be
removed from the public right-of-way immediately thereafter. Concessionaire
shall contractually require that anyone operating a vehicle for, or on behalf of
Concessionaire and/or its employees, agents, and/or vendors, must have a
current valid Florida Driver's License. Said set-up and move-out operations
shall only be permitted during regular hours for same, pursuant to
Subsection 9.2 herein, and shall be completed safely and expeditiously. No
vehicular traffic or parking will be permitted on the public right-of-way during
concession hours of operation, pursuant to Subsection 9.2 herein.Access to
the public right-of-way shall only be permitted via specifically designated
points authorized for such use and the nearest authorized access to a
concession vendor's operation.
Vehicles operated on the public right-of-way shall not exceed 5 M.P.H. and
shall only operate in the immediate vicinity of the concession, or to-and-from
the nearest predetermined and assigned access point. After transporting
facilities, goods, merchandise, equipment, and/or other items to the
Concession Area, the vehicles shall be removed from the public right-of-way
and parked in a legally authorized location. Driving on the public right-of-way
shall be kept to a minimum. No vehicular traffic will be permitted on the
public right-of-way, at any time or for any purpose, other than as stated
herein.
Vehicle operator must inspect the vehicles perimeter and surrounding area,
prior to turning the vehicles ignition switch, to assure a clear path of egress
and only proceed with extreme caution.
10.9 Inspection.
The Concessionaire agrees that the Concession Area and all facilities and
operations thereon, including but not limited to vendor booths, may be
inspected at any time during days and hours of operation 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.
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SECTION 11. INSURANCE.
Concessionaire shall maintain, at its sole cost and expense, the following types of
insurance coverage at all times throughout the term of this Agreement.
a. Comprehensive General Liability in the minimum amount of One Million
Dollars ($1,000,000) per occurrence for bodily injury and property damage.
This policy must also contain coverage for premises operations, products
and contractual liability.
b. Workers Compensation Insurance shall be provided as required under the
Laws of the State of Florida.
C. Automobile Insurance for any vehicles used for, or associated with
concessionaire's operations shall,be provided covering all owned, leased,
and hired vehicles and non-ownership liability for not less than the following
limits:
Bodily Injury $1,000,000 per person
Bodily Injury $1,000,000 per accident
Property Damage $1,000,000 per accident
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 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, 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.
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SECTION 12. INDEMNITY.
12.1 In consideration of a separate and specific consideration of Ten($10)Dollars
and other good and valuable consideration the receipt and sufficiency of
which are hereby acknowledged, Concessionaire shall indemnify, hold
harmless and defend the City, its agents, servants and employees from and
against any claim, demand or cause of action of whatsoever kind or nature
arising out of error, omission, or negligent act of Concessionaire, and/or its
vendors, agents, servants, employees and/or subcontractors and/or
subconcessionaires in the performance of services under this Agreement.
12.2 In addition, in consideration of a separate and specific consideration of Ten
($10) Dollars and other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, Concessionaire shall
indemnify, hold harmless and defend the City, its agents, servants or
employees, from and against any claim, demand or cause of action of
whatever kind or nature arising out of any misconduct of Concessionaire,
and/or its vendors, agents, servants, employees and/or subcontractors
and/or subconcessionaires, not included in the paragraph in the Subsection
above and for which the City, its agents, servants or employees are alleged
to be liable.
12.3 Subsections 12.1 and 12.2 shall survive the termination or expiration of this
Agreement. Subsections 12.1 and 12.2 shall not apply, however,to any such
liability, that arises as a result of the willful misconduct or gross negligence of
the City, its agents, servants or employees.
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 Maieure.
Neither party shall be obligated to perform hereunder and neither party shall
be deemed to be in default if performance is prevented by:
a. fire which renders at least thirty percent(30%)of the Concessionaire's
cumulative facilities and operations unusable and which is not caused
by negligence of Concessionaire;
b. earthquake; hurricane; flood; act of God; civil commotion occurring on
the Concession Area during or in connection with any event or other
matter or condition of like nature; or
C. any law, ordinance, rule, regulation or order of any public or military
authority stemming from the existence of economic or energy
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controls, hostilities, or war.
12.6 Labor Dispute.
In the event of a labor dispute which results in a strike, picket or boycott
affecting the Concession Area or operation described in this Agreement,
Concessionaire shall not thereby be deemed to be in default or to have
breached any part of this Agreement, unless such dispute shall have been
caused by illegal labor practices or violations by Concessionaire of applicable
collective bargaining agreements and there has been a final determination of
such fact which is not cured by Concessionaire within thirty (30) days.
12.7 Waiver of Loss from Hazards.
The Concessionaire hereby expressly waives all claims against the City for
loss or damage sustained by the Concessionaire resulting from fire, water,
natural disasters/acts of God (e.g. hurricane,tornado, etc.), civil commotion,
riot, or any other Force Majeure contemplated in Subsection 12.5 and Labor
Dispute in Subsection 12.6 above, and the Concessionaire hereby expressly
waives all rights, claims, and demands against the City and forever releases
and discharges the City of Miami Beach, Florida, from all demands, claims,
actions and causes of action arising Y from an 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.
13.1 Bankruptcy.
If either the City or Concessionaire shall be adjudged bankrupt or insolvent,
or if any receiver or trustee of all or any part of the business property of
either party shall be appointed, or if any receiver of all or any part of the
business property shall be appointed and shall not be discharged within sixty
(60)days after appointment, or if either party shall make an assignment of its
property for the benefit of creditors, or shall file a voluntary petition in
bankruptcy, or insolvency, or shall apply for reorganization or arrangement
with its creditors under the bankruptcy or insolvency laws now in force or
hereinafter enacted, Federal, State, or otherwise, or if such petitions shall be
filed against either party and shall not be dismissed within sixty (60) days
after such filing, then the other party may immediately, or at any time
thereafter, and without further demand or notice, terminate this Agreement
without being prejudiced as to any remedies which may be available to it for
breach of contract.
13.2 Default in Payment.
In the event Concessionaire fails to submit any payment within five(5)days
of its due date, there shall be a late charge of$50.00 , in addition to interest
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at the rate of eighteen percent(18%)per annum or the highest rate allowable
by Florida law,whichever is less. If any payment and accumulated penalties
are not received within fifteen (15) days after the payment due date, and
such failure continues three(3)days after written notice thereof,then the City
may,without further demand or notice,terminate this Concession Agreement
without being prejudiced as to any remedies which may be available to it for
breach of contract.
13.3 Non-Monetary Default.
In the event that Concessionaire or the City fails to perform or observe any of
the covenants, terms or provisions under this Agreement, and such failure
continues thirty (30) days after written notice thereof from the other party
hereto, such non-defaulting party may immediately or at any time thereafter,
and without further demand or notice, terminate this Agreement without
being prejudiced as to any remedies which may be available to it for breach
of contract. In the event that a default is not reasonably susceptible to being
cured within such period, the defaulting party shall not be considered in
default if it shall, within such period, commence with due diligence and
dispatch to cure such default and thereafter completes with dispatch and due
diligence the curing of such default, but in no event shall such extended cure
period exceed ninety(90)days from the date of written notice thereof. In the
event Concessionaire cures any default pursuant to this Subsection, it shall
promptly provide City with written notice of same.
13.4 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 Area
to City pursuant to the provisions of Subsection 13.7. Upon the termination of
this Agreement, all rights and interest of Concessionaire in and to the
Concession Area and to this Agreement, and every part thereof, shall cease
and terminate and City may, in addition to any other rights and remedies it
may have, retain all sums paid to it by Concessionaire under this Agreement.
In addition to the rights set forth above, City shall have the rights to pursue
any and all of the following:
a. the right to injunction or other similar relief available to it under Florida
law against Concessionaire; and or
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.
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13.5 If an event of default by the City, as set forth in this Section 13, shall occur,
the Concessionaire may, after notice (if required) and the expiration of the
cure periods(as provided above), at its sole option and discretion,terminate
this Agreement upon written notice to the City and/or sue for damages. Said
termination shall become effective upon receipt of a written notice of
termination by the City, but in no event shall Concessionaire specify a
termination date that is less than sixty(60)days from the date of the written
termination notice. On the date specified in the notice, Concessionaire shall
quit and surrender the Concession Area to City pursuant to the provisions of
Subsection 13.7.
13.6 - Termination for Convenience/Partial Termination.
13.6.1 Notwithstanding the provisions of this Section 13,this Agreement may
be terminated by the City, for convenience and without cause, upon
the furnishing of thirty(30)days prior written notice to Concessionaire.
Conversely, this Agreement may be terminated by the
Concessionaire, for convenience and without cause, upon the
furnishing of thirty (30) days prior written notice to City.
13.6.2 Concessionaire acknowledges that the City may develop a schedule
of capital improvements for the right-of-way or other improvements in
connection with the Lincoln Road Mall area, including all or a portion
of the Concession Area, which may entail a closure of all or a portion
of the right-of-way and/or Concession Area, at the City Commission's
sole discretion. In the event that the City closes down the right-of-way,
the Lincoln Road Mall area or any other portion of the Concession
Area, for the purpose of undertaking a capital improvement plan
thereon, then the parties agree that the this Agreement may be
terminated or, in the alternative, the portion of the Agreement
referencing said individual Concession Area shall be partially
terminated for convenience, without cause and without penalty to
either party, and only as to that portion of the Concession Area which
has been closed. Such a termination shall become effective upon
thirty (30) days prior written notice to Concessionaire.
13.6.3 In the event of termination or partial termination by City of the
Agreement pursuant to this Subsection, Concessionaire herein
acknowledges and agrees that it shall not have any claim,demand,or
cause of action of whatsoever kind or nature, against the City, its
agents, servants and employees (including, but not limited to, claims
for interference in business or damages for interruption of services or
interference in its concession operations by Concessionaire or its
vendors). However, if it is determined, via a contract year end-review,
that a termination or partial termination results in a decrease to the
gross revenues derived by the Concessionaire,then Concessionaire's
26
MG amount due to the City, pursuant to Section 4.3, shall be reduced
proportionately equal to the percentage of Concession Area that was
terminated or partially terminated and for the period of time of said
partial termination.
13.6.4 In the event of termination for convenience by Concessionaire
pursuant to Subsection 13.6.1, Concessionaire herein acknowledges
and agrees that it shall not have any claim, demand, or cause of
action of whatsoever kind or nature, against the City, its agents,
servants and employees. Moreover, Concessionaire's MG amount
due to the City, pursuant to Section 4.3, shall be reduced
proportionately equal to the period of time remaining on the current
term of this Agreement.
13.7 Surrender of Concession Area.
At the expiration of this Agreement, or in the event of a partial termination or
termination of the entire Agreement, Concessionaire shall surrender the
Concession Area (or portion thereof in the event of a partial termination) in
the same condition as the Concession Area was prior to the commencement
of this Agreement, reasonable wear and tear excepted. Concessionaire shall
remove all its facilities, equipment,fixtures, personal property, etc. upon two
(2) hours written notice from the City Manager or his designee unless a
longer time period is agreed to b the City. Concessionaire's obligation to
9 P 9 Y Y
observe or perform this covenant shall survive the expiration or other
termination of this Agreement. Continued occupancy of the Concession Area
(or portion thereof)after termination (or partial termination)of the Agreement
shall constitute trespass by the Concessionaire, and may be prosecuted as
such. In addition, the Concessionaire shall pay to the City One Thousand
($1,000) Dollars per day as liquidated damages for such trespass and
holding over.
SECTION 14. PERFORMANCE BOND OR ALTERNATE SECURITY.
Intentionally Omitted.
SECTION 15. ASSIGNMENT.
Except as otherwise provided in this Subsection,or in the Agreement, Concessionaire shall
not assign, sublease, grant any concession or license, permit the use of by any other
person other than Concessionaire, or otherwise transfer all or any portion of this
Agreement and/or of the Concession Area (all of the forgoing are herein after referred to
collectively as "transfers"), without the prior written consent of the City.
Concessionaire shall notify the City Manager or his designee of any proposed transfer,
prior to consummation of same and the City or the City Manager or his designee, as
applicable, shall respond within thirty (30) days. In the event that any such transfer is
approved, the transferee shall agree to be bound by all the covenants of this Agreement
required of the transferor hereunder.Any transfer made without complying with this Section
shall be null, void, and of no effect and shall constitute an act of default under this
Agreement. Notwithstanding any such consent, or any permitted transfer under any
27
provision of this Section, unless expressly released by the City, Concessionaire shall
remain jointly and severally liable (along with each approved transferee, who shall
automatically become liable for all obligations of the transferor hereunder with respect to
that portion of the Agreement so transferred), and the City shall be permitted to enforce the
provisions of this Agreement directly against Concessionaire or any transferee of the
Concessionaire without proceeding in any way against any other person.
For purposes of this Section 15, Concessionaire's selection of vendors for the Market shall
not be deemed a transfer.
SECTION 16. SPECIAL EVENTS.
16.1 Concessionaire's proposed uses, as set forth in Section 3 herein, do not
contemplate the production, promotion or sponsorship by the Concessionaire
of special events in any portion of the Concession Area. In the event
Concessionaire does produce, promote or sponsor a special event in the
Concession Area, it shall abide by the City's Special Events Permit
Requirements and Guidelines, as same may be amended from time to time.
For any use, other than those provided for in this Agreement, a Special
Events Permit may be required and shall be obtained through the City's
Department of Tourism, Culture and Economic Development Department.
The City Manager's authorization must be obtained for any such special
event.
The City Administration shall evaluate requests for Special Events Permits
on a case by case basis, in accordance with the City's Special Event Permit
Requirements and Guidelines, as same may be amended from time to time.
In the event that a special event and/or film permit is requested by an entity,
other than the Concessionaire, and the proposed special event and/or film
production is scheduled to occur within all or a portion of the Concession
Area, the Concessionaire agrees to cooperate with the City and the special
event permit applicant to allow use of the Concession Area during the period
of the special event, including set-up and break-down time.
16.2 City Special Events.
Notwithstanding Subsection 16.1 above, and in the event that the City, at its
sole discretion, deems that it would be in the best interest of the City,the City
reserves the right to displace the Concessionaire for City produced special
events and/or other City produced productions. In such cases, the City may
request that the Concessionaire cease and desist operations during the term
of, and in the area of, the special event and/or production, and the
Concessionaire shall cease and desist during said term. In the event that it is
determined, via a contract year end-review, that ceasing and desisting of
concession operations, as stated herein, results in a decrease to the
estimated gross revenues derived by the Concessionaire, then
Concessionaire's MG amount due to the City, pursuant to Section 4.3, shall
be reduced proportionately equal to the percentage of reduced hours of
28
operation caused by said special event and/or production. If the
Concessionaire is not required to close, or chooses to remain open without
interference to the special event and/or production, Concessionaire agrees to
cooperate with the City. If the Concessionaire is allowed to remain open
during special events and/or productions, the Concessionaire may be
allowed to have in operation its normal daily complement of facilities and
vendors. "Normal"shall be defined as facilities and vendors, as approved by
the City, that the Concessionaire has available for the public on a normal
business day. Such facilities and vendors shall not be increased or altered
during special events and/or productions without the prior written permission
of the City Manager or his designee. To the extent that the normal business
day complement of facilities and vendors is displaced by the special event
and/or production, the Concessionaire may reallocate such displaced
facilities and vendors on a pro-rata basis within an area of the Concession
Area not being utilized by the special event and/or production.
For purposes of this Section 16, "normal business day" shall be defined as
set forth in Section 9 herein, entitled "Schedule of Operations".
16.3 Notwithstanding anything to the contrary, if a special event occurs in all or
any portion of any Concession Area, Concessionaire shall not be liable for
any charge, fee or other expense, governmental or otherwise, in connection
with such special event.
SECTION 17. NO IMPROPER USE.
The Concessionaire will not use, nor suffer or permit any person to use in any manner
whatsoever, the Concession Area, operations, or facilities for any improper, immoral or
offensive purpose, or for any purpose in violation of any Federal, State, County, or
Municipal ordinance, rule, order or regulation, or of any governmental rule or regulation
now in effect or hereafter enacted or adopted. The Concessionaire will protect, indemnify,
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.
29
SECTION 18. PRICE SCHEDULES.
Concessionaire agrees that prices charged for facilities and or space (booth) rental, be
consistent with the price schedule(s)herein submitted by the Concessionaire and approved
by the City and incorporated herein as Exhibit 3.1 to this Agreement. All subsequent price
increases and amendments to Exhibit 3.1 must be approved in writing by the City Manager,
or his designee, and prior to such changes being implemented within the Concession Area
a new updated Exhibit 3.1 will be incorporated into this Agreement. Notwithstanding the
foregoing, Concessionaire agrees and acknowledges that any discounted prices it may
offer for the rental of facilities shall not in any way reduce the amount of remuneration due
to the City, including but not limited to the Percentage of Gross (Section 4.2), which shall
be based and calculated on the prices set forth in said Exhibit 3.1.
The City shall have the final right of approval for all such prices and changes, but said right
shall not be arbitrarily or unreasonably exercised. The Concessionaire agrees to refrain
from the sale or rental of any item identified as prohibited by City law and/or other
applicable law and to sell only those items approved by the City.
SECTION 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:
Mssrs. Anthony Angione and Louis Bondi
Productions Sud, Inc.
1360 Marseilles Drive
Miami Beach, FL 33141
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:
Tourism, Culture and Economic Development Department Director
City of Miami Beach
1700 Convention Center Drive
Miami Beach, FL 33139
The Concessionaire and the City may change the above mailing address at any time upon
giving the other party written notification. All-notices under this Concession Agreement
must be in writing.
30
SECTION 20. LAWS.
20.1 Compliance.
Concessionaire shall comply with all applicable City, Miami-Dade County,
State, and Federal ordinances, statutes, rules and regulations, including but
not limited to all applicable environmental City, County, State, and Federal
ordinances, statutes, rules and regulations.
20.2 Governing Law.
This Agreement shall be deemed to have been made and shall be construed
and interpreted in accordance with the laws of the State of Florida. In case of
any inconsistency between the terms of this Agreement, and any applicable
general or special law, said general or special law shall govern, unless
otherwise provided herein.
20.3 Equal Employment Opportunity.
Neither Concessionaire nor any affiliate of Concessionaire performing
services hereunder, or pursuant hereto, will discriminate against any
employee or applicant for employment because of race, creed, sex, color,
national origin, sexual orientation, and disability, as defined in Title I of ADA.
Concessionaire will take affirmative steps to utilize minorities and females in
the work force and in correlative business enterprises.
20.4 No Discrimination.
The Concessionaire agrees that there shall be no discrimination as to race,
sex, sexual orientation, color, creed, national origin,familial status, religion or
handicap, in its employment practice or in the operations referred to by this
Concession Agreement; and further, there shall be no discrimination
regarding any use, service, maintenance,or operation within the Concession
Area. All concession operations and services offered shall be made available
to the public, subject to the right of the Concessionaire and the City to
establish and enforce rules and regulations to provide for the safety, orderly
operation and security of the operations and the facilities.
20.4.1 Pursuant to Sections 62-90 and 62-91, of Chapter 62, of the Miami
Beach City Code entitled "Human Relations", Concessionaire, by
executing this Agreement, certifies that it does not discriminate in its
membership or policies based on race, color, national origin, religion,
sex, sexual orientation, familial status or handicap.
31
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 cannot be changed or modified except by agreement in
writing executed by all parties hereto. Concessionaire acknowledges that no
modification to this Agreement may be agreed to by the City unless approved
by the Mayor and City Commission except where such authority has been
expressly provided herein to the City Manager or his designee.
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 shall remain in full force and
effect.
32
21.8 Right of Entry.
The City, at the direction of the City Manager, shall at all times during days
and hours of operation, have the right to enter into and upon any and all
parts of the Concession Area for the purposes of examining the same for any
reason relating to the obligations of parties to this Agreement.
21.9 Not a Lease.
It is expressly understood and agreed that no part, parcel, building, facility,
equipment or space is leased to the Concessionaire, that it is a
concessionaire and not a lessee; that the Concessionaire's right to operate
the concession shall continue only so long as this Agreement remains in
effect.
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 on its facilities and
equipment shall be subject to the prior approval of the City as to size, shape
and placement of same.
21.11 Use of the Right-of-Way.
The right-of-way is for the use and enjoyment of the public and the
public's right to such use shall not be infringed upon by any activity of
the Concessionaire. Upon execution of this Agreement,Concessionaire
acknowledges that all of the rights-of-way within the Concession Area
are public, and as such, concession operations must not restrict, or
appear to restrict, access to the general public, or in any way limit the
public nature or ambiance of the adjacent area.The Concessionaire will
conduct its operations so as to maintain a reasonably quiet and tranquil
environment for the adjacent area, and make no public disturbances.
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 Reasonableness.
Intentionally Omitted.
21.14 Procedure for Approvals and/or Consents.
Intentionally Omitted.
33
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,
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 Ten Thousand ($10,000) Dollars. Concessionaire
hereby expresses its willingness to enter into this Agreement with a $10,000 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, 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 AREA(S).
34
24. CONCESSIONAIRE'S COMPLIANCE WITH FLORIDA PUBLIC RECORDS LAW
Pursuant to Section 119.0701 of the Florida Statutes, if the Concessionaire meets the
definition of"Contractor" as defined in Section 119.0701(1)(a), the Concessionaire shall:
a) Keep and maintain public records that ordinarily and necessarily would be required
by the public agency in order to perform the service;
b) Provide the public with access to public records on the same terms and conditions
that the public agency would provide the records and at a cost that does not
exceed the cost provided in this chapter or as otherwise provided by law;
c) Ensure that public records that are exempt or confidential and exempt from public
records disclosure requirements are not disclosed except as authorized by law;and
d) Meet-all requirements for retaining public records and transfer to the City, at no City
cost, all public records created, received, maintained and/or directly related to the
performance of this Agreement that are in possession of the Concessionaire upon
termination of this Agreement. Upon termination of this Agreement, the
Concessionaire shall destroy any duplicate public records that are exempt or
confidential and exempt from public records disclosure requirements. All records
stored electronically must be provided to the City in a format that is compatible with
the information technology systems of the City.
For purposes of this Article, the term "public records" shall mean all documents, papers,
letters, maps, books, tapes, photographs, films, sound recordings, data processing
software, or other material, regardless of the physical form, characteristics, or means of
transmission, made or received pursuant to law or ordinance or in connection with the
transaction of official business of the City.
Concessionaire's failure to comply with the public records disclosure requirement set forth
in Section 119.0701 of the Florida Statutes shall be a breach of this Agreement.
In the event the Concessionaire does not comply with the public records disclosure
requirement set forth in Section 119.0701 of the Florida Statutes,the City may, at the City's
sole discretion, avail itself of the remedies set forth under this Agreement and available at
law.
SECTION 25. PROHIBITIONS REGARDING SALE OR USE OF EXPANDED
. POLYSTYRENE FOOD SERVICE ARTICLES.
Expanded polystyrene, a petroleum byproduct commonly known as Styrofoam, is neither
readily recyclable nor biodegradable and takes hundreds to thousands of years to degrade.
Expanded polystyrene is a common pollutant, which fragments into smaller, non-
biodegradable pieces that are harmful to marine life, other wildlife, and the environment.
The City's goals are to reduce the use of expanded polystyrene and encourage the use of
reusable, recyclable, or compostable alternatives.
Expanded polystyrene means blown polystyrene and expanded and extruded foams that
are thermoplastic petrochemical materials utilizing a styrene monomer and processed by
35
any number of techniques including, but not limited to, fusion of polymer spheres
(expandable bead foam), injection molding, foam molding, and extrusion-blown molding
(extruded foam polystyrene).
Expanded polystyrene food service articles means plates, bowls, cups, containers, lids,
trays, coolers, ice chests, and all similar articles that consist of expanded polystyrene.
Concessionaire agrees not to sell, use, provide food in, or offer the use of expanded
polystyrene food service articles at the Concession Area or in connection with this
Agreement. Concessionaire shall ensure that all vendors operating in the Concession
Area abide by the restrictions contained in this Section 25. A violation of this section shall
be deemed a default under the terms of this Agreement. This subsection shall not apply to
expanded polystyrene food service articles used for prepackaged food that have been filled
and sealed prior to receipt by the Concessionaire or its vendors.
IN WITNESS WHEREOF, the parties hereto have caused their names to be signed and
their seals to be affixed, all as of the day and year first above written, indicating their
agreement.
PASSED AND ADOPTED THIS t A)_q 2014.
Attest: ITY OF AMI BEACH
Rafae . Granad =Cie.rk'�1,-� �' Jim y L. orales, City Manager
INCORP ORATED=
Attest: f�• �h;%=� RODUCTIONS SUD, INC.
ui ondi, Vi esi ent/Secretary Anthony Angi e, President
JMG:TH:ACV:rlr
F:\DDHP\$ALL\ASSET\Markets\Antiques&Collectibles\A&C LincolnRoadAgreement2014.FINAL.doc
APPROVED AS TO
FORM& LANGUAGE
&F EXECUTION
City Attorney Date
36 Tf
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EXHIBIT 3.1
(Rental Fee Schedule)
ALL SPACES COME TENTED,AND INCLUDED IN THE PRICE
THE FOLLOWING ARE THE MIAMI BEACH, LINCOLN ROAD TENTED BOOTH PRICES:
OCTOBER TO MAY(10 X 10)TENTED SPACE FOR MIAMI BEACH SHOW=$185.00
ALL CORNER EXPOSURE SINGLE SPACES ADD$20.00 TO BOOTH PRICE(UPON AVAILABLITY)
THE FOLLOWING ARE THE MIAMI BEACH, LINCOLN ROAD DOUBLE TENTED BOOTH PRICES:
OCTOBER TO MAY(10 X 10)TENTED SPACE FOR MIAMI BEACH SHOW=$340.00
ALL CORNER EXPOSURE DOUBLE SPACES ADD$20.00 TO BOOTH PRICE (UPON AVAILABLITY)
TABLE PRICING
TABLE 8 FEET BY 30 INCHES=$13.00(PAYMENTS MUST BE MAILED OR PAID IN ADVANCE OF
SHOW DATE).
TABLE 8 FEET BY 30 INCHES=$15.00 PAYMENTS AT DAY OF SHOW*(LIMITED AVAILABLITY OF
EXTRA TABLES ON DAY OF SHOW).
42
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EXHIBIT 3.1 .2.1
(Page 1 of 2)
(Special Events Disability Access Punch List)
Swat Events 011sablifty Access Poach List
1 . Ensure curb cuts and crass walks are kePt free and clear for usage, with a
continuous accessible route of 44 inches in width.
2.. The went Producer must ensure that any Nearby accessible on- or off-
street pang ("handicapped parking") is not obstructed by vehicles
foadinglonloading equipment., etc. If such obstructions occur, the went
Producer must see that such obstructions are rOmoved immediately,.
Accessible parking spaces shall be connected to the site's continuous
accessible route, with no obstructions batween the. access le parking
spaces and the curb ramps that serve those spaces.
3. Any and all accessible routes created and/or installed by the Event.
Producer, or under the Event Producer's supervision, must have no abrupt
change in level in excess of -t!4 inch. Where such changes in level are
present, properly bevel the change in leve I at a. 1:2 ratio or paroVide a .ramp
%Oth a slope not to axceed a 1:12 ratio. This is necessary to allow passage
of wheelchairs or strollers and prevent trapping or the catching of walkers
and canes. Any ramps provided roust be in compliance with all Florida
Accessibility Code requirements, including, - but not limited to,
requirements regarding edge protection, handrails, and surface.
4. Provide a smooth transition between temporary pathways and any ramps,
sidewalks, streets,. or parking lots. This means no change in level
exceeding U inch., Any change exceeding 1/4 inch requires beveling at a
1:2 ratio or the insteRation of a ramp with a slope not to exceed a 1:12
ratio. Any ramps provided roust be in compl'ia:nce with all Florida
Accessibility Code requirements, including, but not limited to,
requirements regarding edge protection, handralls, and surface.
5- All cashier counters counters where money transactions occur) must be
no higher than 36 inches; maximum above finish floor, for a minimum
length of 36 inches.
f. Maintain an accessible route for access to merchandise that is both within
a vendor space as well as merchandise not contained within a vendor
space, H thO overflow of merchandise for patron vieanring is placed behind
a: booth, then provide adjacent access to the- merchandise via a curb
ramp, as Well as the placement of a Pathway wfth a stable and firm
surface ne=cessary for the use of Wheelchairs and mobility aids.
7. Merchandise for display should be within a lime of sight no higher than 48
inches for persons of short stature or wheelchair users, if rnercha.ndise is
'44
1
EXHIBIT 3.1 .2.1
(Page 2 of 2)
(Special Events Disability Access Punch List)
displayed higher than 48 inches, merchant Must provide assistance stn to
disabled customers in order to reach items.
& All vendor spaoes shall be located on an accessible route that is a
minimum of 44 inches vdde.
9. If tables and seating are pr vUed for the censumptfon of food, all aisles
a d ja0ent to accessible fIxed seating shall provide in-oh by 8 inch clear
floor space for wheelchairs. WhOre there are opera po=sitions along both
sides of such aisles, the aisles shall be not less than 52 inches wide.
10.For wheelchair seating spades provided at tabu or counters� n
spaces at least 27 Inch s h� h 30 inches ode,
and Inches ep shall
be provided. The tops of accessible tables and counters shall he from 2
Inches to 34 inches above the finish floor or ground.
11 - hero food or drink is served at oounters exceeding 4 inches In height
for consumption by customers seated on stools or standing at the
� untrr,
a portion of the main oounter which is 60 inches in length min,imam shill
be provided ire compliance with the requirements of Items #9 and
D ove or selfMice shall be available at accessible tables within the same
area..
12.Where portable toilets are pro idod, an accessible route shall be provided
to the toilets. Five pent of the total number- of toilets must
accessible., If clusters of portable toilets are distributed throughout the site
there each cluster must have accessible units.
13.if general assembpy seating or standing space is provided for audience
members tf en din public p performance at special event, reserved
wheelchair seating must be
provided. Such seating, must be provided in
location that allows whealchair risers an unobstructed lire of sight to the
stage. If seating capacity accommodates greater than 300 ersons r then
aocessible seating shall be dispersed throughout the venue.
45
i
EXHIBIT 9.1
(Day(s) of Operation)
2014
October 12
October 26
November 9
November 23
December 7
December 21
2015
January 4
January 11
January 25
February 1
February 15
February 22
March 8
March 22
April 12
April 26
May 17
46