Concession Agreement for the Operation of the South of 5th Street Market gog(-0735-73
Concession Agreement
for the
Operation of the South of Stn
Street Market
INDEX
SECTION TITLE PAGE
I TERM 4
2. CONCESSION AREA 5
2.1 Old South Beach Water Tower Property 5
3. USE(S) 5
3.1.1 Facilities Design 6
3.1.2 Placement of Facilities 6
3.1.2.1 Compliance with American with Disabilities Act(ADA) 6
3.1.3 Set Up 7
3.1.4 Public Right-of-Way 7
3.1.5 Interaction and Coordination with Other Old Water Tower Property Operations &
Events 7
3.1.6 Conflict Resolution 7
3.2 Permitted Concession Operations/Uses 9
3.2.1 Cut Flowers and Plants 9
3.2.2 Fruits, Vegetables, Other Edible Products 9
3.2.3 Cooked and Prepared Food Items 9
3.2.4 Arts and Crafts 10
3.2.5 Live Entertainment 10
3.3 Intentionally Omitted 10
3.4 Intentionally Omitted 10
3.5 Monitoring Fee 10
3.6 Off-Duty Police and Supervision 10
3.6.1 . Off-Duty Police 10
3.6.2 Event Supervision 10
3.7 Vendor Selection/First Priority to Miami Beach Merchants 11
3.8 Removal of Concession Facilities 11
3.9 Hurricane Evacuation Plan 11
3.10 Business Tax Receipt 11
4. CONCESSION FEES 12
4.1 Security Deposit 12
4.2 Percentage of Gross(PG) 12
4.3 Minimum Guarantee(MG) 12
4.4 Interest for Late Payment 13
4.5 Sales and Use Tax 13
4.6 Bagging Parking Meters 13
5. MAINTENANCE AND EXAMINATION OF RECORDS 13
6. INSPECTION AND AUDIT 13
7. TAXES, ASSESSMENTS, AND UTILITIES 14
7.1.1 Generator Usage 14
7.2 Procedure if Ad Valorem Taxes Assessed 15
8. EMPLOYEES AND INDEPENDENT CONTRACTORS 15
9. SCHEDULE OF OPERATION 15
9.1 Day(s)of Operation 15
9.2 Operating Hours 15
10. MAINTENANCE 16
10.2 Garbage Receptacles 16
10.3 Pressure Cleaning 16
10.4 Facilities 16
10.5 Orderly Operation 16
10.6 No Dangerous Materials 16
10.7 Security 17
10.8 Vehicles on Public Right-of-Way 17
10.9 Inspection 17
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SECTION TITLE PAGE
11. INSURANCE 18
12. INDEMNITY 19
12.4 Subrogation 19
12.5 Force Majeure 19
12.6 Labor Dispute 19
12.7 Waiver of Loss from Hazards 20
13 DEFAULT AND TERMINATION 20
13.1 Bankruptcy 20
13.2 Default in Payment 20
13.3 Non-Monetary Default 21
13.4 City's Remedies for Concessionaire's Default 21
13.6 Termination for Convenience/Partial Termination 22
13.7 Surrender of Concession Area 23
14. ASSIGNMENT 23
15 SPECIAL EVENTS 23
15.1 City Special Events 24
15.2 Street Vendors/Street Performers 24
16. NO IMPROPER USE 25
17. PRICE SCHEDULES 25
18. NOTICES 25
19. LAWS 26
19.1 Compliance 26
19.2 Governing Law 26
19.3 Equal Employment Opportunity 26
19.4 No Discrimination 26
20. MISCELLANEOUS 27
20.1 No Partnership 27
20.2 Modifications 27
20.3 Complete Agreement 27
20.4 Headings 27
20.5 Binding Effect 27
20.6 Clauses 27
20.7 Severability 27
20.8 Right of Entry 28
20.9 Not a Lease 28
20.10 Signage 28
20.11 Use of the Right-of-Way 28
20.12 Conflict of Interest 28
20.13 Reasonableness 28
20.14 Procedure for Approvals and/or Consents 28
20.15 No Waiver 29
20.16 No Third Party Beneficiary 29
20.17 Attorneys' Fees 29
1. LIMITATION OF LIABILITY 29
22. VENUE 29
23. CONCESSIONAIRE'S COMPLIANCE WITH FLORIDA PUBLIC RECORDS 29
24. PROHIBITIONS REGARDING SALE OR USE OF EXPANDED POLYSTYRENE FOOD
SERVICE ARTICLES 30
EXHIBITS
Exhibit 2.0 32
Exhibit 3.1 33
Exhibit 3.1.1 34
Exhibit 3.1.2.1 35
Exhibit 3.2.1 37
Exhibit A 38
Exhibit B 43
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CONCESSION AGREEMENT
BETWEEN THE CITY OF MIAMI BEACH, FLORIDA
AND THE MARKET COMPANY, INC.
FOR THE MANAGEMENT AND OPERATION OF THE
SOUTH OF 5111 STREET MARKET
THIS AGREEMENT made the iday of A112015("Effective Date"), between the CITY OF MIAMI
BEACH, a municipal corporation of the State of Florida (hereinafter called "City"), having its principal
address at 1700 Convention Center Drive, Miami Beach, Florida, 33139, and THE MARKET
COMPANY, INC., a corporation established pursuant to the laws of the State of Florida,with offices at
238 East San Marino Drive, Miami Beach, Florida 33139 (hereinafter called "Concessionaire").
WITNESSETH
WHEREAS, on 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 the street
markets, including greenmarkets at Lincoln Road, Collins Park, Normandy Village Isle, and South of
5th Street, and an antiques and collectables market on Lincoln Road; and
WHEREAS, Concessionaire, although the sole proposer for the operation of a street market in the
area generally known as South of 5 Street, has been operating similar markets in Miami Beach and
adjoining communities and was recommended by the City Manager as the successful proposer for the
South of 5th Street Market; and
WHEREAS, Concessionaire and the City have negotiated the foregoing Concession Agreement.;and
WHEREAS, for purposes of this Concession Agreemenat the City Manager's designee shall be the
City's Asset Manager.
NOW THEREFORE, in consideration of the premises and the mutual covenants and conditions herein
contained and other good and valuable consideration, the receipt and adequacy of which are hereby
conclusively acknowledged, it is agreed by the parties hereto as follows:
The City hereby grants to the Concessionaire, and the Concessionaire hereby accepts from the City,
the right to operate the following described concession within the Concession Area, (as defined
herein), in conformance with the purposes and for the period stated herein, and subject to all the terms
and conditions herein contained and fairly implied by the terms hereinafter set forth.
SECTION 1. TERM.
1.1 This Agreement shall be for an initial term of two (2) years, and approximately five (5)
months; commencing as of the "Effective Date" ( "Commencement Date"), and ending
on September 30, 2017 ("Initial Term"). 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 this 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").
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SECTION 2. CONCESSION AREA.
The City hereby grants to the Concessionaire the right to operate a concession for an open air street
market, (as further described herein), in the following area(s)(hereinafter referred to collectively as the
"Concession Area" and as more specifically delineated in Exhibit 2.0 herein):
2.1 Old South Beach Water Tower property
This Concession Area is limited to Block 79, of Ocean Beach Florida, Addition No. 3,
according to the Plat thereof, recorded in Plat Book 2, Pg 81 (hereinafter referred as
"Old Water Tower Property")and further described as that triangular parcel bounded on
the southwest by the easternmost line of Alton Road right of way; bounded on the east
by the westernmost line of Jefferson Avenue right of way; and bounded on the north by
the southernmost line of 1st Street right of way. The Concession Area does not include
any portion of the public right-of-way.
2.2 Notwithstanding the use of the Concession Area granted to Concessionaire above,
Concessionaire herein understands, agrees, and acknowledges that the Concession
Area, along with any and all other public right-of-way area(s) not specifically identified
herein, are public and, as such, must remain available for the use and enjoyment of the
general public whether or not the public chooses to purchase any of Concessionaire's
goods, or otherwise partake of any of the services it provides.
SECTION 3. USE(S).
The Concessionaire is hereby authorized to conduct the following kind(s) of uses within the
Concession Area, all at its sole cost and expense:
3.1 Concessionaire shall operate and manage an open air street market, commonly known
and referred to herein as the "South of 5In Street Market"("Market"),which shall provide
a venue for Concessionaire's vendors to sell and/or provide the following (as each is
more specifically defined in Section 3.2 and as more particularly delineated in the
attached Exhibit 3.2.1):
a) Plants and cut flowers;
b) Fruits, vegetables, and other edible products and related food items;
c) Cooked and prepared food items;
d) Non-alcoholic beverages, coffee and tea; and
e) Art and Craft items;
This shall also generally include the rental of booths, tents, tables, signs or space(s)
(collectively "Facilities"), in conformance with the attached site plan (Exhibit 2.0). The
City herein approves the rental of the aforestated Facilities, and the prices for same, all
as set forth in Exhibit 3.1, and as provided in Section 17. Any amendments to Exhibits
2.0, 3.1, or 3.2.1 must be approved in writing by the City Manager or his designee and,
prior to implementation of same, an updated exhibit shall be incorporated herein. As
referenced in this Agreement, the City Manager's designee shall be the Director of
Tourism, Culture and Economic Development Department.
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3.1.1 Facilities Design:
The design, type, material, and color of any and all Facilities shall be approved in
writing by the City's Planning Department prior to the Commencement Date. A
photo or photo(s) of City-approved Facilities is incorporated herein as Exhibit
3.1.1. Thereafter, Concessionaire shall not change, alter, or modify the design,
type, material and color of any such City-approved Facilities without the prior
written consent of the City Manager or his/her designee (and, if so approved, an
updated Exhibit 3.1.1 will be made a part of and incorporated into this
Agreement).
3.1.2 Placement of Facilities:
All respective Facilities within the Concession Area shall be placed substantially
in accordance with the attached site plans, herein approved by the City and
attached hereto and incorporated as Exhibit 2.0 hereto. Concessionaire shall not
deviate from or alter the approved site plans without the prior written consent of
the City Manager or his/her designee.
3.1.2.1 Compliance with American with Disabilities Act (ADA) and any other
applicable accessibility standards:
Concessionaire agrees and acknowledges that during all periods when
its Market is in operation, including set-up and break-down periods, it
shall comply with ADA standards, Florida Accessibility Code
standards, and any other applicable accessibility standards required by
law, including the provisions of the City's "Special Events Disability
Access Punch List," attached and incorporated as Exhibit 3.1.2.1
hereto. Concessionaire's compliance with the provisions set forth in the
attached Exhibit 3.1.2.1, includes, but shall not be limited to, any and
all responsibilities associated with "Event Producer," as described
therein.
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 Old Water Tower
Property.
Concessionaire shall:
a) maintain accessible path(s) of travel that permit the
unobstructed access to the entryways of all buildings, facilities,
elements and spaces within Old Water Tower Property;
b) maintain an unobstructed accessible path of travel on all
sidewalks of and along the Old Water Tower property; and
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3.1.2.3 Notwithstanding the above, Concessionaire's responsibility to comply
with the requirements of this Section 3.1.2.1 and Section 3.1.2.2 shall
be limited to those areas within the Concession Area.
3.1.3 Set Up:
The set up of Facilities. to be placed within the Concession Area, shall be
substantially in accordance with the site plan(s)approved pursuant to Exhibit 2.0,
with the days and hours of operation in Section 9. Placement of Facilities shall
not exceed 31 tent spaces or tables, the maximum number set forth in Exhibit
2.0.
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.Accordingly, notwithstanding the site
plans and maximum numbers set forth in Subsection 3.1.3, Concessionaire
further agrees that it will not alter or modify its site plans without the prior written
consent of the City Manager or his/her designee.
3.1.5 Interaction and Coordination with Other Old Water Tower Property Area
Operations and Events:
Concessionaire agrees and understands that there are other businesses,
establishments, operations, and events which are ongoing, or may occur from
time to time, within or in close proximity to the Concession Area. As such,
Concessionaire agrees that it will use its best efforts to cooperate and coordinate
with said businesses, establishments, operations and events so as to minimize
the impact to the respective parties.
3.1.6 Conflict Resolution:
Concessionaire recognizes and understands that conflicts with one or more of the
following entities, groups, and/or individuals may arise during the Term of this
Agreement, or any extensions thereof:
• conflicts between Old Water Tower property area merchants/businesses
and Concessionaire;
• conflicts between vendors and Concessionaire;
• conflicts between vendors and the general public; and/or
• conflicts between the general public and Concessionaire
As such, Concessionaire further recognizes and understands that notice of said
conflicts may be directed to the attention of Concessionaire or the City. In the
event a notice of conflict is communicated to the City, whether verbally or in
writing, the City will communicate same to the Concessionaire, as soon as
practicable.
Whenever a conflict arises, upon Concessionaire's receipt of notice of same,
whether written or verbal, between any of the aforestated entities, groups, or
individuals, with any of Concessionaire's operations, resolution to said conflicts
will be addressed in the following manner:
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1. Concessionaire shall meet with the conflicted party and, using its best
good faith efforts; endeavor to resolve the conflict to the satisfaction of all
parties concerned, within fourteen (14) calendar days from receipt of
notice.
2. In the event the conflict cannot be resolved (as stated in Number 1
above), then the Concessionaire shall provide written notice to the
conflicted party,with copy to the City Manager or his/her designee, with a
date on which to meet with the City Manager's designee, to address the
conflict. At that time, the City Manager's designee will recommend a
resolution. The City Manager's designee shall endeavor to set a meeting
date within fourteen (14) calendar days of receipt of a copy of the written
notice to the conflicted party.
3. In the event the resolution recommended by the City Manager's designee
is not acceptable to the Concessionaire or the conflicted party, the City
Manager's designee shall inform the City Manager, and provide him/her
with the pertinent details of the conflict. The City Manager may make a
determination as to whether he/she concurs with the designee's
recommendation; offer an alternate resolution; or choose to meet with
Concessionaire and the conflicted party to get additional information, prior
to making a final determination.
Notwithstanding the foregoing, the City Manager's determination will be binding
upon all parties.
Concessionaire agrees and understands that the above referenced conflict
resolution language is not applicable to any conflicts that may arise between the
City and the Concessionaire pursuant to this Agreement, or conflicts outside of
the City's purview, control or jurisdiction.
3.1.7 The condition and quality of Concessionaire's Facilities shall at all times be
maintained in a manner that is consistent with the condition and quality of similar
facilities in first class open air markets. It is the City's intent, and Concessionaire
hereby agrees and acknowledges, to develop and promote a world class open air
market that would be comparable to those found in other first class resorts and
beach communities on par with the City of Miami Beach. Accordingly,
Concessionaire shall, at a minimum, ensure that all Facilities placed within the
Concession Area are well maintained and in usable condition, but shall also
adhere to the high ongoing maintenance standards for same, consistent with the
aforementioned condition and standard of quality.
3.1.8 Quality of goods and services offered will be first-rate and comparable to those
available in open air markets in other first class resorts and beach communities
on par with the City of Miami Beach (or, at a minimum, to the quality and pricing
of goods and services provided by privately owned businesses selling like goods
and services within the City).
3.1.9 All portions of the Concession Area shall at all times be maintained in a clean
and sanitary manner.
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3.1.10 The Concessionaire's operations shall be offered to patrons at all times during
the days and hours of operation set forth in Section 9 herein. However, if the City
Manager, in his/her sole discretion, deems that there is a decrease in demand for
the concession operations, or if the Concessionaire provides the City with written
notice that it is desirous of reducing its hours of operation: (i) the City shall
provide Concessionaire with a minimum of two (2) weeks prior written notice,
requesting the specific decrease in Concessionaire's operation; or (ii)
Concessionaire shall provide the City with, at minimum, two (2) weeks prior
written notice, requesting to reduce said hours. Additionally, option (ii) shall be
subject to the City's Manager's written approval(which shall not be unreasonably
withheld), prior to implementation of any schedule of reduced hours of operation.
In the event the City requests that Concessionaire decrease its operations
pursuant to this Subsection,then the partial termination provisions of Subsection
13.6.3 shall apply.
Similarly, if Concessionaire is desirous of increasing its hours of operation the
Concessionaire must also obtain the City Manager's prior written consent, prior to
implementation of same,
Concessionaire agrees and acknowledges that any Concessionaire requested
reduction in the scheduled hours of operation shall in no way reduce
Concessionaire's financial responsibility to the City, as required in Section 4.
3.2 Permitted Concession Operations / Uses.
3.2.1 Cut Flowers and Plants:
This shall generally include the sale of flowers, either individually or in bunches
that have been cut from their base, and potted plants.
3.2.2 Fruits, Vegetables, Other Edible Products:
This shall generally include the sale of those edible items defined as, and
generally including, fresh fruits, dried fruits, vegetables, nuts, preserves, pickled
items,jams,jellies,juices, smoothies, non-alcoholic, non-commercially produced,
beverages (i.e. lemonade, smoothies, ice tea), and non-alcoholic Coca-Cola
brand name beverages and coffee products as set forth in Exhibit "B"
incorporated herein.
3.2.3 Cooked and Prepared Food Items:
This shall generally include the sale of prepared and cooked food items,
including, but not limited to, ethnic cuisine, pastas, salads, cooking
demonstrations, etc., and ready-to-eat foods items such bar-be-cue, hamburgers
and hotdogs. Any cooking and heating elements, especially those using open
flames or combustible fuels, must be set up in accordance with any regulations of
and/or recommendations by the City of Miami Beach Fire Department.
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3.2.4 Arts and Crafts:
This shall generally include the sale of arts and crafts; individually hand crafted
and not commercially mass produced.
3.2.5 Live Entertainment/Amplified Sound:
There shall be no live entertainment or speakers placed in the Concession Area.
3.2.6 In the event that the City Manager or his/her designee determines, at his/her sole
option and discretion,that all or a portion of Concessionaire's permitted uses are
no longer desired, then the City Manager may revoke Concessionaire's right to
provide all or a portion of such uses, upon thirty(30)days prior written notice to
Concessionaire. Any percentage of gross(PG)paid by Concessionaire(pursuant
to Subsections 4.2 and 4.3) to City with regard to a discontinued use, shall be
prorated and/or adjusted accordingly, as of the date of termination of said use.
3.3 Intentionally Omitted.
3.4 Intentionally Omitted.
3.5 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 South of 5th
Street 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, in 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 Off-Duty Police and Supervision.
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. At this time, given the conditions at the South of SthStreet
Market, an Off-duty Police service ("Policing Service") shall not be required.
However, hereafter, should the City Manager, in his sole discretion, deem that
Policing Service is warranted, the City Manager shall so notify Concessionaire
and Concessionaire shall immediately thereafter implement the requisite Policing
Service.
3.6.2 Event Supervision
Concessionaire supervisory/management employee shall be on duty and on-site
within the Concession Area at all times during which the Market is operating.
Concessionaire supervisory/management employee must be present during the
Set-Up and Move-Out periods.
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3.7 Vendor Selection / First Priority to Miami Beach Merchants.
3.7.1 The Concessionaire shall be solely responsible for selection, oversight and
supervision of any vendor operating within the Concession Area as part of the
Market. Notwithstanding the preceding, within thirty (30) days from the
Commencement Date, and for a period of thirty (30) days thereafter, the
Concessionaire shall offer Miami Beach licensed merchants the opportunity to
participate(a booth space)in the Market as vendors before opening its search to
the general public or other networks.
The Concessionaire will use best efforts to ensure that all Miami Beach licensed
merchants are contacted and that announcements regarding booth availability
are disseminated throughout the City of Miami Beach: including, but not limited
to, advertising in a local newspaper, placing information on the Market on
websites, etc.
3.7.2 Intentionally Omitted
3.7.3 The Concessionaire will keep and make available to the City for inspection, upon
notice by the City, carefully detailed records, including the name, address,
telephone numbers, qualifications, experience, and the proposed goods and
services to be offered for sale by its vendors, and will pay particular attention to
matching vendors and booths with appropriate locations.
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3.8 Removal of Concession Facilities.
that any Facilities (or other items) used in the concession
Concessionaire agrees y ( )
operations will be removed from the public right-of-way/Concession Area, in compliance
with the time parameter(s) set forth in Subsection 9.2 herein.
3.9 Hurricane Evacuation Plan.
Concessionaire agrees that any Facilities (or other items) used in the concession
operations will be immediately removed from the public right-of-way/Concession Area
upon the issuance of a Hurricane Warning by the Miami-Dade County Office of
Emergency Management; to be stored by Concessionaire at a private, off-site location.
3.10 Business Tax Receipt.
Concessionaire shall obtain, at its sole cost and expense, any business tax receipts
required by the City for its proposed operations. For purposes of this Agreement,
Concessionaire shall obtain the "Agents, Broker, Dealers..." category business tax
receipt.
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SECTION 4. CONCESSION FEES.
4.1 Security Deposit.
Upon execution of this Agreement, and in any event no later than the Commencement
Date, Concessionaire shall furnish the City with a Security Deposit, in the amount of One
Thousand and 00/100 ($1,000.00) 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 the Security Deposit, as well as pursue any and all other legal remedies
provided herein, or as may be provided by applicable law.
The parties agree and acknowledge that the foregoing condition is intended to be a
condition subsequent to the City's approval of this Agreement.Accordingly, in the event
that Concessionaire does not satisfy the aforestated condition within the time period
provided herein, then the City Manager or his/her designee may immediately, without
further demand or notice, terminate this Agreement, without liability to the City and
without being prejudiced as to any remedies which may be available to the City for
breach of contract.
4.2 Percentage of Gross (PG).
During the Term, Concessionaire shall pay the City, on a monthly basis, and within thirty
(30) calendar days from the end of each month, an amount equal to fifteen (15%)
percent of Concessionaire's gross receipts (PG).
The term "gross receipts" is understood to mean all income, whether collected or
accrued, derived by the Concessionaire under the privileges granted by this Agreement,
excluding amounts of any Federal, State, or City sales tax, or other tax, governmental
imposition, assessment, charge or expense of any kind, collected by the Concessionaire
from customers and required by law to be remitted to the taxing or other governmental
authority. Except as otherwise provided,with regard to a special event under Subsection
15.1 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 Five Thousand and
00/100 ($5,000.00) Dollars during the Initial Term. MG amount for the initial period due to the City,
herein, shall be proportionately equal to the period of time between the Commencement Date and
the end of the current fiscal year. In the event that the annual PG is less than the MG, then the
Concessionaire shall also pay to the City, within thirty days from the end of each fiscal year during
any Term hereunder, the difference between the PG amount and the MG.
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 MG during the Renewal Term 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.
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4.4 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%) or the highest rate allowable under Florida Law,
whichever is less, from the due date of payment until such time as payment is actually
received by the City.
4.5 Sales and Use Tax.
It is also understood that, any required Florida sales and use tax shall be added to
Concessionaire's payments and forwarded to the City as part of said payments, unless
Concessionaire has secured a resale certificate, in which case the sales tax shall be
remitted by Concessionaire to the Florida Department of Revenue. It is the City's intent
that it is to receive all payments due from Concessionaire(including MG and PG)as net
of such taxes.
4.6 Bagging Parking Meters.
In consideration for the residents and local business in the South of 5th Street area, the
bagging of meters for the South of 5th Street Market is prohibited. If the use of parking
spaces at the Concession Area were required, and approved with prior written consent
by the City Manager or his/her designee, in connection with the operation of the South of
r Street Market, Concessionaire will be required to pay the City for any parking meters
bagged.
SECTION 5. MAINTENANCE AND EXAMINATION OF RECORDS.
Concessionaire shall maintain current, accurate, and complete financial records, on an accrual basis,
of accounting related to its operations pursuant to this Agreement. Systems and procedures used to
maintain these records shall include a system of internal controls and all accounting records shall be
maintained in accordance with generally accepted accounting principles, and shall be open to
inspection and audit by the City Manager or his/her designee upon reasonable prior notice and during
normal business hours. Such records and accounts shall include a breakdown of gross receipts,
expenses, and profit and loss statements, and shall be maintained as would be required by an
independent CPA in order to audit a statement of annual gross receipts and profit and loss statement
pursuant to generally accepted accounting principles.
A monthly report of gross receipts must be submitted to the City, through the Finance Department's
Revenue Manager, no later than thirty(30)days after the close of each month during the Term herein
SECTION 6. INSPECTION AND AUDIT.
Concessionaire shall maintain its financial records(pertaining to its operations)for a period of three(3)
years after the conclusion of the Term, and such records, shall be open and available to the City
Manager or his designee, as deemed necessary. Concessionaire shall maintain all such records at its
principal office, currently located at 238 E. San Marino Drive, Miami Beach, Florida, 33139 or, if
moved to another location, all such records shall be relocated, at Concessionaire's expense, to a
location within the City of Miami Beach, within ten (10)days'written notice from the City that it desires
to review said records.
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The City Manager or his/her designee shall be entitled to audit Concessionaire's records pertaining to
its operation as often as it deems reasonably necessary throughout the Term, and three (3) times
within the three (3) year period following termination of the Agreement, regardless of whether such
termination results from the natural expiration of the term or for any other reason. The City shall be
responsible for paying all costs associated with such audits, unless the audit(s)reveals a deficiency of
five percent (5%) or more in Concessionaire's statement of gross receipts for any year or years
audited; in which case the Concessionaire shall pay to the City, within thirty (30) days of the audit
being deemed final by the City, the cost of the audit and a sum equal to the amount of the deficiency
revealed by the audit, plus interest.
Concessionaire shall submit,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 South of 5th Street Market, in a form consistent with
generally accepted accounting principles.
Nothing contained within this Section shall preclude the City's audit rights for resort tax
collection purposes.
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 GENERATOR USAGE
Concessionaire, at its sole cost and expense, shall provide quiet (whisper)
generators for use by vendors requiring electricity. Concessionaire shall not create a
fire hazard or connect to any electric outlets or power sources. Concessionaire must
provide its own power sources, if any is required.
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7.2 Procedure If Ad Valorem Taxes Assessed.
Notwithstanding Subsection 7.1, the parties agree that the concession operations
contemplated herein are for public purposes and, therefore, no ad valorem taxes should
be assessed by the Miami-Dade County Tax Appraiser. If, however, said taxes are
assessed, City and Concessionaire shall use reasonable efforts to address payment of
same.
SECTION 8. EMPLOYEES AND INDEPENDENT CONTRACTORS.
8.1 In connection with the performance of its responsibilities hereunder, Concessionaire
may hire its own employees and/or independent contractors, who will be employees
and/or independent contractors of Concessionaire and not employees or agents of the
City. Additionally, Concessionaire's vendors and/or sub-concessionaires shall not be
considered agents or employees of the City. Concessionaire shall select the number,
function, qualifications, compensation, including benefits (if any), and may, at its
discretion and at any time, adjust or revise the terms and conditions relating to its
employees and/or independent contractors.
8.2 Concessionaire shall ensure that its employees, agents and contractors, including any
vendors selected by Concessionaire for the Market, observe all the graces of personal
grooming and shall comport themselves in a professional and courteous manner.
Neither Concessionaire nor any of its employees, agents or anyone selected by
Concessionaire as a vendor for the Market shall have been convicted of a felony. If
Concessionaire materially fails to comply with this provision, the City may default
Concessionaire pursuant to Section 13 herein.
8.3 The Concessionaire shall have an experienced manager or managers overseeing the
concession operations at all times.
SECTION 9. SCHEDULE OF OPERATION.
Concessionaire's operations shall be open on the Concession Area, in accordance with the schedule
outlined below, weather or events of force majeure permitting.
9.1 Days) of Operation: Saturday
9.2 Operating Hours:
Set-Up:
Must not begin earlier than 6:00 AM and end by 10:00 AM
Market operating hours:
Daylight Savings Time: 9:00 AM to 5:00 PM
Eastern Standard Time: 8:00 AM to 4:00 PM
Move-Out:
Daylight Savings Time: 3:00 PM to 6:00 PM
Eastern Standard Time: 3:00 PM to 5:00 PM
Any change in the days or hours of operation shall require the prior written consent of the City
Manager or his/her designee.
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SECTION 10. MAINTENANCE.
10.1 The Concessionaire accepts the use of the Concession Area and any and all other
public property and/or right-of-ways provided or used by Concessionaire in conjunction
with this Agreement, in its/their "AS IS" condition. Concessionaire assumes sole
responsibility and expense for maintenance of the Concession Area. This shall include,
at a minimum, daily removal of litter, garbage and debris.
10.2 Garbage Receptacles.
With respect to litter, garbage and debris removal, the Concessionaire shall also
provide, at its sole cost and expense, receptacles within the confines of the Concession
Area, and shall provide a sufficient number of these receptacles for its own use(and its
vendors) and for the use of the public that patronizes the Market. [Determination of the
"number" of receptacles shall at all times be within the City Manager's sole discretion,
and Concessionaire shall agree to be bound by same]. Disposal of the contents of said
receptacles and removal of litter, garbage and debris within the Concession Area shall
be accomplished by the end of the day(on all days which the Concessionaire operates).
Any costs for removal of the contents of said trash receptacles by the City, because of
the Concessionaire's failure to do the same, will be charged to Concessionaire. The
dumping or disposal of any refuse, discards, trash or garbage, generated by, or as a
result of the concession operations, into any City trash receptacles by the
Concessionaire (including its employees, contractors and/or vendors) shall be strictly
prohibited.
10.3 Pressure Cleaning.
Concessionaire shall also be responsible for reimbursing the City for the cost and
expense of pressure cleaning the Concession Area, including all abutting sidewalks and
public right-of-ways adjacent thereto, in the total amount of$100.00 per quarter.
10.4 Facilities.
Intentionally Omitted.
10.5 Orderly Operation.
The Concessionaire shall have a neat and orderly operation at all times and shall be
solely responsible for the necessary housekeeping services to properly maintain the
Concession Area and all Facilities incident thereto.
10.5 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 (except for combustible powered
electricity producing generators, which shall be allowed subject to compliance
with any applicable laws), fuel oils, diesel, illuminating oils, oil lamps, turpentine,
benzene, naphtha, propane (except for the use of gas grills for cooking, subject
to compliance with any applicable laws and approval from the City of Miami
Beach Fire Department), 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.
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10.6.2 Concessionaire shall indemnify and hold City harmless from any loss, damage,
cost, or expense of the City, including, without limitation, reasonable attorney's
fees, incurred as a result of, arising from, or connected with the placement by
Concessionaire, and/or its employees, vendors, agents and/or subcontractors of
any hazardous substance or petroleum products on, under, in or upon the
Concession Area, as those terms are defined by applicable Federal and State
Statute, or any environmental rules and environmental regulations promulgated
thereunder; provided, however, Concessionaire shall have no liability in the event
of the willful misconduct or gross negligence of the City, its agents, servants or
employees. The provisions of this Subsection 10.6 shall survive the termination
or earlier expiration of this Agreement.
10.7 Security.
The Concessionaire shall be solely responsible providing any security, as it may deem
required in its judgment and discretion, to protect the Concession Area and any of the
Facilities and vendor goods, merchandise and/or other property. Under no
circumstances shall the City be responsible for any stolen or damaged goods,
merchandise, Facilities, and/or any other property, nor shall City be responsible for any
stolen or damaged personal property of Concessionaire's employees, contractors,
vendors, patrons, guests, and/or other third parties.
10.8 Vehicles on the Public Right-of-Way.
Concessionaire's (including its employees, contractors, agents, vendors, and/or other
third parties) vehicles and/or trailers shall be allowed on the street adjacent to
Concession Area/public right-of-way on Jefferson Avenue only for purposes of setting up
the concession operations, and to remove same at the close of operations, and any and
all such vehicles for purposes thereon must be removed from the public right-of-way
immediately thereafter into legal parking spaces. Concessionaire shall contractually
require that anyone operating a vehicle pursuant to this subsection and/or the purposes
herein, shall have a current valid Florida Driver's License.
No vehicular traffic or parking will be permitted on the public right-of-way or the
Concession Area unless specifically authorized.
Intentionally Omitted.
10.9 Inspection.
The Concession Area and all Facilities and operations thereon, including but not limited
to vendor booths, may be inspected at any time during days and hours of operation by
the City Manager or any authorized City representative, or by any other State or County
officer or agency having responsibilities for inspections of such operations. The
Concessionaire hereby waives any and all claims against the City for compensation for
loss or damage sustained by reason of any interference with the concession operation
by any public agency or official in enforcing their duties or any laws or ordinances. Any
such interference shall not relieve the Concessionaire from any obligation hereunder.
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SECTION 11. INSURANCE.
Concessionaire shall maintain throughout the Term, at its sole cost and expense, the following types
of insurance coverage:
a. Comprehensive General Liability in the minimum amount of One Million Dollars
($1,000,000) per occurrence for bodily injury and property damage. This policy must
also contain coverage for premises operations, products and contractual liability.
b. Workers Compensation Insurance shall be provided as required under the Laws of the
State of Florida.
c. Automobile Insurance for any vehicles used for, or associated with concessionaire's
operations shall be provided covering all owned, leased, and hired vehicles and non-
ownership liability for not less than the following limits:
Bodily Injury $1,000,000 per person
Bodily Injury $1,000,000 per accident
Property Damage $1,000,000 per accident
The policies of insurance referred to above shall not be subject to cancellation or changing
coverage except upon at least thirty (30) days prior written notice to the City, and then only
subject to the prior written approval of the City Manager or his designee. Prior to the
Commencement Date of this Agreement, Concessionaire shall provide City with a Certificate of
Insurance for each such policy. ALL POLICIES SHALL NAME THE CITY OF MIAMI BEACH
FLORIDA AS AN ADDITIONAL NAMED INSURED. All such policies shall be obtained from
companies authorized to do business in the State of Florida with an A.M. Best's Insurance
Guide (latest edition) rating acceptable to the City's Risk Manager, and any replacement or
substitute company shall also be subject to the approval of the City's Risk Manager.
Failure to procure or maintain the required insurance shall, at the City's sole option and
discretion, (i) constitute an immediate default of the Concession Agreement for which
the City may, upon 24 hours written notice to Concessionaire, terminate the Agreement
(without liability to the City hereunder); or (ii) allow the City, to obtain the insurance
itself, in which case said insurance shall be charged back to the Concessionaire.
Any sums expended by City in obtaining said insurance, shall be repaid by Concessionaire to
City, plus ten percent (10%) of the amount of premiums paid to compensate City for its
administrative costs. If Concessionaire fails to repay City's expenditures within fifteen(15)days
of demand, the total sum owed shall accrue interest at the highest rate allowable under Florida
Law, until paid, or, at its option, the City may declare the Agreement in default pursuant to
Section 13 herein.
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SECTION 12. INDEMNITY.
12.1 In consideration of a separate and specific consideration of$10.00 and other good and
valuable consideration the receipt and sufficiency of which are hereby acknowledged,
Concessionaire shall indemnify, hold harmless and defend the City, its agents, servants
and employees from and against any claim, demand or cause of action of whatsoever
kind or nature arising out of error, omission, or negligent act of Concessionaire, and/or
its vendors, agents, servants, employees and/or subcontractors and/or sub-
concessionaires pursuant to, as a result of, or in connection with the operations
contemplated under this Agreement.
12.2 In addition, in consideration of a separate and specific consideration of$10.00 and other
good and valuable consideration the receipt and sufficiency of which are hereby
acknowledged, Concessionaire shall indemnify, hold harmless and defend the City, its
agents, servants or employees, from and against any claim, demand or cause of action
of whatever kind or nature arising out of any misconduct of Concessionaire, and/or its
vendors, agents, servants, employees and/or subcontractors and/or sub-
concessionaires, 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 Majeure.
Neither party shall be obligated to perform hereunder and neither party shall be deemed
to be in default if performance is prevented by:
a. fire which renders at least thirty percent(30%)of the Concessionaire's cumulative
facilities and operations unusable and which is not caused by negligence of
Concessionaire;
b. earthquake; hurricane; flood; act of God; civil commotion occurring on the
Concession Area during or in connection with any event or other matter or
condition of like nature; or
c. any law, ordinance, rule, regulation or order of any public or military authority
stemming from the existence of economic or energy controls, hostilities, or war.
12.6 Labor Dispute.
In the event of a labor dispute which results in a strike, picket or boycott affecting the
Concession Area or operation described in this Agreement, Concessionaire shall not
thereby be deemed to be in default or to have breached any part of this Agreement,
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unless such dispute shall have been caused by illegal labor practices or violations by
Concessionaire of applicable collective bargaining agreements and there has been a
final determination of such fact which is not cured by Concessionaire within thirty (30)
days.
12.7 Waiver of Loss from Hazards.
The Concessionaire hereby expressly waives all claims against the City for loss or
damage sustained by the Concessionaire resulting from fire, water, natural
disasters/acts of God (e.g. hurricane, tornado, etc.), civil commotion, riot, or any other
Force Majeure contemplated in Subsection 12.5 and Labor Dispute in Subsection 12.6
above, and the Concessionaire hereby expressly waives all rights, claims, and demands
against the City and forever releases and discharges the City of Miami Beach, Florida,
from all demands, claims, actions and causes of action arising from any of the aforesaid
causes.
SECTION 13. DEFAULT AND TERMINATION.
Subsections 13.1 through 13.3 shall constitute events of default under this Agreement. An event of
default by Concessionaire shall entitle City to exercise any and all remedies described as City's
remedies under this Agreement, including but not limited to those set forth in Subsection 13.4. An
event of default by City shall entitle Concessionaire to exercise any and all remedies described as
Concessionaire's remedies under this Agreement, including but not limited to those set forth in
Subsection 13.5.
13.1 Bankruptcy.
If either the City or Concessionaire shall be adjudged bankrupt or insolvent, or if any
receiver or trustee of all or any part of the business property of either party shall be
appointed, or if any receiver of all or any part of the business property shall be appointed
and shall not be discharged within sixty (60) days after appointment, or if either party
shall make an assignment of its property for the benefit of creditors, or shall file a
voluntary petition in bankruptcy, or insolvency, or shall apply for reorganization or
arrangement with its creditors under the bankruptcy or insolvency laws now in force or
hereinafter enacted, Federal, State, or otherwise, or if such petitions shall be filed
against either party and shall not be dismissed within sixty (60) days after such filing,
then the other party may immediately, or at any time thereafter, and without further
demand or notice, terminate this Agreement without being prejudiced as to any
remedies which may be available to it for breach of contract.
13.2 Default in Payment.
In the event Concessionaire fails to submit any payment within five (5) days of its due
date, there shall be a late charge of$50.00, in addition to interest at the rate of eighteen
percent(18%) per annum or the highest rate allowable by Florida law,whichever is less.
If any payment and accumulated penalties are not received within fifteen(15)days after
the payment due date, and such failure continues three (3) days after written notice
thereof, then the City may, without further demand or notice, terminate this Concession
Agreement without being prejudiced as to any remedies which may be available to it for
breach of contract.
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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.
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.
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13.6 Termination for Convenience/Partial Termination.
13.6.1 Notwithstanding the provisions of this Section 13, this Agreement may be
terminated 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, including all or a portion of the Concession
Area, which may entail a closure of all or a portion of the right-of-way and
Concession Area, at the City Manager's sole discretion. In the event that the City
closes down the right-of-way, or any other portion of the Concession Area,for the
purpose of undertaking a capital improvement plan thereon, then the parties
agree that that portion of the Agreement referencing said individual Concession
Area shall be partially terminated for convenience, without cause and without
penalty to either party, and only as to that portion of the Concession Area which
has been closed. Such a termination shall become effective upon thirty(30)days
prior written notice to Concessionaire.
13.6.3 In the event of termination or partial termination by City of the Agreement
pursuant to this Subsection, Concessionaire herein acknowledges and agrees
that it shall not have any claim, demand, or cause of action of whatsoever kind or
nature, against the City, its agents, servants and employees (including, but not
limited to, claims for interference in business or damages for interruption of
services or interference in its concession operations by Concessionaire or its
vendors). However, if it is determined, via a contract year end-review, that a
termination or partial termination results in a decrease to the gross revenues
derived by the Concessionaire, then Concessionaire's MG amount due to the
City, pursuant to Section 4.3, shall be reduced proportionately equal to the
percentage of Concession Area that was terminated or partially terminated and
for the period of time of said partial termination.
13.6.4 In the event of termination for convenience by Concessionaire pursuant to
Subsection 13.6.1, Concessionaire herein acknowledges and agrees that it shall
not have any claim, demand, or cause of action of whatsoever kind or nature,
against the City, its agents, servants and employees. Moreover, Concessionaire's
MG amount due to the City, pursuant to Section 4.3, shall be reduced
proportionately equal to the period of time remaining on the current Term of this
Agreement.
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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/her
designee unless a longer time period is agreed to by the City. Concessionaire's
obligation to observe or perform this covenant shall survive the expiration or other
termination of this Agreement. Continued occupancy of the Concession Area(or portion
thereof) after termination (or partial termination) of the Agreement shall constitute
trespass by the Concessionaire, and may be prosecuted as such. In addition, the
Concessionaire shall pay to the City one thousand dollars($1,000)per day as liquidated
damages for such trespass and holding over.
SECTION 14. ASSIGNMENT.
Except as otherwise provided in this Subsection, or in the Agreement, Concessionaire shall not assign,
sublease, grant any concession or license, permit the use of by any other person other than
Concessionaire, or otherwise transfer all or any portion of this Agreement and/or of the Concession
Area without the prior written consent of the City Manager, which consent, if given at all, shall be at
his/her sole discretion.
Concessionaire shall notify the City Manager or his designee of any proposed transfer, prior to
consummation of same and the City or the City Manager or his designee, as applicable, shall respond
within thirty(30)days. In the event that any such transfer is approved,the transferee shall agree to be
bound by all the covenants of this Agreement required of the transferor hereunder. Any transfer made
without complying with this Section shall be null, void, and of no effect and shall constitute an act of
default under this Agreement. Notwithstanding any such consent, or any permitted transfer under any
provision of this Section, unless expressly released by the City, Concessionaire shall remain jointly
and severally liable(along with each approved transferee,who shall automatically become liable for all
obligations of the transferor hereunder with respect to that portion of the Agreement so transferred),
and the City shall be permitted to enforce the provisions of this Agreement directly against
Concessionaire or any transferee of the Concessionaire without proceeding in any way against any
other person.
For purposes of this Section 14, Concessionaire's selection of vendors for the Market shall not be
deemed a transfer.
SECTION 15. SPECIAL EVENTS.
Concessionaire's proposed uses, as set forth in Section 3 herein, do not contemplate the production,
promotion or sponsorship by the Concessionaire of special events in any portion of the Concession
Area. In the event Concessionaire does produce, promote or sponsor a special event in the
Concession Area, it shall abide by the City's Special Events Permit Requirements and Guidelines, as
same may be amended from time to time. For any use, other than those permitted for in this
Agreement, a Special Events Permit may be required and shall be obtained through the City's
Department of Tourism, Culture and Economic Development Department. The City Manager's prior
written authorization must be obtained for any such special event.
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In the event that a special event and/or film permit is requested by an entity, other than the
Concessionaire, and the proposed special event and/or film production is scheduled to occur within all
or a portion of the Concession Area during Concessionaire's hours of operation, the Concessionaire
agrees to cooperate with the City and the special event permit applicant to allow use of the
Concession Area during the period of the special event, including set-up and break-down time.
15.1 City Special Events.
Notwithstanding Section 15 hereof, and in the event that the City Manager, in his/her
sole discretion, deems that it would be in the best interest of the City, the City reserves
the right to displace the Concessionaire for City produced special events and/or other
City produced productions. In such cases,the City may request that the Concessionaire
cease and desist operations during the time of, and in the area of, the special event
and/or production, and the Concessionaire shall not operate during said time. If the
Concessionaire is not required to close, Concessionaire shall only be allowed to have in
operation its normal daily complement of Facilities and vendors. "Normal" shall be
defined as Facilities and vendors that the Concessionaire has available for the public on
a normal Market day. Such Facilities and vendors shall not be increased during special
events and/or productions without the prior written permission of the City Manager or
his/her designee.
Notwithstanding anything to the contrary, if a special event occurs in all or any portion of
any Concession Area, Concessionaire shall not be liable for any charge, fee or other
expense, governmental or otherwise, in connection with such special event.
15.2 Street Vendors / Street Performers.
Any locations within the Concession Area identified by the City for non-Concessionaire
sponsored street vendors and/or street performers, in accordance with City of Miami
Beach Ordinance No. 2002-3366, as may be amended from time to time,or otherwise in
accordance with the City's respective rules, regulations, and guidelines associated
therewith, as same may also be amended from time to time, are excluded from this
Agreement, and Concessionaire shall not interfere or otherwise prohibit said street
vendors and/or street performers' activities upon such designated portions of the public
right-of-way. Similarly, Concessionaire shall not prohibit or otherwise interfere with the
activities of any street vendors and/or street performers who may not be part of a City of
Miami Beach permitted process, but who may have certain constitutionally protected
rights to perform and/or offer for sale their wares on public rights-of-way.
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SECTION 16. NO IMPROPER USE.
The Concessionaire will not use, nor suffer or permit any person to use in any manner whatsoever,the
Concession Area, operations, or facilities for any improper, immoral or offensive purpose, or for any
purpose in violation of any Federal, State, County, or Municipal ordinance, rule, order or regulation,or
of any governmental rule or regulation now in effect or hereafter enacted or adopted. The
Concessionaire will protect, indemnify, and forever save and keep harmless the City, its agents,
employees and contractors from and against damage, penalty, fine, judgment, expense or charge
suffered, imposed, assessed or incurred for any violation, or breach of any law, ordinance, rule, order
or regulation occasioned by any act, neglect or omission of the Concessionaire, its vendors,
employees, agents, and/or subcontractors regarding the Concession. In the event of any violation by
the Concessionaire, or if the City or its authorized representative shall deem any conduct on the part of
the Concessionaire, its vendors, agents, employees and/or subcontractors, to be objectionable or
improper, the City shall have the option, at its sole discretion, to either(i)automatically terminate the
Agreement, upon prior written notice to Concessionaire, or to (ii)suspend the concession operations
should the Concessionaire fail to correct any such violation, conduct, or practice to the satisfaction of
the City within twenty-four (24) hours after receiving written notice of the nature and extent of such
violation, conduct, or practice, and such suspension shall continue until the violation is cured. The
Concessionaire further agrees not to commence operations during the suspension until the violation
has been corrected to the satisfaction of the City.
SECTION 17. PRICE SCHEDULES.
Concessionaire agrees that prices charged for facilities and or space(booth)rental, be consistent with
the price schedule(s) herein submitted by the Concessionaire and approved by the City and
incorporated herein as Exhibit 3.1 to this Agreement. All subsequent price increases and
amendments to Exhibit 3.1 must be approved in writing by the City Manager,or his designee, and prior
to such changes being implemented within the Concession Area a new updated Exhibit 3.1 will be
incorporated into this Agreement. Notwithstanding the foregoing, Concessionaire agrees and
acknowledges that any discounted prices it may offer for the rental of facilities shall not in any way
reduce the amount of remuneration due to the City, including but not limited to the Percentage of
Gross (Section 4.2), which shall be based and calculated on the prices set forth in said Exhibit 3.1
Rain Discounts of up to 50% of fees is approved by the City of Miami Beach.
The Concessionaire agrees to refrain from the sale or rental of any item identified as prohibited by City
law and/or other applicable law and to sell only those items approved by the City.
SECTION 18. NOTICES.
All notices from the City to the Concessionaire shall be deemed duly served upon receipt, if mailed by
registered or certified mail with a return receipt to the Concessionaire at the following address:
Ms. Claire Tomlin, President
The Market Company
238 East San Marino Dr
Miami Beach, Florida 33139
25
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
City of Miami Beach
1700 Convention Center Drive
Miami Beach, FL 33139
The Concessionaire and the City may change the above mailing address at any time upon giving the
other party written notification. All notices under this Concession Agreement must be in writing.
SECTION 19. LAWS.
19.1 Compliance.
Concessionaire shall comply with all applicable City, Miami-Dade County, State, and Federal
ordinances, statutes, rules and regulations, including but not limited to all applicable environmental
City, County, State, and Federal ordinances, statutes, rules and regulations.
19.2 Governing Law.
This Agreement shall be deemed to have been made and shall be construed and
interpreted in accordance with the laws of the State of Florida. In case of any
inconsistency between the terms of this Agreement, and any applicable general or
special law, said general or special law shall govern, unless otherwise provided herein.
•
19.3 Equal Employment Opportunity.
Neither Concessionaire nor any affiliate of Concessionaire performing services
hereunder, or pursuant hereto, will discriminate against any employee or applicant for
employment because of race, creed, sex, color, national origin, sexual orientation, and
disability, as defined in Title I of ADA. Concessionaire will take affirmative steps to utilize
minorities and females in the work force and in correlative business enterprises.
19.4 No Discrimination.
The Concessionaire agrees that there shall be no discrimination as to race, sex, sexual
orientation, color, creed, national origin, familial status, religion or handicap, in its
employment practice or in the operations referred to by this Concession Agreement; and
further, there shall be no discrimination regarding any use, service, maintenance, or
operation within the Concession Area. All concession operations and services offered
shall be made available to the public, subject to the right of the Concessionaire and the
City to establish and enforce rules and regulations to provide for the safety, orderly
operation and security of the operations and the facilities.
26
19.4.1 Pursuant to Sections 62-90 and 62-91, of Chapter 62, of the Miami Beach City
Code entitled "Human Relations", Concessionaire, by executing this Agreement,
certifies that it does not discriminate in its membership or policies based on race,
color, national origin, religion, sex, sexual orientation,familial status or handicap.
SECTION 20. MISCELLANEOUS.
20.1 No Partnership.
Nothing.contained in this Agreement shall constitute or be construed to be or create a
partnership or joint venture between the City and Concessionaire.
20.2 Modifications.
This Agreement cannot be changed or modified except by agreement in writing
executed by all parties hereto. Concessionaire acknowledges that no modification to
this Agreement may be agreed to by the City unless approved by the Mayor and City
Commission except where such authority has been expressly provided herein to the City
Manager or his designee.
20.3 Complete Agreement.
This Agreement, together with all exhibits incorporated hereto, constitutes all the
understandings and agreements of whatsoever nature or kind existing between the
parties with respect to Concessionaire's operations, as contemplated herein.
20.4 Headings.
The section, subsection and paragraph headings contained herein are for convenience
of reference only and are not intended to define, limit, or describe the scope or intent of
any provision of this Agreement.
20.5 Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and permitted assigns.
20.6 Clauses.
The illegality or invalidity of any term or any clause of this Agreement shall not affect the
validity of the remainder of the Agreement, and the Agreement shall remain in full force
and effect as if such illegal or invalid term or clause were not contained herein unless
the elimination of such provision detrimentally reduces the consideration that either party
is to receive under this Agreement or materially affects the continuing operation of this
Agreement.
20.7 Severability.
If any provision of this Agreement or any portion of such provision or the application
thereof to any person or circumstance shall be held to be invalid or unenforceable, or
shall become a violation of any local, State, or Federal laws, then the same as so
applied shall no longer be a part of this Agreement but the remainder of the Agreement,
such provisions and the application thereof to other persons or circumstances, shall not
be affected thereby and this Agreement as so modified remains in full force and effect.
27
20.8 Right of Entry.
The City, at the direction of the City Manager, shall at all times during days and hours of
operation, have the right to enter into and upon any and all parts of the Concession Area
for the purposes of examining the same for any reason relating to the obligations of
parties to this Agreement.
20.9 Not a Lease.
It is expressly understood and agreed that no part, parcel, building,facility, equipment or
space is leased to the Concessionaire, that it is a concessionaire and not a lessee; that
the Concessionaire's right to operate the concession shall continue only so long as this
Agreement remains in effect.
20.10 Signage.
Concessionaire shall provide, at its sole cost and expense, any required signs at its
concessions. All advertising, signage and postings shall be approved, in writing, by the
City in its proprietary capacity, and shall be in accordance with all applicable Municipal,
County, State and Federal laws and regulations.Any signage posted by Concessionaire
on its facilities and equipment shall be subject to the prior approval of the City as to size,
shape and placement of same.
20.11 Use of the Right-of-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.
20.12 Conflict of Interest.
Concessionaire shall perform its services under this Agreement and conduct the
concession operations contemplated herein, in a manner so as to show no preference
for other concession operations/facilities owned, operated, managed, or otherwise
controlled by Concessionaire with regard to its responsibilities pursuant to this
Concession Agreement.
20.13 Reasonableness.
Notwithstanding anything to the contrary in this Agreement, including but not limited to
references to "sole option" or "sole discretion" or words of similar meaning, in each
instance in which the approval or consent or other action of the City Commission or the
City Manager or his designee is allowed or required in this Agreement, such approval,
consent or other action shall not be unreasonably withheld, conditioned or delayed.
20.14 Procedure for Approvals and/or Consents.
Intentionally Omitted.
28
20.15 No Waiver.
No waiver of any covenant or condition of this Agreement by either party shall be
deemed to imply or constitute a waiver in the future of the same covenant or condition or
of any other covenant or condition of this Agreement.
20.16 No Third Party Beneficiary.
Nothing in this Agreement shall confer upon any person or entity, including, but not
limited to subconcessionaires, other than the parties hereto and their respective
successors and permitted assigns, any rights or remedies by reason of this Agreement.
20.17 Attorneys' Fees.
If it becomes necessary for City or Concessionaire to enforce their respective rights
under this Agreement or any part hereof through litigation, Concessionaire and City
agree that the prevailing party shall be entitled to recover from the other party all costs
and expenses of such litigation, including a reasonable attorneys' fee and costs, for all
trial and appellate proceedings.
SECTION 21. LIMITATION OF LIABILITY.
The City desires to enter into this Agreement only if in so doing the City can place a limit on its liability
for any cause of action for breach of this Agreement, so that its liability for any such breach never
exceeds the sum of $10,000.00. Concessionaire hereby expresses its willingness to enter into this
Agreement with a$10,000.00 limitation on recovery for any action for breach of contract. Accordingly,
and in consideration of the separate consideration of $10.00, the receipt of which is hereby
acknowledged, the City shall not be liable to Concessionaire for damages to Concessionaire in an
amount in excess of$10,000.00,for any action for breach of contract arising out of the performance or
non-performance of any obligations imposed upon the City by this Agreement. Nothing contained in
this paragraph or elsewhere in this Agreement is in any way intended to be a waiver of limitation
placed upon the City's liability as set forth in Florida Statutes Section 768.28.
SECTION 22. VENUE.
This Agreement shall be enforceable in Miami-Dade County, Florida, and if legal action is necessary
by either party with respect to the enforcement of any and all the terms or conditions herein, exclusive
venue for the enforcement of same shall lie in Miami-Dade County, Florida. CITY AND
CONCESSIONAIRE HEREBY KNOWINGLY AND INTENTIONALLY WAIVE THE RIGHT TO TRIAL
BY JURY IN ANY ACTION OR PROCEEDING THAT CITY AND CONCESSIONAIRE MAY HEREIN
AFTER INSTITUTE AGAINST EACH OTHER WITH RESPECT TO ANY MATTER ARISING OUT OF
OR RELATED TO THIS AGREEMENT OR THE CONCESSION AREA(S).
SECTION 23. 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
29
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 24. PROHIBITIONS REGARDING SALE OR USE OF EXPANDED POLYSTYRENE FOOD
SERVICE ARTICLES.
Pursuant to Section 82-7 of the City Code, as may be amended from time to time, effective August 2,
2014, the City has prohibited the use of expanded polystyrene food service articles by City
Contractors, in connection with any City contract, lease, concession agreement or Special event
permit. Additionally, pursuant to Section 82-385 of the City Code, as may be amended from time to
time, no polystyrene food service articles will be allowed in the right-of-way, and no polystyrene food
service articles can be provided to sidewalk café patrons.
Expanded polystyrene is a petroleum byproduct commonly known as Styrofoam. Expanded
polystyrene is more particularly defined as blown polystyrene and expanded and extruded foams that
are thermoplastic petrochemical materials utilizing a styrene monomer and processed by 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 24. 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.
Additionally, Concessionaire agrees to comply(and ensure compliance by its vendors)with Section
46-92 (c) of the City Code, which states that it is unlawful for any person to carry any expanded
polystyrene product onto any beach or into any park within the City or for any business to provide
plastic straws with the service or delivery of any beverage to patrons on the beach.
30
IN WITNESS WHEREOF, the parties hereto have caused their names to be signed and their seals to
be affixed, all as of the day and year first above written, indicating their agreement.
Attest: CII OF MI A I!a I BEACH
I 0440
RAFAEL E. G NI . , JIM Y L. MORALES,
CITY CLERK , CITY MANAGER
4
Date: 17 1 s
• �
Attest: THE MARKET COMPANY, INC.
j// :&41
_ . ,„;( 2/iZate
Signature/ ecretary Signature/President
DONALD Tiv4L/04) &a.(te- ow)
- LGt/-
Print Name Print ame
Date: 4 t
JMG/CMC/JD/rjg
APPROVED AS TO
FORM & LANGUAGE
FOR EXECUTION
►•
4 -itCity Attor is � e neY De
F:\RHCD\$ALL\ECON\$ALL\ASSET\Markets\South Pointe\South of Fifth Street Market agreement 2015_04_16_Final.docx
31
EXHIBIT 2.0
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5
32
EXHIBIT 3.1
SOUTH OF 5TH STREET MARKET FEE SCHEDULE
(Rental Fee Schedule)
South of 5th Street Market- Fee Schedule
Type Vendor Fee Tax Total
Excellent Potential $ 70.09 $ 4.91 $ 75.00
Good Potential $ 50.47 $ 3.53 $ 54.00
Medium Potential $ 40.19 $ 2.81 $ 43.00
Questionable Potential $ 29.91 $ 2.09 $ 32.00
New fruit&veg vendor may be $ 23.36 $ 1.64 $ 25.00
charged this minimal fee for up
to 6 months. The Market
Manager may charge this
minimal fee for up to 6 months
for other specialty products.
Winter fees have not been
determined as yet but probably
will be higher.
The fee is for a 10 X 10 canopy. Additional canopies are a total of$20
including tax.
Rain Discounts for up to 50% of the fee are approved by the City of Miami Beach.
33
EXHIBIT 3.1 .1
1
5th South of 5 Street MARKET FACILITIES DESIGN/LAYOUT
.'c � � U,� at j�n� ���t-', 7i(,�,g. �' s,,�,�Fy�_. I�7Pt fy`,� , Y.--,i`,., ,
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34
EXHIBIT 3.1 .2.1
(Page 1 of 2)
(Special Events Disability Access Punch List)
Special Events Disability Access Punch List
1. Ensure curb cuts and cross walks are kept free and clear for usage, with a
continuous accessible route of 44 inches in width.
2. The Event Producer must ensure that any nearby accessible on- or off-
street parking ("handicapped parking") is not obstructed by vehicles
loading/unloading equipment, etc. If such obstructions occur, the Event
Producer must see that such obstructions are removed immediately. -
Accessible parking spaces shall be connected to the site's continuous
accessible route, with no obstructions between the. accessible parking
spaces and 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 level at a 1:2 ratio or provide a ramp
with a slope not to exceed a 1:12 ratio. This is necessary to allow passage
of wheelchairs or strollers and prevent tripping or the catching of walkers
and canes. Any ramps provided must be in compliance with all Florida
Accessibility Code requirements, including, but not limited to,
requirements regarding edge protection, handrails, and surface.
4. Provide a smooth transition between temporary pathways and any ramps,
sidewalks, streets, or parking lots. This means no change in level
exceeding a inch. Any change exceeding 14 inch requires beveling at a
1:2 ratio or the installation of a ramp with a slope not to exceed a 1:12
ratio. Any ramps provided must be in compliance with all Florida
Accessibility Code requirements, including, but not limited to,
requirements regarding edge protection, handrails, and surface.
5. All cashier counters (counters where money transactions occur) must be
no higher than 36 inches maximum above finish floor, to a minimum
length of 36 inches.
6. Maintain an accessible route for access to merchandise that is both within
a vendor space, as well as merchandise not contained within a vendor
space, If the overflow of merchandise for patron viewing is placed behind
a booth, then provide. adjacent access to the merchandise via a curb
ramp, as well as the placement of a pathway with a stable and firm
surface necessary for the use of wheelchairs and mobility aids.
7. Merchandise for display should be within a line of sight no higher than 48
inches for persons of short stature or wheelchair users. If merchandise is
35
EXHIBIT 3.1 .2.1
(Page 2 of 2)
(Special Events Disability Access Punch List)
displayed higher than 48 inches, merchant must provide assistance to
disabled customers in order to reach kerns.
8. All vendor spaces shall be located on an accessible route that is a
minimum of 44 inches wide.
9. If tables and seating are provided for the consumption of food, all aisles
adjacent to accessible fixed seating shall provide 30 inch by 48 inch clear
floor space for wheelchairs, Where there are open positions along both
sides of such aisles, the aisles shall be not less than 52 inches wide.
10.For wheelchair seating spaces provided at tables or counters, knee
spaces at least 27 inches high, 30 inches wide, t
g' � and 19 inches deep shatl
be provided. The tops of accessible tables and counters shall be from 28
inches to 34 inches above the finish floor or ground.
11.W here food or drink is served at counters exceeding 34 inches in height
for consumption by customers seated on stools or standing at the counter,
a portion of the main counter which is 80 inches in length minimum shall
be provided in compliance with the requirements of Items #9 and #10
above, or service shall be available at accessible tables within the same
area,
Where portable toilets are provided, an accessible route shall be provided
to the toilets. Five percent of the total number of toilets must be
accessible. If clusters of portable toilets are distributed throughout the site,
then each cluster must have accessible units.
13.1f general assembly seating or standing space is provided for audience
members attending a public performance at a special event, reserved
wheelchair seating must be provided. Such seating must be provided in a
location that allows wheelchair users an unobstructed line of sight to the
stage. If seating capacity accommodates greater than 300 persons, then
accessible seating shall be dispersed throughout the venue.
36
EXHIBIT 3.2.1
(Product List)
South of 5th Street Market Product List
All products represented for sale in the Market must comply with Section 3.2 Permitted Concession Operations/Uses of the
Management and Operations Agreement. Products listed as part of this Exhibit are not intended to be outside of the stated
definitions of Arts and Crafts; individually hand-crafted and not commercially mass produced,Cut Flowers and Plants;and
Fruits, Vegetables, Other Edible Products. Edible Products must not include commercially-made products.
Baked Goods
Bonsai
Candles
Cheese
Christmas Trees
Cut Flowers
Ethnic Products(i.e. clothing—not commercially mass produced)
Fish &Shellfish as produce and cooked food
Fruits &Vegetables
Guacamole
Candies(handmade)
Herbs&Spices
Honey
Food Products (imported, handmade, cooked)
Jams&Jellies
Jewelry
Kettle Corn
Nuts
Oils & Marinades
Orchids
Organic Food Products
Original Artwork
Plants &Trees
Popcorn
Potpourri (handmade)
Smoothies, Fruit Juice, Teas& Lemonade
Soaps (natural, handmade)
Topiaries
Vegan Products
Vegetarian Soy Meat
Water Gardens
Water and other bottles or cans of non-alcohol drinks
(These must be Coca Cola Products only)
Brand name beverages and coffee products must be Coca-Cola products as set forth in Exhibit"B" incorporated herein.
•
37
EXHIBIT A
(Page 1 of 5)
(Vendor Guidelines)
of 5
The Market Company, Inc.
238 E.San Marino Drive/Miami Beach,FL 33139(mailing address)
(0)305/531-0038 (F)305/576-9792
APPLICATION & AGREEMENT
Applicant:
Address:
City: State: Zip Code:
Business Name:
State of Florida Sales Tax#: (Copy Must Accompany Application)
Mobile Vending Permit (for all edible products)
Phone: E-Mail:
Fax: Cell:
Market(s)of Interest
Merchandise to be sold:
(Please continue on back of this page if necessary and initial your work).
I hereby agree to sell only such items that are approved with my application. I swear that all information is
correct and complete.I hereby affirm that I have read the regulations and potties as outlined and agree to abide
by all rules established for the operation of the markets. I further acknowledge that I am an independent
contractor and take full responsibility for all activities conducted and agree to hold harmless and indemnify The
Market Company, its owners,agents and employees,and any municipality or property owner from all liability
arising from participation and sales in the market
Name: Signature:
Date:
Note:Violation or falsification of any of the conditions set forth in this legal agreement will result in the
immediate and permanent loss of permission to sell any product at markets sponsored by The Market
Company,Inc.
38
EXHIBIT A
(Page 2 of 5)
(Vendor Guidelines)
The Market Company, Inc.
238 E.San Marino Drive/Miami Beach, FL 33139(mailing address)
(0)305/531-0038 (F)3051576-9792
Vendor Requirements
Definition of Vendor: Vendors are all persons selling in a market area managed by The
Market Company including merchants who own stores and/or businesses. All vendors must
meet these requirements.
Market Location&Times: .Determined by each individual market
The Market Company has permits with several municipalities and property owners that
designate set-up and break down times that also means no more selling Vendors that do
not follow these times may be fined or terminated from the market(s).
Market Fee Payment: Market fees paid in advance will reserve a space in the markets.Fees
can be paid in cash,check or credit card (automatic credit card deductions can be arranged).
If a vendor cannot attend a market for which payment has been made, cancellation made 48
hours in advance of the official start of the set up time will transfer the paid funds to the next
market date. Funds will be forfeited if cancellation is not made on time. Vendors who have
reserved a space in a market owe for their space unless cancelled 48 hours in advance of the
start of the official market set up time. Vendors who do not pay in advance but choose to
come and obtain an unreserved space will pay at a time designated by the Market Manager
and will be assigned a space if available.
Markets Operate Rain or Shine. If a vendor elects to set up for product sales, even if rain
reduces sales,a minimum fee of 50%will be charged. In the case of advanced payment,if a
vendor questions whether a market will be set up due to rain, he should call the market
coordinator to protect his funds.
Vendor Spaces: The Market Company assigns vendor spaces not the vendor. A vendor
may be moved at any time the business requires it If a vendor misses two market days with
his previously assigned space, if not being used, will be forfeited and the vendor must re-
apply for a market space.
Additional Markets: Vendors are welcomed to participate in multiple markets. For a vendor
to be eligible to be in additional markets he must be prepared to stay in his original market
and apply to the additional markets.
Vendor Display Area: Vendors furnish their own tents, umbrellas, tables, cloths, carts,
chairs, displays,trash cans,brooms and trash bags. Market standards are white 10x10 tents
(Insta-shade, EZUp),green market umbrellas with stands and green table skirts(Dade Towel
305/751-1284). Market aesthetics are very important. White tablecloths can be purchased
from The Market Company.
Vendor initials
39
EXHIBIT A
(Page 3 of 5)
(Vendor Guidelines)
3of5
Tents and Umbrellas: Vendor's tents and umbrellas must be weighed down immediately after set-up
to maintain public safety. Any vendor who delays weighing down their tent or umbrella may be fined
$50 for the first occurrence and $100 for each subsequent occurrence_ in addition. a vendor who
does not comply with this requirement may be reported to the police for endangering the public and/or
terminated from any or all of our markets.
Vendor Electricity: Vendors who need electricity may make a request to The Market Company
representative for access to an approved electrical outlet_Vendors must provide heavy-duty grounded
cords and a heavy-duty grounded connector. Cords exposed on the sidewalk or street must be
covered to protect the public.Vendors who provide light can use up to 300 watts per 10'x10' booth.
There is a$5.00/day fee for electricity for some markets_
Vendors Space:A single space is 10'x 10'and all tables and merchandise must fit within the space
to be considered one space. Under rare circumstances, a vendor may be allowed to shade their
product or provide an area for the public to sit but these will be approved on an individual basis.
Vendor Behavior: Vendors must dress appropriately with shirts on at all times_ Alcoholic
beverage consumption by vendors is not allowed.
Vendor Clean-up: Vendors are responsible for removal of all trash related to their stand.
They are not to use public trash cans. They are to leave their immediate area clean at all
times.Vendors are advised to bring their own trash receptacle and broom_
Vendor Approval: An appointment must be made with The Market Company to review the
requirements and vendor products.The Market Company application and agreement must be
completed and signed_ Upon acceptance vendor will be allowed to participate in the market_
Signs/Pricing: Products must be priced either individually, by basket/crate or on a posted
sign_Signs will be on white background only_
State Sales Tax and Food Handling Permits: Vendors must provide The Market Company
with a copy of all such licenses when filing their application and must provide rnpies of the
annual renewals_ If a vendor does not follow the state guidelines for food handling,they must
leave the market_
Parking: Following loading/unloading, vendor's vehicles must be removed from
loading/unloading areas_
Agreement with Relevant Contractors/Associations: The markets are designed as
economic development for the area in Mich they are located_ If there is a complaint from
merchants about a particular vendor selling products that interfere with their business, The
Market Company may ask a vendor to no longer participate in the market_
Insurance: The Market Company has general liability insurance in the amount of
$1,000,000 pursuant to permit requirements of each location. This insurance protects The
Market Company and the specific municipality or corporation_
Vendors should carry their own gene ral liability insurance which covers property damage,
personal injury and product liability. Most farm/business policies cover activities at the
market_Check with your insurance carrier_
Vendor initials
40
EXHIBIT A
(Page 4 of 5)
(Vendor Guidelines)
4 of 5
a rket
company
Minsrio't Prtrmi r Speeiki Everitt rind Fe-tiro[Comp.ny
Addendum to the Market Company Vendor Regulations
Vendor Rules
Last Chance Agreement
In order to provide a safe, secure and pleasant environment, The Market Company requests
your cooperation in complying with the following vendor rules and regulations:
1. Vendor tents and umbrellas must be weighed down immediately after set up to protect the
public and other vendors.
2. The use of profanity,loud,rude,disruptive or threatening behavior by any vendor or participant
in the market is prohibited.
3. Appropriate dress,induding shirts and shoes or sandals,must be worn at all times.
4. Smoking while staffing a booth is prohibited.
5. The playing of loud radios that disturb the pleasant shopping experience is prohibited.
6. Taking unauthorized photographs or videos of vendors or their property is prohibited.
7. The display,selling or soliciting of anything pornographic in nature is prohibited.
8. Possession/consumption of alcoholic beverages and/or illegal substances is prohibited.
9. The carrying of weapon(s)of any kind,possession of any item defined as a weapon,whether
illegal or not is prohibited.
I understand and accept the conditions set forth in the Market Company Vendor Requirements
and Rules and this Last Chance Agreement.
Signed: Date:
The Market Company or its designee, reserves the right to request that those who refuse to
comply with the above conditions leave the market immediately.
41
EXHIBIT A
(Page 5 of 5)
(Vendor Guidelines)
5 of 5
IMPORTANT CONTACTS REMINDERS
SALES TAX NUMBER
Miami Service Center Bring ample change to the market
(305)470-5001 Bring drop cloths in case of rain
8175 NW 12th Street,Suite 119-Miami,FL 33126 Bring a broom&dustpan
www.myflorida.comldor Vendors remove all of their trash,
Public facilities are not used
PREPARED FOODS AND DRINKS LICENSE!
MOBILE VENDING PERMIT
Form DACS-14223
Stand-up and interact with clientele
www.doacs.state.fl.us All products must be first quality
Stands must be clean/orderly
SEAFOOD RETAIL LICENSE All food handling employees must
FL Fish and Wildlife Conservation be licensed
(850)487-3122 Tentsiumbrellas must be weighted
www.myfwc.com Get to know your neighboring
vendor trade off when bathroom
MARKET ONSITE COOKING LICENSE breaks are needed
STATE FLA DIV OF HOTELS AND RESTAURANTS
(850)487-1395
www.myfloridaliicense.comldbur
TABLE SKIRTING
Dade Towel Company
(305)751-1284-contact Karen
7000 NE 4th Ct.(at the West end of NE 70th St.off Biscayne Blvd.)
DARK GREEN TABLE SKIRTS
WHITE TABLE CLOTHS.(Can be purchased from The Market Company for$15 each)
TENTS 10'x 10'+4 heavy weights
ww.acade corn
WHITE TENTS and 4 weights
MARKET UMBRELLAS AND BASES
Home Depot or The Market Company
www.lovemypatio.com
DARK GREEN
6FT FOLDING TABLES
Home Depot
BANNER SIGNS
Bing Banner
httn://www.bingbanners.com/
We have had GREAT results from this inexpensive maker
Approximate size 10'x 1'
42
EXHIBIT B
Page 1 of 3
(Coca-Cola 2014 Product List)
: SMART WATER
20oz Bottles/24 Case 20oz Bottles 24/case
Coca-Cola Classic 750 ML Sportscap 24/Case
Coke Zero 1.0 L 12/case
Vanilla Coke 1.5 L.12/case
Cherry Coke Zico Coconut Water
Cherry Coke Zero 14oz PET Ntl,Choc,Pineapple 12/case
Diet Coke 11.2oz Tetra Ntl 12/case _
Caffeine Free Diet Coke 1.0 L Ntl,Choc 12/case
Diet Coke w/Lime Minute Maid 100%Juice
Sprite 15.2oz/450ML;Plastic 24/case
Sprite Zero 100%Orange Juice
Mello Yello _ „ . 100%Apple Juice
Barqs Root Beer 11;8@ ; g_100%Cranberry Apple Raspberry
Pibb Xtra 100%Cranberry Grape
Seagram's Ginger Ale 100%Ruby Red Grapefruit
Fanta Orange 100%Strawberry Passionfruit
Fanta Orange Zero Tropical Blend
Fanta Grape Berry Blend
Fanta Strawberry - Core Power,11.5oz.12pk
Minute Maid Lemonade Lite Platform
Minute Maid Pink Lemonade Chocolate
Minute Maid Fruit Punch Strawberry Banana Q"®B_
Fuze Sweet Tea Core Platform
Fuze Lemon Tea Chocolate
Fuze Diet Tea Vanilla
Fuze Strawberry Tea Banana
s r DASARII `` Glaceau Fruitwater,16.9oz.l2pk
20oz Bottle 24/case Black Raspberry
330 m!24/case =MEE Orange Mango
16.9oz(.SLiter)Bottles 24/case DA c I Strawberry Kiwi
12oz Bottles/24 case Lemon-Lime
1L 12 per case Watermelon Punch
Flavors Powerade
Lemon 20oz Bottles 24 case also available in 32oz&12oz.
Strawberry Mountain Blast
Dasani:Drops Fruit Punch
1.9oz.6pk Lemon Lime IOWERADE.
Strawberry Kiwi Orange
Mixed Berry 0.0 + Strawberry Lemonade
Pineapple Coconut z';:3 C Grape
Pink Lemonade '" ' Powerade Zero
Grape Fruit Punch(Red)
Cherry Pomegrante Grape(purple)
Mixed Berry(Blue)
EXHIBIT B
Page 2 of 3
43
(Coca-Cola 2014 Product List)
FUZE Monster,Muscle
16.9oz/12 per Case 15oz.Cans 12/case
Strawberry Melon Chocolat114
Peach Mango 0 0 0 0 • Coffee xg"
Tropical Punch FUZE Vanilla
Cranberry Raspberry Powerade Zero Drops
HEALTHY INruzIONS
Blue Raspberry Mountain Berry
pp4
Acai Berry Pomegrandte Fruit Punch ,1E' iI'
�' TT ENERGY Orange
16oz 24 per case " HONEST TEA
Full Throttle Zero Cal Lemonade
Black(original) Honey Green Tea
Blue Agave Peach White Tea
16oz.12 per case Half n Half Tea Be Rent.Get Honest.
Red Berry Not 2 Sweet
NOS Raspberry
16oz Cans 24/case Honest Aid
Original(Orange Mango) 16.9oz 12/Case
Grape Pomegranate Blue Berry
16oz Cans 12/case Orange Mango
Charged Citrus Superfruit
Sugar Free VITAMINWATER
Loaded Cherry 20 oz Bottles 24/Case
MONSTER XXX(Blueberry Pomegranate)
16oz.Cans 24/case Power C.(Dragon Fruit)
Original-Green Focus(Kiwi Strawberry)
Lo Carb-Blue I "`M,$NSTFR Essential(Orange)
Assault-Red - Energy(Tropical Citrus)
Khaos-orange Multi-V(Lemonade)
Absolute Zero-Blue/Purple Revive(Fruit Punch)
Absolute Ultra-White Defense(Raspberry Apple)
15.2oz Cans 24/case Attention
Rehab-Half Tea Half Lemonade VW Zero-(ZERO Calories per serving)
Rehab-Orangeade 20oz Bottles:24/Case
Rehab-Green Tea Squeezed(Lemonade)
Rehab-Rojo Red Tea XXX(Blueberry Pomegranate)
Monster Java Go Go(Mixed Berry)
15oz.Cans.12/case Glow
Mean Bean Mega-C(GrapeRsberry)
Loca Moca in Rise(Orange)
Vanilla Light msNsrrER 16.9oz.6pk/24 case
Toffee XXX-XXX Zero
Kona Blend Power C.
Irish Blend Revive
Rise Zero
EXHIBIT B
Page 3of3
(Coca-Cola 2014 Product List)
44
;; _: �: Peace Teas
8oz GLASS Bottles 23oz.Cans/12 case
24 per Case ,Caddy Shack(half&half)
Coca-Cola Classic Texas Tea(sweet tea)
Diet Coke Pink Lemonade oa
Sprite Razzleberry(raspberry)
illy Coffee,12/case, Snowberry(white berry) �` �-
Cappuchino Georgia Peach `_
Lattee Macchiato Green Tea
Mochaccino Sweet Lemon
Caffe Gold Peak Tea
12ozCans 24/case 18.5oz Bottle 12/case
Coca-Cola Classic Sweet
Coke Zero Lemon
Caffeine Free Classic Diet
Vanilla Coke Green
Cherry Coke Unsweet
Cherry Coke Zero Tum=E-Vummies
Diet Coke 10.1oz.12/case
Diet Coke w/Splenda Fruit Punch
Caffeine Free diet Coke Green Apple
Diet Coke w/Lime Orange
Tab Sour Raspberry
Sprite Very Berry
Sprite Zero(Diet) Mexican Coke
Fresca .355mL 24pk
Fresca w/Peach Coke de Mexico
Fresca w/Black Cherry Fanta Orange de Mexico
Barq's Root Beer Sprite de Mexico
Diet Barq's Root Beer
Pibb Xtra
Pibb Zero
Minute Maid Lemonade
Minute Maid Pink Lemonade
Minute Maid Fruit Punch
M Maid Lite Lemonade
Fanata Orange
Fanta Strawberry
Fanta Grape
Fanta Orange Zero
Seagram's Ginger Ale
Seagram's Diet Ginger Ale
45
Filename: 81 D1 BD1 A
Directory:
C:\Users\INFOGonR\AppData\Local\Microsoft\Windows\Tempor
ary Internet Files\Content.MSO
Template: M:\$CMB\COMPCOMM\word_templates\Normal.dotm
Title: Concession Agreement for the Operation of South of 5th Street
Market
Subject:
Author: Raul Gonzalez
Keywords:
Comments:
Creation Date: 4/16/2015 3:49:00 PM
Change Number: 4
Last Saved On: 4/16/2015 3:58:00 PM
•
Last Saved By: Raul Gonzalez
Total Editing Time: 14 Minutes
Last Printed On: 4/16/2015 3:59:00 PM
As of Last Complete Printing
Number of Pages: 45
Number of Words: 12,761 (approx.)
Number of Characters: 72,741 (approx.)
•
RESOLUTION NO. 2014-28573
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, 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 OPERATIONS OF THE STREET MARKETS;
AUTHORIZING THE ADMINISTRATION TO ENTER INTO NEGOTIATIONS
WITH THE MARKET COMPANY INC. FOR THE GREEN MARKETS AT
LINCOLN ROAD, COLLINS PARK, NORMANDY VILLAGE ISLE, AND SOUTH
OF 5TH LOCATIONS, AND PRODUCTIONS SUD, INC., FOR THE LINCOLN
ROAD ANTIQUE AND COLLECTIBLES MARKET; AND FURTHER
AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT UPON
CONCLUSION OF SUCCESSFUL NEGOTIATIONS BY THE
ADMINISTRATION.
WHEREAS, on September 6, 2006, the Mayor and City Commission adopted
Resolution No. 2006-26281, awarding, pursuant to RFP 30-05/06, the operation and
management of the Green Markets on Lincoln Road, Espanola Way and Normandy Isle to the
Market Company Inc. ("Green Market Agreements"), and the operation and management for
the Antique and Collectibles Market on Lincoln Road to Production Sud, Inc. ("Production Sud
Agreement") (collectively referred to herein as"Street Markets"); and
WHEREAS, the City entered into four separate Management and Operating Agreements
governing each of the Street Markets, each commencing on October 1, 2006, and terminating
on September 9, 2009, (collectively, "Management Agreements"); and
WHEREAS, the Management Agreements provided for an extension of.the respective
terms for an additional three (3) years, which was approved by the City on July 1st, 2009; it
should be noted that shortly after the renewal options were approved, the Espanola Way Street
Market was closed due to lack of interest by the vendors; and
WHEREAS, the renewal terms were due to expire on September 30, 2012, and on
September 12, 2012, pursuant to the recommendation of the Finance and Citywide Projects
Commission Committee ("FCWPC"), the City Commission adopted Resolution No. 2012-27997,
extending the Management Agreements, on a month-to-month basis, for a period ending May
31, 2013; and
WHEREAS, staff required additional time to complete the RFP process and, on May
8, 2013, the City Commission adopted Resolution No. 2013-28212, further extending the
Management Agreements from June 1, 2013 until such time as new contracts for the Street
Market(s) were executed; and
WHEREAS, RFP 2013-317ME was issued on August 19, 2013, with an opening date of
October 31, 2013; and
WHEREAS, a pre-proposal conference was held on September 9, 2013; and
WHEREAS, the City received three (3) proposals; and
WHEREAS, on December 16, 2013, the City Manager via Letter to Commission (LTC)
No. 441-2013, appointed an Evaluation Committee (the "Committee"), which convened on
January 10, 2014 to consider proposals received and interview the proposers; and
WHEREAS, the Committee was provided an overview of the project, information relative
to the City's Cone of Silence Ordinance and the Government Sunshine Law; general information
on the scope of services, references, and a copy of each proposal; and engaged in a question
and answer session after the presentation of each proposer; and
WHEREAS, the Committee was instructed to score and rank each proposal pursuant to
the evaluation criteria established in the RFP; and
WHEREAS, the Committee's ranking for the Green Market locations were as follows;
Lincoln Road—The Market Company ranked first, and Florida Fresh, ranked second; Normandy
Village, Collins Park and South of 5th Street, The Market Company ranked first; and for the
Antique and Collectibles, Productions Sud, Inc., ranked first; and
WHEREAS, after reviewing all the submissions and the Evaluation Committee's and
rankings, the City Manager exercised his due diligence and is recommending that the Mayor
and the City Commission enter into negotiations with The Market Company for the Lincoln
Road, Collins Park, Normandy Village Isle, and South of 5th Street Green Markets, and
Productions Sud, Inc., for the Lincoln Road Antique and Collectibles Market.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY COMMISSION OF
THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City Commission hereby accept
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 operations of the Street
Markets ; authorizing the Administration to enter into negotiations with the Market Company for
the Green Markets at Lincoln Road, Collins Park, Normandy Village Isle, and South of 5th Street
locations, and Productions Sud, Inc., for the Lincoln Road Antique and Collectibles Market; and
further authorizing the City Manager to execute an Agreement upon conclusion of successful
negotiations by the Administration.
PASSED AND ADOPTED this day of April 2014.
ATTEST: r .-. / \O,
Rafa= Granado, City Clerk # I�G��P I ip Le ,' �}►
T\AGENDA\20141April\APRIL 23-PROC e.., T\RFP- : dpi t� �`=-`Markets-Resolution.doc
APPROVED AS TO
FORM&LANGUAGE G
&FOR EXECUTdir ION
City A 4 Date
dir
COMMISSION ITEM SUMMARY
Condensed Title:
A Resolution Of The Mayor And City Commission Of The City Of Miami Beach, Florida, Accepting The
Recommendation Of The City Manager Pertaining To The Ranking Of Proposals,Pursuant To Request For Proposals
(REP)No.317-2013ME,For The Management And Operations Of The Street Markets.
Key Intended Outcome Supported:
Increase satisfaction with Family Recreational Activities
Supporting Data(Surveys,Environmental Scan,etc: N/A
Item Summary/Recommendation:
On July 17,2013,the City Commission considered whether to issue the subject Request for Proposals(RFP). The item
was separated from the Consent Agenda for discussion and ultimately approved as amended and referred to the
subsequent Finance and Citywide Projects Committee(FCWPC)with direction to issue following FCWPC discussion.
The item was subsequently discussed at the July 25,2013 FCWPC meeting. The Committee reconfirmed a desire to
make the aforementioned changes and also discussed whether to relax the minimum qualifications requirement in order
to allow the greatest number of qualified responses. Accordingly,the administration deleted the Minimum Qualifications
of the RFP and instead the RFP required proposals to demonstrate experience in performing the services sought in this
RFP or a related business.
On August 12,2013,and since the City Commission approved the RFP subject to the FCWPC recommendation,the
City Manager issued LTC No.277-2013 to present the amended RFP to the Mayor and Commission prior to issuance.
RFP 2013-317ME was issued on August 19, 2014, with an opening date of October 31, 2013. A pre-proposal
conference to provide information to the proposers submitting a response was held on September 9,2013.The City
received three(3)proposals.
On December 16, 2013,the City Manager via Letter to Commission (LTC)No. 441-2013, appointed an Evaluation
Committee(the"Committee"),which convened on January 10,2014 to consider proposals received and interview the
proposers. The Committee was instructed to score and rank each proposal pursuant to the evaluation criteria
• established in the RFP.
RECOMMENDATION
After reviewing all the submissions and the Evaluation Committee's and rankings,the City Manager exercised his due
diligence and is recommending that the Mayor and the City Commission enter into negotiations with The Market
Company for Lincoln Road Green Market, Collins Park, Normandy Village Isle, and South of 5th location and
Productions Sud, Inc.,for the Lincoln Road Antique and Collectibles Market.
While there have been some concerns expressed about having street markets on Lincoln Road, including by some of
the property owners on Lincoln Road,the RFP,which was approved by the City Commission,included Lincoln Road as
one of the sites for which markets were to be considered.As such,the City Manager's recommendation is based on
the scope contained within the RFP.If the City Commission feels that Lincoln Road is not the proper location for either
or both the markets,however,this would be the appropriate time to provide such direction.
In reviewing this item, I am also cognizant of the audit issues the City had with Productions Sud,which operates the
antique market. Unfortunately,they were the only proponent for an antique market,thus Productions Sud is the only
option,if the City wishes to continue said market
ADOPT THE RESOLUTION.
Advisory Board Recommendation:
Financial Information:
Source of Amount Account
Funds: 1 N/A N/A
2
OBPI Total
Financial Impact Summary:The agreement will result in revenue to the City.As such,a funding allocation is not
designated.
City Clerk's Office Legislative Tracking:
Alex Denis, Extension 6641
Sign-Offs:
Department Director Assistant City Manager City nager
AD �, MS 1/ A KG: f' MT JL
T:IAGENDA120141Ap f 'RI "3-PROCUREMEN FP-317-2013 ME Street Markets-Sum - doc
4 •
MIAMIBEACH AGEND TEM R1S
rr// 2
DATE 71:23"/
MIAMIBEACH
City of Miami Beach, 1700-Convention Center Drive,Miami Beach,Florida 33139,www.miamibeachH.gov
COMMISSION MEMORANDUM
TO: Mayor Philip Levine and Members o the City •mmission
FROM: Jimmy L. Morales, City Manager
DATE: April 23, 2014
SUBJECT: A RESOLUTION OF THE MAYO AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, 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 OPERATIONS OF THE STREET MARKETS.
ADMINISTRATION RECOMMENDATION
Adopt the Resolution.
KEY INTENDED OUTCOME SUPPORTED
Increase satisfaction with Family Recreational Activities.
FUNDING
Not Applicable.
BACKGROUND
On September 6, 2006, the Mayor and City Commission adopted Resolution No. 2006-26281,
awarding, pursuant to RFP 30-05/06, the operation and management of the Green Markets on
Lincoln Road, Espanola Way and Normandy Isle to the Market Company ("Green Market
Agreements") and the operation and management for the Antique and Collectibles Market on
Lincoln Road to Productions Sud, Inc. ("Productions Sud Agreement") (collectively referred to
herein as "Street Markets").
The permitted uses for each Street Market is as follows:
Lincoln Road Green Market: includes fruits, vegetables, juices, nuts and other related
products; plants and cut flowers;
Espanola Way Street Market: included arts and crafts; cut flowers and plants; fruits,
juices, nuts, and other related products;
Normandy Village Street Market: includes arts and crafts; fruits, vegetables, cut flowers,
orchids and other related green market products; tropical fruit preserves, dressings, dried
fruits and nuts, honey and organic produce;
Antiques and Collectibles Market: includes antiques; vintage goods; and collectibles.
The City entered into four separate Management and Operating Agreements governing each
of the Street Markets, each commencing on October 1, 2006 and terminating on September 9,
2009, (collectively, "Management Agreements"). The Management Agreements provided for
an extension of the respective terms for an additional three (3) years, which was approved by
the City on July 1St, 2009. It should be noted that shortly after the renewal options were
approved, the Espanola Way Street Market was closed due to lack of interest by the vendors.
The renewal terms were due to expire on September 30, 2012 and on September 12, 2012,
•
Commission Memorandum—RFP#317-2013 Street Markets
April 23, 2014
Page 2
pursuant to the recommendation of the Finance and Citywide Projects Commission
Committee ("FCWPC"), the City Commission adopted Resolution No. 2012-27997, extending
the Management Agreements in effect, on a month-to-month basis, for a period ending May
31, 2013. The Resolution further authorized the Administration to begin working on a new
RFP process to solicit interest in managing and operating street markets on Miami Beach in
one or more of the four locations identified above, as well as to explore expanding the scope
to include other areas of the City, provided the identified locations have the support of the
respective neighborhood and/or neighborhood association, do not interfere with traffic
circulation and parking and don't pose any life-safety and/other code-related problems.
Staff required additional time to complete the RFP process and On May 8, 2013, the City
Commission adopted Resolution No. 2013-28212, extending the Management Agreements in
effect, from June 1, 2013 until such time as a new contract for the Street Market(s) was
executed.
For allowing the Street Markets to operate in their respective locations, the City receives rent
equivalent to the greater of a fixed percentage of concessionaire's gross receipts (PG) or an
established minimum guarantee (MG)as follows:
Market PG% MG FY 08/09 FY09/10 FY 10/11 FY 11/12 MG FY 12/13 FY 12/13
Lincoln Road Green Mkt. 15% $ 8,820.00 $ 9,530.00 10,338.00 $ 13,111.00 $19,735.23 $ 9,261.00 $19,979.79
Normandy Isle Mkt. 15% $ 3,675.00 $ 4,213.00 4,262.00 $ 4,258.00 $ 7,778.34 $ 3,858.75 $ 6,919.90
Antique&Collectibles Mkt. 12.50% $29,400.00 $35,128.00 29,450.00 $ 34,608.00 $29,590.05 $ 30,870.00 $41,994.66
RFP PROCESS
On July 17, 2013, the City Commission considered whether to issue the subject Request for
Proposals (RFP). The item was separated from the Consent Agenda for discussion and
ultimately approved as amended and referred to the subsequent Finance and Citywide
Projects Committee (FCWPC) with direction to issue following FCWPC discussion. The
amendments made at the July 17, 2013 City Commission meeting provided additional time for
potential respondents to submit proposals, to 60 days, and a redistribution of the evaluation
criteria points as noted below in the Evaluation/Selection Process.
The item was subsequently discussed at the July 25, 2013 FCWPC meeting. The Committee
reconfirmed a desire to make the aforementioned changes and also discussed whether to
relax the minimum qualifications requirement in order to allow the greatest number of qualified
responses. Accordingly, the administration deleted the Minimum Qualifications of the RFP
and instead the RFP required proposals to demonstrate experience in performing the services
sought in this RFP or a related business.
On August 12, 2013, and since the City Commission approved the RFP subject to the FCWPC
recommendation, the City Manager issued LTC No. 277-2013 to present the amended RFP to
the Mayor and Commission prior to issuance.
RFP 2013-317ME was issued on August 19, 2013, with an opening date of October 31, 2013.
A pre-proposal conference to provide information to the proposers submitting a response was
held on September 9, 2013. The City received proposals from the following firms for each
Street Market Site:
Lincoln Road
1. The Market Company
2. Florida Fresh Market Enterprise, Inc.
Commission Memorandum—RFP#317-2013 Street Markets
April 23, 2014
Page 3
Espanola Way
None
Normandy Village/Collins Park/South and Fifth
The Market Company
Antique and Collectibles
Productions Sud, Inc.
On December 16, 2013, the City Manager via Letter to Commission (LTC) No. 441-2013,
appointed an Evaluation Committee (the"Committee") consisting of the following individuals:
• Ray Breslin, Resident, Collins Park Neighborhood Association
• Victoria Rogers, New World Symphony
• Daniel Veitia, North Beach Resident
• John Rebar, Director, City of Miami Beach Parks and Recreation Department
• Jim Sutter, internal Auditor, City of Miami Beach Internal Audit Department
• Ramon Suarez, Finance Manager, City of Miami Beach Finance Department
The following alternates were also appointed:
• Anthony Kaniewski, Director, Property Management Division
• Graziano Sbroggio from Segafredo
• Mark Coolidge, Internal Auditor, City of Miami Beach Internal Audit Department
The Committee convened on January 10, 2014 to consider proposals received and interview
the proposers. The Committee was provided an overview of the project, information relative to
the City's Cone of Silence Ordinance and the Government Sunshine Law. The Committee also
provided general information on the scope of services, references, and a copy of each
proposal. Additionally, the Committee engaged in a question and answer session after the
presentation of each proposer.
The Committee was instructed to score and rank each proposal pursuant to the evaluation
criteria established in the RFP, which included:
Step 1 Evaluation. An Evaluation Committee, appointed by the City Manager, shall
meet to evaluate each Proposal in accordance with the qualifications criteria
established below for Step 1, Qualitative Criteria. In doing so, the Evaluation
Committee may:
a. Review and score all proposals received, with or without conducting interview
sessions; or
b. Review all proposals received and short-list one or more proposers to be further
considered during subsequent interview session(s)(using the same criteria).
Commission Memorandum—RFP#317-2013 Street Markets
April 23, 2014
Page 4
Step 1 Qualitative Criteria ;Maximum Points,
Proposer Experience and Qualifications, including 35
Financial Capability
Reference as to Experience and Qualifications 15
Approach and Methodology 35
TOTAL AVAILABLE STEP 1 POINTS 85
1. Step 2 Evaluation. Following the results of Step 1 Evaluation Qualitative criteria, the
proposers may receive additional points to be added by the Department of
Procurement Management to those points earned in Step 1, as follows.
Step 2 Quantitative Criteria
Quantitative Criteria
Cost Proposal 15
Local and Veterans Preference
Miami Beach-Based Vendor 5
Veterans and State-Certified Service-Disabled Veteran 5
Business Enterprises
TOTAL AVAILABLE STEP 2 POINTS 25
Local Preference: The Procurement personnel assigned an additional five (5) points to
Proposers, which are, or include as part of their proposal team, a Miami Beach-based vendor
as defined in the City's Local Preference Ordinance. Two (2) of the proposers were eligible for
Local preference: Productions Sud, Inc. and The Market Company.
Veterans Preference: The Procurement personnel assigned an additional five (5) points to
Proposers, which are, or include as part of their proposal team, a small business concern
owned and controlled by a veteran(s) or a service-disabled veteran business enterprise, as
defined in the City's Veterans Preference Ordinance. One (1) of the proposers was eligible for
Veterans preference: Productions Sud, Inc.
The Committee's final rankings are as follows:
Lincoln Road
Two (2) proposals from The Market Company and Florida Fresh Market Enterprise Inc. were
received and evaluated as follows:
RFP#317-2013 FOR THE
MANAGEMENT AND VICTORIA DAN JOHN JAMES RAMON LOW
DANIEL
OPERATION OF THE J. VEI 1 1 REBAR BUTTER SUAREZ AGGREGATE
STREET.MARKETS ON ROGERS TOTALS
LINCOLN ROAD
THE MARKET COMPANY 1 (94) 1 (99) 1 (92) 1 (95) 2(84) 1 (6)
FLORIDA FRESH
MARKET ENTERPRISE,
INC 2(93) 2(96) 2(81) 2(94) 1 (86) 2(9)
Espanola Way
No proposals were received and therefore no proposals were evaluated.
Commission Memorandum—RFP#317-2013 Street Markets
April 23, 2014
Page 5
Normandy Village/Collins Park/South and Fifth
One (1) proposal from The Market Company was received and evaluated as follows:
•RFP#317-2013 FOR THE
MANAGEMENT ANE? VICTORIA LOW
OPERATION OF _: J DANIEL JOHN JAMES RAMON e AGGREGATE
;STREET MARKETS;ON`;4., VEITIA REBAR SUTTER SUAREZ of
r.,.. ROGERS TOTALS
NORMANDY VILLAGE>: '=
.'COLLINS PARK--"h� _�k,.a
THE MARKET COMPANY 1 (90) 1 (103) 1 (93) 1 (94) 1 (85) 1 (5)
Antique and Collectibles
One (1) proposal from Production Sud was received and evaluated as follows:
RFP#317-2013,FOR THEu
r-MANAGEMENT ANDS'—;4,j
':OPERATION OF.THE =. VICTORIA LOW
J.
DANIEL JOHN JAMES RAMON AGGREGATE
STREET MARKETS=�.;"e '.;: VEITIA REBAR SUTTER SUAREZ TOTALS
ANTIQUE AND - ROGERS
COLLECTIBLES
MARKET
PRODUCTIONS SUD,
INC. 1 (105) 1 (109) 1 (108) 1 (106) 1 (102) 1,4. 1(5)
The following is a summary of the Minimum Annual guaranteed proposed by each
proposers for the street markets proposed.
THE MARKET FLORIDA FRESH
MARKETS COMPANY MARKET, PRODUCTION SUD
ENTERPRISES, INC.
Antique and $ 29,400.00
Collectibles Market
The Lincoln Road $ 13,000.00 $ 14,000.00
Green Market
Collins Park $0.00
Normandy Village $ 4,100.00
South Of Fifth $0.00
*Note 1: The reason the minimum annual guarantee is $0 is we have no facts about
whether the Market will be successful or not. If the market is successful, we will work with
the city to establish an appropriate guarantee.
MANAGER'S DUE DILIGENCE & RECOMMENDATION
After reviewing all the submissions and the Evaluation Committee's rankings of proposals
received, the City Manager exercised his due diligence and is recommending that the Mayor
and the City Commission enter into negotiations with The Market Company for Lincoln Road
Green Market, Collins Park, Normandy Village Isle, and South of 5th locations, and Productions
Sud, Inc., for the Lincoln Road Antique and Collectibles Market.
While there have been some concerns expressed about having street markets on Lincoln
Road, including by some of the property owners on Lincoln Road, the RFP, which was
approved by the City Commission, included Lincoln Road as one of the sites for which
r , .
Commission Memorandum—RFP#317-2013 Street Markets
April 23, 2014
Page 6
markets were to be considered. As such, the City Manager's recommendation is based on the
scope contained within the RFP. If the City Commission feels that Lincoln Road is not the
proper location for either or both the markets, however, this would be the appropriate time to
provide such direction.
In reviewing this item, I am also cognizant of the audit issues the City had with Productions
Sud, which operates the antique market. Unfortunately, they were the only proponent for an
antique market, thus Productions Sud is the only option, if the City wishes to continue said
market
CONCLUSION
The Administration recommends that the Mayor and City Commission of the City of Miami
Beach, Florida accept 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
operations of the Street Markets; authorizing the Administration to enter into negotiations with
the Market Company for Lincoln Road Green Market, Collins Park, Normandy Village Isle, and
South of 5th location and Productions Sud, Inc., for the Lincoln Road Antique and Collectibles
Market; and further authorizing the City Manager to execute an Agreement upon conclusion of
successful negotiations by the Administration.
JLM/MT/K = /AD/ ME
T:IAGENOA12014WpriIWPRIL 23-PROCUREMENT\RFP-317-2013 ME Street Markets - Memo.doc