First Class Parking, LLC Concession Agreement Z IS-LAg43
FIRST CLASS PARKING , LLC
Concession Agreement
INDEX
SECTION TITLE PAGE
1. TERM 3
2. USES 4
3. CONCESSION FEES 6
4. MAINTENANCE AND EXAMINATION OF RECORDS 8
5. INSPECTION AND AUDIT 8
6. TAXES, ASSESSMENTS, AND UTILITIES 9
7. EMPLOYEES AND INDEPENDENT CONTRACTORS 9
8. IMPROVEMENTS, MAINTENANCE, REPAIR AND OPERATION 10
9. INSURANCE 12
10. INDEMNITY 13
11. DEFAULT AND TERMINATION 15
12. PERFORMANCE STANDARD; PERFORMANCE BOND OR ALTERNATE SECURITY 17
13. ASSIGNMENT 18
14. NO IMPROPER USE 18
15. PRICE SCHEDULES 19
16. NOTICES 19
17. LAWS 20
18. MISCELLANEOUS 20
19. LIMITATION OF LIABILITY 22
20 VENUE 22
21. CITY LIEN 23
22. NO LIENS 23
23. STORAGE 23
24. CITY WITHDRAWL OF CITY PROPERTY 23
25. RFP INCORPORATED 23
26. PUBLIC BENEFIT 23
27. AUTOMATED VALET SYSTEM IMPLEMENTATION 23
2
CONCESSION AGREEMENT
BETWEEN THE CITY OF MIAMI BEACH
AND
FIRST CLASS PARKING, LLC.
TO PROVIDE VALET PARKING SERVICES
AT THE FILLMORE MIAMI BEACH AT JACKIE GLEASON THEATER, AT THE MIAMI BEACH
CONVENTION CENTER, AND OTHER CITY PROPERTIES, AS MAY BE REQUIRED,
PURSUANT TO REQUEST FOR PROPOSALS NO. 40-07/08
THIS CONCESSION AGREEMENT ("Agreement") made this 2.Z- day of
,S-Pk-- , 2016, between the CITY OF MIAMI BEACH, a municipal corporation of
the State of Florida ("City"), and FIRST CLASS PARKING, LLC, a Florida limited liability company,
with offices at 12550 Biscayne Boulevard, Suite 207, Miami, Florida, 33181 ("Concessionaire").
WITNESSETH
WHEREAS, on July 16, 2008, the Mayor and City Commission authorized the issuance of
Request for Proposals (RFP) No. 40-07/08 for Valet Parking Services on City-owned Property(the
RFP); and
WHEREAS, pursuant to Resolution No. 2009-27017, on February 25, 2009,the Mayor and
City Commission authorized the Administration to enter into negotiations with Concessionaire,as the
successful proposer pursuant to the RFP; accordingly, City and Concessionaire executed an
agreement with the Concessionaire with an initial term of three (3) years and two (2) one (1) year
renewal options, which term ended on September 30, 2015; and
WHEREAS, pursuant to Resolution No.2015-28943,adopted on March 11,2015,the Mayor
and City Commission authorized the Administration to waive competitive bidding requirements and
enter into negotiations with the Concessionaire for an extension of the Agreement for a period of
three (3) years or until substantial completion of the Miami Beach Convention Center ("MBCC")
expansion and renovation project (the "Project"), whichever occurs first.
NOW THEREFORE, in consideration of the premises and the mutual covenants and
conditions herein contained, it is agreed by the parties hereto as follows:
The City hereby grants to the Concessionaire, and the Concessionaire hereby accepts from
the City,the right to maintain, manage and operate a valet parking concession for the City properties
set forth in Section 2 hereof,for the term stated herein and subject to all terms and conditions herein
contained:
SECTION 1. TERM.
1.1 The term of this Agreement shall commence retroactively on the 1st day of October, 2015
(Commencement Date), and terminate on September 30, 2018 or upon substantial
completion of the renovation of the Miami Beach Convention Center("MBCC") Project(the
"Project"), whichever date occurs first (the "Term"). Substantial completion of the MBCC
Project shall be defined as of the date when the City, in its proprietary capacity, has secured
the requisite governmental approvals to operate the MBCC, which may include any of the
following benchmarks: issuance of a temporary certificate of occupancy; issuance of a
certificate of occupancy; or issuance of a certificate of completion with respect to the entire
Project.
3
A Contract Year, as referred to herein shall start on October 1st and end on September 30th
of the following year.
SECTION 2. USES.
2.1 The City hereby grants to Concessionaire the right, during the Term herein, to maintain,
manage and operate, at its sole cost and responsibility, a valet parking concession(s)for the
following City properties (hereinafter, the properties in this Section 2.1 (a)—(c) may also be
referred to as the "Venues"):
(a) The Fillmore Miami Beach at Jackie Gleason Theater(the Fillmore),located at 1700
Washington Avenue, Miami Beach, Florida, 33139;
(b) Miami Beach Convention Center(MBCC), located at 1901 Convention Center Drive,
Miami Beach, Florida, 33139; and
(c) Such other City properties, as may be authorized, in writing, by the City Manager, in
his sole discretion.
2.2 As referred to in this Agreement, the City Manager's designee shall be the City's Parking
Department Director.
2.3 In operating the valet parking concession for the Venues, the Concessionaire shall be
entitled to use up to one hundred (100) parking spaces in a designated are of Municipal
Parking Garage No. 9("Penn Ave Garage"), located at Pennsylvania Avenue and 17th Street
(the "Valet Storage Area").
Concessionaire shall park vehicles only within the Valet Storage Area. The Concessionaire
shall park vehicles consistent with the designated traffic circulation pattern within the Penn
Ave Garage. Notwithstanding the preceding, Concessionaire shall have the option of
parking vehicles in a backed-in position. If unauthorized vehicles are parked in the Valet
Storage Area, the Concessionaire shall immediately contact the City for resolution. Under
no circumstances shall the Concessionaire use parking spaces outside of the Valet
Storage Area.
Concessionaire and City acknowledge that the MBCC Project will require the relocation of
the Valet Storage Area to a different municipal parking garage or parking lot commencing as
of the second Contract Year. The Concessionaire and City Manager's designee shall
cooperate to find a mutually agreeable new location for the Valet Storage Area; however, if
the parties cannot reach an agreement, the City Manager's written confirmation of a new
Valet Storage Area shall be final and binding upon the parties.
2.4 The City Manager or his designee may approve additional spaces for use by Concessionaire
at Municipal Parking Lot No. 29, located on the northeast corner of Convention Center Drive
and 17th Street or any other municipal garage or parking lot ("Additional Valet Storage
Area"),when, in the City Manager's or his designee's sole discretion (i)a high-volume event
is expected to exceed the assigned capacity available in the Penn Ave Garage; or (ii) the
anticipated high volume will create an unacceptable diminution of valet service levels for
such event.
2.5 With regard to the provision of valet parking services at MBCC, Concessionaire shall set-up,
operate, and provide passenger loading and unloading at one(1) of two(2)mutually agreed
upon areas (the "Passenger Ramp Locations"); however, if Concessionaire and the City
Manager's designee cannot reach an agreement with respect to the location of the
4
Passenger Ramp Locations, the City Manager's written confirmation of the location of the
Passenger Ramp Locations shall be final and binding upon the parties. Individuals and/or
firms who contract to use all or a portion of MBCC (an MBCC User)for a convention, trade
show, or other event(an MBCC Event)shall have the option of selecting either of the two(2)
aforestated Passenger Ramp Locations.
When providing valet parking for an MBCC Event, no valet stand shall be set up in a
location, which, in the sole discretion of the City Manager's designee, will interfere with bus
service provided for the Event.
2.6 Upon request by an MBCC User, and subject to the prior written approval of the City
Manager, Concessionaire may provide pre-paid group valet parking. The Concessionaire,
the City Manager, and the MBCC User shall mutually agree upon a predetermined number
of valet parking coupons. The MBCC User shall pre-pay all coupons seven (7) days in
advance of the first"show" day of the MBCC Event. The MBCC User shall forfeit the value
of any non-redeemed coupons and shall not be entitled to a refund. The MBCC User may
purchase additional coupons(referred to hereinafter as a subsequent purchase) if needed.
The MBCC User shall be entitled to refunds of unused coupons of subsequent purchases.
Concessionaire shall refund the amount for unused coupons derived from subsequent
purchases within seven (7) days of the last "show" day of the MBCC Event.
Notwithstanding anything in this subsection 2.6 or the Agreement, valet parking coupon
payment, creation, control, accountability, and verification shall be the sole responsibility of
the Concessionaire.
2.7 The Concessionaire shall attend any and all planning meetings for any event at the Venues
where valet parking services are to be provided. Concessionaire acknowledges that such
meetings may be scheduled by the City Manager or his designee; or, for MBCC Events, by
Global Spectrum LLP (Global), the City's manager for MBCC or, for events at The Fillmore,
by Live Nation Worldwide, Inc. (Live Nation), the City's manager for The Fillmore.
Said meetings shall be held in order for Concessionaire to become aware of the user's
needs, requests, and requirements for the event, and for Concessionaire's input and
recommendations. While the City(or Global or Live Nation, as the case may be)may solicit
input and recommendations from Concessionaire, all final operational decisions shall
ultimately rest with, and be within the exclusive purview of the City. Concessionaire's failure
to have representation and/or participate at any pre-event planning meetings shall be
deemed a waiver by Concessionaire to challenge any and all operational decisions made
with regard to the event.
2.8 Concessionaire shall provide valet parking services at a Venue whenever there is an event
where people including, without limitation, members of the public, are expected to be in
attendance. The Concessionaire shall not be required to provide valet parking services at a
Venue where: (i) prior to commencement of the event, the Concessionaire is expressly
directed, in writing, by either the City Manager or his designee(for any Venue); or by Global
(for MBCC); or by Live Nation (for the Fillmore), that its services will not be required; or(ii)
following commencement of an event, where the Concessionaire parks no more than ten
(10) cars in any day for such event, in which case Concessionaire shall not be required to
provide valet parking services for the remainder of that event.
2.9 Lincoln Road Ramps- Should the City elect, at any time during the Term, to have
Concessionaire provide valet parking services for all or any portion of Lincoln Road Mall,the
City Manager or his designee will provide the Concessionaire with not less than two (2)
Passenger Ramp Locations on Lincoln Road (from where such services can be provided),
5
as well as reasonable trailblazing signage in areas approaching Lincoln Road notifying the
public of valet parking (with the manner and locations of all signage to be determined solely
by the City Manager, at his/her sole discretion).
2.10 Special Events—During the Term herein,the Concessionaire shall provide free valet parking
services for at least four (4) events per Contract Year, at such Venues as shall be
determined by the City Manager,at his/her sole judgment and discretion. City acknowledges
that the Concessionaire currently provides free valet parking services for the Cleveland
Clinic's Annual Charitable Event at MBCC; accordingly this event shall count as one of the
four (4) required events per year, so long as the event continues to be held annually at
MBCC.
SECTION 3. CONCESSION FEE.
3.1 Commencing retroactively on October 1st, 2015, and thereafter at the beginning of
each month during the Term, Concessionaire shall pay the City a fixed monthly minimum
payment (the "Concession Fee"), which Concession Fee is based upon valet parking
services at three Venues; to wit: the Fillmore,the MBCC and the Lincoln Road Ramps. The
Concession Fee has been calculated based upon an assumption that the Concessionaire
will sustain a loss(of 50% during the initial and second Contract Years and 42%during the
third Contract Year) in the total number of vehicles serviced at the MBCC Venue ("MBCC
Venue Assumption")during the construction phases of the Project, as compared to the total
number of vehicles which Concessionaire serviced at the MBCC Venue during Fiscal Year
2014-2015{the"Contract Base Year"). As such, the total amount of Concession Fees paid
during each of the Contract Years shall be subject to a true up at the end of each Contract
Year, as described in subsection 3.1.4, based upon any change in the MBCC Venue
Assumption. In calculating the Concession Fee, the portion of the Concession Fee which
relates to the other Venues (the Fillmore and the Lincoln Road Ramps) was not modified
and shall remain constant during the Term of the Agreement. For purposes of this
Agreement, the term "-Closed" shall refer to any month during the second or third Contract
Year where the MBCC Venue shall be unavailable to host any activities or events for a
period of fifteen (15) or more days in any single month.
3.1.1 Initial Contract Year(Fiscal Year 2015-2016).
During the initial Contract Year,the Concession Fee shall be$11,221.88 plus sales
tax(with the MBCC Venue portion of the Concession Fee being $6,733.13).
3.1.2 Second Contract Year(Fiscal Year 2016-2017).
For all months where the MBCC Venue is not Closed during the second
Contract Year, the Concession Fee shall be $11,221.88 plus sales tax. For
any month during the second Contract Year in which the MBCC Venue is
Closed, the Concessionaire shall receive a full abatement of the MBCC
Venue portion of the Concession Fee (which MBCC Venue portion of the
Concession Fee has been estimated at $6,733.13).
3.1.3 Third Contract Year(Fiscal Year 2017-2018).
For all months where the MBCC Venue is not Closed in the third Contract
Year,the Concession Fee shall be$12,299.18 plus sales tax. For any month
during the third Contract Year in which the MBCC Venue is Closed, the
Concessionaire shall receive a full abatement of the MBCC Venue portion of
the Concession Fee(which MBCC Venue portion of the Concession Fee has
6
Fr)
been calculated at$7,810.43).
3.1.4 True-up in event of a Change.
At the end of each Contract Year,Concessionaire and the City Manager shall
determine the Vehicle Volume Change (as defined below) at the MBCC
Venue for the previous Contract Year; determine the actual amount of
Concession Fees due for the previous Contract Year; and true up the total
amount of Concession Fees received for the previous Contract Year with the
actual amount of Concession Fees due for the previous Contract Year(the
"True-Up Calculation"). Any True-Up Credit or True-Up Payment(each as
defined below) shall be paid to the City or Concessionaire, as applicable,
within thirty(30)days of the City's transmittal of written notice regarding the
True-Up Calculation to the Concessionaire.
As referred to herein, Vehicle Volume Change shall mean the change
between the actual number of vehicles serviced at the MBCC Venue during
the previous Contract Year as compared to the total number of vehicles
serviced during the Contract Base Year, based upon the percentage of
change which Concessionaire experienced during the previous Contract
Year, as compared to the Base Contract Year("Vehicle Volume Change").
For illustration purposes, Exhibit"A"provides an example of Vehicle Volume
Change for the MBCC Venue, assuming there was a reduction in the total
number of vehicles serviced by Concessionaire during the previous Contract
Year, as compared to the Base Contract Year ("Negative Vehicle Volume
Change"), as well as an example assuming that there was an increase in the
total number of vehicles serviced by Concessionaire during the previous
Contract Year, as compared to the Base Contract Year ("Positive Vehicle
Volume Change"). If there is a Negative Vehicle Volume Change,
Concessionaire shall be entitled to a true-up credit for the total amount of the
overpayment in Concession Fees paid during the previous Contract Year
(the "True-up Credit"). Similarly, if there is a Positive Vehicle Volume
Change, Concessionaire shall owe the City a true-up payment for the total
amount of the underpayment in Concession Fees paid during the previous
Contract Year(the "True-up Payment").
The Concession Fee shall be submitted to the attention of the City Manager's designee,and
must be received no later than the fifteen (15th) day of each month.
3.2 Interest for Late Payment.
Any payment which Concessionaire is required to make to the City which is not paid on or
before the due date provided for in this Agreement shall be subject to interest at the rate of
eighteen (18%) percent per annum, or the maximum amount allowable under Florida law,
whichever is less, from the due date of payment until such time as payment is actually
received by the City.
3.3 Sales and Use Tax.
It is also understood that the required Florida State Sales and Use Tax shall be added to
Concessionaire's payments and forwarded to the City as part of said payments. It is the
City's intent that it is to receive the monthly minimum payment due from Concessionaire as
net of such Florida State Sales and Use Tax.
7
3.4 City Business Tax Receipts.
Concessionaire shall obtain, at its sole expense and responsibility,any business tax receipts
required by the City for the proposed use(s)contemplated herein. To the extent required by
the applicable sections of the City Code (as same may be amended from time to time),
business tax receipts shall be obtained for each Venue serviced by Concessionaire pursuant
to this Agreement.
SECTION 4. MAINTENANCE AND EXAMINATION OF RECORDS.
Concessionaire shall maintain current, accurate, and complete financial records, on an accrual
basis, related to its operations pursuant to this Agreement. Systems and procedures used to
maintain these records shall include a system of internal controls. All accounting records shall be
maintained in accordance with generally accepted accounting principles,during customary business
hours, and shall be open to inspection, copying, and audit by the City Manager or his/her designee,
upon reasonable verbal or written notice. Concessionaire shall maintain all such records at its
principal office, currently located at 12550 Biscayne Boulevard, Suite 207, Miami, Florida, 33181.,or,
if moved to another location, all such records shall be relocated, at Concessionaire's sole expense,
to a location in Miami Beach, within five (5) days from notice of request for inspection by the City.
Financial records and accounts shall include, at a minimum, a breakdown of gross receipts,
expenses, and profit and loss statements. Concessionaire shall maintain accurate receipt-printing
cash registers (or a like alternative) for each Venue, which will record and show the payment for
every sale made or service provided at said Venue. Other financial records shall be maintained, as
would be required by an independent CPA in order to audit a statement of annual gross receipts and
profit and loss statement pursuant to generally accepted accounting principles. Concessionaire's
records shall be maintained for a period of three(3)years following expiration (or other termination)
of this Agreement(regardless of whether such termination results from the expiration of the Term or
for any other reason).
A monthly report of activities shall be submitted to the City Manager's designee by the 15th of each
month, for the activities of the preceding month. At a minimum, this report shall contain a
chronological listing of events serviced, including the event name, date, time, exact location(s),
number of transactions (vehicles), gross receipts per location, and gross receipts totals.
Concessionaire shall submit to the City Manager's designee, within sixty (60) days of the end of
each Contract Year, an annual statement of gross receipts, in a form consistent with generally
accepted accounting principles. Such statement shall be accompanied by a report from an
independent CPA firm certifying the report.
For purposes of this Agreement, the term "gross receipts" is understood to mean all income
collected or accrued, derived by the Concessionaire under the privileges granted by this Agreement,
excluding amounts of any Federal, State, or City sales tax (or other tax) collected by the
Concessionaire and required by law to be remitted to the taxing authority.
SECTION 5. INSPECTION AND AUDIT.
During the Term, the City Manager or his designee shall be entitled to audit any and all of
Concessionaire's records (financial or otherwise) pertaining to its operations pursuant to this
Agreement, as often as he/she deems necessary ;and three (3) times within the three (3) year
period following expiration (or other termination)of this Agreement.The City shall be responsible for
paying all costs associated with such audit(s), unless the audit(s) reveals a deficiency of five (5%)
percent or more in Concessionaire's statement of gross receipts for any year or years audited, in
which case Concessionaire shall pay to the City, within thirty (30) days of demand from the City
deeming, the cost of the audit and a sum equal to the amount of the deficiency revealed by the
8
audit, plus interest. The aforestated audits are in addition to periodic City audits of Resort Tax
collections and payments (which are performed separately). Nothing contained within this Section
shall preclude the City's audit rights for Resort Tax collection purposes.
It is Concessionaire's intent to stay informed of comments and suggestions by the City regarding
Concessionaire's performance under the Agreement. Within thirty (30) days after the end of each
Contract Year, Concessionaire and the City Manager's designee may meet to review
Concessionaire's performance under the Agreement for the previous Contract Year.At the meeting,
Concessionaire and the City may discuss quality, operational, maintenance and any other issues
regarding Concessionaire's performance under the Agreement.
SECTION 6. TAXES, ASSESSMENTS, AND UTILITIES.
Concessionaire agrees and shall pay, before delinquency, all taxes and assessments of any kind
(including, without limitation, ad valorem taxes [if assessed] and/or Resort Taxes) levied or
assessed upon Concessionaire, and/or upon any City property, or portion thereof, used by
Concessionaire for the purpose of providing the valet parking services required under this
Agreement, or by reason of any other business,operations,and/or activities of Concessionaire upon
or in connection with the servicing of the Venues.
Concessionaire shall have the right, at its own expense,to contest the amount or validity, in whole or
in part, of any tax and/or assessment by appropriate proceedings, which Concessionaire shall
conduct diligently and continuously, in good faith. Concessionaire may refrain from paying a tax to
the extent it is contesting the imposition of same in a manner that is in accordance with law;
provided, however, if, as a result of such contest, additional delinquency charges become due,
Concessionaire shall be responsible for such delinquency charges, in addition to payment of the
contested tax (if so ordered).
Concessionaire shall be solely responsible for, and shall promptly pay when due, all charges for any
utilities (including, without limitation, (and as applicable), charges for gas, electricity, water, sewer,
cable, telephone, trash collection, and any other utility service, as well as any hook-up fees and
impact fees related thereto) used by Concessionaire in connection with the provision valet parking
services and operations at the Venues. In addition to other rights and remedies hereinafter reserved
to the City, upon the failure of Concessionaire to pay for any utility services when due,the City may
elect to pay same, in which case Concessionaire shall promptly reimburse the City upon demand.
In no event shall the City be liable, whether to Concessionaire or to third parties, for an interruption
or failure in the supply of any utilities services to any City property(including,without limitation, any
City property located at, on, or within a Venue, and/or any City garages and/or lots to which
Concessionaire is granted the use of in order to conduct its operations pursuant to this Agreement).
SECTION 7. EMPLOYEES AND INDEPENDENT CONTRACTORS.
7.1 Concessionaire shall select, train, employ (or otherwise hire or retain) such number of
employees and/or independent contractors as is necessary and appropriate for
Concessionaire to satisfy its responsibilities under this Agreement, and as necessary to
maintain the same levels of service as exist in similar first class valet parking concession
facilities and operations. Concessionaire's employees and/or independent contractors shall
be employees and/or independent contractors of Concessionaire and not of the City, and
Concessionaire shall be solely responsible for their supervision, daily direction and control.
Concessionaire shall be solely responsible for, and have the sole authority to hire,terminate
and discipline any and all employees and/or contractors employed or retained by
Concessionaire.
9
7.2 Concessionaire and its employees and/or independent contractors shall wear identification
badges and uniforms approved by the City. All employees and/or independent contractors
shall observe all the graces of personal grooming. Concessionaire shall hire/retain people to
work in its operation who are neat, clean, well groomed, and comport themselves in a
professional and courteous manner. Concessionaire and any persons hired and/or retained
by Concessionaire shall never have been convicted of a felony.
7.3 Concessionaire shall have an experienced manager or managers overseeing the
concession operations at all times.
7.4 The Concessionaire and its employees and/or contractors are considered"ambassadors"of
the City and, shall (at a minimum) comport themselves as follows in the discharge of their
duties: greet patrons upon arrival and departure; make every attempt to quickly and
courteously expedite the transfer of the patron's vehicle; and attempt to accommodate any
reasonable request of patrons in connection with the provision of the valet parking services.
Employees shall not smoke, drink and/or eat while actively serving patrons; shall speak
English; and shall not solicit tips, or solicit the use of curbside parking for a fee higher than
the approved City valet parking rate.
7.5 The Concessionaire shall be responsive to all persons (whether patrons or otherwise)who
believe that they or their vehicle were injured or damaged (or personal items taken) by the
Concessionaire ("Claimant"). In the event a Claimant advises the Concessionaire (or any
staff of the Concessionaire) of any such damage, injury or loss (a "Claim"), the
Concessionaire shall, within twenty four(24) hours of such notice, fill out a Claim form and
submit same to the City Manager's designee. The Concessionaire shall immediately
investigate each Claim; shall respond to the Claimant by telephone or in writing within forty
eight (48) hours of the Claim; and shall provide the City Manager's Designee with a written
summary as to the resolution or other disposition of the Claim. Notwithstanding anything in
this subsection 7.5,the Concessionaire shall not be required to pay or satisfy any Claim that
Concessionaire, after good faith reasonable investigation, determines not to be its
responsibility.
SECTION 8. IMPROVEMENTS, MAINTENANCE, REPAIR and OPERATION.
Concessionaire accepts the use of any and all City property to which it is granted the use of to carry
out the stated purpose(s) of this Agreement (including, without limitation, any City property located
at, on, or within the Venues and/or any City garages and/or lots used by Concessionaire), in its"AS
IS" "WHERE IS" condition.
Concessionaire assumes sole responsibility and expense for the day to day maintenance of any
such City property while being used by Concessionaire (including any furnishings, fixtures,
equipment and any other improvements thereon). This shall include, without limitation, removal of
litter, garbage and debris. Concessionaire shall also be responsible for all garbage disposal
generated by its operations.
8.1 Equipment.
8.1.1. The Concessionaire shall provide and maintain, at its sole cost and expense, valet
parking stand(s), kiosk(s), booth(s), and any other related furnishings, fixtures and
equipment (collectively the Equipment), as necessary, to provide and maintain the
valet parking services contemplated herein, consistent with the same levels of
service that exist in similar valet parking facilities and operations in first class
facilities. All Equipment shall be new and in excellent condition. The height and the
color of the Equipment (including stands, kiosks, and booths) shall be the same at
10
each valet parking location for all Venues. Uniforms and badges shall also be
standardized for all Venues.All Equipment must be approved, in writing, by the City
Manager's designee prior to being put into use. Storage of all Equipment shall be
the sole responsibility of Concessionaire.
8.2 Garbage Receptacles.
With respect to litter, garbage and debris removal, Concessionaire shall provide, at its sole
expense, a sufficient number of trash receptacles for its operations and for the use of
patrons. Determination of the "number" of receptacles shall at all times be within the sole
and reasonable judgment and discretion of the City Manager's designee. Dumping of
receptacles, and removal of trash, rubbish and garbage in connection with Concessionaire's
operations, shall be the sole responsibility of the Concessionaire, but shall be coordinated
with the respective managers at MBCC,the Fillmore, and/or any other Venues.Any costs for
removal of the contents of said trash receptacles by the City, because of the
Concessionaire's failure to do so, will be charged to Concessionaire, and payment shall
immediately be due upon demand by City.
8.3 Maintenance/Repair.
Concessionaire shall maintain, at its sole expense and responsibility,all Equipment required
to operate the concessions. In the event any Equipment is lost, stolen, or damaged, it shall
be replaced or repaired promptly, at Concessionaire's sole expense. If Concessionaire fails
to make any repairs, restoration and/or replacement, the City may elect to do so, and all
sums spent and expenses incurred by the City shall be paid by Concessionaire within ten
(10)days after receipt of a bill or statement thereof. Notwithstanding that the City may elect
to make such repairs, restoration, and/or replacement, the City shall have no obligation
and/or affirmative duty to do so.
8.4 No Dangerous Materials.
Concessionaire agrees not to use or permit the storage and/or use of gasoline, fuel oils,
diesel, illuminating oils, oil lamps, combustible powered electricity producing generators,
turpentine, benzene, naphtha, propane, natural gas,or other similar substances,combustible
materials, or explosives of any kind, or any substance or thing prohibited in the standard
policies of fire insurance companies in the State of Florida.Any such substances or materials
found on Concessionaire's operations, whether at a Venue or on any City property being
utilized by Concessionaire, shall be immediately removed.
In consideration of a separate and specific consideration of Ten ($10.00) Dollars and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Concessionaire shall indemnify and hold the City harmless from any loss,
damage, cost, or expense of the City, including,without limitation, reasonable attorney's fees,
incurred as a result of, arising from, or connected with the placement by Concessionaire of
any "hazardous substance" or "petroleum products" on, under, in or upon any property
(whether City-owned or otherwise being utilized by Concessionaire for its operations
hereunder, as those terms are defined by applicable Federal and State statutes, or any
environmental rules and environmental regulations promulgated thereunder. The provisions
of this subsection 10.4 shall survive the termination or earlier expiration of this Agreement.
8.5 Security.
The Concessionaire shall be solely responsible for providing any security measures, if and as
it deems necessary, in its reasonable business judgment, to protect the concession areas
11
from loss or theft including, without limitation, any of the Equipment thereon.
8.6 Inspection.
Concessionaire agrees that its operations at any or all of the Venues may be inspected at any
time by the City Manager or his designee, or by any other municipal, County or State officer,
or other agency having responsibility and/or jurisdiction for inspection of such operations.
Concessionaire hereby waives all claims against the City for compensation for loss or
damage sustained by reason of any interference with the concession operations,whether by
the City or by any public agency or official, in enforcing their respective duties, or enforcing
compliance with any applicable laws, or ordinances, or regulations.
SECTION 9. INSURANCE.
Concessionaire shall maintain, at all times throughout the Term, at its sole expense and
responsibility, the following types of insurance coverage:
a. Commercial General Liability or Garage Liability insurance in the minimum amount of
one million dollars ($1,000,000) per occurrence and per location covering bodily
injury and property damage resulting from valet parking operations (including
Concessionaire's activities connected with the handling of vehicles on public
property).
b. Garage Keepers Legal Liability insurance to provide Collision and Comprehensive
coverage for vehicles under control of the valet parking operation, with minimum
limits of $300,000 per location, with a maximum Self-Insured Retention (SIR) or
deductible of$1,000.
c. Worker's Compensation and Employers' Liability as required to meet the statutory
requirements of the State of Florida.
The policies of insurance referred to above shall not be subject to cancellation or changing
coverage except upon at least thirty(30) days prior written notice to the City, and then only
subject to the prior written approval of the City Manager or his designee. Prior to the
Commencement Date of this Agreement, Concessionaire shall provide the City with a
Certificate of Insurance for each such policy.ALL LIABILITY POLICIES SHALL NAME THE
CITY OF MIAMI BEACH FLORIDA, GLOBAL SPECTRUM LLP, AND LIVE NATION
WORLDWIDE, INC. AS AN ADDITIONAL NAMED INSURED. All such policies shall be
obtained from companies authorized to do business in the State of Florida with an A.M.
Best's Insurance Guide(latest edition) rating acceptable to the City's Risk Manager,and any
replacement or substitute company shall also be subject to the approval of the City's Risk
Manager.
Should Concessionaire fail to obtain, maintain or renew the policies of insurance referred to
above, in the required amounts, the City may, at its sole discretion, obtain such insurance,
and any sums expended by the City in obtaining said insurance, shall be repaid by
Concessionaire to the City, plus ten (10%) percent of the amount of premiums paid to
compensate the City for its administrative costs. If Concessionaire fails to repay the City's
expenditures following written demand from the City (and within the time specified in the
City's demand notice), such failure shall be deemed an event of default hereunder and the
total sum owed shall accrue interest at the rate of eighteen (18%) percent or the highest rate
allowable by law, whichever is less, until paid.
12
SECTION 10. INDEMNITY.
10.1 Indemnification of the City. In consideration of a separate and specific consideration of Ten
($10.00) Dollars and other good and valuable consideration the receipt and sufficiency of
which are hereby acknowledged, Concessionaire shall indemnify, hold harmless and defend
the City, its officers, employees, contractors, agents or servants from and against any and all
loss, cost, expense, damage, injury, liability, claim, demand, penalty or cause of action of
whatsoever kind or nature, arising out of, or in any way related to, or resulting from: (i)
Concessionaire's breach of the terms of this Agreement or its representations and
warranties herein; (ii) the operations and/or the performance of the services contemplated
under this Agreement (including, without limitation, its use of any City property at, on, or
within the Venues and/or any City garage and/or parking lot used herein); or (iii) error,
omission, or negligent act of Concessionaire, its officers, employees, contractors,agents or
servants in connection with the operations and/or performance of the services contemplated
under this Agreement (including, without limitation, its use of any City property at, on, or
within the Venues and/or any City garage and/or parking lot used herein), and shall pay all
claims and losses of any nature whatsoever in connection therewith, and shall defend all
suits, in the name of the City of Miami Beach when applicable, and shall pay all cost
(including attorney's fees at the trial and appellate levels) and judgments which may issue
thereon. This indemnification, however, shall not apply to any such liability that arises as a
result of the willful misconduct or gross negligence of the City, its officers, employees,
contractors, agents or servants.
10.2 Indemnification of Global Spectrum LLP. In consideration of a separate and specific
consideration of Ten ($10.00) Dollars and other good and valuable consideration the receipt
and sufficiency of which are hereby acknowledged, Concessionaire shall indemnify, hold
harmless and defend Global Spectrum LLP ("Global Spectrum"), its officers, employees,
contractors, agents or servants from and against any and all loss, cost, expense, damage,
injury, liability, claim, demand, penalty or cause of action of whatsoever kind or nature,
arising out of, or in any way related to, or resulting from: (i) the operations and/or the
performance of the services contemplated under this Agreement (including, without
limitation, its use of any City property at, on, or within the Venues and/or any City garage
and/or parking lot used herein); or(ii)error, omission, or negligent act of Concessionaire,its
officers, employees, contractors,agents or servants in connection with the operations and/or
performance of the services contemplated under this Agreement (including, without
limitation, its use of any City property at, on, or within the Venues and/or any City garage
and/or parking lot used herein), and shall pay all claims and losses of any nature whatsoever
in connection therewith, and shall defend all suits, in the name of Global Spectrum when
applicable, and shall pay all cost (including attorney's fees at the trial and appellate levels)
and judgments which may issue thereon. This indemnification, however, shall not apply to
any such liability that arises as a result of the willful misconduct or gross negligence of
Global Spectrum, its officers, employees, contractors, agents or servants.
10.3 Indemnification of Live Nation Worldwide, Inc. In consideration of a separate and specific
consideration of Ten ($10.00) Dollars and other good and valuable consideration the receipt
and sufficiency of which are hereby acknowledged, Concessionaire shall indemnify, hold
harmless and defend Live Nation Worldwide, Inc. ("Live Nation"), its officers, employees,
contractors, agents or servants from and against any and all loss, cost, expense, damage,
injury, liability, claim, demand, penalty or cause of action of whatsoever kind or nature,
arising out of, or in any way related to, or resulting from: (i) the operations and/or the
performance of the services contemplated under this Agreement (including, without
limitation, its use of any City property at, on, or within the Venues and/or any City garage
and/or parking lot used herein); or(ii)error, omission, or negligent act of Concessionaire, its
officers, employees, contractors,agents or servants in connection with the operations and/or
13
performance of the services contemplated under this Agreement (including, without
limitation, its use of any City property at, on, or within the Venues and/or any City garage
and/or parking lot used herein), and shall pay all claims and losses of any nature whatsoever
in connection therewith, and shall defend all suits, in the name of Global Spectrum when
applicable, and shall pay all cost(including attorney's fees at the trial and appellate levels)
and judgments which may issue thereon. This indemnification, however, shall not apply to
any such liability that arises as a result of the willful misconduct or gross negligence of Live
Nation, its officers, employees, contractors, agents or servants.
10.4 Subsections 10.1, 10.2, and 10.3 shall survive the termination or expiration of this
Agreement. Additionally, the indemnification set forth in subsections 10.1, 10.2, and 10.3,
shall not be limited in any way by the type or amount of insurance carried by the
Concessionaire.
10.5 Subrogation.
The terms of insurance policies referred to in Section 9 shall preclude subrogation claims
against Concessionaire, the City and their respective officers, employees, contractors,
agents or servants.
10.6 Force Majeure.
Whenever a period of time is herein prescribed for the taking of any action by the City or
Concessionaire (as applicable), the City or Concessionaire (as applicable), shall not be
liable or responsible for, and there shall be excluded from the computation of such period of
time, any delays due to strikes, riots, acts of God, shortages of labor or materials, war, or
governmental laws, regulations, or restrictions in the nature of a prohibition or moratorium,or
any bona fide delay beyond the reasonable control of City or Concessionaire(as applicable).
The foregoing shall not apply to any payments of money due under this Agreement.
Notwithstanding the preceding paragraph, in the event that damage to or destruction of(i)a
Venue or Venues; or(ii) to Concessionaire's Equipment; or(iii) to the Penn Ave Garage or
Municipal Parking Lot No. 29 (subsection10.6 ((i) and (iii) shall hereinafter collectively be
referred to as a "Facility" or the "Facilities"), due to a Force Majeure event (as defined
herein) resulting in the closure of said Facility or Facilities, or in material damage to the
majority of Concessionaire's Equipment, to the extent that (in the City Manager's sole and
reasonable discretion and determination) Concessionaire's provision/performance of the
services is either rendered impossible, unnecessary, or economically impracticable, then
Concessionaire and the City shall mutually agree upon a proportionate (prorated)
adjustment of the monthly minimum payment during the pendency of the event of Force
Majeure but, in any event, not to exceed 180 days from the occurrence thereof,whichever is
less. If the event of Force Majeure continues for a period in excess of 180 days,then either
party may terminate this Agreement upon sixty (60) days written notice to the other. In the
event of a termination pursuant to this subsection, the City shall not be liable to
Concessionaire; nor have any further obligation (financial or otherwise) to Concessionaire
under this Agreement; nor shall the City be liable to concessionaire for any indirect,
incidental, or special costs, lost profits, or consequential damages. If an event of Force
Majeure causes the City to close or limit the Concessionaire's use of the Penn Ave Garage
or Municipal Parking Lot No. 29,the City Manager shall use commercially reasonable efforts
to provide the Concessionaire with the use of parking spaces in another municipal parking
facility or lot in a location reasonably close to the parking facility affected by the Force
Majeure.
14
10.7 Waiver of Loss from Hazards.
Concessionaire hereby expressly waives all claims against the City for loss or damage
sustained by the Concessionaire resulting from an event of Force Majeure (as defined
herein), and the Concessionaire hereby expressly waives all rights, claims, and demands
against the City and forever releases and discharges the City from all demands, claims,
actions and causes of action arising from any of the aforesaid causes.
SECTION 11. DEFAULT AND TERMINATION.
Subsections 11.1 through 11.3 shall constitute events of default under this Agreement. An event of
default by Concessionaire shall entitle the City to exercise any and all remedies described as the
City's remedies under this Agreement, including but not limited to those set forth in Subsection 11.4
and Section 12 hereof. An event of default by the City shall entitle Concessionaire to exercise any
and all remedies described as Concessionaire's remedies under this Agreement, including but not
limited to those set forth in Subsection 11.5.
11.1 Bankruptcy.
If either the City or Concessionaire shall be adjudged bankrupt or insolvent,or if any receiver
or trustee of all or any part of the business property of either party shall be appointed, or if
any receiver of all or any part of the business property shall be appointed and shall not be
discharged within sixty (60) days after appointment, or if either party shall make an
assignment of its property for the benefit of creditors, or shall file a voluntary petition in
bankruptcy, or insolvency, or shall apply for reorganization or arrangement with its creditors
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.
11.2 Default in Payment.
In the event Concessionaire fails to submit any payment and accumulated penalties within
fifteen (15)days after the payment due date, and such failure continues three(3)days after
written notice thereof, then the City may, without further demand or notice, terminate this
Agreement without being prejudiced as to any remedies which may be available to it for
breach of contract, and may begin procedures to collect the Performance Bond required in
Section 12 herein.
11.3 Non-Monetary Default.
In the event that Concessionaire or the City fails to perform or observe any of the covenants,
terms or provisions under this Agreement, and such failure continues fifteen (15)days after
written notice thereof from the other party hereto,such non-defaulting party may immediately
or at any time thereafter, and without further demand or notice,terminate this Agreement. In
the event that a default is not reasonably susceptible to being cured within such period, the
defaulting party shall not be considered in default if it shall, within such period, commence
with due diligence and dispatch to cure such default and thereafter completes with dispatch
and due diligence the curing of such default, but in no event shall such extended cure period
exceed sixty (60) days from the date of written notice thereof. In the event Concessionaire
cures any default pursuant to this subsection, it shall promptly provide the City with written
notice of same.
15
11.4 City's Remedies for Concessionaire's Default.
If any of the events of default, as set forth in this Section, shall occur, the City may, after
notice (if required) and the expiration of cure periods, as provided above, at its sole option
and discretion, institute such proceedings as in its opinion are necessary to cure such
default(s) and to compensate the City for damages resulting from such default(s), including
but not limited to the right to give to Concessionaire a notice of termination of this
Agreement. If such notice is given,the Term of this Agreement shall terminate upon the date
specified in such notice from the City to Concessionaire. On the date so specified,
Concessionaire shall then quit and surrender any and all City property pursuant to the
provisions of subsection 11.8. Upon the termination of this Agreement by the City, all rights
and interest of Concessionaire in and to this Agreement (and including, Concessionaire's
right to remain on any City property used by Concessionaire to provide the services under
the Agreement) shall cease and terminate and the City may, in addition to any other rights
and remedies it may have, retain all sums paid to it by Concessionaire under this
Agreement, including but not limited to, beginning procedures to collect the Performance
Bond in Section 12 herein.
In addition to the rights set forth above,the City shall have the rights to pursue any and all of
the following:
a. the right to injunction or other similar relief available to it under Florida law
against Concessionaire; and/or
b. the right to maintain any and all actions at law or suits in equity or other
proper proceedings to obtain damages resulting from Concessionaire's
default.
11.5 Concessionaire's Remedies for City's Default.
If an event of default, as set forth in this Section, by the City shall occur, Concessionaire
may, after the expiration of the cure period, terminate this Agreement upon written notice to
the City. Said termination shall become effective upon receipt of the written notice of
termination by the City. On the date specified in the notice, Concessionaire shall quit and
surrender any and all City property pursuant to the provisions of subsection 11.8.
11.6 Termination for Convenience.
11.6.1 NOTWITHSTANDING ANY OTHER PROVISION OF THIS SECTION 11 OR OF
THE AGREEMENT,THIS AGREEMENT MAY BE TERMINATED,IN WHOLE OR IN
PART, BY THE CITY, FOR CONVENIENCE AND WITHOUT CAUSE, UPON THE
FURNISHING OF THIRTY (30) DAYS PRIOR WRITTEN NOTICE TO
CONCESSIONAIRE.
11.6.2 In the event of termination by the City pursuant to this subsection 11.6,
Concessionaire herein acknowledges and agrees that it shall not have any claim,
demand, or cause of action of whatsoever kind or nature,against the City,its agents,
servants and employees (including, but not limited to, claims for any start-up costs,
interference in business or damages for interruption of services,or interference in its
concession operations). In no event shall the City be liable to Concessionaire for any
indirect, incidental, special, lost profits or consequential damages.
16
11.7 Habitual Default.
In the event that Concessionaire has defaulted in the performance of,or breached any of the
terms, covenants and conditions required herein to be kept and performed by
Concessionaire, a total of four(4) times during any Contract Year throughout the Term, at
the City's sole option and discretion, and regardless of whether Concessionaire has cured
each individual condition of breach or default,the Concessionaire may be determined by the
City to be a "habitual violator". At the time such determination is made, the City shall issue
to Concessionaire a written notice advising of such determination and citing the
circumstances therefore. Such notice shall also advise the Concessionaire that there shall
be no further notice or grace periods to correct a fifth (5th) breach or default, and that such
breach or default, of whatever nature, taken with the previous four (4) breaches and
defaults, shall be considered cumulative and, collectively,shall constitute a condition of non-
curable default and grounds for termination of this Agreement. In the event of any such fifth
(5th) breach or default within a Contract Year, this Agreement shall terminate, upon written
notice of termination to the Concessionaire, such termination to be effective upon the tenth
(10th)day following the date of receipt thereof; all payments due hereunder shall be payable
to said date; and Concessionaire shall have no further rights hereunder. In such case, the
City may also avail itself of the remedies set forth in subsection 11.4 hereof.
11.8 Su_rrender of City PropertyNenues.
Upon (or earlier termination) of this Agreement, Concessionaire shall surrender any and all
City property(ies) utilized be Concessionaire in the performance of the valet parking
operations hereunder, in the same condition as such property(ies) was/were prior to the
Commencement Date, reasonable wear and tear excepted. Concessionaire shall remove all
its Equipment, and any other personal property, upon forty-eight (48) hours written notice
from the City Manager or his designee unless a longer time period is agreed to by the City.
Concessionaire's obligation to observe or perform this covenant shall survive the expiration
or other termination of this Agreement. Continued occupancy of any City property after
termination of the Agreement shall constitute trespass by the Concessionaire, and may be
prosecuted as such. In addition, the Concessionaire shall pay to the City One Thousand
($1,000.00) Dollars per day as liquidated damages for such trespass and holding over.
SECTION 12. PERFORMANCE STANDARD; PERFORMANCE BOND OR ALTERNATE
SECURITY.
12.1 Performance Standard. Concessionaire acknowledges that timely acceptance and return of
patron vehicles directly impacts patron's experience of Venue's serviced in this Agreement.
As such Concessionaire agrees to ensure that not less than eighty percent (80%) of all
vehicles parked for any Venue event shall be returned to patrons within twenty(20)minutes
of patron's request for a vehicle(the"Performance Standard"). In the event Concessionaire
fails to meet this standard for any Venue event, Concessionaire shall pay to the City a
penalty in the amount of Forty and No/100 Dollars($40.00)for every vehicle delivered below
the Performance Standard (the "Penalty"). The Penalty shall be calculated in accordance
with the following standard:
Penalty = [(Total Cars Parked * 80%) —Total Cars Returned in 20 Min.] *$40
= [(100 vehicles * 80%) —75 vehicles]*$40
= [80 vehicles—75 vehicles]*$40
= 5 vehicles * $40
= $200
17
Concessionaire shall be entitled to a credit equal to fifty percent (50%) of any Penalty paid
for a Venue event upon presentment of the following documents to the City: (i) an Venue
event log listing the name, address, phone number, and vehicle information for each patron
to whom a refund of the Concession Fee was provided; and (ii) evidence of voided valet
tickets for each refund of the Concession Fee provided to a patron.
12.2 Performance Bond or Alternate Security.
Concessionaire shall, on or before the Commencement Date of this Agreement, furnish to
the City Manager a Performance Bond in the penal sum as stated below for the payment of
which Concessionaire shall bind itself for the faithful performance of the terms and
conditions of this Agreement. A Performance Bond, in the amount of Thirteen Thousand
Five Hundred ($13,500.00) Dollars, shall be required and be in faithful observance of this
Agreement. A cash deposit, irrevocable letter of credit, or certificate of deposit may also
suffice, as determined by the City Manager, in his sole and reasonable discretion. The form
of the Performance Bond or letter of credit shall be as required by the City Manager. In the
event that a Certificate of Deposit is approved, it shall be a Thirteen Thousand Five Hundred
($13,500.00) Dollars one-year Certificate of Deposit in favor of the City, which shall be
automatically renewed, the original of which shall be held by the City's Chief Financial
Officer. Concessionaire shall be so required to maintain said Performance Bond or alternate
security (as accepted by the City Manager), in full force and effect throughout the Term of
this Agreement. Concessionaire shall have an affirmative duty to notify the City Manager, in
writing, in the event said Performance Bond or alternate security lapses or otherwise
expires.All interest that accrues in connection with any financial instrument or sum of money
referenced above shall be the property of Concessionaire, except in an event of default, in
which case the City shall be entitled to all interest that accrues after the date of default.
SECTION 13. ASSIGNMENT.
The Concessionaire may not sublet or assign this Agreement, or any part thereof, under any
circumstances,without the prior written consent of the City which consent, if given at all, shall be in
the City's sole judgment and discretion.
SECTION 14. NO IMPROPER USE.
Concessionaire will not use, nor suffer or permit any person to use, in any manner whatsoever, any
City property(ies) or portion thereof granted to Concessionaire for the uses set forth in this
Agreement, for any improper, immoral or offensive purpose, or for any purpose in violation of any
Federal, State, County, or municipal ordinance, rule,order or regulation,or of any governmental rule
or regulation now in effect or hereafter enacted or adopted. Concessionaire will protect, indemnify,
and forever save and keep harmless the City, its officers, employees, contractors, agents or
servants,from and against damage, penalty,fine,judgment, expense or charge suffered, imposed,
assessed or incurred for any violation, or breach of any law, ordinance, rule, order or regulation
occasioned by any act, neglect or omission of Concessionaire, or any of its officers, employees,
contractors, agents or servants. In the event of any violation by Concessionaire, or if the City shall
deem any conduct on the part of Concessionaire to be objectionable or improper,the City Manager
shall have the right to suspend the concession operations should the Concessionaire fail to correct
any such violation, conduct, or practice to the satisfaction of the City Manager, within twenty-four
(24) hours after receiving written or verbal notice of the nature and extent of such violation,conduct,
or practice; such suspension to continue until the violation is cured. Concessionaire further agrees
not to commence operations during the suspension until the violation has been corrected to the
satisfaction of the City Manager.
18
SECTION 15. PRICE SCHEDULES.
Concessionaire agrees that prices and fees charged for valet parking services(the"Valet Fee")shall
not exceed those established by the Mayor and City Commission. The parties acknowledge that the
Concession Fee, as set forth in Section 3 hereto, is based upon the Valet Fee in effect as of the
Commencement Date, which is $20.00 per vehicle, for all Venues.
Notwithstanding the preceding, the City Commission reserves the right, at its sole discretion and
judgment, at any time during the Term hereof, to review the Valet Fee, and to amend said Fee, as
(and if) deemed in the best interest of the City.
The Concessionaire may also request that the City increase the Valet Fee (the "Fee Increase")
which Fee Increase shall be considered and granted (if at all)by the City Commission, in its sole and
absolute discretion. Prior to the Concessionaire's request for a Fee Increase, the Concessionaire
and the City Manager, or his/her authorized designee, shall meet and shall use their best efforts to
mutually agree on a recommendation (for the Commission) for a Fee Increase and corresponding
increase adjustment in the Concession Fee.
SECTION 16. NOTICES.
All notices from the City to Concessionaire shall be deemed duly served upon receipt, if mailed by
registered or certified mail with a return receipt to Concessionaire at the following addresses:
First Class Parking, LLC
12550 Biscayne Boulevard, Suite 207
Miami, Florida 33181
Attention: Jorge Zuluaga, Director
All notices from Concessionaire to the City shall be deemed duly served upon receipt, if mailed by
registered or certified mail return receipt requested to the City of Miami Beach at the following
addresses:
Office of the City Manager
City of Miami Beach
1700 Convention Center Drive
Miami Beach, FL. 33139
Attention: City Manager
and
City of Miami Beach Parking Department
City of Miami Beach
1755 Meridian Ave., Suite 200
Miami Beach, FL. 33139
Attention: Parking Director
Concessionaire and the City may change the above mailing addresses at any time upon giving the
other party written notification. All notices under this Agreement must be in writing.
19
SECTION 17. LAWS.
17.1 Compliance.
Concessionaire shall comply with all applicable City, County, State, and Federal ordinances,
statutes, rules and regulations(including but not limited to all applicable environmental City,
County, State, and Federal ordinances, statutes, rules and regulations, as same may be
amended from time to time.
17.2 Equal Employment Opportunity.
Neither Concessionaire nor any affiliate of Concessionaire performing services hereunder, or
pursuant hereto,will discriminate against any employee or applicant for employment because
of race, sex, sexual orientation, gender identity, color, creed, national origin, familial status,
religion or handicap. Concessionaire will take affirmative steps to utilize minorities and
females in the work force and in correlative business enterprises.
17.3 No Discrimination.
Concessionaire agrees that there shall be no discrimination as to race, sex, intersexuality,
sexual orientation, gender identity, color, creed, national origin, marital and familial status,
religion or disability or age, in its employment practice or in the operations referred to by this
Agreement. All facilities and services offered shall be made available to the public.
SECTION 18. MISCELLANEOUS.
18.1 No Partnership.
Nothing contained in this Agreement shall constitute or be construed to be or create a
partnership or joint venture between the City and Concessionaire.
18.2 Modifications.
This Agreement cannot be changed or modified except by agreement in writing executed by
all parties hereto. Concessionaire acknowledges that no modification to this Agreement may
be agreed to by the City unless approved by the Mayor and City Commission except where
such authority has been expressly provided herein to the City Manager.
18.3 Complete Agreement.
This Agreement, together with all exhibits incorporated hereto, constitutes all the
understandings and agreements of whatsoever nature or kind existing between the parties
with respect to Concessionaire's operations, as contemplated herein.
18.4 Headings.
The section, subsection and paragraph headings contained herein are for convenience of
reference only and are not intended to define, limit, or describe the scope or intent of any
provision of this Agreement.
18.5 Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
20
18.6 Clauses.
The illegality or invalidity of any term or any clause of this Agreement shall not affect the
validity of the remainder of the Agreement, and the Agreement shall remain in full force and
effect as if such illegal or invalid term or clause were not contained herein unless the
elimination of such provision detrimentally reduces the consideration that either party is to
receive under this Agreement or materially affects the continuing operation of this Agreement.
18.7 Severability.
If any provision of this Agreement or any portion of such provision or the application thereof to
any person or circumstance shall be held to be invalid or unenforceable, or shall become a
violation of any local, State, or Federal laws,then the same as so applied shall no longer be a
part of this Agreement but the remainder of the Agreement, such provisions and the
application thereof to other persons or circumstances, shall not be affected thereby and this
Agreement shall be so modified.
18.8 Right of Entry.
The City, at the direction of the City Manager, shall at all times during hours of operation,
have the right to enter into and upon any and all parts of the Concession Area for the purpose
of examining the same for any reason relating to the obligations of parties to this Agreement.
18.9 Not a Lease.
It is expressly understood and agreed that no part, parcel, building, structure, equipment or
space is leased to Concessionaire;that this Agreement is a concession agreement and not a
lease, and that Concessionaire's right to operate, manage, and maintain the concession shall
continue only so long as Concessionaire complies with the undertakings, provisions,
agreements, stipulations and conditions of this Agreement.
Accordingly, Concessionaire hereby agrees and acknowledges that in the event of
termination of this Agreement, whether due to a default by Concessionaire or otherwise,
Concessionaire shall surrender and yield unto the City any City property then being used by
Concessionaire for the provision of services herein, in accordance with subsection 11.8
hereof, and the City shall in no way be required to evict and/or otherwise remove
Concessionaire from any such area as if this were a tenancy under Chapter 83, Florida
Statutes, nor shall Concessionaire be afforded any other rights afforded to nonresidential
tenants pursuant to said Chapter(the parties having herein expressly acknowledged that this
Agreement is intended to be a concession agreement and is in no way intended to be a
lease).
18.10 Signage.
Concessionaire shall provide, at its sole expense and responsibility, any required signs at its
concession locations.All advertising,signage and postings shall be approved by the City,and
shall be in accordance with all applicable Municipal, County, State and Federal laws and
regulations. Any signage posted by Concessionaire shall be subject to the prior approval of
the City Manager or his designee as to size, shape and placement of same.
21
18.11 Conflict of Interest.
Concessionaire shall perform its services under this Agreement and conduct the concession
operation(s) contemplated herein, in a manner so as to show no preference for other
concession operations/facilities owned, operated, managed, or otherwise controlled by
Concessionaire.
18.12 No Waiver.
18.12.1 It is mutually covenanted and agreed by and between the parties hereto that the
failure of the City to insist upon the strict performance of any of the conditions,
covenants, terms or provisions of this Agreement, or to exercise any option
herein conferred, will not be considered or construed as a waiver or
relinquishment for the future of any such conditions, covenants,terms, provisions
or options but the same shall continue and remain in full force and effect.
18.12.2 A waiver of any term expressed herein shall not be implied by any neglect of the
City to declare a forfeiture on account of the violation of such term if such
violation by continued or repeated subsequently and any express waiver shall
not affect any term other than the one specified in such waiver and that one only
for the time and in the manner specifically stated.
18.12.3 The receipt of any sum paid by Concessionaire to the City after breach of any
condition, covenant, term or provision herein contained shall not be deemed a
waiver of such breach, but shall be taken, considered and construed as payment
for use and occupation (and not as rent), unless such breach be expressly
waived in writing by the City.
18.13 No Third Party Beneficiary.
Nothing in this Agreement shall confer upon any person or entity, other than the parties
hereto and their respective successors and permitted assigns, any rights or remedies by
reason of this Agreement.
SECTION 19. LIMITATION OF LIABILITY.
The City desires to enter into this Agreement only if so doing the City can place a limit on its liability
for any cause of action for breach of this Agreement, so that its liability for any such breach never
exceeds the sum of Ten Thousand ($10,000.00) Dollars. Concessionaire hereby expresses its
willingness to enter into this Agreement with a Ten Thousand ($10,000.00) Dollar limitation on
recovery for any action for breach of contract. Accordingly, and in consideration of the separate
consideration of Ten Thousand ($10,000.00) Dollars,the receipt of which is hereby acknowledged,
the City shall not be liable to Concessionaire for damages to Concessionaire in an amount in excess
of Ten Thousand ($10,000.00) Dollars, for any action for breach of contract arising out of the
performance or non-performance of any obligations imposed upon the City by this Agreement.
Nothing contained in this paragraph or elsewhere in this Agreement is in any way intended to be a
waiver of limitation placed upon the City's liability as set forth in Florida Statutes, Section 768.28.
SECTION 20. VENUE.
This Agreement shall be deemed to have been made and shall be construed and interpreted in
accordance with the laws of the State of Florida. This Agreement shall be enforceable in Miami-
Dade County, Florida, and if legal action is necessary by either party with respect to the enforcement
22
of any and all the terms or conditions herein, exclusive venue for the enforcement of same shall lie
in Miami-Dade County, Florida. THE CITY AND CONCESSIONAIRE HEREBY KNOWINGLY AND
INTENTIONALLY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING
THAT THE CITY AND CONCESSIONAIRE MAY HEREIN AFTER INSTITUTE AGAINST EACH
OTHER WITH RESPECT TO ANY MATTER ARISING OUT OF OR RELATED TO THIS
AGREEMENT.
SECTION 21. CITY LIEN.
It is expressly agreed that the City shall have a continuing lien on all personal property of the
Concessionaire,for all sums which may from time to time become due and unpaid to the City under
this Agreement, and upon default of payment by the Concessionaire and failure to cure after the
expiration of the applicable grace period, the City shall have the right to take possession of and
retain the same until the full amount due shall be paid, or to sell the same at public auction and, after
deducting the expense of such sale, apply the balance of the proceeds to such payment and if there
should be any deficiency, to resort to any other legal remedy available to it.
SECTION 22. NO LIENS.
Concessionaire agrees that it will not suffer or through its actions or anyone under its control or
supervision, cause to be filed upon the property any lien or encumbrance of any kind. In the event
any lien is filed, Concessionaire agrees to cause such lien to be discharged within ten (10) days of
said filing and in accordance with the applicable law and policy.
SECTION 23. STORAGE.
Concessionaire agrees that there will be no on-site or on-premises storage of any kind, of
Concessionaire's Equipment.
SECTION 24. CITY WITHDRAWAL OF CITY PROPERTY.
The City retains the right to withdraw all or any portion of the City propertyNenues set forth herein
from the terms and conditions of the Agreement. The City shall give the Concessionaire thirty(30)
days written notice in the event of such withdrawal. In the event the City withdraws all of the City
property and/or Venues,the Agreement shall automatically terminate,without liability to either party
herein. In the event the City withdraws less than all of the City property and/Venues, then the
remaining propertyNenues shall continue within the scope of the Agreement,and the City agrees to
make a proportionate adjustment in the Concession Fee amount due.
SECTION 25. PUBLIC BENEFIT.
The Concessionaire agrees to continue its past practice to donate toys, or make a monetary
donation, in support of the City Parking Department's annual holiday toy drive benefitting Miami
Beach residents.
SECTION 26. AUTOMATED VALET SYSTEM.
The Concessionaire shall at all times employ an automated valet system during the operation of the
Concession.
23
IN WITNESS WHEREOF,the parties hereto have caused their names to be signed and their
seals to be affixed, all as of the day and year first above written, indicating their agreement.
Attest: CITY OF MIAMI BEA ' i RIDA
Ra el E. ranado, Ci Cle :INCORPORATED: ilip Levin-, Ma •'F
$, I _c
Attest: ° -H 26N FIRS *�$4 PARKING, LLC
�fv
∎1\_
nature/Secretary Jorge Zuluag: f k ident
IFF
�jc T ch r. D•, .
(Print Name) 1
CORPORATE SEAL
(affix seal here)
APPROVED AS TO
FORM & LANGUAGE
& FO EX CUTION
:�� (1, 1
erbj 111
City Attorney .%• Date
24
EXHIBIT A
FIRST CONTRACT YEAR 2015 2016 2016
I. Venue '%o
Contract Ajustment for Estimated Impact of First
1, Base Increase in Fees Contract
Year per Vehicle MBCC construction Year
33%increase -50%
Miami Beach Convention Center(MBCC) 75.00% $ 121,500.00 $ 161,595.00 $ (80,797.50) $ 80,797.50
Lincoln Road ramps 2.50% $ 4,050.00 $ 5,386.50 $ 5,386.50
Fillmore Miami Beach 22.50% $ 36,450.00 $ 48,478.50 $ 48,478.50
Total Payment-Year 100.00% $ 162,000.00 $ 215,460.00 $ 134,662.50
Montlhy Payment $ 13,500.00 $ 11,221.88
YEARLY TRUE-UP
(a)Actual number of vehicles serviced
(b) Actual%of MBCC construction impact
(c) Recalculated yearly amount based on actual
(d)Actual amount paid for the year
(e) Over/Under payment
Example 1 -TRUE-UP-showing a decrease- 10,000 vehicles serviced instead of estimated 12,385
Contract Base Year
•
(Oct 2014 to Sept 2015) Actual Impact of
MBCC construction
Actual Vehicles Actual Vehicles Diff
Miami Beach Convention Center 24,769 10,000 (a) (14,769) 1 -59.63% (b)
Re-Calculate Year 2015 2016
Contract Ajustment for Actual Impact of First
Venue % Base Increase in Fees MBCC construction Contract
Year per Vehicle First Contract Year Year
33%increase -59.63% (b)
Miami Beach Convention Center(MBCC) 75.00% $ 121,500.00 $ 161,595.00 $ (96,354.17) $ 65,240.83
Lincoln Road ramps 2.50% $ 4,050.00 $ 5,386.50 $ 5,386.50
Fillmore Miami Beach 22.50% $ 36,450.00 $ 48,478.50 $ 48,478.50
Total Payment-Year 100.00% $ 162,00040 $ 215,460.00 1 $ 119,105.83 (c)
Actual Amount Paid $ 134,662.50 1(d)
Difference between Amount Paid (d)and Recalculated amount(c) '$ (15,556.67) (e)
Example 1 -Concessionaire is due a refund of$15,556.67
Example 2-TRUE-UP-showing a increase- 15,000 vehicles serviced instead of estimated 12,385
Contract Base Year
(Oct 2014 to Sept 2015) Actual Impact of
Actual Vehicles Actual Vehicles Diff MBCC construction
Miami Beach Convention Center 24,769 15,000 (a) (9,769) I -39.44% (b)
Re-Calculate Year 2015 2016
Contract Ajustment for Actual Impact of First
Venue % Base Increase in Fees MBCC construction Contract
Year per Vehicle First Contract Year Year
33%increase -39A4% (b)
Miami Beach Convention Center(MBCC) 75.00% $ 121,500.00 $ 161,595.00 $ (63,733.76) $ 97,861.24
Lincoln Road ramps 2.50% $ 4,050.00 $ 5,386.50 $ 5,386.50
Fillmore Miami Beach 22.50% $ 36,450.00 $ 48,478.50 $ 48,478.50
Total Payment-Year 100.00% $ 162,000.00 $ 215,460.00 $ 151,726.24 (c)
ACTUAL AMOUNT PAID $ 134,662.50 1(d)
Difference between Amount Paid(d)and Recalculated amount(c) - i $ 17,06.3.74 (e)
T
Example 2-City is due a payment of$17,063.74
•
RESOLUTION NO. 2015-28943
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, ACCEPTING THE RECOMMENDATION OF THE
FINANCE AND CITYWIDE PROJECTS COMMITTEE, AND THE CITY MANAGER,
AND APPROVING BY 5/7ths VOTE, A WAIVER OF THE COMPETITIVE BIDDING
REQUIREMENT, FINDING SUCH WAIVER TO BE IN THE BEST INTEREST OF
THE CITY; AUTHORIZING THE CITY ADMINISTRATION TO NEGOTIATE AN
EXTENSION OF THE CONCESSION AGREEMENT WITH FIRST CLASS PARKING
FOR VALET PARKING SERVICES, FOR A THREE (3) YEAR PERIOD OR
SUBSTANTIAL COMPLETION OF THE MIAMI BEACH CONVENTION CENTER
RENOVATION AND EXPANSION PROJECT, WHICHEVER OCCURS FIRST.
WHEREAS, on February 25, 2009, the Mayor and Commission approved Resolution
No: 2009-27017, awarding a concession agreement to First Class Parking, Inc., to provide valet
parking services to the Miami Beach Convention Center (MBCC); Fillmore at the Jackie
Gleason Theater; Lincoln Road; and other City property, as required (the Agreement); and
WHEREAS, the initial term of the Agreement commenced on October 1, 2010 and
expired on September 30, 2013 and
r
WHEREAS, a two-year renewal option was exercised and commenced on October 1,
2013; and expires on September 30, 2015; and
WHEREAS, the MBCC will undergo an unprecedented multiple year renovation and
expansion project (the Project) and the MBCC will remain operational through construction; and
WHEREAS, the City Administration has determined that it would be in the best interest of
the City to have a valet parking service provider that is familiar with the operations and dynamics of
the MBCC through the construction phase of the Project; and
WHEREAS, on February 2, 2015, the Finance and Citywide Projects Committee
recommended that the City Commission waive the competitive bidding requirement, and negotiate
an extension of the Agreement for a term of three (3) years, or substantial completion of the Project,
whichever occurs first.
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 Finance and Citywide Projects Committee, and the City Manager, and
approve, by 5/7ths vote, a waiver of the competitive bidding requirement, finding such waiver to be
in the best interest of the City; authorizing the City Administration to negotiate an extension of the
Concession Agreement with First Class Parking for Valet Parking Services, for a three (3) year
period or substantial completion of the Miami Beach Convention Center Renovation and Expansion
Project, whichever occurs first.
PASSED AND ADOPTED this /1 day of imQrCk 2015.
ATTEST: ..v."`uumimla, APPROVED AS TO
••p B -'4 FORM & LANGUAGE
,i'NQ`•.• """ - *04A-- & FOR EXECUTION
3 )-7 if./ ,S 1 .... ----. 1_,,,,, .,---- sit
Rafa E. Granado, Ci y Clerk - - ��•c!`'<it. :'r
r. city tfome Dote
�.,� :INCO"�i,� �'TED s' ry Y
T:\AGENDA12015\Mar11\Parking\T:WGENDA\20 r\Ic_om r•-;aj•t•CWPC$t -rParkingAttedantsAgreementMarch112015.res.doc
''a, x/ 26