2018-30206 Resolution RESOLUTION NO. 2018-30206
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF MIAMI BEACH, FLORIDA, ACCEPTING THE WRITTEN
RECOMMENDATION OF THE CITY MANAGER (AS SET FORTH IN THE
CITY COMMISSION MEMORANDUM ACCOMPANYING THIS
RESOLUTION) AND WAIVING, BY 5/7TH VOTE, THE COMPETITIVE
BIDDING REQUIREMENT, FINDING SUCH WAIVER TO BE IN THE
BEST INTEREST OF THE CITY, AND APPROVING, IN SUBSTANTIAL
FORM, A CONCESSION AGREEMENT (ATTACHED TO THE CITY
COMMISSION MEMORANDUM ACCOMPANYING THIS RESOLUTION),
BETWEEN THE CITY AND THE MARKET COMPANY, INC, FOR THE
MANAGEMENT AND OPERATION OF THE ESPANOLA WAY STREET
MARKET ON A MONTH-TO-MONTH BASIS; AND FURTHER
AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE THE
FINAL NEGOTIATED CONCESSION AGREEMENT.
WHEREAS, on August 19, 2013, RFP No. 2013-317ME was issued for the
management and operation of the City's street markets, including the green markets at
Lincoln Road, Collins Park, Normandy Village Isle, and other locations to be submitted
by proposer; and
WHEREAS, on April 23, 2014, the Mayor and City Commission adopted
Resolution No. 2014-28573, authorizing the City Manager to negotiate and execute
agreements with The Market Company, Inc. (Concessionaire), as the successful bidder
for the green markets at Lincoln Road, Collins Park, Normandy Village Isle, and South
of Fifth (the green markets); and
WHEREAS, upon conclusion of successful negotiations, the City entered
into four (4) separate Concession Agreements with Concessionaire for each of the
green markets; and
WHEREAS, on February 2, 2018, citing low vendor participation, the
Concessionaire exercised its option to terminate the Concession Agreement for the
South of Fifth Street Market, which termination was effective as of March 31, 2018; and
WHEREAS, in September 2017, the Espanola Way Association, Inc.
(Association), the neighborhood's business association, approached the Administration
and requested that the City establish an Espanola Way street market, situated on the
public right-of-way between Washington Avenue and Drexel Avenue; and
WHEREAS, the Association endorsed Concessionaire as operator of the new
market because Concessionaire presently operates the City's other green markets and
previously operated the Espanola Way market from 2006 to 2009; and
WHEREAS, on December 17, 2017, the City Commission accepted
Concessionaire's proposal to waive the minimum rent guarantee on the condition that
the contract term of the proposed Espanola Way Concession Agreement only run
month-to-month, and further instructed the Administration to start preparing a Request
for Qualifications for the markets in South of Fifth and Espanola Way; and
WHEREAS, as set forth in the attached City Commission memorandum
accompanying this Resolution, and as required pursuant to Section 2-367(e) of the City
Code, the City Manager is recommending the waiver, by 517th vote, of the competitive
bidding requirement, as being in the best interest of the City; and
WHEREAS, the Administration recommends the approval, in substantial form, of
the Concession Agreement attached to the City Commission Memorandum, which
agreement provides for the payment to the City of a Concession Fee, in the amount of
15% of Concessionaire's gross receipts.
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 written recommendation of the City Manager (as set
forth in the City Commission Memorandum accompanying this Resolution) and waive,
by 517th vote, the competitive bidding requirement, finding such waiver to be in the best
interest of the City, and approve, in substantial form, a Concession Agreement
(attached to the City Commission Memorandum accompanying this Resolution),
between the City and The Market Company, Inc., for the management and operation of
the Espanola Way Street Market on a month-to-month basis; and further authorize the
Mayor and City Clerk to execute the final negotiated Concession Agreement.
PASSED and ADOPTED THIS I day of Mardi, 2018.
ATTEST:
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5/(k. y
RAFAEL . GRANADO, CITY CLERK DAN LBER, MAYOR
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1I•Y2/CRF1 CRATED
APPROVED AS TO
FORM & LANG -AGE
& F•' EXE "ION
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Date
City Attor,ey 1�� J
Resolutions - C7 B
MIAMI BEACH
COMMISSION MEMORANDUM
TO: Honorable Mayor and Members of the City Commission
FROM: Jimmy L. Morales, City Manager
DATE: March 7, 2018
SUBJECT:A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, ACCEPTING THE WRITTEN RECOMMENDATION OF
THE CITY MANAGER (AS SET FORTH IN THE CITY COMMISSION
MEMORANDUM ACCOMPANYING THIS RESOLUTION)AND WAIVING, BY 5/7TH
VOTE, THE COMPETITIVE BIDDING REQUIREMENT, FINDING SUCH WAIVER
TO BE IN THE BEST INTEREST OF THE CITY, AND APPROVING, IN
SUBSTANTIAL FORM, A CONCESSION AGREEMENT (ATTACHED TO THE CITY
COMMISSION MEMORANDUM ACCOMPANYING THIS RESOLUTION),
BETWEEN THE CITY AND THE MARKET COMPANY, INC., FOR THE
MANAGEMENT AND OPERATION OF THE ESPANOLA WAY STREET MARKET
ON A MONTH-TO-MONTH BASIS; AND FURTHER AUTHORIZING THE MAYOR
AND CITY CLERK TO EXECUTE THE FINAL NEGOTIATED CONCESSION
AGREEMENT.
RECOMMENDATION
Approve the Resolution the Commission consistent with Commission direction on December 13,
2018 thereby the Commission directed the Administration to develop a concession agreement
allowing the existing Concessionaire to commence market operations on a month-to-month basis in
while Administration prepares the RFQ process and analyzes how best to expand its outreach efforts
BACKGROUND
On August 19, 2013, Request for Proposals No. 2013-317ME was issued for the management and
operation of street markets. On April 23, 2014, the Commission adopted Resolution No. 2014-28573,
authorizing the City Manager to execute four separate concession agreements with The Market
Company, Inc. (Concessionaire)for each of the green markets at Lincoln Road, Collins Park,
Normandy Village Isle, and South of Fifth.
In April 2015, Concessionaire exercised the termination for convenience provision contained in the
agreement for the Collins Park location. Under the agreement's terms, Concessionaire was required
to pay the City 15% of gross receipts, with a minimum annual guarantee of $5,000 regardless of
actual revenue. Concessionaire cited a lack of interest from vendors and, therefore, lower than
expected revenue, which did not meet the minimum guarantee of$5,000.
In May 2017, Concessionaire renewed its agreements for Lincoln Road and Normandy Village Isle,
under the same terms and conditions, for a renewal period of two years, commencing October 1,
2017 and ending September 30, 2019.
Page 798 of 1522
In June 2017, Concessionaire submitted a renewal request to the City for the South of Fifth Street
Market. Concessionaire's proposed two-year renewal contained the same terms and conditions,
except that Concessionaire requested the City waive the guaranteed annual rent of $5,000
throughout the renewal term. Concessionaire attributed this request to low vendor participation.
Nevertheless, Concessionaire noted sustained interest in the market, demonstrated by a small and
steady patronage of residents and community members. Accordingly, Concessionaire sought to
continue operating the market, but with payment to the City consisting only of 15% of gross sales
receipts.
ANALYSIS
On September 28, 2017 and October 26, 2017, the Administration met with representatives from the
Espanola Way Association, Inc. (Association), the business association of Espanola Way merchants
and owners. In an effort to further activate Espanola Way, the Association requested that the City
enter into a new concession agreement with Concessionaire for a street market along the pedestrian
portion of Espanola Way, between Washington Avenue and Drexel Avenue. The Association feels
Concessionaire is best—suited to operate the location because it currently operates markets in other
locations throughout Miami Beach and previously operated a street market at Espanola Way from
2006 to 2009. In order to do so, pursuant to Section 2-367(e) of the City Code, the Mayor and City
Commission would be required to waive, by a 517th vote, the competitive bidding process.
December 13, 2017 Commission Meeting
The Commission discussed this item at its December 13, 2017 meeting. The Commission instructed
the Administration to issue a Request for Qualifications (RFQ) for Espanola Way and South of Fifth
with expanded outreach efforts.
However, in the interest of immediately activating Espanola Way during tourism season, the
Commission authorized Concessionaire to commence market operations on a month-to-month basis
in the interim. The Commission accepted Concessionaire's request to omit the standard concession
term requiring a minimum annual guarantee of $5,000. Given Concessionaire's qualifications and
ability to immediately start operating the Espanola Way Market, the Commission waived competitive
bidding to enter the proposed Concession Agreement.
As the Administration prepares the RFQ process and analyzes how best to expand its outreach
efforts, it has negotiated the proposed Concession Agreement attached hereto as Exhibit A
(Concession Agreement). Other than minimum guaranteed rent, the basic terms and conditions are
generally consistent with Concessionaire's other agreements, as follows:
Basic Lease Terms
Concessionaire: The Market Company, Inc.
Concession Area: Espanola Way between Drexel Avenue and Washington Avenue
Use:Open-air street market offering arts and crafts,flowers and plants,produce and other edible items
Term: Month-to-month term, ending September 30, 2019 (coterminous with Concessionaire's other current
agreements)or upon award of a contract following competitive bidding,whichever occurs first
Days/Hours:Sundays 10AM—2 PM
Tuesdays 4 PM — 10 PM
Concession Fee: 15%of Concessionaire's gross receipts
Page 799 of 1522
Minimum Guaranteed Rent: None
Security Deposit: $1,000
Termination for Convenience: Either party may terminate without cause upon provision of 30 days'notice
CONCLUSION
CITY MANAGER'S RECOMMENDATION
Based upon the foregoing, the City Manager recommends that the Mayor and City Commission
waive the formal competitive bidding requirement, by a 517th vote, as permitted under Section 2-
367(e) of the City Code, as being in the best interest of the City.
CONCLUSION
The Administration recommends that the Mayor and City Commission approve the attached
Concession Agreement and authorize the Administration to issue an RFQ for the management and
operation of Street Markets in South of Fifth and Espanola Way.
Exhibits:
A Concession Agreement
Legislative Tracking
Tourism, Culture and Economic Development
ATTACHMENTS:
Description
o Exhibit A- Concession Agreement
o Resolution
Page 800 of 1522
Concession Agreement
for the Operation of the
Espanola Way Street Market
Page gOt of 1522
INDEX
SECTION TITLE PAGE
1 TERM 4
2. CONCESSION AREA 5
3. USE(S) 5
3.2 Facilities Design 6
3.3 Site Plan 6
3.4 ADA Compliance 7
3.5 Public Right-of-Way 7
3.7 Hurricane Evacuation Plan 8
3.8 Permitted Concession Items 8
3.9 Dangerous Materials Prohibition 9
3.11 Monitoring Fee 9
3.12 Nonexclusive Use 10
3.13 Conflict Resolution 10
3.14 Management& Security 11
3.15 Vendor Selection/Miami Beach Merchants 11
3.16 Business Tax Receipt 11
4. CONCESSION FEES 11
4.1 Security Deposit 11
4.2 Percentage of Gross Receipts 12
4.4 Interest for Late Payment 12
4.5 Sales and Use Tax 12
5. MAINTENANCE AND EXAMINATION OF RECORDS 12
6. INSPECTION AND AUDIT 12
7. TAXES, ASSESSMENTS, AND UTILITIES 14
7.2 Ad Valorem Taxes 14
7.3 Generator Usage 14
8. EMPLOYEES AND INDEPENDENT CONTRACTORS 15
9. SCHEDULE OF OPERATION 15
9.1 Days of Operation 15
9.2 Hours of Operation 15
9.3 Changes to Hours of Operation 16
10. MAINTENANCE 16
10.3 ` Garbage Receptacles 16
10.4 Pressure Cleaning 17
10.5 Inspection 17
11. INSURANCE 17
12. INDEMNITY 18
12.4 Subrogation 19
12.5 Force Majeure 19
13 DEFAULT AND TERMINATION 19
13.1 Bankruptcy 20
13.2 Default in Payment 20
13.3 Non-Monetary Default 20
13.4 City's Remedies for Concessionaire's Default 20
13.6 Termination for Convenience/Partial Termination 21
13.7 Surrender of Concession Area 22
14. ASSIGNMENT 22
15 SPECIAL EVENTS 23
15.1 City Special Events 23
15.2 Street Vendors/Street Performers 23
16. NO IMPROPER USE 24
17. PRICE SCHEDULES 24
18. NOTICES 24
19. LAWS 25
19.1 Compliance 25
Page g02 of 1522
19.2 Governing Law 25
19.3 Equal Employment Opportunity 25
19.4 No Discrimination 25
20. MISCELLANEOUS 26
20.2 Modifications 26
20.5 Binding Effect 26
20.7 Severability 26
20.8 Right of Entry 27
20.9 Not a Lease 27
20.10 Signage 27
20.14 No Third Party Beneficiary 27
20.15 Attorneys' Fees 28
21. LIMITATION OF LIABILITY 28
22. VENUE 28
23. COMPLIANCE WITH FLORIDA PUBLIC RECORDS LAW 28
24. PROHIBITION ON POLYSTYRENE 30
EXHIBITS
Exhibit A 33
Exhibit B 34
Exhibit C 35
Exhibit D 36
Exhibit E 38
Exhibit F 39
Exhibit G 44
Page R03 of 1522
CONCESSION AGREEMENT
BETWEEN THE CITY OF MIAMI BEACH, FLORIDA
AND THE MARKET COMPANY, INC.
FOR THE MANAGEMENT AND OPERATION OF THE
ESPANOLA WAY STREET MARKET
THIS CONCESSION AGREEMENT (the "Agreement") made the day of , 2018
("Effective Date"), between the CITY OF MIAMI BEACH, a municipal corporation of the State of
Florida (hereinafter referred to as "City"), having its principal address at 1700 Convention Center
Drive, Miami Beach, Florida, 33139, and THE MARKET COMPANY, INC., a for-profit corporation
established pursuant to the laws of the State of Florida, with offices at 238 East San Marino Drive,
Miami Beach, Florida 33139 (hereinafter referred to as "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 No. 2013-317ME, for the management and operation
of street markets, including green markets at Lincoln Road, Collins Park, Normandy Village Isle,
and South of Fifth; and
WHEREAS, Concessionaire, although the sole proposer for the operation of a street market
in Espanola Way, has been operating similar markets in Miami Beach and adjoining communities,
and was recommended by the City Commission as the successful operator for the Espanola Way
Street Market ("Market"); and
WHEREAS, the Espanola Way Association, Inc. (Association), the business association
representing the interests of the Espanola Way neighborhood, has requested the City revive the
street market on Espanola Way, situated on the public right-of-way between Washington Avenue
and Drexel Avenue; and
WHEREAS, the Association endorsed Concessionaire as operator of the new market
because Concessionaire presently operates the City's other green markets and previously
operated the Espanola Way market from 2006 to 2009; and
WHEREAS, at the December 13, 2017, the Mayor and Commission authorized the City and
Concessionaire to negotiate a concession agreement for operation of the Espanola Way Street
Market on a month to month basis; and
WHEREAS, on , the Mayor and Commission accepted the written
recommendation of the City Manager and waived, by 517th vote, the competitive bidding
requirement, finding such waiver to be in the best interest of the City, and approved, in substantial
form, this Agreement for the management and operation of the Espanola Way Street Market on a
month-to-month basis, and further authorized the Mayor and City Clerk to execute the final
negotiated Agreement.
NOW THEREFORE, in consideration of the premises and the mutual covenants and
conditions herein contained and other good and valuable consideration, the receipt and adequacy
of which are hereby conclusively acknowledged, it is agreed by the parties hereto as follows:
Page gO4 of 1522
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 operate on a month-to-month basis, commencing as of the
aforementioned Effective Date ("Commencement Date"), expiring on September 30,
2019 or as such time as the City executes a new concession agreement for the
Market ("Initial Term"), whichever occurs first.
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 areas (hereinafter referred to collectively
as the "Concession Area" and as more specifically delineated in Exhibit A):
2.1 Area 1. Espanola Way.
This Concession Area is limited to the public right-of-way bounded on the south by a
line which lies no less than five (5'0") feet north of, and parallel to the south right-of-
way line of Espanola Way (keeping, at minimum, a clear unobstructed five (5'0") foot
clear path of travel for pedestrians between the private property and the Concession
Area); bounded on the north by a line which lies no less than five (5'0") feet south of,
and parallel to the north right-of-way line of Espanola Way (keeping, at minimum, a
clear unobstructed five (5'0") foot clear path of travel for pedestrians between the
private property and the Concession Area); bounded on the west by the east right-of-
way line of Drexel Avenue; and bounded on the east by the west right-of-way line of
Washington Avenue. The Concession Area does not include those portions of the
public right-of-way where fountains, seating, or other public amenities or uses
authorized, licensed, or permitted by the City are currently located or may be located
in the future.
2.2 Area 2. Drexel Avenue.
This Concession Area is limited to the public right-of-way bounded on the south by
the south lot line of lot 1 block 4B of First Addition to Whitman's Subdivision of
Espanola Villas according to the plat thereof as recorded in plat book 3 page 147 of
the public records of Miami-Dade County, Florida; bounded on the north by the south
Espanola Way right-of-way; bounded on the west by a line which lies no less than
fourteen (14'0") feet east of, and parallel to the west right-of-way of Drexel Avenue;
and bounded on the east by a line which lies no less than fourteen (14'0") feet west
of, and parallel to the east right-of-way of Drexel Avenue. The Concession Area does
not include those portions of the public right-of-way where fountains, seating, or other
public amenities or uses authorized, licensed, or permitted by the City are located or
may be located in the future.
2.3 Notwithstanding the use of the Concession Area granted to Concessionaire herein,
Concessionaire herein understands, agrees, and acknowledges that the Concession
Area, along with any and all other public right-of-way areas not specifically identified
Page P05 of 1522
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 Espanola Way Street Market ("Market"), which
shall provide a venue for Concessionaire's vendors to sell and/or provide items such
as: plants and cut flowers; fruits, vegetables, and other edible products and related
food items; cooked and prepared food items; non-alcoholic beverages, coffee, and
tea; and arts and craft items (as each is more specifically defined in Section 3.8 and
more particularly delineated in the attached Exhibit E):
3.2 Facilities.
Operation of the Market shall generally include the rental of booths, tents, tables,
signs, or space(s) (collectively, "Facilities"), in conformance with the site plan defined
in Section 3.3 herein. The City herein approves the rental of the Facilities, and the
prices for same, as set forth in Exhibit B, and as provided in Section 17. Any
amendments to Exhibits A, B, or C 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.
3.2.1 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 of City-approved Facilities is incorporated herein as Exhibit C.
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 C will be made a part of and incorporated into this
Agreement).
3.2.2 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 similar to those found in other first-class resort
and beach communities comparable to 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 conditions and standards of quality.
3.3 Site Plan.
The set-up of Facilities to be placed within the Concession Area shall be substantially
in accordance with the Site Plan approved in Exhibit A. The Facilities shall not
Page g06 of 1522
exceed a maximum number of 36 tent spaces or tables, as depicted in Exhibit A.
Concessionaire further agrees that it will not alter or modify its Site Plan without the
prior written consent of the City Manager or his/her designee.
All portions of the Concession Area shall at all times be maintained in a clean and
sanitary manner.
3.4 Compliance with Americans with Disabilities Act (ADA).
Concessionaire agrees and acknowledges that during all periods when the Market
operates, 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 D hereto.
Concessionaire's compliance with the provisions set forth in the attached Exhibit D
includes, but shall not be limited to, any and all responsibilities associated with "Event
Producer," as described therein.
3.4.1 The Concessionaire's responsibility to comply with the aforementioned
provisions in this section 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 Espanola Way.
Concessionaire shall:
a) maintain accessible path(s) of travel that permit unobstructed
access to the entryways of all buildings, facilities, elements,
and spaces within Espanola Way; and
b) maintain an unobstructed accessible path of travel on all
sidewalks of and along Espanola Way.
3.4.2 Concessionaire's responsibility to comply with the requirements of this section
shall be limited to those areas within the Concession Area.
3.5 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. 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.
No vehicular traffic or parking will be permitted on the public right-of-way or the
Concession Area unless specifically authorized. Vehicles and trailers belonging to
Concessionaire, including its employees, contractors, agents, vendors, and/or other
third parties, shall be permitted on the street adjacent to the Concession Area/public
right-of-way on Espanola Way only for set up and removal of the concession
Page g07 of 1522
operations, and any and all such vehicles must be removed from the public right-of-
way immediately thereafter. Anyone operating a vehicle for these purposes shall
have a current and valid driver's license.
The bagging of parking meters for the Market is not permitted. If use of parking
spaces within the Concession Area is needed in connection with the operation of the
Market, and approved by prior written consent of the City Manager or his/her
designee, Concessionaire will be required to pay for appropriate costs associated for
the bagging of parking meters.
3.6 Removal of Concession Facilities.
Concessionaire agrees that any Facilities or other items used in Market operations
shall be removed from the public right-of-way and Concession Area, in compliance
with the time parameters set forth in section 9.2 herein.
3.7 Hurricane Evacuation Plan.
Concessionaire agrees that the Facilities and any other items used in concession
operations will be immediately removed from the Concession Area upon the issuance
of a hurricane warning by the Miami-Dade County Office of Emergency Management,
and stored by Concessionaire at a private, off-site location.
Concessionaire agrees to adhere to the site plan which satisfies emergency ingress
and egress requirements and has been approved by the Fire Department, attached
hereto as Exhibit G ("Emergency Evacuation Plan").
3.8 Permitted Concession Items.
The quality of goods and services offered by Concessionaire will be first-rate and
comparable to those available in open air markets in other first-class resort and
beach communities similar to 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).
3.8.1 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.
3.8.2 Fruits, Vegetables, Other Edible Products.
This shall generally include the sale of those edible items such as fresh or
dried fruits, vegetables, nuts; preserves, jams, jellies, or pickled items; juices,
smoothies, or other non-alcoholic, non-branded beverages (e.g. lemonade, ice
tea, etc.), and Coca-Cola brand beverages and coffee products.
3.8.3 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 as barbecue,
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.
Page g08 of 1522
3.8.4 Arts and Crafts.
This shall generally include the sale of arts and crafts that are individually
hand-crafted and not commercially mass-produced.
3.8.5 Live Entertainment/Amplified Sound.
Live entertainment or speakers are not permitted in the Concession Area.
3.8.6 Termination of Permitted Items by City.
In the event that the City determines, at its sole option and discretion, that any
of the foregoing items for sale are no longer permitted, then the City may
revoke Concessionaire's right to provide such item, upon thirty (30) days
written notice to Concessionaire. Any percentage of gross receipts (PG), as
defined herein, paid by Concessionaire with regard to a discontinued use/item
shall be prorated and/or adjusted accordingly, as of the date of termination of
said use/item.
3.9 Dangerous Materials.
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.
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.
3.10 Intentionally Omitted.
3.11 Monitoring Fee
Concessionaire agrees to pay a monitoring fee in the amount of $40.00 per day for
costs related to monitoring the Concessionaire's operations at the Market. The
monitoring fee shall be paid with the PG payment due pursuant to Subsection 4.2
herein. The City, through its designated staff, will monitor the Concession Area at a
frequency deemed appropriate by the City in its sole discretion.
Page g09 of 1522
In the event that the City chooses to extend the term of this Agreement for the
Renewal Term, the monitoring fee during the Renewal Term shall automatically
increase by five (5%) percent.
3.12 Nonexclusive Use.
Concessionaire understands and agrees that there exist 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.
3.13 Conflict Resolution.
Concessionaire recognizes and understands that conflicts with one or more of the
following may arise during the Term of this Agreement, or any extensions thereof:
conflicts between Espanola Way 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.
In the event that the City receives notice of a conflict, whether verbally or in writing,
the City will communicate said information to the Concessionaire as quickly as
practicable.
In the event of a conflict between Concessionaire and any of the aforementioned
entities regarding any of Concessionaire's operations, upon Concessionaire's receipt
of notice of same, whether written or verbal, resolution of said conflict shall be
addressed in the following manner:
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 that the conflict is not thereby resolved, then the Concessionaire
shall provide written notice of the conflict to the City Manager's designee, with
copy to the conflicted party. Within fourteen (14) calendar days of receipt of
the written notice, the City Manager's designee shall propose a resolution,
which may include the conflicted parties meeting with the City Manager's
designee.
3. In the event the resolution recommended by the City Manager's designee is
not acceptable to the Concessionaire or the other conflicted party, the City
Manager's designee shall inform the City Manager of the conflict. The City
Manager may choose to meet with the conflicted parties prior to making a
determination in concurrence with the designee's recommendation or offering
an alternative resolution. The City Manager's determination will be final and
binding upon all parties.
Concessionaire understands and agrees that the foregoing conflict resolution process
is not applicable to any conflict that may arise between the City and the
Concessionaire under this Agreement, or to conflicts outside of the City's purview,
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control, or jurisdiction.
3.14 Management and Security.
Concessionaire shall provide an onsite supervisory manager in the Concession Area
at all times during which the Market is operating. Concessionaire's supervisory
manager must also be present during the Set-Up and Move-Out periods.
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.
Concessionaire agrees to provide off-duty police services ("Policing Services"), as
required pursuant to City policy or applicable law, at such time or as may be required
in special circumstances as they may arise. Should the City, in its sole discretion,
hereinafter deem that Policing Services become warranted, the City shall provide
notice to Concessionaire, who shall immediately thereafter implement same.
3.15 Vendor Selection / Priority for Miami Beach Merchants.
Concessionaire shall be solely responsible for the selection, oversight, and
supervision of any vendor operating within the Concession Area as part of the
Market.
The Concessionaire shall offer City-licensed merchants the opportunity to participate
as vendors with a booth space in the Market. Concessionaire will use best efforts to
ensure that City-licensed merchants are contacted and that marketing of booth
availability is disseminated throughout the City, including, but not limited to,
advertising in print newspapers, journals, websites, etc.
Concessionaire will keep and make available to the City for inspection, upon notice
by the City, detailed vendor records, including vendor name, address, telephone
numbers, qualifications, experience, and the proposed goods and services to be
offered for sale by its vendors. Concessionaire will endeavor to match vendors and
booths with appropriate locations.
3.16 Business Tax Receipt
Concessionaire shall obtain, at its sole cost and expense, any business licensing
required by the City for its proposed operations. For purposes of this Agreement,
Concessionaire shall obtain the "Agents, Broker, Dealers..." category business tax
receipt.
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 ($1,000) Dollars ("Security Deposit"). This fee shall
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serve to secure Concessionaire's performance in accordance with the provisions of
the 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.
In the event that Concessionaire does furnish the Security Deposit 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 and
without being prejudiced as to any remedies which may be available to the City for
breach of contract.
4.2 Percentage of Gross Receipts (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 (referred to as "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 Intentionally Omitted
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.
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 all
payments due from Concessionaire (including MG and PG) shall be submitted to the
City as net of such taxes.
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
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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.
SECTION 6. INSPECTION AND AUDIT.
6.1 Concessionaire shall maintain its financial records pertaining to operations for a
period of three (3) years following conclusion of the Term, and such records shall be
open and available to the City 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.
The City Manager or his/her designee shall be entitled to audit Concessionaire's
records pertaining to its operation as often as deemed 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.
6.2 Concessionaire shall submit, within ninety (90) days following the end of each
calendar year during the Initial Term, and any Renewal Term, an audited annual
statement of gross receipts for the 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 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
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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.
7.2 Ad Valorem Taxes.
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.
7.3 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.
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.
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Concessionaire shall operate the Market in accordance with the schedule outlined
below, weather or events of force majeure permitting.
9.1 Days of Operation: Sunday and Tuesday
9.2 Hours of Operation:
Set-Up: Sunday
No earlier than 8 AM and finish by 10 AM
Tuesday
No earlier than 2 PM and finish by 4 PM
Market operating hours: Sunday
Daylight Savings Time: 10 AM to 1 PM
Eastern Standard Time: 10 AM to 2 PM
Market operating hours: Tuesday
Daylight Savings Time: 4 PM to 9 PM
Eastern Standard Time: 4 PM to 10 PM
Move-Out: Sunday
Daylight Savings Time: 1 PM to 4 PM
Eastern Standard Time: 2 PM to 5 PM
Move-Out: Tuesday
Daylight Savings Time: 9 PM to 10 PM
Eastern Standard Time: 10 PM to 11 PM
9.3 Changes to Operational Hours.
If the City Manager or his designee deems that there is a decrease in demand for the
concession operations, the City shall provide Concessionaire with a minimum of two
(2) weeks prior written notice before implementing a specified reduction in
Concessionaire's operation. In the event the City reduces the Concessionaire's
operations pursuant to this subsection, then the partial termination provisions of
Subsection 13.6.3 shall apply.
If the Concessionaire desires an increase or decrease in the Market's hours of
operation, Concessionaire shall provide the City with a minimum of two (2) weeks
prior written notice requesting said modification of operational hours. Such request by
the Concessionaire shall be subject to the City Manager's written approval, which
shall not be unreasonably withheld.
Concessionaire acknowledges and agrees that any reduction in operational hours at
Concessionaire's request and in accordance with this subsection shall in no way
reduce Concessionaire's financial responsibility to the City, as defined in Section 4
herein.
Page15 of 1522
SECTION 10. MAINTENANCE.
10.1 The Concessionaire accepts the use of the Concession Area and any and all other
public property and/or rights-of-way provided or used by Concessionaire in
conjunction with this Agreement, in 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 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.
10.3 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 use
by the Concessionaire, its vendors, and the public that patronizes the Market.
Determination of the number of receptacles shall be within the City Manager's sole
discretion and Concessionaire agrees 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
of Market operation. Any costs for removal of the contents of said trash receptacles
by the City, as a result of the Concessionaire's failure to do so, shall be passed onto
Concessionaire. The dumping or disposal of any refuse, trash, or garbage, generated
by or as a result of the concession operations, into any City trash receptacle by the
Concessionaire, including its employees, contractors, or vendors, is strictly
prohibited.
10.4 Pressure Cleaning.
Concessionaire shall alsobe responsible for reimbursing the City for the cost and
expense of pressure cleaning the Concession Area, including all abutting sidewalks
and public rights-of-way adjacent thereto, in the total amount of $100.00 per quarter.
10.5 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. 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.
SECTION 11. INSURANCE.
11.1 Concessionaire shall maintain throughout the Term, at its sole cost and expense, the
PageWI6 of 1522
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
11.2 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.
CERTIFICATE HOLDER MUST READ:
CITY OF MIAMI BEACH
1700 CONVENTION CENTER DRIVE
MIAMI BEACH, FL 33139
Failure to procure or maintain the required insurance shall constitute an
immediate default of the Agreement, and the City may, at its sole discretion,
provide notice to Concessionaire of termination of the Agreement without
liability to the City hereunder.
The City may also elect to obtain the insurance itself, in which case the cost of said
insurance shall be passed through 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 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.
SECTION 12. INDEMNITY.
PageW17 of 1522
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 its 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 in 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 in default or breach of any part of this Agreement, unless such
dispute shall have been caused by illegal labor practices or violations by
Concessionaire of applicable collective bargaining agreements, and there has been a
Pagell8 of 1522
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, Concessionaire shall be assessed 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 Agreement without being prejudiced as to any
remedies which may be available to it for breach of contract.
13.3 Non-Monetary Default.
In the event that Concessionaire or the City fails to perform or observe any of the
covenants, terms, or provisions under this Agreement, and such failure continues
thirty (30) days after written notice thereof from the other party hereto, such non-
Page19 of 1522
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.
On the occurrence of any event of default set forth in this Section 13, the City may,
following notice (if required) and the expiration of cure periods (as provided above), at
its sole option and discretion, institute such proceedings it deems necessary to cure
such defaults and to compensate City for damages resulting from such defaults,
including but not limited to the right to terminate this Agreement. If notice of
termination 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 interests 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 On the occurrence of any event of default set forth in this Section 13, 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 seek damages. Said termination shall become
effective upon receipt of a written notice of termination by the City, but in no event
shall Concessionaire specify a termination date that is less than sixty (60) days from
the date of the written termination notice. On the date specified in the notice,
Concessionaire shall quit and surrender the Concession Area to City pursuant to the
provisions of Subsection 13.7.
13.6 Termination for Convenience / Partial Termination.
13.6.1 Notwithstanding the provisions of this Section 13, this Agreement may be
terminated by the City Manager or his designee, for convenience and without
cause, upon the furnishing of thirty (30) days prior written notice to
Concessionaire.
Page10 of 1522
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.
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 expected. 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
Page261 of 1522
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 section, 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.
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
Page22 of 1522
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 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.
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
Page2813 of 1522
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 B to this Agreement. All subsequent price
increases and amendments to Exhibit B 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 B 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 B Rain Discounts up to 50% of fees
are approved by the City.
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, Inc.
238 East San Marino Dr
Miami Beach, Florida 33139
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
1755 Meridian Avenue, Suite 500
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.
PageL4 of 1522
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, age,
sexual orientation, color, creed, national origin, income, 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.
Additionally, Concessionaire shall comply fully with the City of Miami Beach Human
Rights Ordinance, codified in Chapter 62 of the City Code, as may be amended from
time to time, prohibiting discrimination in employment, housing, public
accommodations, and public services on account of actual or perceived race, color,
national origin, religion, sex, intersexuality, gender identity, sexual orientation, marital
and familial status, age, disability, ancestry, height, weight, domestic partner status,
labor organization membership, familial situation, or political affiliation.
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.
Page28525 of 1522
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.
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.
Page 26 of 1522
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 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 Agreement.
20.12 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.
20.13 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.
20.14 No Third Party Beneficiary.
Nothing in this Agreement shall confer upon any person or entity, including, but not
limited to sub concessionaires, other than the parties hereto and their respective
successors and permitted assigns, any rights or remedies by reason of this
Agreement.
20.15 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 reasonable attorney's fees 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
Page27 of 1522
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 KNOWINGLY AND INTENTIONALLY WAIVE THE RIGHT
TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING THAT CITY AND
CONCESSIONAIRE MAY HEREINAFTER INSTITUTE AGAINST EACH OTHER WITH
RESPECT TO ANY MATTER ARISING OUT OF OR RELATED TO THIS AGREEMENT
OR THE CONCESSION AREA.
SECTION 23. CONCESSIONAIRE'S COMPLIANCE WITH FLORIDA PUBLIC RECORDS LAW.
23.1 Concessionaire shall comply with Florida Public Records law under Chapter 119,
Florida Statutes, as may be amended from time to time.
23.2 The term "public records" shall have the meaning set forth in Section 119.011(12),
which means 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.
23.3 Pursuant to Section 119.0701of the Florida Statutes, if the Concessionaire meets the
definition of "Contractor" as defined in Section 119.0701(1)(a), the Concessionaire
shall:
23.3.1 Keep and maintain public records required by the City to perform the service;
23.3.2 Upon request from the City's custodian of public records, provide the City with a
copy of the requested records or allow the records to be inspected or copied
within a reasonable time at a cost that does not exceed the cost provided in
Chapter 119, Florida Statutes or as otherwise provided by law;
23.3.3 Ensure that public records that are exempt or confidential and exempt from public
records disclosure requirements are not disclosed, except as authorized by law,
for the duration of the contract term and following completion of the Agreement if
the Concessionaire does not transfer the records to the City;
23.3.4 Upon completion of the Agreement, transfer, at no cost to the City, all public
records in possession of the Concessionaire or keep and maintain public records
required by the City to perform the service. If the Concessionaire transfers all
public records to the City upon completion of the Agreement, the Concessionaire
shall destroy any duplicate public records that are exempt or confidential and
exempt from public records disclosure requirements. If the Concessionaire keeps
and maintains public records upon completion of the Agreement, the
Concessionaire shall meet all applicable requirements for retaining public records.
Page28 of 1522
All records stored electronically must be provided to the City, upon request from
the City's custodian of public records, in a format that is compatible with the
information technology systems of the City.
23.4 Request for Records; Noncompliance.
23.4.1 A request to inspect or copy public records relating to the City's contract for
services must be made directly to the City. If the City does not possess the
requested records, the City shall immediately notify the Concessionaire of the
request, and the Concessionaire must provide the records to the City or allow
the records to be inspected or copied within a reasonable time.
23.4.2 Concessionaire's failure to comply with the City's request for records shall
constitute a breach of this Agreement, and the City, at its sole discretion, may:
(1) unilaterally terminate the Agreement; (2) avail itself of the remedies set
forth under the Agreement; and/or (3) avail itself of any available remedies at
law or in equity.
23.4.3 A Concessionaire who fails to provide the public records to the City within a
reasonable time may be subject to penalties under s. 119.10.
23.5 Civil Action.
23.5.1 If a civil action is filed against a Concessionaire to compel production of public
records relating to the City's contract for services, the court shall assess and
award against the Concessionaire the reasonable costs of enforcement,
including reasonable attorney fees, if:
i. The court determines that the Concessionaire unlawfully refused to comply
with the public records request within a reasonable time; and
ii. At least 8 business days before filing the action, the plaintiff provided written
notice of the public records request, including a statement that the
Concessionaire has not complied with the request, to the City and to the
Concessionaire.
23.5.2 A notice complies with subparagraph (1)(b) if it is sent to the City's custodian
of public records and to the Concessionaire at the Concessionaire's address
listed on its contract with the City or to the Concessionaire's registered agent.
Such notices must be sent by common carrier delivery service or by
registered, Global Express Guaranteed, or certified mail, with postage or
shipping paid by the sender and with evidence of delivery, which may be in an
electronic format.
23.5.3 A Concessionaire who complies with a public records request within 8
business days after the notice is sent is not liable for the reasonable costs of
enforcement.
23.6 IF THE CONCESSIONAIRE HAS QUESTIONS REGARDING THE APPLICATION
OF CHAPTER 119, FLORIDA STATUTES, TO THE CONCESSIONAIRE'S DUTY
TO PROVIDE PUBLIC RECORDS RELATING TO THIS AGREEMENT, CONTACT
THE CUSTODIAN OF PUBLIC RECORDS AT:
CITY OF MIAMI BEACH
ATTENTION: RAFAEL E. GRANADO, CITY CLERK
1700 CONVENTION CENTER DRIVE
Page?8929 of 1522
MIAMI BEACH, FLORIDA 33139
E-MAIL: RAFAELGRANADOMIAMIBEACHFLGOV
PHONE: 305-673-7411
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.
Pagel30 of 1522
IN WITNESS WHEREOF, the parties hereto have caused their names to be signed and
their seals to be affixed, all as of the day and year first above written, indicating their agreement.
PASSED AND ADOPTED THIS of , 2018.
Attest: CITY OF MIAMI BEACH
RAFAEL E. GRANADO, JIMMY L. MORALES,
CITY CLERK CITY MANAGER
Date
Attest: THE MARKET COMPANY, INC.
Signature CLAIRE TOMLIN, PRESIDENT
Print Name
Date
Page33131 of 1522
EXHIBIT A
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Page/i232 of 1522
EXHIBIT B
ESPANOLA WAY STREET MARKET FEE SCHEDULE
(Rental Fee Schedule)
Espanola Way 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 $ A9 $ 3A0
New fruit& vegetable vendor $ 23.36 $ 1.64 $ 25.00
may be charged minimal fee up
to 6 months. Market Manager
may also charge this minimal
fee up to 6 months for other
specialty products.
Winter fees are to be
determined but are likely higher
The fee is for a 10 X 10 canopy. Additional canopies are a total of
$20 including tax.
Rain Discounts up to 50% of the fee are approved by the City of Miami Beach
Page33 of 1522
EXHIBIT C
Espanola Way Street Market FACILITIES DESIGN/LAYOUT
FACILITIES PICTURES FORTHCOMING
PageW34 of 1522
EXHIBIT D
(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 I/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 14 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. AP cashier counters (counters where money transactions occur) must be
no higher than 36 inches maximum above finish floor, for a minimum
length of 36 inches.
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
Page43535 of 1522
(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 items.
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, and 19 inches deep shall
be provided. The tops of accessible tables and counters shall be from 28
inches to 34 inches above the finish floor or ground.
11.Where 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 60 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.
12.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. It 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.
Page%6 of 1522
EXHIBIT E
(Product List)
Espanola Way Street Market Product List
All products represented for sale in the Market must comply with Section 3.8 (Permitted Concession Items). Products
listed as part of this Exhibit are not intended to be outside of the definitions stated in Section 3.8.
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
PageY37 of 1522
EXHIBIT F
(Page 1 of 5)
(Vendor Guidelines)
1 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 affwm that I have read the regulations and policies 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.
Page38 of 1522
(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)305/576-9792
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, doths, carts,
chairs, displays, trash cans,brooms and trash bags. Market standards are white 10x10 tents
(Insta-shade, F7Up), 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
Pagel39 of 1522
(Page 3 of 5)
(Vendor Guidelines)
3 of 5
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'xl 0' 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 copies 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, vendors vehicles must be removed from
loading/unloading areas.
Agreement with Relevant Contractors/Associations: The markets are designed as
economic development for the area in which 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 general 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
Page';11,0 of 1522
(Page 4 of 5)
(Vendor Guidelines)
4 of 5
4 i
Market
company
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,including 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.
Page48141 of 1522
(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.com/dor 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.fLus 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 Tents/umbrellas 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.myfloridalicense.comidbpr
TABLE SKIRTING
Dade Towel Company
(305)751-1284-contact Karen
7000 NE 4'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 weiahts
www.academv.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
http://www.binqbanners.com1
We have had GREAT results from this inexpensive maker
Approximate size 10'x 1'
Page4S12 of 1522
EXHIBIT G
Emergency Evacuation Plan
Espanola Way Street Market
- The Espanola Neighborhood Association (Association) will meet before every market day
and discuss the schedule and emergency plan.
- Upon sounding of a fire alarm or occurrence of any emergency, the Emergency Evacuation
Plan will be put into effect.
o Concessionaire shall meet with every merchant before they are accepted as an
vendor for the street market as well as conduct a group meeting before the market to
review the plan.
o Each vendor's table(s) will contain wheels which will allow for mobility onto the curb,
not only on Espanola Way but over to the curb on Washington and Drexel (based on
relative location on the street).
■ Each retailer as well as the 30+ hotel employees will become available to
assist the street vendors roll the tables, even though the vendors can handle
the table themselves.
o The umbrellas shall be turned 180 degrees and slid into the seating and off the public
ROW.
- The Association serves as the street's formal business association and the street vendors
will also serve together to unify the block. There is sufficient manpower and space on the
curbs of the ROW to easily move less than 40 tables out of the ROW, in the least amount of
time possible, to ensure immediate access.to Emergency Services.
Note: There will be no cooking, generators, or any extension cords used.
Page 4:43 of 1522