HomeMy WebLinkAboutBrother's Vending Agreement
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Concession
Agreement for
Operation of
Vending Machines
by
- Brother's Vending, Inc.
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SECTION
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1
2.
3.
3.2
3.2.1
3.2.1.1
3.2.1.2
3.2.1.3
3.2.1.4
3.2.1.5
3.2.1.6
3.2.1.7
3.2.1.8
3.2.2
3.2.2.1
3.2.2.2
3.2.3
3.2.4
3.2.5
3.2.6
3.2.7
3.2.8
3.2.9
4.
4.1
4.2
4.3
4.4
4.5
4.6
5.
6.
7.
7.2
7.3
8.
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j10.
.10.2
10.3
10.4
~0.5
"10.6
10.7
10.8
10.9
11.
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INDEX
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TITLE
PAGE
TERM ..~~~'.... ....... ....... ........... ................................................. ................................... .......... 5
CONCESSION LOCATIONS ........... ...... .......... ......... ................................................ .......... 5
USE(S) .-... ..... ..................... ....................................... ............... .............. ........................ ...... 5
Scope of Services................................... ................................................... ............ 6
Vending Machines ....... .............................. .............. ............................ ...... ............ 6
Definition ..... ....... ................................ ......... ......... ................................ .................. 6
Controls............ ... . .. . . . ........ .. . .. .. ... . . ... . .. ... ... . .... ......... .... ..... .... . . .. ..... ... .......... .... ... ..... 6
Conditions ..... ............ ............ ........ .............. ..................... .................... .................. 6
Design.... ............... .......................... ............. ............ ..... ........... ......... ........... .......... 7
Placement.. .............. ............................. ....... ............ ..... ........................... .............. 7
Quality of Products... ........... ................ ........ ........................ ..................... ......... ...... 7
Cleanliness ... ............... ....................... ........... ............ ....................... ....... .............. 7
Operation Schedule. ............................ .......................... .......... ..... ......................... 8
Changes Machines ... ....................... ...................... .................................... ...... ...... 8
Definition ...... ..................................... ....... ....................................... ....................... 8
Placement.... ........................ ....... ........ .... ..... ............................................. ............. 8
Maintenance of Vending Machines and Change Machines................................... 8
Refund Procedure........... ....................... .......................... ..'............................ ........ 9
Pricing and Availability of Services ...................................................................... 1 0
Concessionaire's Supervisory / Management Employee..................................... 10
Removal of Vending Machines and/or Change Machines ................................... 11
Hurricane Evacuation Plan ................. .............. ..... ................ .................:.. .......... 11
City Occupational Licenses................... ..... ............ ................ .............................. 11
CONCESSION FEES ... ....... ............................................................ .................. ............... 12
~cu rity Deposit................................................................................................... 12
Minimum Guarantee (MG) .............................. ..................................................... 12
Percentage of Gross Metered Receipts (PGMR) vs. MG ..................................... 13
Non-Cash Remuneration ............................. ............................................ ............ 13
Late Payment ........... ................................ ...........................................................: 13
Sales and Use Tax....... ................................... .............. .............................. ......... 13
MAINTENANCE AND EXAMINATION OF RECORDS .........................................~.......... 14
INSPECTION AND AUDIT................. ..... ............... ............ ........... .............................. ...... 14
TAXES, ASSESSMENTS, AND UTILITIES...................................................................... 15
Utilities.. .......... ...... ............................. ............ ................ ........ ...................... ......... 15
Procedure if Ad Valorem Taxes Assessed .......................................................... 15
EMPLOYEES AND INDEPENDENT CONTRACTORS.................................................:.. 16
SCHEDULE OF OPERATION ......................... .................................... ............................. 16
~AINTENANCE OF CONCESSION LOCATIONS........................................................... 16
, Garbage Receptacles ........... .............. ................... .......... ...... ...................... ........ 17
Pressure Cleaning ... ............. ............... ................ ........ ................ ......... ............... 17
Facilities ....... ............. ....... .............................. ................................. ...................... 17
Orderly Operation.............. ........... ........ ..... ............ ............................................... 17
No Dangerous Materials......... ........................ ....... ....... ...... ................................. 17
Security ........................... ........ ................... ............................. ............. ................ 18
Maintenance Vehicles.................. ......... ................ .......... ....... ......... ..................... 18
Inspection.......................... ............ ........ ................ ........ ....................................... 18
INSURANCE... ............ ....................... .............. ....... ........................ .......... ................ ........ 18
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SECTION
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12.
12.4
12.5
12.6
12.7
13
13.1
13.2
13.3
13.4
13.6
13.7
14.
15.
16.
17.
18.
19.
20.
20.1
20.2
20.3
20.4
20.5
21.
21.1
21.2
21.3
21.4
21.5
21.6
21.7
21.8
21.9
21.10
21.11
21.12
~1.13
21.14
,21.15
~1.16
~1.17
22.
23.
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TITLE
PAGE
INDEMN ITY .................. ........................................ ........ ................. ....... ............... ............. 19
Subrogation...... .............. ............................ ..... ........ ..... .......... .............................. 20
Force Majeure ................................... .......................... .......... ....................... ........ 20
Labor Dispute........... .................. .............. ............................. .......... ........ ............. 20
Waiver of Loss from Hazards .............................................................................. 20
DEFAULT AND TERMINATION ....................................................................................... 20
Bankruptcy ................... ~. ... .. ....... . . ... .... . ....... .. .. . ... ...... .... ...... .... ..... . . .. . . . . . ... ...... ...... 21
Default in Payment..................... .......... ........... .................... ........................... ...... 21
Non-Monetary Default. ................ ....... ................... ............................................... 21
City's Remedies for Concessionaire's Default ...................................................... 22
Termination for ConveniencelPartial Termination ............................................... 22
Surrender of Concession Locations;.................................................................... 23
PERFORMANCE BOND OR ALTERNATE SECURITY................................................... 23
ASSIGNMENT ... ..... ............................ .......... ............... .... .......... ....................................... 24
SPECIAL EVENTS........... ................... ...... ....... ............. ......... .......... .................... .... ......... 24
NO IMPROPER USE .......................................... ..... ...................... ............................. ...... 24
PRICE SCHEDULES ....... ....... ................................ ............ .............................................. 24
NOTICES ..... ......... ................. ................ ................... ............. ............................. .............. 25
LAWS.... ........ .............. ...................................................................................................... 25
Compliance .................... ........ .................................................... ........... ..... .......... 25
Governing Law.................. ............................. ..... ........... ....................... ............... 25
Equal Employment Opportunity ..... ...... ....... ......................................................... 26
No Discrimination...... ..... ........ ................... .............. ............................................. 26
Compliance with American with Disabilities Act (ADA) ........................................ 26
MISCELLANEOUS... ...... ............................... ................................ ....................... ............. 26
No Partnership. .................................................... ..... ................................ ........... 26
Modifications....... ........... .......... ........... ..........4. .................... .................. ........... .... 26
Complete Agreement..... ..... ................................... ...................... ........................ 26
Headings ..... ..................... ........................... ............................................... .......... 27
Binding Effect .......................................................................................... ............. 27
Clauses. ....................... ........... ............... .................................................... ........... 27
Severability................................................ ............................... ...... ............. ......... 27
Right of Entry ............. ............ .... ......... ....... ..................................................... ..... 27
Not a Lease................... ...................................... .................. ............................... 27
Signage ....................... ........... ............. ............ .......... ..... ......................... ............. 28
Use of the Right-of-Way..... ..... ...................... ........ ............. ................... .............. 28
Conflict of Interest..... ................ ................. ............................ ........................ ...... 28
Reasonableness. ........... ..................... .................... .........................:................... 28
Procedure for Approvals and/or Consents................................~......~................... 28
No Waiver ...... ........................ .................. ...................... ........................ .......... .... 28
No Third Party Beneficiary.... ............................ .................... .........~. ;.....~....~........ 28
Attorneys' Fees............ ......................... .......... .......... ..... ....... .......... ~ ~.......... ......... 28
LIMITATION OF LIABILITY ................ ..................... ........... ................. ................ ............. 29
VENUE ........................... ............... ..... ................... ................................ ..... ...~.... ............... 29
EXHIBITS
Exhibit 2.0 ................ ......... ......................... ............ ................... ................. ......... 31
Exhibit 3.2.1.4 ..... .......... ............................ .................................... ..... .................. 33
Exhibit 3.2.5.1 ............ ........... ........ ....... .... ....... .......... ............ ........... ........... ......... 41
Exhibit 4.4 ... ...... ................. ....................... ............. ........ ..... ...... ....... ........ ............ 45
Exhibit 5.0 .......................... ....................... ........... ........ ................ ........................ 52
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CONCESSION AGREEMENT .BY AND. BETWEEN
CITY OF MIAMI BEACH, FLORIDA AN"O BROTHER'S'VENDING, INC.
FOR OPERATION OF VENDING MACHINE CONCESSIONS AT
VARIOUS LOCATIONS ON CITY OF MIAMI BEACHJ:>>ROPERTIES
PURSUANT TO REQUEST FOR ~PROPOSALS~NO:Y09/04-05
THIS AGREEMENT made the 19th day of October, 2005, between the CITY OF MIAMI
BEACH, a municipal corporation of the State of Florida (hereinafter called ..City"), having its
principal address at 1700 Convention Center Drive, Miami Beach, Florida, 33139, and
BROTHER'S VENDING, INC., a corporation established pursuant to the laws of the State
of Florida, with offices at 1722 NW 2nd Court, Miami, Florida 33169 (hereinafter called
IIConcessionairell) .
WITNESSETH
WHEREAS, on February 23, 2005, the Mayor and City Commission authorized the
Administration to issue Request for Proposals No. 09/04-05 to solicit proposals for the
operation of vending machine concessions at various locations on City-owned properties
and facilities (the RFP); and
WHEREAS, on February 23,2005, said RFP was issued, responses were received and
evaluated, and recommendations were forwarded to the Mayor and City Commission; and
WHEREAS, on July 27, 2005, the Mayor and City Commission adopted Resolution No.
2005-25966, authorizing the Administration to enter into negotiations with Brother's
Vending, Inc. (Concessionaire), as the successful proposer, for the operation of said
vending machine concessions; and
WHEREAS, the Administration has successfully negotiated the foregoing Concession
Agreement with Brother's Vending, Inc., for an initial two (2) year term, said Agreement
commencing on November 1, 2005, and expiring on October 31, 2007, with three (3)
additional one year renewal options, each at the City's sole discretion.
NOW THEREFORE, in consideration of the premises and the mutual covenants and
ponditions herein contained and other good and valuable consideration, the receipt and
adequacy of which are hereby conclusively acknowledged, it is agreed by the parties
~ereto as follows: '
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rT"he City hereby grants to the Concessionaire, and the Concessionaire hereby accepts
from the City, the exclusive right to operate the following described concession within the
Concession Locations, as defined herein, in conformance with the purposes and for the
period stated herein, 'and subject to all the tenns and conditions herein contained and fairly
implied by the terms hereinafter set forth.
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SECTION 1. TERM.
1.1 This Agreement shall be for an initial term of two (2) years, commencing on
November 1, 2005 (the ..Commencement Date"), and ending on October
31,2007.
1.2
Provided that the Concessionaire is not in default under Section 13 hereof,
and at the City's sole discretion, commencing upon written notice from
Concessionaire to the City, which notice shall be given no later than ninety
(90) days prior to the expiration of the initial term of this Agreement, or prior
to the expiration of a renewal term, as the case may be, the City may extend
the term of this Agreement upon the same terms and conditions as set forth
herein for three (3) additional one year terms, each at the City's sole
discretion.
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SECTION 2. CONCESSION LOCATIONS.
The City hereby grants to the Concessionaire the exclusive right, during the Term of this
Agreement, to operate vending machine concessions, as described herein, in the following
locations (hereinafter referred to collectively as the IIConcession Locations"), as more
specifically delineated in Exhibit 2.0 herein.
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SECTION 3. USElS).
The Concessionaire is hereby authorized to conduct the following kind( s) of business( es) in
the Concession Locations, as provided below, all at its sole cost and expense:
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3.1
Concessionaire shall install, operate, manage, service and maintain Vending
Machines (as defined in Subsection 3.2.1.1) and Change Machines (as
defined in Subsection 3.2.2.1), at the aforementioned Concession Locations,
which shall provide vending services for patrons, employees, and the general
public at City owned properties and facilities throughout the Term of this
Agreement, in accordance with the scope of services delineated in Section
3.2.
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The City herein approves the use of the Concession Locations, for the
placement of the specific Vending Machines, as reflected in Exhibit 2.0,
which shall offer for sale the specific products at the specific prices reflected
in Exhibit 3.2.5.1.
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Any amendment to any Exhibit attached hereto must be approved in writing
by the City Manager or his designee prior to implementation of same, and, if
approved, a new Exhibit shall be attached and incorporated herein.
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3.2 ScoDe of Services.
3.2.1 Vendine Machines.
~ * 3.2.1.1
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3.2.1.2
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3.2.1.3
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Defin ition.
Vending Machine shall be defined as any and all equipment
that is used to hold and dispense products to be offered for
sale as provided pursuant to this Concession Agreement,
which shall accept United States paper currency in one dollar
($1.00), two dollar ($2.00) and five dollar ($5.00)
denominations and will provide change in United States coins
in one dollar ($1.00), quarters ($0.25), dimes ($0.10) and
nickels ($0.05).
Controls.
Each Vending Machine must be equipped with a non-resetting
transaction counter, or other control acceptable to the City, and
must be licensed as provided in Subsection 3.2.9, and
additionally licensed as may be required by other applicable
law as provided in Section 20.1, and shall be equipped with
Vend Max software and also include DEX resident capabilities.
Condition.
As of the Commencement Date of this Agreement, no less
than ninety percent (90%) of all Vending Machines installed
and operated pursuant to this Concession Agreement shall be
new (i.e. previously unused except for standard industry testing
required to ensure proper operation at . conclusion of
manufacturing process) and the balance (no greater than 10%
of all Vending Machines installed or operated) shall be no
more than two (2) years old prior to installation. The City, at its
sole discretion, may also request vandal proof and
weatherproof Vending Machines be provided at certain outdoor
City parks and other venues that may be subjected to the
natural elements (i.e. wind, rain, sand, salt-air,
etc.).Concessionaire shall provide to the City, prior to
installation of any Vending Machine, verification in the form of
an invoice, or other City approved alternative document, that
includes the type of vending machine (i.e. type of product,
holding capacity, size of product, if multiple product), serial
number (or method acceptable to the City, at its sole
discretion, of identifying the individual Vending Machine), and
date of manufacture.
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3.2.1.4
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3.2.1.5
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3.2.1.6
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3.2.1.7
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The d~sign, type, material, and color and exterior facades of
an9 rnd all Vending Machines, as defined in Subsection
3.~ 1.1, shall be approved in writing by the City prior to the
Comrfiencement- Date of this'"Agreement. A photo or photo(s)
of Ci~f'oved Vending Machines are incorporated herein as
Exhibit-3.2.1.4. Thereafter, Concessionaire shall not change,
alter, or modify said City-approved design, type, material and
color of any Vending Machine without the prior written consent
of the City Manager or his designee, and, if so approved, an
updated Exhibit 3.2.1.4 will be made a part of and incorporated
into this Agreement.
Placement.
Placement of Vending Machines shall be in accordance with
and shall not exceed the maximum numbers and types, as set
forth at the Concession Locations referenced in Exhibit 2.0,
attached hereto and incorporated herein.
3.2.1.5.1
Concessionaire shall obtain written approval from the
City Manager, or the City Manager's designee, prior to
the installation, transfer or removal of any Vending
Machine.
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3.2.1.5.2
Notwithstanding Subsection 3.2.1.5, City and
Concessionaire may, from time to time, meet to review
and, subject to the City Manager's prior written consent,
revise the maximum numbers set forth in Exhibit 2.0.
Quality of Products.
Quality of products offered in Vending Machines will be first-
rate and comparable to that available in other world class cities
on par with the City of Miami Beach or, at a minimum, to the
quality and pricing of goods provided by privately owned
businesses selling like goods and services within the City of
Miami Beach. No product shall be offered for sale with a "Sale
by Date" that has expired.
Cleanliness.
In addition to Concessionaire's general maintenance
obligations for the Vending Machines and Change Machines,
as set forth in Section 3.2.3, and the Concession Locations, as
set forth in Section 10 hereof, all portions of the Vending
Machines, Change Machines, and Concession Locations,
retrospectively, shall at all times be maintained in a clean and
sanitary manner.
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3.2.1.8
Operation Schedule.
Vending Machines and Change Machines shall be operable
during the days and hours of operation set forth in Section 9
herein.
3.2.2 Chance Machines.
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3~2.3
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3.2.2.1
3.2.2.2
3.2.3.1
Definition.
Change Machine shall be defined as any and all equipment
that is required pursuant to this Concession Agreement that is
capable of providing change, primarily for the purposes of use
in a Vending Machine, which will accept United States paper
currency in one dollar ($1.00), two dollar ($2.00), five dollar
($5.00), and ten dollar ($10.00) denominations and will provide
change in United State coins in one dollar ($1.00), quarters
($0.25), dimes ($0.10) and nickels ($0.05).
For purposes of this Subsection, and this Agreement, Vending
Machines, as defined herein, that are equipped and capable of
providing change (without the requirement that a purchase be
made) shall also be considered Change Machines.
Placement.
Change Machines shall be provided by Concessionaire at each
interior (not subject to the natural elements) Concession
Location where two or more Vending Machines are situated.
Concessionaire shall obtain written app-roval from the City
Manager, or the City Manager's designee, prior to the
installation, transfer or removal of any Change Machine.
Maintenance of Vendine Machine and Chance Machines.
The condition and quality of Concessionaire's Vending
Machines shall at all times be maintained in a manner that is
consistent with the condition and quality of similar vending
machines in first class Concession Locations located in other
world class cities. Accordingly, Concessionaire shall not only,
at a minimum, ensure that all Vending Machines placed in the
Concession Locations are well maintained and in usable
condition, but shall adhere, as indicated in this subsection, to
high ongoing maintenance standards for same consistent with
the aforementioned condition and quality, as more specifically
outlined below.
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3.2.3.2
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3.2.3.2.1
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3.2.3.2.2
3.2.3.2.3
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3.2.3.2.4
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The Concessionaire shall be responsible f.Qt~l( mainten~n~e
and repair of Vending machines, including- but -not limited to:-
Cleaning and polishing of .Vending Machines and
Change Machines and removal of 'litter within and
surrounding the vending area of the Concession
Location(s) created by filling, servicing, and/or
maintaining of Vending Machines. The Concessionaire
shall insure that each route driver's schedule allows for
time to thoroughly and appropriately clean each
Vending Machine as it is replenished, maintained
and/or serviced. This includes cleaning with a sanitizing
solution, the interior and exterior of each machine, each
time that machines are re-stocked, serviced, or
maintained.
All Vending Machines and Change Machines shall be
checked weekly and accurate records of service calls
(including time and date, location, machine type and
serial number) are to be maintained, and forwarded to
the City, along with the monthly report (see Section 5)
that shall be provided to the City within thirty (30) days
of the end of each month.
The Concessionaire shall maintain all Vending
Machines and Change Machines in good working order
and shall repair or replace any equipment that is not
immediately repairable, within two (2) business days, if
found to be inoperable.
Concessionaire shall post and maintain
Concessionaire's information, including a contact name
and Toll Free Customer Service telephone number,
immediately adjacent to the coin slot, of a size no less
than 4" x 6", on each Vending Machine and Change
Machine, to facilitate responding to refunding, re-
stocking, maintenance and repair related problems that
may arise.
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3.2.4 Refund Procedure.
3.2.4.1 In addition to any other remuneration provided herein,
Concessionaire shall provide a "Bank" of one hundred dollars
($100.00) in cash to the City, which shall be held by the City
Finance Department's City Hall Cashier, who will distribute
refunds due to any malfunction of the Vending Machines. An
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it.~m!~~~j~,tlJnd list, including t6~"amounts and names of the
persons-tne funds were refunded to, will be maintained by the
c'iiYliaifcashier and will be submitted to the Concessionaire
upon requested replenishment of the "Bank" funds by the City.
3.2.4.2
MalfunstioAs of Vending Machines that are reported to the
Concessionaire shall be forwarded to the City, in writing,
including the amounts and names of the persons the funds
were refunded to, on a monthly basis along with, and at the
same time, that all other reporting documents required as
provided in this Concession Agreement.
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3.2.5 Pricina and Availability of Services.
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3.2.6
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3.2.5.1
Initial prices for Vending Machine products shall be in
accordance with the attached schedule in Exhibit 3.2.5.1. Any
subsequent changes proposed by Concessionaire' to said
prices must be submitted in writing to the City Manager or his
designee, and prior written approval must be secured from the
City before implementing any changes to same.
3.2.5.1.1
The City Manager or his designee may request services
at additional locations and/or request additional
products .for Vending Machines at any time. The
Concessionaire may, at its sole cost and expense, test
market these additional locations and/or products for a
sixty day (60) period. If the Concessionaire
demonstrates to the City Manager or his designee's
satisfaction that the commercial demand does not exist
for the additional locations and/or products, the
Concessionaire will not be obligated to continue the
additional locations and/or products.
3.2.5.2
In the event that the City Manager or his designee
determines, at his sole option and discretion, that all or a
~ portion of Concessionaire's proposed uses/services,
pursuant to Subsection 3.1 and as delineated in
Subsection 3.2, are no longer desired, then the City may
revoke Concessionaire's right to provide all or a portion of
said uses/services, and terminate all or a portion of the
Agreement, without cause, and without liability to the City,
upon thirty (30) days written notice to Concessionaire.
Concessionaire's Suoervisorv/Manaaement Emolovee.
No later than the Commencement Date of this Agreement
Concessionaire shall designate (and provide notice of same in writing
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3.2.7
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3.2.8
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3.2.9
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to the City}, a supervisory/management employee who shall be
authorized and responsible to act on behalf of Concessionaire with
respect to directing, coordinating, and administering all aspects of
.Concessionaire's operations pursuant to this Agreement.
Concessionaire's supervisory/management employee shall be
available via telephone, at all times during which the Vending
Machines at all Concession Locations are operating, as provided in
Section 9 herein.
Removal of Vendina Machines and/or Chance Machines.
Concessionaire acknowledges that there may be circumstances under
which the City shall require the removal of any or all of the Vending
Machines and/or Change Machines. As such, Concessionaire agrees
that all its Vending Machines and Change Machines used in the
concession operations will be removed from the Concession
Locations upon fifteen (15) days written notice to Concessionaire and
said removal shall be done in compliance with the applicable
section{s) as set forth herein; and without liability to the City.
Hurricane Evacuation Plan.
Concessionaire agrees that upon the issuance of a Hurricane
Waming by the Miami-Dade County Office of Emergency
Management, it shall ensure that all exterior Vending Machines and
any and all other items used in the concession operations shall be
secured. Additionally, and notwithstanding the foregoing,
Concessionaire agrees that upon receipt of notification from the City,
whether in writing or verbally, which may be communicated to
Concessionaire via telephone, fax and/or email, all exterior Vending
Machines and any and all other items used in the concession
operations shall be removed from the Concession Locations and
stored at a private, off-site location, within 24 hours of said
notification.
Concessionaire's failure to remove Vending Machines and any
and all other items used in the concession operations upon
notice from the City within the time period provided in this
Subsection may, at the City's sole discretion, constitute an
automatic default of the Agreement under which the City may,
upon written notice to Concessionaire, immediately terminate
this Agreement.
City Occuoational Licenses.
Concessionaire shall obtain, and maintain current and in good
standing throughout the Term of this Agreement, at its sole cost and
expense, any occupational licenses required by City law, as amended
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from time to time, for its proposed uses, as contemplated in Section 3
of this Agreement. For purposes of this Agreement, Concessionaire
shall obtain the applicable "Coin Distributor" and/or "25 Cent and Over
Machine" category City occupational licenses.
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SECTION 4. CONCESSION FEES.
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4.1 Security Decosit.
I ntentionally Omitted.
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4.2 Minimum Guarantee (MG).
In consideration of the City executing this Agreement and granting the rights
provided in this Agreement, commencing on November 1, 2005, and
thereafter on November 1 st of each year during the Term of the Agreement,
the Concessionaire shall pay to the City a Minimum Guaranteed (MG)
Annual Concession Fee of Thirty Eight Thousand Four Hundred ($38,400)
Dollars, plus applicable Sales and Use Taxes (as provided in Section 4.6
herein); said MG subject to the annual increases in Subsection 4.2.1.
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4.2.1 Commencing with the second contract year, said MG shall be
automatically increased annually, on the anniversary of the
Commencement Date of the Agreement (or November 1st), by the
Consumer Price Index (CPI). CPI shall mean that consumer price
index established by the Bureau of Labor Statistics of the United
States Department of Labor which is entitled "Consumer Price Index,
All Urban Consumers, South Region All Items, (1982-84. = 100,
CUUR0300SAO)" or in the event said index is no longer provided by
said Bureau of Labor Statistics, the index furnished by said Bureau or
other agency which is most accurate, completely replaces, and/or is
the equivalent of the above referenced index, whichever is greater.
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,.".
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The basis for calculating the CPI increase shall be the Index for the
calendar month of August immediately prior to the Commencement
Date (Base Month). The Base Month Index shall be compared with
the Index for the same calendar month (August) 'for each subsequent
year (comparison month) during the Term hereof, and any increase
shall be due and payable to the City on November 1 st of each year
during the Term of this Agreement.
...
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In the event that there is no increase, or there is a decrease in the
CPI, then the MG shall remain as is.
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4.2.2
Initial Contract Year Bonus.
Concessionaire agrees, as per Concessionaire's response to the
RFP, to pay to the City, an "Initial Year Bonus", in the amount of
Three Thousand ($3,000) Dollars, due upon execution of this
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Agreement.
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4.3 Percentaae of Gross Metered ReceiDts lPGMRl vs. MG.
During the Term of the Agreement, in the event that the amount equal to
twenty percent (200/0) of Concessionaire's annual Gross Metered Receipts
(PGMR) exceeds the Minimum Guarantee (MG) amount provided in Section
4.2 above (as increased annually pursuant to Subsection 4.2.1, then the
- Concessionaire shall also pay to the City the difference between the amount
of the PGMR and the MG amount, no later than December 31, of each year
during the Term of this Agreement, including renewal terms.
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The term "gross metered receipts" is understood to mean all income
registered at each and every Vending Machine, whether collected or
- accrued, derived by the Concessionaire under the privileges granted by this
Agreement. Any amounts that may be due for any Federal, State, or City
sales tax, or other tax, governmental imposition, assessment, charge or
- expense of any kind and required by law to be remitted to the taxing
authority, or other governmental authority, shall be the sole responsibility of
Concessionaire.
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4.4 Non-Cash Remuneration.
During each contract year, in additional to all remuneration due, or which
shall be due to the City by Concessionaire in accordance with Subsections
4.1, 4.2, 4.2.1, 4.2.2 and 4.3 and any other applicable section(s) or
subsection(s) contained in the Agreement, Concessionaire shall also provide
~ the City with products, and/or services which may include, but not be limited
to use of food trailers and vehicles, with a verifiable (based on actual current
market value at the time requested) cumulative retail value of no less that
"... Sixty-eight Thousand ($68,000.00) Dollars as more specifically described in
part in Exhibit 4.4. Determination of type of products and/or services to be
- included will be at the sole discretion of the City, and shall be made available
to the City on an annual basis effective upon Commencement Date.
4.5 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 be a penalty of $50.00 per day assessed for late or delinquent
payments, along with simple interest accruing to the City at the rate of ten
(10%) percent per annum, from the due date of payment until such time as
,... payment is actually received by the City. Payments shall be considered late
when paid five (5) days atter the due date. Interest shall accrue beginning
with the tenth (10th) day following due date.
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4.6 Sales and Use Tax.
It is also understood that, if applicable, the required Florida State Sales and
",.. Use Tax shall be added to Concessionaire's payments and forwarded to the
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City as part of said payments. It is the City's intent that it is to receive all
payments due from Concessionaire as net of such Florida State Sales and
Use Tax.
SECTION 5. MAINTENANCE AND EXAMINATION OF RECORDS.
Concessionaire shall maintain current, accurate, and complete financial records on an
accrual basis of accounting related to its operations pursuant to this Agreement. Systems
and procedures used to maintain these records shall include a system of internal controls
and all accounting records shall be maintained in accordance with generally accepted
accounting principles and shall be open to inspection and audit, but not photocopying, by
the City Manager or his designee upon reasonable prior request and during normal
business hours. Such records and accounts shall include a breakdown of gross receipts,
expenses, and profit and loss statements, and such records shall be maintained as would
be required by an independent CPA in order to audit a statement of annual gross receipts
and profit and loss statement pursuant to generally accepted accounting principles.
A monthly report of gross metered receipts, Vend Max data and DEX resident information,
in a format consi$tent with Exhibit 5.0, must be submitted to the City, through the Finance
Department's Revenue Manager, to be received no later than thirty (30) days after the
close of each month.
SECTION 6. INSPECTION AND AUDIT.
Concessionaire shall maintain its financial records pertaining to its operations for a period
of three (3) years after the conclusion of the initial term, or (if approved) the last renewal
term, and such records shall be open and available to the City Manager or his designee, as
deemed necessary by the City Manager or his designee. Concessionaire shall maintain all
such records at its principal office, currently located at 17200 NW 2nd Court, Miami, Florida,
33169 or,. if moved to another location, all such records shall be relocated, at
Concessionaire's expense, to a location within the City of Miami Beach, within ten (10)
days' written notice from the City Manager or his designee that the City desires to review
said records.
The City Manager or his designee shall be entitled to audit Concessionaire's records
pertaining to its operation as often as it deems reasonably neces~ary throughout the Term
of this Agreement, and three (3) times within the three (3) year period following termination
of the Agreement, regardless of whether such termination results from the natural
expiration of the Term or for any other reason. The City shall be responsible for paying all
costs associated with such audits, unless the audit(s) reveals a deficiency of five percent
(5%) or more in Concessionaire's statement of gross receipts for any year or years audited,
in which case the firm shall pay to the City, within thirty (30) days of the audit being
deemed final (as specified below), the cost of the audit and a sum equal to the amount of
the deficiency revealed by the audit, plus interest; provided, however, the audit shall not be
deemed final until Concessionaire has received the audit and has had a reasonable
opportunity to review the audit and discuss the audit with the City. Nothing contained within
this Section shall preclude the City's audit rights for resort tax collection purposes.
14
Concessionaire shall submit at the end of the initial term (and, if approved, any renewal
- term), a certified audited annual statement of gross receipts, in a form consistent with
generally accepted accounting principles.
It is Concessionaire's intent to stay informed of comments and suggestions by the City
regarding Concessionaire's performance under the Agreement. Within thirty (30) days after
the end of the initial term (and, if approved, each renewal term), Concessionaire and City
- may meet to review Concessionaire's performance under the Agreement. At the meeting,
Concessionaire and City may discuss quality, operational, maintenance and any other
issues regarding Concessionaire's performance under the Agreement.
SECTION 7. TAXES. ASSESSMENTS. AND UTiliTIES.
7.1
Concessionaire agrees to and shall pay before delinquency all taxes
(including but not limited to resort taxes) and assessments of any kind
assessed or levied upon Concessionaire by reason of this Agreement or by
reason of the business or other activities and operations of Concessionaire
upon or in connection with the Vending Machines and/or the Concession
Locations. Concessionaire will have the right, at its own expense, to contest
the amount or validity, in whole or in part, of any tax and/or assessment by
appropriate proceedings diligently conducted in good faith. Concessionaire
may refrain from paying a tax or assessment to the extent it is contesting the
assessment or imposition of same in a manner that is in accordance with
law; provided, however, if, as a result of such contest, additional delinquency
charges become due, Concessionaire shall be responsible for such
delinquency charges, in addition to payment of the contested tax and/or
assessment if so ordered.
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Concessionaire shall also pay for any fees imposed by law for licenses or
permits for any business, activities, or operations of Concessionaire upon the
Concession locations.
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7.2
Utilities.
Electrical service, including maintenance of outlets, shall be provided by the
City at the Concession locations at no cost to the Concessionaire. No water
service will be provided by the City in connection with the operation of
Vending Machines under this Concession Agreement.
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7.3
If not currently existing, requests for installation of new and/or additional
outlets shall be submitted in writing to the City Manager or his designee.
Installation of new and/or additionally outlets will be performed by the City
and/or an electrical contractor approved by the City, in writing, to perform
said work on the City's behalf, at Concessionaire's sole cost and expense.
Procedure If Ad Valorem Taxes Assessed.
Notwithstanding Subsection 7.1 herein, the parties agree that the concession
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operations contemplated herein are for public purposes and, therefore, no ad
valorem taxes should be as.~~~sed by the Miami-Dade County Tax
Appraiser. If, however, said t~~~-..are assessed, Concessionaire shall be
solely responsible for paymen~()f same, in the same manner as taxes due
pursuant to Subsection 7.1 herein.
SECTION 8. EMPLOYEES AND INDEPENDENT CONTRACTORS.
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8.1
In connection with the performance of its responsibilities hereunder,
Concessionaire may hire its own employees who will be employees of
Concessionaire and not employees or agents of the City. Additionally,
Concessionaire's vendors (Le. entities who provide products and/or Vending
and Change Machines to Concessionaire) shall not be considered agents or
employees of the City. Concessionaire shall select the number, function,
qualifications, compensation, including benefits (if any), and may, at its
discretion and at any time, adjust or revise the terms and conditions relating
to its employees and/or independent contractors.
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8.2
Concessionaire shall ensure that all its employees and vendors while
working at or within the Concession Locations observe all the graces of
personal grooming. The Concessionaire shall hire people to work in its
concession operation who are neat, clean, well groomed and shall comport
themselves in a professional and courteous manner, and ensure that its
vendors comply with same. The Concessionaire and any persons hired by
same, shall never have been convicted of a felony. If Concessionaire
materially fails to comply with this provision the City may default
Concessionaire pursuant to Section 13 herein.
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SECTION 9. SCHEDULE OF OPERATION.
Vending Machines and Change Machines shall be made available to patrons twenty four
(24) hours a day, seven days a week, based on the particular hours of operation of each
individual Concession Location, events of force majeure permitting. Any change in the
days or hours of operation shall require the prior written consent of the City Manager.
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SECTION 10. MAINTENANCE OF CONCESSION LOCATIONS.
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'10.1
The Concessionaire accepts the use of the Concession Locations provided
for in this Agreement in their lias is" condition. Concessionaire assumes sole
responsibility and expense for maintenance of the immediate confines
surrounding the Concession Locations. This shall include removal of litter,
garbage and debris, said removal to be the sole responsibility and expense
of Concessionaire. Daily maintenance shall be accomplished on all days and
hours Concessionaire operates. Concessionaire agrees, also at its sole cost
and expense, to pay for all garbage disposal generated by its operations.
JIIIIII
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10.2
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10.3
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10.4
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10.5
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Garbaae ReceDtacles.
I nteritlonally . Omitted.
Pressure Cleanina.
Intentionally'Omitted.
F acUities. 1
Intentionally Omitted.
Orderlv ODeration.
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 Vending Machines and Concession Locations. The
Concessionaire shall make available all Vending Machines and Change
Machines within the Concession Locations for examination during days and
hours of operation by the City Manager or his authorized representative.
10.6 No Danaerous Materials.
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10.6.1
10.6.2
The Concessionaire agrees not to use or permit in the Concession
Locations and/or Vending Machines the storage and/or use of
gasoline, fuel oils, diesel, illuminating oils, oil lamps, combustible
powered electricity producing generators, turpentine, benzene,
naphtha, propane, natural gas, or other similar substances,
combustible materials, or explosives of any kind, or any substance or
thing prohibited in the standard policies of fire insurance companies in
the State of Florida. Any such substances or materials found being
used within or in the vicinity of the Concession Locations shall be
immediately removed and shall be considered cause for default
and/or termination.
Notwithstanding any contrary provisions of this Agreement,
Concessionaire, after the Commencement Date, shall indemnify and
hold City harmless from any loss, damage, cost, or expense of the
City, including, without limitation, reasonable attorney's fees, incurred
as a result of, arising from, or connected with the placement by
Concessionaire, and/or its employees, vendors, agents and/or
subcontractors, after the Commencement Date, but during the term of
this Agreement, of any hazardous substance or petroleum products
on, under, in, upon, or in the vicinity of the Concession Locations as
those terms are defined by applicable Federal and State Statute, or
any environmental rules and environmental regulations promulgated
thereunder; provided, however, Concessionaire shall have no liability
in the event of the willful misconduct or gross negligence of the City,
its agents, servants or employees.
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10.6.3
The provisions of this Subsection 10.6 shall survive the tennination or
earlier expiration of this Agreement.
10.7
Security.
The Concessionaire shall be responsible for and provide reasonable security
measures which may be required to protect the Vending Machines and
Change Machines at all Concession Locations. Under no circumstances
shall the City be responsible for any stolen or damaged goods, facilities,
materials and/or other equipment, including but not limited to the Vending
Machines and Change Machines, nor shall City be responsible for any stolen
or damaged personal property of Concessionaire's employees, vendors,
patrons, guests, invitees, and/or other third parties.
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10.8
Maintenance Vehicles.
Concessionaire shall not permit the use of any vehicle, in any way that
violates any Municipal, County, State or Federal Laws. Vehicles may only be
driven and/or parked in areas designated for such purposes and as provided
for by applicable law.
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10.9
InsDection.
The Concessionaire agrees that the Vending Machines, Change Machines
and Concession Locations may be inspected at any time during days 'and
hours of operation by the City Manager or his designee, or by any other
Municipal, County, State officer, or agency having responsibilities for
inspections of such operations. The Concessionaire hereby waives all claims
against the City for compensation for loss or damage sustained by reason of
any interference (which interference, if by the City, must be reasonable) with
the concession operation by any public agency or official in enforcing their
duties or any laws or ordinances. Any such interference (which interference,
if by the City,' must be reasonable) shall not relieve the Concessionaire from
any obligation hereunder.
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SECTION 11. INSURANCE.
Concessionaire shall maintain, at its sole cost and expense, the following types of
insurance coverage at all times throughout the tenn of this Agreement.
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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 .
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b.
Workers Compensation Insurance shall be provided as required under the
Laws of the State of Florida.
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c.
Automobile Insurance for any vehicles used for, or associated with
concessionaire's operations shall be provided covering all owned, leased,
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~nnrrn\\!j-:::J!li (r-"-n"J( ,,!(j! -~ii!~.~;?"~:.:.-:..:!ntW.
and hired vehicJ~s itnd_nQD.~QwnershjJ) ,liability for not less than the following
limits: .. ,,,,-.. ,~. - - - - - -
,~~~y ~:.:..,...;" i;"'~.i.,.=
BOdifylnjurY' .. $f,OO(),'OOO per person
BoaRylhJuiy' $1 ~OOO;OOO per accident
Property Damage $1,000,000 per accident
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Failure to procure or maintain the required insurance program shall, at the City's
discretion, either (i) constitute an automatic default of the Concession Agreement
under which the City may, upon written notice to Concessionaire, immediately
terminate the Agreement; or (ii) the City, in its sole discretion, may obtain the
insurance itself, in which case said insurance shall be charged back to the
Concessionaire as provided in the following paragraph.
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The policies of insurance referred to above shall not be subject to cancellation or changing
coverage except upon at least thirty (30) days prior written notice to the City, and then only
subject to the prior written approval of the City Manager or his designee. Prior to the
Commencement Date of this Agreement, Concessionaire shall provide City with a
Certificate of Insurance for each such policy. ALL POLICIES SHALL NAME THE CITY OF
MIAMI BEACH FLORIDA AS AN ADDITIONAL NAMED INSURED. All such policies shall
be obtained from companies authorized to do business in the State of Florida with an A.M.
Best's Insurance Guide (latest edition) rating acceptable to the City's Risk Manager, and
any replacement or substitute company shall also be subject to the approval of the City's
Risk Manager. Should Concessionaire fail to obtain, maintain or renew the policies of
insurance referred to above,.in the required amounts, the City may, at its sole discretion,
automatically terminate this Agreement or, in the alternative, deem to obtain such
insurance, and any sums expended by City in obtaining said insurance, shall be repaid by
Concessionaire to City, plus ten percent (10%) of the amount of premiums paid to
compensate City for its administrative costs. If Concessionaire fails to repay City's
expenditures within fifteen (15) days of demand, the total sum owed shall accrue interest at
the rate of twelve percent (120/0) until paid, or, at its option, the City may declare the
Agreement in default pursuant to Section 13 herein.
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SECTION 12. INDEMNITY.
12.1
In consideration of a separate and specific consideration of $1 0.00 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
subconcessionaires in the performance of services under this Agreement.
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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
19
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12.3
.nrr.A M~I !.ic-c ;
qf~Yihm~~are hereby, acIq;l9wledgedpConcef?,s~()l1aire ~h~H~jp~lrqpJfy. ,hold
h.grml@~~:::and ~_~f~nd !~~-.:9ity,~ its a.g~[Jt~, --cs~~~gt~ or _em~"I~yees, from and
against any claim, demand o"r cause of action of whatever kind or nature
arising out of any misconduct of Concessio~air~,_ ~t:1tY~~it_~ Y~~~9~,_.~gents,
servants, employees andior subcontractors and/or subconcessionaires, not
included in the paragraph in the Subsection above and for which the City, its
agents, servants or employees are alleged to be liable.
Subsections 12.1 and 12.2 shall survive the termination or expiration of this
Agreement.
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12.4
Subroaation.
The terms of insurance policies referred to in Section 11 shall preclude
subrogation claims against Concessionaire, the City and their respective
officers, employees and agents.
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12.5 Force Maieure.
Neither party shall be obligated to perform hereunder and neither party shall
be deemed to be in default if performance is prevented by:
a.
earthquake; hurricane; flood; act of God; civil commotion occurring on
the Concession Locations during or in connection with any event or
other matter or condition of like nature; or
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b.
any law, ordinance, rule, regulation or order of any public or military
authority stemming from the existence of economic or energy
controls, hostilities, or war.
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12.6
Labor DisDute.
Intentionally Omitted.
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12.7
Waiver of Loss from Hazards.
The Concessionaire hereby expressly waives all claims against the City for
loss or damage sustained by the Concessionaire resulting from fire, water,
natural disasters/acts of God (e.g. hurricane, tornado, etc.), civil commotion,
riot, or any other Force Majeure contemplated in Subsection 12.5 above, and
the Concessionaire hereby expressly waives all rights, claims, and demands
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.
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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
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any and all revteaies described as Concessionaire's remedies under this Agreement,
- including but not limited to those set forth in Subsection 13.5 herein.
13.1
Ban kruotcv.
If"either the City or Concessionaire shall be adjudged bankrupt or insolvent,
of-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.
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13.2
Default in Payment.
In the event Concessionaire fails to submit any payment within five (5) days
of its due date, there shall be a late charge of $50.00 per day for such late
payment, in addition to interest at the highest rate allowable by law (currently
ten (100/0) percent per annum). If any payment and accumulated penalties
are not received within fifteen (15) days after the payment due date, and
such failure continues three (3) days after written notice thereof, then the City
may, without further demand or notice, terminate this Concession Agreement
without being prejudiced as to any remedies which may be available to it for
breach of contract.
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13.3
Non-Monetary Default.
In the event that Concessionaire or the City fails to perform or observe any of
the covenants, terms or provisions under this Agreement, and such failure
continues thirty (30) days after written notice thereof from the other party
hereto, such non-defaulting party may immediately or at any time thereafter,
and without further demand or notice, terminate this Agreement without
being prejudiced as to any. remedies which may be available to it for breach
of contract. In the event that a default is not reasonably susceptible to being
cured within such period, the defaulting party shall not be considered in
default if it shall, within such period, commence with due diligence and
dispatch to cure such default and thereafter completes with dispatch and due
dil-igence 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.
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.:::.:_ ,_..:.__~, ""'''~Ilft''''''/F
Illtri...:.5\Oiri1-"tt:i',
13.4
.., iOU rsue ,,-:
City's Remedies for Concessionaire's Default.
If any of the events of default, as set forth in this Section 13, shall occur, the
_ LIIIC"_
City may, after notice (if required) and the expiration of cure periods (as
provided'above), at its sole option and discretion, institute such proceedings
as in its'opinion are necessary to cure such defaults and to compensate City
for damages resulting from such defaults, including but not limited to the right
to give to Concessionaire a notice of termination of this Agreement. If such
notice is given, the term of this Agreement shall terminate upon the date
specified in such notice from City to Concessionaire. On the date so
specified, Concessionaire shall then quit and surrender the Concession
Locations to City pursuant to the provisions of Subsection 13.7. Upon the
termination of this Agreement, all rights and interest of Concessionaire in and
to the Concession Locations and to this Agreement, and every part thereof,
shall cease and terminate and City may, in addition to any other rights and
remedies it may have, retain all sums paid to it by Concessionaire under this
Agreement. In addition to the rights set forth above, City shall have the rights
to pursue any and all of the following:
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a. the right to injunction or other similar relief available to it under Florida
law against Concessionaire; and or
b.
the right to maintain any and all actions at law or suits in equity or
other proper proceedings to obtain damages resulting from
Concessionaire's default.
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13.5 If an event of default by the City, as set forth in this Section 13, shall occur,
the Concessionaire may, after notice (if required) and the expiration of the
cure periods (as provided above), at its sole option and discretion, terminate
this Agreement upon written notice to the City and/or sue for damages. Said
termination shall become effective upon receipt of a written notice of
termination by the City, but in no event shall Concessionaire specify a
termination date that is less than sixty (60) days from the date of the written
termination notice. On the date specified in the notice, Concessionaire shall
quit and surrender the Concession Locations to City pursuant to the
provisions of Subsection 13.7.
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13.6 Termination for Convenience/Partial Termination.
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13.6.1 Notwithstanding the provisions of this Section 13, this Agreement may
be terminated, in whole or in part, by the City, for convenience and
without cause, upon the furnishing of thirty (3D) days prior written
notice to Concessionaire.
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13.6.2
Concessionaire acknowledges that the City may develop a schedule
of capital improvements, including all or a portion of the Concession
Locations, which may entail a closure of all or a portion of the
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Concession Locations, at the City's sole discretion. In the event that
the City closes down any Concession Location, or a portion thereof,
for the purpose of undertaking a capital improvement thereon, then
the parties agree that the portion of the Agreement referencing said
individual Concession Locations shall be partially terminated for
convenience, without cause and without penalty to either party, and
only as to the Concession Location, or portion thereof, which have
been closed. Such a termination shall become effective upon thirty
(30) days prior written notice to Concessionaire.
13.6.3 Notwithstanding Subsections 13.6.1 and 13.6.2 above, the City and
Concessionaire acknowledge that the City also has certain rights in
Subsections 3.2.5.2 and 3.2.7, which, if exercised by the City may
necessitate a termination of a portion or all of the Agreement. In that
event, the City shall also have no liability to Concessionaire, in the
same manner as provided in Subsection 13.6.4 below.
13.6.4 In the event of termination or partial termination by City of the
Agreement pursuant to this Subsection 13.6, Concessionaire herein
acknowledges and agrees that it shall not have any claim, demand, or
cause of action of whatsoever kind or nature, against the City, its
agents, servants and employees (including, but not limited to, claims
for interference in busines$ or damages for interruption of services or
interference in its concession operations by Concessionaire or its
vendors) .
13.7 Surrender of Concession Locations.
At the expiration of this Agreement, or in the event of termination or partial
termination of the Agreement, Concessionaire shall surrender the
Concession Locations in the same condition as the Concession Locations
were prior to the Commencement Date of this Agreement, reasonable wear
and tear excepted. Concessionaire shall remove all its Vending Machines,
Change Machines, and any and all other equipment, fixtures, personal
property, etc. upon thirty (30) days written notice from the City Manager or
his designee unless a longer time period is agreed to by the City.
Concessionaire's obligation to observe or perform this covenant shall survive
the expiration or other termination of this Agreement. Continued occupancy
of the Concession Locations (or portions thereof) after termination (or partial
termination) of the Agreement shall constitute trespass by the
Concessionaire, and may be prosecuted as such. In addition, the
Concessionaire shall pay to the City one thousand dollars ($1,000) per day
as liquidated damages for such trespass and holding over.
SECTION 14. PERFORMANCE BOND OR ALTERNATE SECURITY.
Intentionally Omitted.
-
23
SECTION 15. ASSIGNMENT.
Concessionaire shall not assign, sublease, grant any concession or license, permit the use
of by any other person other than Concessionaire, or otherwise transfer all or any portion of
this Agreement and/or of the Concession Locations without the prior written consent of the
City Commission.
SECTION 16. SPECIAL EVENTS.
Intentionally Omitted.
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SECTION 17. NO IMPROPER USE.
The Concessionaire will not use, nor suffer or permit any person to use in any manner
whatsoever, the Concession Locations, operations, or facilities for any improper, immoral
or offensive purpose, or for any purpose in violation of any Federal, State, County, or
Municipal ordinance, rule, order or regulation, or of any governmental rule or regulation
now in effect or hereafter enacted or adopted. The Concessionaire will protect, indemnify,
and forever save and keep harmless the City, its agents, employees and contractors from
and against damage, penalty, fine, judgment, expense or charge suffered, imposed,
assessed or incurred for any violation, or breach of any law, ordinance, rule, order or
regulation occasioned by any act, neglect or omission of the Concessionaire, its vendors,
employees, agents, and/or subcontractors regarding the Concession. In the event of any
violation by the Concessionaire, or if the City or its authorized representative shall deem
any conduct on the part of the Concessionaire, its vendors, agents, employees and/or
subcontractors, to be objectionable or improper, the City shall have the option, at its sole
discretion, to either (i) automatically terminate the Agreement, upon prior written notice to
Concessionaire, or to (ii) suspend the concession operations should the Concessionaire
fail to correct any such violation, conduct, or practice to the satisfaction of the City within
twenty-four (24) hours after receiving written notice of the nature and extent of such
violation, conduct, or practice, and such suspension shall continue until the violation is
cured. The Concessionaire further agrees not to commence operations during the
suspension until the violation has been corrected to the satisfaction of the City.
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SECTION 18. PRICE SCHEDULES.
Concessionaire agrees that prices charged for goods/products in the Vending Machines
shall be consistent with the price schedule(s) herein submitted by the Concessionaire and
approved by the City and incorporated herein as Exhibit 3.2.5.1 to this Agreement. All
subsequent price increases and amendments to Exhibit 3.2.5.1 must be approved in
writing by the City Manager, or his designee, and prior to such changes being implemented
within the Concession Locations a new updated Exhibit 3.2.5.1 will be incorporated into this
Agreement.
The City shall have the final right of approval for all such prices and changes, but said right
shall not be arbitrarily or unreasonably exercised. The Concessionaire agrees to refrain
from the sale of any item identified as prohibited by City law and/or other applicable law
and to sell only those items approved by the City.
24
SECTION 19. NOTICES.
All notices from the City to the Concessionaire shall be deemed duly served upon receipt, if
mailed by registered or certified mail with a return receipt to the Concessionaire at the
following address:
~
Mr. Manny Diaz, Jr.
Brothers Vending, Inc.
17200 NW 2nd Court
Miami, Florida 33169
-
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:
-
Asset Manager
City of Miami Beach
1700 Convention Center Drive
Miami Beach, FL 33139
-...
The Concessionaire and the City may change the above mailing address at any time upon
giving the other party written notification. All notices under this Concession Agreement
must be in writing.
SECTION 20. LAWS.
20.1
Compliance.
Concessionaire shall comply with all applicable City, Miami-Dade County,
State, and Federal ordinances, statutes, rules and regulations, including but
not limited to all applicable environmental City, County, State, and Federal
ordinances, statutes, rules and regulations.
......
20.2
Governina 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.
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-
25
20.3
-
-
20.4
-
20.5
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20.4.1
Eaual Emolovment Oooortunitv.
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.
No Discrimination.
The Concessionaire agrees that there shall be no discrimination as to race,
sex, sexual orientation, color, creed, national origin, familial status, religion or
handicap, in its employment practice or in the operations referred to by this
Concession Agreement; and further, there shall be no discrimination
regarding any use, service, maintenance, or operation within the Concession
locations. All concession operations and services offered shall be made
available to the public, subject to the right of the Concessionaire and the City
to establish and enforce rules and regulations to provide for the safety,
orderly operation and security of the operations and the facilities.
Pursuant to Sections 62-90 and 62-91, of Chapter 62, of the Miami
Beach City Code entitled "Human Relations", Concessionaire, by
executing this Agreement, certifies that it does not discriminate in its
membership or policies based on race, color, national origin, religion,
sex, sexual orientation, familial status or handicap.
Comoliance with American with Disabilities Act (ADA) and any other
aoolicable accessibility standards.
Concessionaire agrees and acknowledges that, if applicable, it shall comply
with ADA standards, Florida Accessibility Code standards, and any other
applicable accessibility standards required by law.
SECTION 21. MISCELLANEOUS.
""...
21.1
21.2
-
-
21.3
-
No Partnershio.
Nothing contained in this Agreement shall constitute or be construed to be or
create a partnership or joint venture between the City and Concessionaire.
Modifications.
This Agreement shall not 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.
Comolete Aareement.
This Agreement, together with all exhibits incorporated hereto, constitutes all
26
21.10
-
-
.......
21.11
Sianaae.
Concessionaire shall provide, at its sole cost and expense, any required
signs at its concessions. All advertising, signage and postings shall be
approved, in writing, by the City in its proprietary capacity, and shall be in
accordance with all applicable Municipal, County, State and Federal laws
and regulations. Any signage posted by Concessionaire within each
Concession Location, and/or on its Vending Machines and Change Machines
shall be subject to the prior approval of the City as to size, shape and
placement of same.
Use of the Riaht-of-Wav.
Intentionally Omitted.
21.12 Conflict of Interest.
Concessionaire shall perform its services under this Agreement and conduct
the concession operations contemplated herein, in a manner so as to show
no preference for other concession operations/facilities owned, operated,
managed, or otherwise controlled by Concessionaire with regard to its
responsibilities pursuant to this Concession Agreement.
-
21.13 Reasonableness.
Intentionally Omitted.
-
21.14
-
21.15
-
-
21.16
...'10
21.17
~M
-
-
-
Procedure for ADDrovals and/or Consents.
Intentionally Omitted.
No Waiver.
No waiver of any covenant or condition of this Agreement by either party
shall be deemed to imply or constitute a waiver in the future of the same
covenant or condition or of any other covenant or condition of this
Agreement.
No Third PartY Beneficiarv.
Nothing in this Agreement shall confer upon any person or entity, including,
but not limited to subconcessionaires, other than the parties hereto and their
respective successors and permitted assigns, any rights or remedies by
reason of this Agreement.
Attornevs' Fees.
Ifit becomes necessary for City or Concessionaire to enforce their respective
rights under this Agreement or any part hereof through litigation,
Concessionaire and City agree that the prevailing party shall be entitled to
recover from the other party all costs and expenses of such litigation,
including a reasonable attorneys' fee and costs, for all trial and appellate
proceedings.
28
-
.....
....
-
-
-
...
-
-
-
~
-
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SECTION 22. LIMITATION OF LIABILITY.
The City desires to enter into this Agreement only if in so doing the City can place a limit on
its liability for any cause of action for breach of this Agreement, so that its liability for any
such breach never exceeds the sum of $10,000.00. Concessionaire hereby expresses its
willingness to enter into this Agreement with a $10,000.00 limitation on recovery for any
action for breach of contract. Accordingly, and in consideration of the separate
consideration of $10.00, the receipt of which is hereby acknowledged, the City shall not be
liable to Concessionaire for damages to Concessionaire in an amount in excess of
$10,000.00, for any action for breach of contract arising out of the performance or non-
performance of any obligations imposed upon the City by this Agreement. Nothing
contained in this paragraph or elsewhere in this Agreement is in any way intended to be a
waiver of limitation placed upon the City's liability as set forth in Florida Statutes, Section
68.28.
SECTION 23. VENUE.
This Agreement shall be enforceable in Miami-Dade County, Florida, and if legal action is
necessary by either party with respect to the enforcement of any and all the terms or
conditions herein, exclusive venue for the enforcement of same shall lie in Miami-Dade
County, Florida. CITY AND CONCESSIONAIRE HEREBY KNOWINGLY AND
INTENTIONALLY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY ACTION OR
PROCEEDING THAT CITY AND CONCESSIONAIRE MAY HEREIN AFTER INSTITUTE
AGAINST EACH OTHER WITH RESPECT TO ANY MATTER ARISING OUT OF OR
RELATED TO THIS AGREEMENT OR THE CONCESSION LOCATIONS.
[The remainder of this page has been left intentionally blank]
29
-
IN WITNESS WHEREOF, the parties hereto have caused their nam.. to be signed and
their Hall to be affixed, all .s of the day and yur first above writt.n, indicating their
t .", l\
ag....m.n . / \ 1\
/ \. I
i ,\ I I
~1n1
Robert Parcher
'~~'
MAYOR
David Dermer
.....
Attast~dfM~
CITY CLERK
Attest:
~.
. Sign ture I S tary
BROTHERS VENDING, INC.
7 Signaturt" "-rir-~>'R,
-
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Pnnt a
/J1lH1nlj V;~
Print Name
......
JMG/RCM/JD/rlr
......
F:\DDHP\SALL\ASSET\VENDING\BrothersVendlngAgreemenlFINAl.doc
...
.....
-
~
APPROVED AS TO
FORr~ & LANGUAGE
& FOR EXECUTION
-
M
jO-lY-65
Date
-
-
30
EXHIBIT 2.0
(page 1 of 2)
......
CITY APPROVED VENDING MACHINE LOCATIONS
-
Facility I Concession Location Facility Address Sub-Facility (SF) Type of #of
NamelDesignation Machine Machines
7th St. Garage Soda 1
13th St. Garage Elevator Lobby Soda 1
17th St. Garage
~da
1
...
42'ild St. Garage Soda 1
777 -17th Street 7n -17th Street Lobbv? Soda 1
777 -17th Street 7n -17th Street LobbY? Snack 1
Beachview Park Collins Ave. & 53rd St. Soda 1
Byron Carlyle Theater 500 71st Street Back of House Soda 1
Byron Carlyle Theater 500 71 st Street Back of House Snack 1
City Hall 1700 Convention Ctr. Dr. Emolovee Lounae Soda 4
City Hall 1700 Convention Ctr. Dr. Emolovee Lounae Snack 1
City Hall 1700 Convention Ctr. Dr. Emoloyee Lounae Ice Cream 1
City Hall 1700 Convention Ctr. Dr. 3rd Floor Breezeway Soda 1
Collins Park Collins Ave. & 22nd St. Parkina Lot Soda 2
Convention Center 1901 Convention Ctr. Dr. North Loadina Dock Soda 2
Convention Center 1901 Convention Ctr. Dr. North Loadina Dock Snack 1
"d0'i"i'rSi7~L~1 I f:kJ-j Convention Ctr. Dr. South Loadina Dock Soda 2
Convention Center 1901 Convention Ctr. Dr. South Loadina Dock Snack 1
Convention Center 1901 Convention Ctr. Dr. Emolovee Lounae Soda 1
Convention Center 1901 Convention Ctr. Dr. Emoloyee Lounae Snack 1
Fairwav Park 200 Fairway Park Soda 1
-
It-airway t"al'K ~uu t-alrway t"al'K Snack , I
I Fire Station 1 1100 Jefferson Ave. Soda 1 I
I Fire Station 2 2300 Pinetree Drive Soda 1 I
Fire Station 3 5303 Collins Ave. Soda 1 I
-
-
...
-.
Fire Station 4
I Flamingo Park
Flamingo Park
Flamingo Park
Ramingo Park
7940 Collins Ave. I
I
-1
I
Basketball Courts
Football Field
Pool
Pool
Soda
Soda
Soda
'Soda
Snack
1
1
1
1
1
-
-
.
Flaminao Park Pool Ice Cream 1
Flaminao Park Tennis Center Soda 1
Flaminao Park Tennis Center Snack 1
Flaminao Park Tennis Center Ice Cream 1
Flaminao Park Tennis Center Sport Drink 1
Fleet Manaaement 140 MacArthur Causeway Soda 1
I;r;mll'j f:,l If;,l' (:] I II:] I f ! '1'.';r-:-\"ll'!.,.tl~M'ftI;r<;.rr.r;l-;i:~.'I;.y Snack 1
Greensoace Manaaement Yard 2100 Meridian Ave. Soda 2
-
-
31
Historic Ci Hall 1130 Washin on Ave. West Aux. Exit Soda 1
Historic C' Hall 1130 Washin on Ave. West Aux. Exit Snack 1
L Cabin 8128 Collins Ave.
Marine Patrol 18th St. & Purdy Ave. Soda 1
--.------
...... Ma 'orie Stoneman Dou las Park Ocer" Drive & 3rd St. Restroom Facir Soda 1
Ma 'orie Stoneman Dou las Park Ocen Drive & 3rd St. Restroom Facir PowerAde 1
Muss Park 4400 Chase Ave. Soda 1
Muss Park 4400 Chase Ave. Snack 1
Norman Shores Park 2401 Biarritz Drive Soda 1
Norman Shores Park 2401 Biarritz Drive Snack 1
Norman Shores Park Ice Cream 1
....
North Shore Youth Center 501 72nd Street Soda 2
-
.....
-
-
......
-
-
-
-
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North Shore Youth Center 50172nd,Street Snack 2
North Shore Youth Center 501 72nd Street Tennis Center Soda 1
North Shore Youth Center 501 72nd Street Tennis Center Snack 1
North Shore Youth Center 501 72nd Street Tennis Center PowerAde 1
Ocean Rescue .l;r-,llll . 1001 Ocean Drive Soda 1
--
Ocean Terrace ???
Pinetree Park 45th St. & Pinetree Dr. Soda 1
Police Station 1100 Washington Ave. Employee Lounge Soda 4
Police Station 1100 Washington Ave. Employee Lounge Snack 1
Police Station 1100 Washington Ave. Employee Lounge Ice Cream 1
Police Station 1100 Washington Ave. Emplovee Lounge Sport Drink 1
Police Station 1100 Washington Ave. LobbY? Soda 1
Police Station Parkina Garaae Entrance Soda 1
Police Sub-station North Beach Soda 1
Property Manaaement Flamingo Park Soda 1
Property Manaaement Flamingo Park Snack 1
Public Works Operation Center 451 Dade Boulevard Soda 1
Public Works Operation Center 451 Dade Boulevard Snack 1
Scott Rakow Youth Center 2700 Sheridan Ave. Soda 2
Scott Rakow Youth Center 2700 Sheridan Ave. Snack 1
Scott Rakow Youth Center 2700 Sheridan Ave. Ice Cream 1
Scott Rakow Youth Center 2700 Sheridan Ave. Ice Rink Soda 1
Scott Rakow Youth Center 2700 Sheridan Ave. Ice Rink Snack 1
South Pointe Park 1 Washington Ave. Bandshett Storage Facility Soda 2
South Pointe Park 1 Washington Ave. Bandshell Storage Facility Hershev 1
South Pointe Park 1 Washinaton Ave. Bandshell Storaae Facility Ice Cream 1 .
South Pointe Park 1 Washington Ave. Pavilion Restrooms Soda 2 I
South Shore Comm. Center
South Shore Comm. Center
Stillwater Park
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Soda I 1
833 6th Street
833 6th Street
8440 Hawthorne Ave.
Stillwater Park 8440 Hawthorne Ave. Snack 1
T.O.P.A. 1700 Washinaton Ave. Soda 1
Washington Park Washington Ave. & 2nd St. Soda 1
Washington Park Washington Ave. & 2nd St. Snack 1
TOTALS
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