HomeMy WebLinkAboutManagement & Operation Agreement for the Espanola Way Street Market
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Management and
Operation Agreement
for the
Espanola Way
Street Market
SECTION
1.
2.
2.1
2.2
3.
3.1.1
3.1.2
3.1.2.1
3.1.3
3.1.4
3.1.5
3.1.6
3.2
3.2.1
3.2.2
3.2.3
3.2.4
3.3
3.4
3.5
3.6
3.6.1
3.6.2
3.7
3.8
3.9
3.10
4.
4.1
4.2
4.3
4.4
4.5
4.6
5.
6.
7.
7.1.1
7.2
8.
9.
9.1
9.2
10.
10.2
10.3
10.4
10.5
10.6
10.7
10.8
10.9
INDEX
TITLE
PAGE
TERM.......................................................................................................................... .........4
CONCESSION AREA..........................................................................................................4
Espanola Way................... .................................................................. ...................4
Drexel Avenue............................... ............................................ ................. ............5
USE(S)........................................................................................................................ .........5
F aci I ities Desig n ..................................................................................................... 6
Placement of Facilities......................................................... ..... ..............................6
Compliance with American with Disabilities Act (ADA) ..........................................6
Set Up..................................................................................................................... 7
Public Right-of-Way........ .................. .... ....... ................ ... ........................................7
Interaction and Coordination with Other Espanola Way Operations and Events...8
Conflict Resolution.................................................................................................. 8
Permitted Concession Operations / Uses ............................................................10
Arts and Crafts............. .... .......... ...... .................... .................. ........................ ..... ..1 0
Cut Flowers and Plants ........................................................................................11
Fruits, Vegetables, Other Edible Products ...........................................................11
Live Entertainment.......... ........... .... ...... ................ ......... ....... ............ ..... ... .... ........ .11
Intentionally Omitted........... ............. ............... .................................. ....... .......... ...11
Intentionally Omitted.................. ....... .......... .............. ..... ....... ............... .......... ..... ..11
Intentionally Omitted.... ................. .......... ................... ..... ......... ........................... ..11
Off-Duty Police / Field Monitor.............................................................................. 1 2
Off-Duty Police..................................... ............................................... ............... ..12
Field Monitor......................................................................................................... 12
Vendor Selection / First Priority to Miami Beach Merchants ................................12
Removal of Concession Facilities ........................................................................13
Hurricane Evacuation Plan. ....... .... .......... ................................. ................ ........... .13
City Occupational Licenses .................. ...................................................... ....... ...14
CONCESSION FEES....................................................... ....... ............................ ............. .14
Security Deposit..... ........................................ ............... ....... ............................... .14
Percentage of Gross (vs.) MG (PG) .....................................................................14
Minimum Guarantee (MG) ....................................................................................15
Cost for Use of Electricity .....................................................................................15
Interest for Late Payment. ......... ...... ........... ......... .......... ........ .............. ................ .15
Sales and Use Tax........................... ............................................................. ..... ..15
MAINTENANCE AND EXAMINATION OF RECORDS.....................................................15
INSPECTION AND AUDIT ................................................................................................16
TAXES, ASSESSMENTS, AND UTILITIES ......................................................................17
Electricity............... ... ... ....... ............. ..... ........ ........... ............. .......... ..................... .17
Procedure if Ad Valorem Taxes Assessed........................................................... 17
EMPLOYEES AND INDEPENDENT CONTRACTORS.................................................... 17
SCHEDULE OF OPERATION...... .............. ............................. ...................... ................... .18
Day(s) of Operation............. ...... .......................... ......... ............ ..... .............. ........ .18
Operating Hours.......... ........................................................................................ .18
MAl NTENANCE ................................................................................................................ 18
Garbage Receptacles........................................................................................... 19
Pressure Cleaning...... .................. .... ............... ................. ................ .......... ........ ..19
Facilities...................... .... ........... ......................................................................... ..19
Orderly Operation ............ .... ...... ........... ............ ..... .................. ................... ..... ... ..19
No Dangerous Materials............ .... ...... .... ........... .......... .......... ............. ........ ........ .19
Secu rity ................................................................................................................. 20
Vehicles on Public Right-of-Way ..........................................................................20
Inspection ............................................................................................................. 21
2
SECTION
TITLE
PAGE
11. INSURANCE................. ... ................................... .......................... ............ ......... ................ 21
12. INDEMNITy............... ............. ...................... ...................................... .................... .......... .22
12.4 Subrogation..... .................................................................................................... .23
12.5 Force Majeure.... ...... ... ................ ........................................ .,. ............................. .23
12.6 Labor Dispute ................. ................. ....... ... ................................. ..................... .... .23
12.7 Waiver of Loss from Hazards ...............................................................................23
13 DEFAULT AND TERMINATION ........................................................................................24
13.1 Bankruptcy................................................................................... ....................... ..24
13.2 Default in Payment.. ............ ..................... .............................. ........................ .... ..24
13.3 Non-Monetary Default. ......... .... ......... ........ ............. ......................... ........ ............ .24
13.4 City's Remedies for Concessionaire's Default .....................................................25
13.6 Termination for Convenience/Partial Termination ................................................26
13.7 Surrender of Concession Area .............................................................................27
14. PERFORMANCE BOND OR ALTERNATE SECURITY ...................................................27
15. ASSiGNMENT.............. ....... .............. ... ........ .... ................................................................ .27
16. SPECIAL EVENTS. ...... ....... ................. .......... ........ ............ .............................................. .28
16.2 City Special Events............... ...... ........................... .... .......... .......... ...................... .28
17. NO IMPROPER USE............. ...... ...... ................................... ..... ...... ................... .............. .29
18. PRICE SCHEDULES............. .......... .............................. ............... .... ............................ .... .29
19. NOTiCES..... ........ .............. .............. ........... .................... .............. ................................ .....30
20. LAWS... ........................ ........ ............................................... ...... ........... ..............................30
20.1 Compliance.... .... ........ .......... .................. ....... ....................... ................ .................30
20.2 Governing Law.......... ............ ................ ....... ....... ................ ............................ ..... 31
20.3 Equal Employment Opportunity.............. ............. ..................... ......... ............ .......31
20.4 No Discrimination...... ............ ............................................................................... 31
21. MISCELLANEOUS ....................... ........ ........ ................ ......... ......... ....... ............................31
21.1 No Partnership......................... ........................ .... ... ..... ...... .......... ..................... .... 31
21.2 Modifications... ......................... ................. ........ ................. ................... ................ 31
21.3 Complete Agreement........... ............ ......... ..... ................... .................... ................32
21.4 Headings............................................................................................................... 32
21.5 Binding Effect. ........................................... ............................. ..............................32
21.6 Clauses... ................................. .......... ........ .................. .... .....................................32
21.7 Severability........................................................................................................... 32
21.8 Right of Entry............. .... ........................... ................ ....................................... .....32
21.9 Not a Lease.......................................................................................................... 32
21.1 0 Sig nage................................................................................................................. 33
21.11 Use of the Right-of-Way .......................................................................................33
21.12 Conflict of Interest................. ................. ..................................... .............. ............33
21.13 Reasonableness................................................................................................... 33
21.14 Procedure for Approvals and/or Consents ...........................................................33
21.15 No Waiver... .... ................... ... ......... ................... .......................... ...... ....... ....... ... ... 33
21.16 No Third Party Beneficiary.... ................................ .,............................................... 33
21.17 Attorneys' Fees.. ........ .......... ................... ... .... .................. ....... .............. ............ .... 33
22. LIMITATION OF LIABILITY ...............................................................................................34
23. VENUE ............. ....... .............. ................... '" ................... ........... ............................ ............34
EXHIBITS
Exhibit 2.0 ............................................................................................................ 36
Exhibit 3.1 ....... .......... ...... ................................. ......... .............................. .............37
Exhibit 3.1.1 ....... ................. .... .......... ........ ..... ........ ............ .... ................... ....... .... 38
Exhibit 3.1.2.1 ......................................................................................................39
Exhibit 3.2.1 ................ ................... ............... ...... ....................... ..................... .....41
3
CONCESSION AGREEMENT BETWEEN
CITY OF MIAMI BEACH, FLORIDA AND
THE MARKET COMPANY, INC.
FOR MANAGEMENT AND OPERATION OF THE
ESPANOLA WAY STREET MARKET
PURSUANT TO REQUEST FOR PROPOSALS NO. 30-05/06
THIS AGREEMENT made the 29th day of September, 2006, between the CITY OF
MIAMI BEACH, a municipal corporation of the State of Florida, having its principal
address at 1700 Convention Center Drive, Miami Beach, Florida, 33139 (hereinafter
called "City"), and THE MARKET COMPANY, INC., a corporation established pursuant
to the laws of the State of Florida, with offices at 238 East San Marino Drive, Miami
Beach, Florida, 33139 (hereinafter called "Concessionaire").
The City hereby grants to the Concessionaire, and the Concessionaire hereby accepts
from the City, the exclusive right to operate the following described concession within
the Concession Area, as defined herein, in conformance with the purposes and for the
period stated herein, and subject to all the terms and conditions herein contained and
fairly implied by the terms hereinafter set forth.
SECTION 1. TERM.
1.1 This Agreement shall be for an initial term of three (3) years, commencing
on October 1, 2006 (the "Commencement Date"), and ending on
September 30, 2009.
1.2 Provided that the Concessionaire is not in default under Section 13 hereof,
and at the City's sole discretion, commencing upon written notice from
Concessionaire to the City, which notice shall be given no later than 90
days prior to the expiration of the initial term of the Agreement, the City
may extend the term of this Agreement for an additional three (3) year
period, commencing on October 1, 2009, and ending on September 30,
2012.
SECTION 2. CONCESSION AREA.
The City hereby grants to the Concessionaire the exclusive right, during the Term of this
Agreement, to operate a concession for an open air street market, as described herein,
in the following area(s) (hereinafter referred to collectively as the "Concession Area"),
as more specifically delineated in Exhibit 2.0 herein:
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
4
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 other uses
authorized/licensed/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 other uses
authorized/licensed/permitted by the City are currently located or may be
located in the future.
2.3 Notwithstanding the use of the Concession Area granted to
Concessionaire above, Concessionaire herein understands, agrees, and
acknowledges that the Concession Area, along with any and all other
public right-of-way area(s) not specifically identified herein, are public and,
as such, must remain available for the use and enjoyment of the general
public whether or not the public chooses to purchase any of
Concessionaire's goods, or otherwise partake of any of the services it
provides. In the event that a member of the public is within a particular
area of the Concession Area, Concessionaire agrees to allow for his/her
continued peaceful enjoyment of said area.
SECTION 3. USE(S).
The Concessionaire is hereby authorized to conduct the following kind(s) of
business(es) within the Concession Area, as provided below, all at its sole cost and
expense:
3.1
Concessionaire shall operate and manage an open air street market,
commonly known and referred to herein as the "Espanola Way Street
Market" (the Market), which shall provide a venue for vendors to sell
and/or provide the following (as each is more specifically defined in
Section 3.2):
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a) Arts and Crafts Merchandise;
b) Plants and Cut Flowers;
c) Fruits, vegetables, and other edible products and
related food items; and
d) Live Entertainment
This shall also generally include the rental of booths, tents, tables, signs or
space(s) (collectively the "facilities"), in conformance with the attached site
plan (Exhibit 2.0). The City herein approves the rental of the aforestated
facilities, and the prices for same, all as set forth in Exhibit 3.1, and as
provided in Section 18. Any amendments to Exhibit 3.1 must be approved
in writing by the City Manager or his designee and, prior to implementation
of same, a new Exhibit 3.1 shall be incorporated herein.
3.1.1 Facilities Desiqn:
The design, type, material, and color of any and all facilities, as
defined in Subsections 3.1 and 3.2, shall be approved in writing by
the City's Planning Department prior to the Commencement Date of
this Agreement. A photo or photo(s) of City-approved facilities is
incorporated herein as Exhibit 3.1.1. Thereafter, Concessionaire
shall not change, alter, or modify said City-approved design, type,
material and color of any facilities without the prior written consent
of the City Manager or his designee, and, if so approved, an
updated Exhibit 3.1.1 will be made a part of and incorporated into
this Agreement.
3.1.2 Placement of Facilities:
All respective facilities within the Concession Area shall be placed
in accordance with the attached site plan for Area 1 and Area 2
respectively, herein approved by the City and attached hereto and
incorporated as Exhibit 2.0 herein. Concessionaire shall not deviate
from or alter the approved site plan without the prior written consent
of the City Manager or his designee.
3.1.2.1
Compliance with American with Disabilities Act (ADA)
and any other applicable accessibility standards:
Concessionaire agrees and acknowledges that during all
periods when its Market is in operation, including set-up
and break-down periods, it shall comply with ADA
standards, Florida Accessibility Code standards, and any
other applicable accessibility standards required by law,
including the provisions of the City's "Special Events
Disability Access Punch List", attached hereto and
incorporated as Exhibit 3.1.2.1 herein. Concessionaire's
compliance with the provisions set forth in the attached
Exhibit 3.1.2.1, includes, but shall not be limited to, any
and all responsibilities associated with "Event Producer"
as described therein.
6
3.1.2.2
The Concessionaire's responsibility to comply with the
aforementioned provisions in Subsection 3.1.2.1 include,
but are not limited to, ensuring that there is an accessible
path of travel from the handicap designated parking
spaces and public transportation stops within the
boundary of, areas associated with, and entrances to,
Espanola Way and Drexel Avenue. Concessionaire shall:
a) maintain accessible path(s) of travel that permit
the unobstructed access to the entryways of all
buildings, facilities, elements and spaces along
Espanola Way and Drexel Avenue,
b) maintain an unobstructed accessible path of travel
on both the north sidewalk and the south sidewalk
of Espanola Way, and
c) maintain an unobstructed accessible path(s) of
travel from the north walkway to the south
walkway of Espanola Way.
3.1.2.3
Notwithstanding the above, Concessionaire's
responsibility to comply with the requirements of this
Section 3.1.2.1 and Section 3.1.2.2 shall be limited to
those areas within the Concession Area as provided in
Section 2.0 herein.
3.1.3 Set Up:
The set up of facilities to be placed within the Concession Area, in
accordance with the site plan(s) approved pursuant to Exhibit 2.0,
shall be in accordance with the hours of operation in Section 9.
Placement of vendor facilities shall be in accordance with and shall
not exceed the maximum numbers, for Area 1 and Area 2
respectively, set forth in Exhibit 2.0, attached hereto and
incorporated herein.
3.1.4 Public Riqht-of-Way:
The City and Concessionaire agree and acknowledge that the
public's use of the public right-of way is a prime consideration and
must be balanced accordingly with Concessionaire's proposed
operations, as set forth herein. Accordingly, notwithstanding the site
plans and maximum numbers (as provided for in the Set Up period)
set forth in Subsection 3.1.3, Concessionaire further agrees that,
notwithstanding its right to set up its maximum numbers, it will not
alter or modify the site plan without the prior written consent of the
City Manager or his designee.
7
Notwithstanding the preceding paragraph, City and Concessionaire
may, from time to time, meet to review and, subject to City's prior
written consent, revise the maximum numbers (as provided for in
the Set-Up period) set forth in Subsection 3.1.3.
3.1.5 Interaction and Coordination with Other Espanola Way Operations
and Events:
Concessionaire agrees and understands that there are other
businesses, establishments, operations and events which are
ongoing, or may occur from time to time within or in close proximity
to, the Concession Area. As such, Concessionaire agrees that it will
use its best efforts to cooperate and coordinate with said
businesses, establishments, operations and events so as to
minimize the impact to the respective parties.
3.1.6 Conflict Resolution:
Concessionaire recognizes and understands that conflicts with one
or more of the following entities, groups, and/or individuals may
arise during the term of this Agreement, or any extensions thereof:
. Conflicts between Espanola Way (or other)
Merchants/Businesses and Concessionaire
. Conflicts between Vendors and Concessionaire
. Conflicts between Vendors and the General Public
. Conflicts between General Public and Concessionaire
As such, Concessionaire further recognizes and understands that
notice of said conflicts may be directed to the attention of
Concessionaire or the City. In the event a notice of conflict is
communicated to the City, the City will communicate same to the
Concessionaire, as soon as practicable.
Whenever a conflict arises, upon Concessionaire's receipt of notice
of same, whether written or verbal, between any of the aforestated
entities, groups, or individuals, with any of Concessionaire's
operations, resolution to said conflicts will be addressed in the
following manner:
1. Concessionaire shall meet with the conflicted party and
endeavor, using its best efforts and good faith, to resolve the
conflict to the satisfaction of all parties concerned within
fourteen (14) calendar days from receipt of notice.
2. In the event the conflict cannot be resolved as stated in
Number 1 above, then the Concessionaire shall provide
written notice to the conflicted party, (with copy to the City
Manager's designee) with a date on which to meet with the
8
City Manager's designee, to address the conflict. At that
time, the City Manager's designee will recommend a
resolution. The City Manager's designee shall endeavor to
set a meeting date within fourteen (14) calendar days of
receipt of a copy of the written notice to the conflicted party.
For purposes of this Section, the City Manager's designee
shall be the Asset Manager of the City.
3. In the event the resolution recommended by the City
Manager's designee is not acceptable to the Concessionaire
or the conflicted party, the City Manager's designee shall
inform the City Manager, and provide him with the pertinent
details of the conflict. The City Manager may make a
determination as to whether he concurs with the designee's
recommendation; offer an alternate resolution; or choose to
meet with Concessionaire and the conflicted party to get
additional information prior to making a final determination.
Notwithstanding the foregoing, the City Manager's final
determination, will be binding upon Concessionaire, and
Concessionaire shall agree to be bound by same.
Concessionaire agrees and understands that the above referenced
conflict resolution language is not applicable to any conflicts that
may arise between the City and the Concessionaire pursuant to this
Agreement, or conflicts outside of the City's purview, control or
jurisdiction.
3.1.7 The condition and quality of Concessionaire's facilities shall at all
times be maintained in a manner that is consistent with the
condition and quality of similar facilities in first class open air
markets located in other world class areas. It is the City's intent,
and Concessionaire hereby agrees and acknowledges same, to
develop and promote world class open air street market facilities
and operations that would be comparable to those found in other
world class public areas. Accordingly, Concessionaire shall not
only, at a minimum, ensure that all facilities placed within the
Concession Area are well maintained and in usable condition, but
shall adhere, as indicated in this Subsection, to high ongoing
maintenance standards for same consistent with the
aforementioned condition and quality.
3.1.8 Quality of goods and services offered will be first-rate and
comparable to that available in open air markets in other world
class areas on par with the City of Miami Beach or, at a minimum,
to the quality and pricing of goods and services provided by
privately owned businesses selling like goods and services within
the City of Miami Beach.
9
3.1.9
3.1.10
In addition to Concessionaire's general maintenance obligations for
the Concession Area, as set forth in Section 10 hereof, all portions
of the Concession Area shall at all times be maintained in a clean
and sanitary manner.
The concession operations shall be offered to patrons at all times
during the days and hours of operation set forth in Section 9 herein.
However, if the City, at its sole discretion, deems that there is a
decrease in demand for the concession operations, or if the
Concessionaire provides the City with written notice that it is
desirous of reducing its hours of operation, (i) the City shall provide
Concessionaire with a minimum of two (2) weeks prior written
notice, requesting the specific decrease in Concessionaire's
operation, or (ii) Concessionaire shall provide the City with, at
minimum, two weeks prior written notice, requesting to reduce said
hours, for the City's written approval (which shall not be
unreasonably withheld) prior to implementing said schedule of
reduced hours of operation. Said notice to the City shall include the
newly proposed schedule of operation. In the event the City
requests that Concessionaire decrease its operations pursuant to
this Subsection, then the partial termination provisions of
Subsection 13.6.3 shall apply.
Similarly, if Concessionaire is desirous of increasing its hours of
operation in the Concession Area then, in that event, the
Concessionaire shall obtain the City's prior written consent.
Concessionaire agrees and acknowledges that any Concessionaire
requested reduction in the scheduled hours of operation as may be
provided herein shall not in any way reduce Concessionaire's
financial responsibility to the City, as required in Section 4, except if
same is deemed by the City to be a partial termination pursuant to
Subsection 13.6.3.
3.2 Permitted Concession Operations / Uses.
3.2.1 Arts and Crafts:
Arts and Crafts shall be defined as goods and items that are
individually hand-crafted and not commercially mass produced. Arts
and Crafts shall generally include, but are not limited to, the sale of
those goods and items identified in Exhibit 3.2.1. Any amendments
to Exhibit 3.2.1, as to changes and/or additions of goods and items
to be offered for sale must be approved in writing by the City
Manager or his designee, prior to such changes and/or additions
being implemented and a new updated Exhibit 3.2.1 will be
incorporated into this Agreement.
10
3.2.2 Cut Flowers and Plants:
This shall generally include the sale of flowers, either individually or
in bunches that have been cut from their base, and potted plants.
3.2.3 Fruits. Veqetables. Other Edible Products:
This shall generally include the sale of those edible items defined
as, and generally including, fresh fruits, dried fruits, vegetables,
nuts, preserves, pickled items, jams, jellies, juices, smoothies, and
other non-alcoholic beverages.
3.2.4 Live Entertainment:
3.2.4.1
Any live entertainment that is provided by Concessionaire
shall be limited to: solo, duo and/or trio performers,
unless otherwise approved, in writing, by the City
Manager or his designee.
3.2.4.2
For purposes of this Agreement, the term "performers"
shall include individuals who provide live non-amplified
entertainment by means of musical instruments, singing,
dancing, theatrical and dramatic interpretation, mimes,
etc. Notwithstanding, the foregoing, Concessionaire must
comply with City and Miami-Dade County Noise
Ordinance(s), and any other applicable regulation, at all
times.
3.2.5 In the event that the City Manager or his designee determines, at
his sole option and discretion, that all or a portion of
Concessionaire's proposed uses, pursuant to Subsection 3.1 and
as defined in Section 3.2, are no longer desired, then the City may
revoke Concessionaire's right to provide all or a portion of said
uses, without cause, upon thirty (30) days written notice to
Concessionaire. Any percentage of gross paid by Concessionaire
(pursuant to Subsections 4.2 and 4.3) to City with regard to a
delete/discontinued use, shall be prorated and/or adjusted
accordingly as of the date of termination of said use, and no further
payment shall be required for same during the term of this
Agreement, unless the City reinstates the use, at which time the
payment provisions of Subsections 4.2 and 4.3 shall once again
apply.
3.3 Intentionally Omitted.
3.4 Intentionally Omitted.
3.5 Intentionally Omitted.
11
3.6 Off-Duty Police / Field Monitor.
3.6.1 Off-Duty Police:
Off-duty Police services are not contemplated as of the execution
date of this Agreement. However, in the event the City deems, in its
reasonable discretion, that Off-duty Police officer services are
required, as same may be warranted by changes in Market
conditions or operations, the parties herein agree to meet and
discuss said proposed changes.
3.6.2 Field Monitor:
Additionally, Concessionaire agrees and understands that a Field
Monitor, who will report to and be under the direction of the City, is
required for a minimum of two (2) hours daily on Day(s) of
Operation in order to monitor Concessionaire's activities during
Operating Hours as set forth in Subsection 9.2 herein.
Concessionaire further agrees and understands that any and all
costs associated with said Field Monitor shall be borne by
Concessionaire and reimbursed to the City on a monthly basis,
along with its regularly scheduled monthly payments pursuant to
Section 4.2 herein. Concessionaire's responsibility for the costs
associated with said Field Monitor position for the initial term shall
be limited to Eighteen ($18.00) Dollars per hour. During the renewal
term, said limit shall be increased by five (5%) percent per contract
year.
3.6.3 Concessionaire supervisory/management employee shall be on
duty and on-site within the Concession Area at all times during
which the Market is operating, including but not limited to Set-Up
and Move-Out periods, as defined in Subsection 9.2 herein.
3.7 Vendor Selection / First Priority to Miami Beach Merchants.
3.7.1 Within thirty (30) days from the Commencement Date of this
Concession Agreement, and for a period of thirty (30) days
thereafter, the Concessionaire shall offer Miami Beach licensed
merchants the opportunity to participate (a booth space in the
Market) as vendors before opening its search to the general public
or other networks. The Concessionaire will establish this "pool" and
will also serve as the clearinghouse for booth availability and
vendor applicants. The Concessionaire shall commit to use this
clearinghouse during the initial availability of booth space before
expanding its search to other networks.
The Concessionaire will use best efforts to ensure that all Miami
Beach licensed merchants are contacted and that announcements
regarding booth availability are disseminated throughout the City of
Miami Beach, as quickly as possible so as to take optimum
12
advantage of the thirty (30) day availability period, including but not
limited to, advertising in a local newspaper, placing information on
the Market or other websites, or other similar efforts.
Notwithstanding any other provision of this Agreement, Miami
Beach licensed merchants who choose to participate in the
Market must comply with the Permitted Concession
Operations 1 Uses, as defined in Subsection 3.2 herein, and
shall not be permitted to sell andlor otherwise display or
exhibit goods and items that are not permitted under
Subsection 3.2.
The Concessionaire will make itself available to answer any
questions potential applicants may have about the Market.
3.7.2 Notwithstanding the foregoing, and for purposes of this Section 3.7,
in the event that the number of responsive Miami Beach licensed
merchants desirous of participating in the Market would cause
Concessionaire to displace any vendors who have been and are
currently and actively participating in the Market as of the date of
execution of this Agreement, and such displacement is directly due
to lack of available space within the Concession Area, then in such
event Concessionaire and the City agree to meet and discuss, in
good faith, and make reasonable efforts to resolve this matter. It is
understood by the parties herein, that the intent of this Subsection
3.7 is not to displace vendors who are currently and actively
participating in the Market but to provide opportunities for those
Miami Beach licensed merchants who desire to participate in the
Market.
3.7.3 The Concessionaire will keep and make available to the City for
inspection, upon notice by the City, carefully detailed records,
including the name, address, telephone numbers, qualifications,
experience, and the proposed goods and services to be offered for
sale by its vendors, and will pay particular attention to matching
vendors and booths with appropriate locations.
3.8 Removal of Concession Facilities.
Concessionaire agrees that all its facilities or other items used in the
concession operations will be removed from the public right-of-
way/Concession Area and said removal shall be done on a daily basis, in
compliance with the time parameter(s) set forth in Subsection 9.2 herein.
3.9 Hurricane Evacuation Plan.
Concessionaire agrees that all its facilities or other items used in the
concession operations will be removed from the public right-of-
way/Concession Area and said removal shall immediately begin no later
than upon the issuance of a Hurricane Warning by the Miami-Dade
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County Office of Emergency Management, and stored at a private, off-site
location.
3.1 City Occupational Licenses.
Concessionaire shall obtain, at its sole cost and expense, any
occupational licenses required by City law, as amended from time to time,
for its proposed operations, as contemplated in Section 3 of this
Agreement. For purposes of this Agreement, Concessionaire shall obtain
the applicable "Retail Sales" category City occupational license.
SECTION 4. CONCESSION FEES.
4.1 Security Deposit.
Upon execution of this Agreement Concessionaire shall furnish the City
with a Security Deposit, in the amount of One Thousand Four Hundred
($1,400) Dollars. Said Security Deposit shall serve to secure
Concessionaire's performance in accordance with the provisions of this
Agreement. In the event the Concessionaire fails to perform in accordance
with said provisions, the City may retain said Security Deposit, as well as
pursue any and all other legal remedies provided herein, or as may be
provided by applicable law.
The parties agree and acknowledge that the foregoing condition is
intended to be a condition subsequent to the City's approval of this
Agreement. Accordingly, in the event that Concessionaire does not satisfy
the aforestated condition within the time periods provided herein, then the
City Manager or his designee may immediately, without further demand or
notice, terminate this Agreement without being prejudiced as to any
remedies which may be available to him for breach of contract.
4.2 Percentaqe of Gross (PG) vs. Minimum Guarantee (MG).
During the initial term, and any renewal term, of the Agreement,
Concessionaire shall pay the City, on a monthly basis, and within thirty
(30) calendar days from the end of each month during the term herein, an
amount equal to fifteen (15%) percent of Concessionaire's gross receipts
(PG). In the event that the annual PG is less than the amount provided in
Subsection 4.3 below, then the Concessionaire shall also pay to the City,
on an annual basis, the difference between the PG amount and the
amount provided in Subsection 4.3 herein, no later than thirty (30) days
after the expiration of the initial term, or of the renewal term of this
Agreement, as the case may be.
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 (including, but not limited to, the rental of tents,
umbrellas, tables, and other equipment), 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
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Concessionaire from customers and required by law to be remitted to the
taxing or other governmental authority. Except as otherwise provided, with
regard to a special event under Subsection 16.1 hereof in which
Concessionaire is not permitted to continue operating, the pro-rata share
due to the City for the event days will be abated.
4.3 Minimum Guarantee (MG).
Notwithstanding the PG payment required pursuant to Subsection 4.2, and
in consideration of the City executing this Agreement and granting the
rights provided in this Agreement, Concessionaire shall pay to the City a
Minimum Guaranteed Annual Concession Fee (MG) of Seven Thousand
Five Hundred ($7,500) Dollars for the initial term, and shall be paid
annually in accordance with Sections 4.2 and 4.3, as applicable.
In the event that the City, at its sole discretion, chooses to extend the term
of this Agreement for the additional three (3) year renewal term, the
renewal term year MG shall be automatically increased, by five percent
(5%) from the initial term's MG, and shall be due and payable to the City,
in accordance with Sections 4.2 and 4.3, as applicable.
4.4 Cost for Use of Electricity.
Concessionaire shall also remit to the City, along with its monthly
payments required under Section 4.2, an amount equal to Four ($4.00)
Dollars per Market day, plus applicable sales and use tax, for each vendor
location that proposes to use electricity.
4.5 Interest for Late Payment.
Any payment which Concessionaire is required to make to City which is
not paid on or before the respective date provided for in this Agreement
shall be subject to interest at the rate of twelve percent (12%) per annum,
from the due date of payment until such time as payment is actually
received by the City.
4.6 Sales and Use Tax.
It is also understood that, if applicable, the required Florida State Sales
and Use Tax shall be added to Concessionaire's payments and forwarded
to the 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
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breakdown of gross receipts, expenses, and profit and loss statements and such
records shall be maintained as would be required by an independent CPA in order to
audit a statement of annual gross receipts and profit and loss statement pursuant to
generally accepted accounting principles.
A monthly report of gross receipts must be submitted to the City, through the Finance
Department's Revenue Manager, to be received no later than thirty (30) days after the
close of each month.
SECTION 6. INSPECTION AND AUDIT.
Concessionaire shall maintain its financial records pertaining to its operations for a
period of three (3) years after the conclusion of the initial term, or (if approved) the
renewal term, and such records shall be open and available to the City Manager or his
designee, as deemed necessary by the City Manager or his designee. Concessionaire
shall maintain all such records at its principal office, currently located at 238 East 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 the City desires to
review said records.
The City Manager or his designee shall be entitled to audit Concessionaire's records
pertaining to its operation as often as it deems reasonably necessary throughout the
term of this Agreement, and three (3) times within the three (3) year period following
termination of the Agreement, regardless of whether such termination results from the
natural expiration of the term or for any other reason. The City shall be responsible for
paying all costs associated with such audits, unless the audit(s) reveals a deficiency of
five percent (5%) or more in Concessionaire's statement of gross receipts for any year
or years audited, in which case the firm shall pay to the City, within thirty (30) days of
the audit being deemed final (as specified below), the cost of the audit and a sum equal
to the amount of the deficiency revealed by the audit, plus interest; provided, however,
the audit shall not be deemed final until Concessionaire has received the audit and has
had a reasonable opportunity to review the audit and discuss the audit with the City.
Nothing contained within this Section shall preclude the City's audit rights for resort tax
collection purposes.
Concessionaire shall submit at the end of the initial term (and, if approved, the renewal
term), an 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, the renewal term), Concessionaire and
City may meet to review Concessionaire's performance under the Agreement. At the
meeting, Concessionaire and City may discuss quality, operational, maintenance and
any other issues regarding Concessionaire's performance under the Agreement.
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SECTION 7. TAXES, ASSESSMENTS. AND UTILITIES.
7.1
Concessionaire agrees to and shall pay before delinquency all taxes
(including but not limited to resort taxes) and assessments of any kind
assessed or levied upon Concessionaire by reason of this Agreement or
by reason of the business or other activities and operations of
Concessionaire upon or in connection with the Concession Area.
Concessionaire will have the right, at its own expense, to contest the
amount or validity, in whole or in part, of any tax and/or assessment by
appropriate proceedings diligently conducted in good faith.
Concessionaire may refrain from paying a tax or assessment to the extent
it is contesting the assessment or imposition of same in a manner that is in
accordance with law; provided, however, if, as a result of such contest,
additional delinquency charges become due, Concessionaire shall be
responsible for such delinquency charges, in addition to payment of the
contested tax and/or assessment if so ordered.
Concessionaire shall also pay for any fees imposed by law for licenses or
permits for any business, activities, or operations of Concessionaire upon
the Concession Area.
Concessionaire shall pay before delinquency any and all charges for
utilities used by, for, or on behalf of the operations contemplated herein
(including, but not limited to, water, electricity, gas, heating, cooling,
sewer, telephone, trash collection, etc.).
7.1.1 Electricity:
City acknowledges that Concessionaire may require electrical
outlets to operate some vendor locations for registers, lighting
fixtures, etc. Any usage of electricity from City-owned sources, shall
be reimbursed to the City in accordance with the provisions outlined
in Section 4.4 herein. Concessionaire agrees to remit to the City, on
a monthly basis, along with the payment of rent, a list of all vendors
which use electricity.
7.2 Procedure If Ad Valorem Taxes Assessed.
Notwithstanding Subsection 7.1 above, the parties agree that the
concession operations contemplated herein are for public purposes and,
therefore, no ad valorem taxes should be assessed by the Miami-Dade
County Tax Appraiser. If, however, said taxes are assessed, City and
Concessionaire shall use reasonable efforts to address payment of same.
SECTION 8. EMPLOYEES AND INDEPENDENT CONTRACTORS.
8.1 In connection with the performance of its responsibilities hereunder,
Concessionaire may hire its own employees and/or independent
contractors, who will be employees and/or independent contractors of
Concessionaire and not employees or agents of the City. Additionally,
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Concessionaire's vendors shall not be considered agents or employees of
the City. Concessionaire shall select the number, function, qualifications,
compensation, including benefits (if any), and may, at its discretion and at
any time, adjust or revise the terms and conditions relating to its
employees and/or independent contractors.
8.2 Concessionaire shall ensure that all its employees and/or independent
contractors observe all the graces of personal grooming. The
Concessionaire shall hire people to work in its concession operation who
are neat, clean, well groomed and shall comport themselves in a
professional and courteous manner, and ensure that its vendors and/or
independent contractors comply with same. 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.
8.3 The Concessionaire shall have an experienced manager or managers
overseeing the concession operations at all times.
SECTION 9. SCHEDULE OF OPERATION.
Concessionaire's operations shall be open on the Concession Area, in accordance with
the schedule outlined below, weather or events of force majeure permitting.
9.1
Day(s) of Operation:
Fridays, Saturdays and Sundays only
9.2 Operatinq Hours:
Fridays: Set-Up must not begin earlier than 6:00 PM and end by 7:00 PM
Market operating hours: 7:00 PM - 12:00 AM
Move-Out must not begin earlier than 12:00 AM and end by 1 :00 AM
Saturdays: Set-Up must not begin earlier than 10:00 AM and end by 12:00 PM
Market operating hours: 12:00 PM - 12:00 AM
Move-Out must not begin earlier than 12:00 AM and end by 1 :00 AM
Sundays: Set-Up must not begin earlier than 10:00 AM and end by 12:00 PM
Market operating hours: 12:00 PM - 10:00 PM
Move-Out must not begin earlier than 10:00 PM and end by 11 :00 PM
Any change in the day(s) or hours of operation require the prior written consent of the
City Manager including, but not limited to, change in the days and hours of operation
requested pursuant to Subsection 3.1.10.
SECTION 10. MAINTENANCE.
10.1 The Concessionaire accepts the use of the Concession Area provided in
this Agreement in its "as is" condition. Concessionaire assumes sole
responsibility and expense for maintenance of the Concession Area and
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its facilities therein. This shall include daily removal of litter, garbage and
debris, said removal to be the sole responsibility and expense of
Concessionaire. Daily maintenance shall be accomplished on all days and
hours Concessionaire operates. Concessionaire agrees, also at its sole
cost and expense, to pay for all garbage disposal generated by its
operations.
10.2 Garbaqe Receptacles.
With respect to litter, garbage and debris removal, the Concessionaire
shall provide, at its sole cost and expense, receptacles within the confines
of the Concession Area and shall provide a sufficient number of these
receptacles for its own use and for the use of the public that patronizes the
Market. Disposal of the contents of said receptacles and removal of litter,
garbage and debris within the Concession Area, shall be accomplished by
the end of the day on all days on which the Concessionaire operates, and
shall be the sole responsibility of the Concessionaire. Any costs for
removal of the contents of said trash receptacles by the City, because of
the Concessionaire's failure to do the same, will be charged to, and
become the responsibility of, the Concessionaire. The dumping or
disposal of any refuse, discards, trash or garbage, generated by, or as a
result of the concession operations, into any City trash receptacles by the
Concessionaire (including its staff, employees and/or vendors) shall be
strictly prohibited. Determination of the "number" of receptacles shall at all
times be within the City's sole discretion, and Concessionaire shall agree
to be bound by same.
10.3 Pressure Cleaninq.
Concessionaire shall reimburse the City on a quarterly basis throughout
the Term of this Agreement, in the amount of Fifty ($50) Dollars; said
reimbursement represents the City's cost to pressure clean the
Concession Area, as defined herein.
10.4 Facilities.
Intentionally Omitted.
10.5 Orderly Operation.
The Concessionaire shall have a neat and orderly operation at all times
and shall be solely responsible for the necessary housekeeping services
to properly maintain the Concession Area and all facilities incident thereto.
The Concessionaire shall make available all operations and facilities
within the Concession Area (including but not limited to vendor facilities)
for examination during days and hours of operation by the City Manager or
his authorized representative.
10.6 No Danqerous Materials.
10.6.1 The Concessionaire agrees not to use or permit in the Concession
Area and/or facilities the storage and/or use of gasoline, fuel oils,
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diesel, illuminating oils, oil lamps, combustible powered electricity
producing generators, turpentine, benzene, naphtha, propane,
natural gas, or other similar substances, combustible materials, or
explosives of any kind, or any substance or thing prohibited in the
standard policies of fire insurance companies in the State of
Florida. Any such substances or materials found within the
Concession Area and/or facilities shall be immediately removed.
10.6.2 Notwithstanding any contrary provisions of this Agreement,
Concessionaire, after the Commencement Date, shall indemnify
and hold City harmless from any loss, damage, cost, or expense of
the City, including, without limitation, reasonable attorney's fees,
incurred as a result of, arising from, or connected with the
placement by Concessionaire, and/or its employees, vendors,
agents and/or subcontractors, after the Commencement Date, but
during the term of this Agreement, of any hazardous substance or
petroleum products on, under, in or upon the Concession Area as
those terms are defined by applicable Federal and State Statute, or
any environmental rules and environmental regulations
promulgated thereunder; provided, however, Concessionaire shall
have no liability in the event of the willful misconduct or gross
negligence of the City, its agents, servants or employees. The
provisions of this Subsection 10.6 shall survive the termination or
earlier expiration of this Agreement.
10.7 Security.
The Concessionaire shall be responsible for and provide reasonable
security measures which may be required to protect the Concession Area
and any of the facilities, goods and/or other equipment thereon. Under no
circumstances shall the City be responsible for any stolen or damaged
goods, facilities, materials and/or other equipment, nor shall City be
responsible for any stolen or damaged personal property of
Concessionaire's employees, vendors, patrons, guests, invitees, and/or
other third parties.
10.8 Vehicles on the Public Riqht-of-Way.
Concessionaire's employees, vendors, patrons, guests, invitees, and/or
other third parties vehicles and/or trailers shall only be allowed on the
street adjacent to Concession Area/public right-of-way for purposes of
setting up the concession operations, and to remove same at the close of
operations each day, and any and all such vehicles for purposes thereon
must be removed from the public right-of-way immediately thereafter.
Concessionaire shall contractually require that anyone operating a vehicle
for, or on behalf of Concessionaire and/or its employees, agents, and/or
vendors, must have a current valid Florida Driver's License. Said set-up
and move-out operations shall only be permitted during regular hours for
same, pursuant to Subsection 9.2 herein, and shall be completed safely
and expeditiously. No vehicular traffic or parking will be permitted on the
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public right-of-way during concession hours of operation, pursuant to
Subsection 9.2 herein. Access to the public right-of-way shall only be
permitted via specifically designated points authorized for such use and
the nearest authorized access to a concession vendor's operation.
Vehicles operated on the public right-of-way shall not exceed 5 M.P.H.
and shall only operate in the immediate vicinity of the concession, or to-
and-from the nearest predetermined and assigned access point. After
transporting facilities, goods, merchandise, equipment, and/or other items
to the Concession Area, the vehicles shall be removed from the public
right-of-way and parked in a legally authorized location. Driving on the
public right-of-way shall be kept to a minimum. No vehicular traffic will be
permitted on the public right-of-way, at any time or for any purpose, other
than as stated herein.
Vehicle operator must inspect the vehicles perimeter and surrounding
area, prior to turning the vehicles ignition switch, to assure a clear path of
egress and only proceed with extreme caution.
10.9 Inspection.
The Concessionaire agrees that the Concession Area and all facilities and
operations thereon, including but not limited to vendor booths, may be
inspected at any time during days and hours of operation by the City
Manager or his designee, or by any other Municipal, County, State officer,
or agency having responsibilities for inspections of such operations. The
Concessionaire hereby waives all claims against the City for
compensation for loss or damage sustained by reason of any interference
(which interference, if by the City, must be reasonable) with the
concession operation by any public agency or official in enforcing their
duties or any laws or ordinances. Any such interference (which
interference, if by the City, must be reasonable) shall not relieve the
Concessionaire from any obligation hereunder.
SECTION 11. INSURANCE.
Concessionaire shall maintain, at its sole cost and expense, the following types of
insurance coverage at all times throughout the term of this Agreement.
a. Comprehensive General Liability in the minimum amount of One Million
Dollars ($1,000,000) per occurrence for bodily injury and property
damage. This policy must also contain coverage for premises operations,
products and contractual liability.
b. Workers Compensation Insurance shall be provided as required under the
Laws of the State of Florida.
c. Automobile Insurance for any vehicles used for, or associated with
concessionaire's operations shall be provided covering all owned, leased,
and hired vehicles and non-ownership liability for not less than the
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following limits:
Bodily Injury
Bodily Injury
Property Damage
$1,000,000 per person
$1,000,000 per accident
$1,000,000 per accident
Failure to procure or maintain the required insurance program shall, at the
City's discretion, either (i) constitute an automatic default of the
Concession Agreement under which the City may, upon written notice to
Concessionaire, immediately terminate the Agreement; or (ii) the City, in its
sole discretion, may obtain the insurance itself, in which case said
insurance shall be charged back to the Concessionaire as provided in the
following paragraph.
The policies of insurance referred to above shall not be subject to cancellation or
changing coverage except upon at least thirty (30) days prior written notice to the
City, and then only subject to the prior written approval of the City Manager or his
designee. Prior to the Commencement Date of this Agreement, Concessionaire
shall provide City with a Certificate of Insurance for each such policy. ALL
POLICIES SHALL NAME THE CITY OF MIAMI BEACH FLORIDA AS AN
ADDITIONAL NAMED INSURED. All such policies shall be obtained from
companies authorized to do business in the State of Florida with an A.M. Best's
Insurance Guide (latest edition) rating acceptable to the City's Risk Manager, and
any replacement or substitute company shall also be subject to the approval of
the City's Risk Manager. Should Concessionaire fail to obtain, maintain or renew
the policies of insurance referred to above, in the required amounts, the City
may, at its sole discretion, automatically terminate this Agreement or, in the
alternative, deem to obtain such insurance, and any sums expended by City in
obtaining said insurance, shall be repaid by Concessionaire to City, plus ten
percent (10%) of the amount of premiums paid to compensate City for its
administrative costs. If Concessionaire fails to repay City's expenditures within
fifteen (15) days of demand, the total sum owed shall accrue interest at the rate
of twelve percent (12%) until paid, or, at its option, the City may declare the
Agreement in default pursuant to Section 13 herein.
SECTION 12. INDEMNITY.
12.1 In consideration of a separate and specific consideration of Ten ($10)
Dollars and other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, Concessionaire shall
indemnify, hold harmless and defend the City, its agents, servants and
employees from and against any claim, demand or cause of action of
whatsoever kind or nature arising out of error, omission, or negligent act of
Concessionaire, and/or its vendors, agents, servants, employees and/or
subcontractors and/or subconcessionaires in the performance of services
under this Agreement.
12.2 In addition, in consideration of a separate and specific consideration of
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Ten ($10) Dollars and other good and valuable consideration the receipt
and sufficiency of which are hereby acknowledged, Concessionaire shall
indemnify, hold harmless and defend the City, its agents, servants or
employees, from and against any claim, demand or cause of action of
whatever kind or nature arising out of any misconduct of Concessionaire,
and/or its vendors, agents, servants, employees and/or subcontractors
and/or subconcessionaires, not included in the paragraph in the
Subsection above and for which the City, its agents, servants or
employees are alleged to be liable.
12.3 Subsections 12.1 and 12.2 shall survive the termination or expiration of
this Agreement. Subsections 12.1 and 12.2 shall not apply, however, to
any such liability, that arises as a result of the willful misconduct or gross
negligence of the City, its agents, servants or employees.
12.4 Subroqation.
The terms of insurance policies referred to in Section 11 shall preclude
subrogation claims against Concessionaire, the City and their respective
officers, employees and agents.
12.5 Force Maieure.
Neither party shall be obligated to perform hereunder and neither party
shall be deemed to be in default if performance is prevented by:
a. fire which renders at least thirty percent (30%) of the
Concessionaire's cumulative facilities and operations unusable and
which is not caused by negligence of Concessionaire;
b. earthquake; hurricane; flood; act of God; civil commotion occurring
on the Concession Area during or in connection with any event or
other matter or condition of like nature; or
c. any law, ordinance, rule, regulation or order of any public or military
authority stemming from the existence of economic or energy
controls, hostilities, or war.
12.6 Labor Dispute.
In the event of a labor dispute which results in a strike, picket or boycott
affecting the Concession Area or operation described in this Agreement,
Concessionaire shall not thereby be deemed to be in default or to have
breached any part of this Agreement, unless such dispute shall have been
caused by illegal labor practices or violations by Concessionaire of
applicable collective bargaining agreements and there has been a final
determination of such fact which is not cured by Concessionaire within
thirty (30) days.
12.7 Waiver of Loss from Hazards.
The Concessionaire hereby expressly waives all claims against the City
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for loss or damage sustained by the Concessionaire resulting from fire,
water, natural disasters/acts of God (e.g. hurricane, tornado, etc.), civil
commotion, riot, or any other Force Majeure contemplated in Subsection
12.5 and Labor Dispute in Subsection 12.6 above, and the Concessionaire
hereby expressly waives all rights, claims, and demands against the City
and forever releases and discharges the City of Miami Beach, Florida,
from all demands, claims, actions and causes of action arising from any of
the aforesaid causes.
SECTION 13. DEFAULT AND TERMINATION.
Subsections 13.1 through 13.3 shall constitute events of default under this Agreement.
An event of default by Concessionaire shall entitle City to exercise any and all remedies
described as City's remedies under this Agreement, including but not limited to those
set forth in Subsection 13.4. An event of default by City shall entitle Concessionaire to
exercise any and all remedies described as Concessionaire's remedies under this
Agreement, including but not limited to those set forth in Subsection 13.5.
13.1 Bankruptcy.
If either the City or Concessionaire shall be adjudged bankrupt or
insolvent, or if any receiver or trustee of all or any part of the business
property of either party shall be appointed, or if any receiver of all or any
part of the business property shall be appointed and shall not be
discharged within sixty (60) days after appointment, or if either party shall
make an assignment of its property for the benefit of creditors, or shall file
a voluntary petition in bankruptcy, or insolvency, or shall apply for
reorganization or arrangement with its creditors under the bankruptcy or
insolvency laws now in force or hereinafter enacted, Federal, State, or
otherwise, or if such petitions shall be filed against either party and shall
not be dismissed within sixty (60) days after such filing, then the other
party may immediately, or at any time thereafter, and without further
demand or notice, terminate this Agreement without being prejudiced as to
any remedies which may be available to it for breach of contract.
13.2 Default in Payment.
In the event Concessionaire fails to submit any payment within five (5)
days of its due date, there shall be a late charge of $50.00 per day for
such late payment, in addition to interest at the highest rate allowable by
law (currently 12% 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.
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
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party hereto, such non-defaulting party may immediately or at any time
thereafter, and without further demand or notice, terminate this Agreement
without being prejudiced as to any remedies which may be available to it
for breach of contract. In the event that a default is not reasonably
susceptible to being cured within such period, the defaulting party shall not
be considered in default if it shall, within such period, commence with due
diligence and dispatch to cure such default and thereafter completes with
dispatch and due diligence the curing of such default, but in no event shall
such extended cure period exceed ninety (90) days from the date of
written notice thereof. In the event Concessionaire cures any default
pursuant to this Subsection, it shall promptly provide City with written
notice of same.
13.4 City's Remedies for Concessionaire's Default.
If any of the events of default, as set forth in this Section 13, shall occur,
the City may, after notice (if required) and the expiration of cure periods
(as provided above), at its sole option and discretion, institute such
proceedings as in its opinion are necessary to cure such defaults and to
compensate City for damages resulting from such defaults, including but
not limited to the right to give to Concessionaire a notice of termination of
this Agreement. If such notice is given, the term of this Agreement shall
terminate upon the date specified in such notice from City to
Concessionaire. On the date so specified, Concessionaire shall then quit
and surrender the Concession Area to City pursuant to the provisions of
Subsection 13.7. Upon the termination of this Agreement, all rights and
interest of Concessionaire in and to the Concession Area and to this
Agreement, and every part thereof, shall cease and terminate and City
may, in addition to any other rights and remedies it may have, retain all
sums paid to it by Concessionaire under this Agreement. In addition to the
rights set forth above, City shall have the rights to pursue any and all of
the following:
a. the right to injunction or other similar relief available to it under
Florida law against Concessionaire; and or
b. the right to maintain any and all actions at law or suits in equity or
other proper proceedings to obtain damages resulting from
Concessionaire's default.
13.5 If an event of default by the City, as set forth in this Section 13, shall
occur, the Concessionaire may, after notice (if required) and the expiration
of the cure periods (as provided above), at its sole option and discretion,
terminate this Agreement upon written notice to the City and/or sue for
damages. Said termination shall become effective upon receipt of a
written notice of termination by the City, but in no event shall
Concessionaire specify a termination date that is less than sixty (60) days
from the date of the written termination notice. On the date specified in the
notice, Concessionaire shall quit and surrender the Concession Area to
25
City pursuant to the provisions of Subsection 13.7.
13.6 Termination for Convenience/Partial Termination.
13.6.1 Notwithstanding the provisions of this Section 13, this Agreement
may be terminated by the City, for convenience and without cause,
upon the furnishing of thirty (30) days prior written notice to
Concessionaire.
13.6.2
13.6.3
13.6.4
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.
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
Commission'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.
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.
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
26
proportionately equal to the period of time remaining on the current
term of this Agreement.
13.7 Surrender of Concession Area.
At the expiration of this Agreement, or in the event of a partial termination
or termination of the entire Agreement, Concessionaire shall surrender the
Concession Area (or portion thereof in the event of a partial termination) in
the same condition as the Concession Area was prior to the
commencement of this Agreement, reasonable wear and tear excepted.
Concessionaire shall remove all its facilities, equipment, fixtures, personal
property, etc. upon two (2) hours written notice from the City Manager or
his designee unless a longer time period is agreed to by the City.
Concessionaire's obligation to observe or perform this covenant shall
survive the expiration or other termination of this Agreement. Continued
occupancy of the Concession Area (or portion thereof) after termination
(or partial termination) of the Agreement shall constitute trespass by the
Concessionaire, and may be prosecuted as such. In addition, the
Concessionaire shall pay to the City One Thousand ($1,000) Dollars per
day as liquidated damages for such trespass and holding over.
SECTION 14. PERFORMANCE BOND OR ALTERNATE SECURITY.
Intentionally Omitted.
SECTION 15. ASSIGNMENT.
Except as otherwise provided in this Subsection, or in the Agreement, Concessionaire
shall not assign, sublease, grant any concession or license, permit the use of by any
other person other than Concessionaire, or otherwise transfer all or any portion of this
Agreement and/or of the Concession Area (all of the forgoing are herein after referred to
collectively as "transfers"), without the prior written consent of the City.
Concessionaire shall notify the City Manager or his designee of any proposed transfer,
prior to consummation of same and the City or the City Manager or his designee, as
applicable, shall respond within thirty (30) days. In the event that any such transfer is
approved, the transferee shall agree to be bound by all the covenants of this Agreement
required of the transferor hereunder. Any transfer made without complying with this
Section shall be null, void, and of no effect and shall constitute an act of default under
this Agreement. Notwithstanding any such consent, or any permitted transfer under any
provision of this Section, unless expressly released by the City, Concessionaire shall
remain jointly and severally liable (along with each approved transferee, who shall
automatically become liable for all obligations of the transferor hereunder with respect to
that portion of the Agreement so transferred), and the City shall be permitted to enforce
the provisions of this Agreement directly against Concessionaire or any transferee of
the Concessionaire without proceeding in any way against any other person.
For purposes of this Section 15, Concessionaire's selection of vendors for the Market
shall not be deemed a transfer.
27
SECTION 16. SPECIAL EVENTS.
16.1 Concessionaire's proposed uses, as set forth in Section 3 herein, do not
contemplate the production, promotion or sponsorship by the
Concessionaire of special events in any portion of the Concession Area. In
the event Concessionaire does produce, promote or sponsor a special
event in the Concession Area, it shall abide by the City's Special Events
Permit Requirements and Guidelines, as same may be amended from
time to time. For any use, other than those provided for in this Agreement,
a Special Events Permit may be required and shall be obtained through
the City's Department of Tourism and Cultural Development. The City
Manager's authorization must be obtained for any such special event.
The City Administration shall evaluate requests for Special Events Permits
on a case by case basis, in accordance with the City's Special Event
Permit Requirements and Guidelines, as same may be amended from
time to time.
In the event that a special event and/or film permit is requested by an
entity, other than the Concessionaire, and the proposed special event
and/or film production is scheduled to occur within all or a portion of the
Concession Area, the Concessionaire agrees to cooperate with the City
and the special event permit applicant to allow use of the Concession
Area during the period of the special event, including set-up and break-
down time.
16.2 City Special Events.
Notwithstanding Subsection 16.1 above, and in the event that the City, at
its sole discretion, deems that it would be in the best interest of the City,
the City reserves the right to displace the Concessionaire for City
produced special events and/or other City produced productions. In such
cases, the City may request that the Concessionaire cease and desist
operations during the term of, and in the area of, the special event and/or
production, and the Concessionaire shall cease and desist during said
term. In the event that it is determined, via a contract year end-review, that
ceasing and desisting of concession operations, as stated herein, results
in a decrease to the estimated gross revenues derived by the
Concessionaire, then Concessionaire's MG amount due to the City,
pursuant to Section 4.3, shall be reduced proportionately equal to the
percentage of reduced hours of operation caused by said special event
and/or production. If the Concessionaire is not required to close, or
chooses to remain open without interference to the special event and/or
production, Concessionaire agrees to cooperate with the City. If the
Concessionaire is allowed to remain open during special events and/or
productions, the Concessionaire may be allowed to have in operation its
normal daily complement of facilities and vendors. "Normal" shall be
defined as facilities and vendors, as approved by the City, that the
Concessionaire has available for the public on a normal business day.
28
Such facilities and vendors shall not be increased or altered during special
events and/or productions without the prior written permission of the City
Manager or his designee. To the extent that the normal business day
complement of facilities and vendors is displaced by the special event
and/or production, the Concessionaire may reallocate such displaced
facilities and vendors on a pro-rata basis within an area of the Concession
Area not being utilized by the special event and/or production.
For purposes of this Section 16, "normal business day" shall be defined as
set forth in Section 9 herein, entitled "Schedule of Operations".
16.3 Notwithstanding anything to the contrary, if a special event occurs in all or
any portion of any Concession Area, Concessionaire shall not be liable for
any charge, fee or other expense, governmental or otherwise, in
connection with such special event.
SECTION 17. NO IMPROPER USE.
The Concessionaire will not use, nor suffer or permit any person to use in any manner
whatsoever, the Concession Area, operations, or facilities for any improper, immoral or
offensive purpose, or for any purpose in violation of any Federal, State, County, or
Municipal ordinance, rule, order or regulation, or of any governmental rule or regulation
now in effect or hereafter enacted or adopted. The Concessionaire will protect,
indemnify, and forever save and keep harmless the City, its agents, employees and
contractors from and against damage, penalty, fine, judgment, expense or charge
suffered, imposed, assessed or incurred for any violation, or breach of any law,
ordinance, rule, order or regulation occasioned by any act, neglect or omission of the
Concessionaire, its vendors, employees, agents, and/or subcontractors regarding the
Concession. In the event of any violation by the Concessionaire, or if the City or its
authorized representative shall deem any conduct on the part of the Concessionaire, its
vendors, agents, employees and/or subcontractors, to be objectionable or improper, the
City shall have the option, at its sole discretion, to either (i) automatically terminate the
Agreement, upon prior written notice to Concessionaire, or to (ii) suspend the
concession operations should the Concessionaire fail to correct any such violation,
conduct, or practice to the satisfaction of the City within twenty-four (24) hours after
receiving written notice of the nature and extent of such violation, conduct, or practice,
and such suspension shall continue until the violation is cured. The Concessionaire
further agrees not to commence operations during the suspension until the violation has
been corrected to the satisfaction of the City.
SECTION 18. PRICE SCHEDULES.
Concessionaire agrees that prices charged for facilities and or space (booth) rental, be
consistent with the price schedule(s) herein submitted by the Concessionaire and
approved by the City and incorporated herein as Exhibit 3.1 to this Agreement. All
subsequent price increases and amendments to Exhibit 3.1 must be approved in writing
by the City Manager, or his designee, and prior to such changes being implemented
within the Concession Area a new updated Exhibit 3.1 will be incorporated into this
Agreement. Notwithstanding the foregoing, Concessionaire agrees and acknowledges
that any discounted prices it may offer for the rental of facilities shall not in any way
29
reduce the amount of remuneration due to the City, including but not limited to the
Percentage of Gross (Section 4.2), which shall be based and calculated on the prices
set forth in said Exhibit 3.1.
The City shall have the final right of approval for all such prices and changes, but said
right shall not be arbitrarily or unreasonably exercised. The Concessionaire agrees to
refrain from the sale or rental of any item identified as prohibited by City law and/or
other applicable law and to sell only those items approved by the City.
SECTION 19. NOTICES.
All notices from the City to the Concessionaire shall be deemed duly served upon
receipt, if mailed by registered or certified mail with a return receipt to the
Concessionaire at the following address:
Ms. Claire Tomlin
The Market Company, Inc.
238 East San Marino Drive
Miami Beach, FL 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:
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.
30
20.2 Governinq Law.
This Agreement shall be deemed to have been made and shall be
construed and interpreted in accordance with the laws of the State of
Florida. In case of any inconsistency between the terms of this
Agreement, and any applicable general or special law, said general or
special law shall govern, unless otherwise provided herein.
20.3 Equal Employment Opportunity.
Neither Concessionaire nor any affiliate of Concessionaire performing
services hereunder, or pursuant hereto, will discriminate against any
employee or applicant for employment because of race, creed, sex, color,
national origin, sexual orientation, and disability, as defined in Title I of
ADA. Concessionaire will take affirmative steps to utilize minorities and
females in the work force and in correlative business enterprises.
20.4 No Discrimination.
The Concessionaire agrees that there shall be no discrimination as to
race, sex, sexual orientation, color, creed, national origin, familial status,
religion or handicap, in its employment practice or in the operations
referred to by this Concession Agreement; and further, there shall be no
discrimination regarding any use, service, maintenance, or operation
within the Concession Area. All concession operations and services
offered shall be made available to the public, subject to the right of the
Concessionaire and the City to establish and enforce rules and regulations
to provide for the safety, orderly operation and security of the operations
and the facilities.
20.4.1 Pursuant to Sections 62-90 and 62-91, of Chapter 62, of the Miami
Beach City Code entitled "Human Relations", Concessionaire, by
executing this Agreement, certifies that it does not discriminate in
its membership or policies based on race, color, national origin,
religion, sex, sexual orientation, familial status or handicap.
SECTION 21. MISCELLANEOUS.
21.1 No Partnership.
Nothing contained in this Agreement shall constitute or be construed to be
or create a partnership or joint venture between the City and
Concessionaire.
21.2 Modifications.
This Agreement cannot be changed or modified except by agreement in
writing executed by all parties hereto. Concessionaire acknowledges that
no modification to this Agreement may be agreed to by the City unless
approved by the Mayor and City Commission except where such authority
has been expressly provided herein to the City Manager or his designee.
31
21.3 Complete Aqreement.
This Agreement, together with all exhibits incorporated hereto, constitutes
all the understandings and agreements of whatsoever nature or kind
existing between the parties with respect to Concessionaire's operations,
as contemplated herein.
21.4 Headinqs.
The section, subsection and paragraph headings contained herein are for
convenience of reference only and are not intended to define, limit, or
describe the scope or intent of any provision of this Agreement.
21.5 Bindinq Effect.
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns.
21.6 Clauses.
The illegality or invalidity of any term or any clause of this Agreement shall
not affect the validity of the remainder of the Agreement, and the
Agreement shall remain in full force and effect as if such illegal or invalid
term or clause were not contained herein unless the elimination of such
provision detrimentally reduces the consideration that either party is to
receive under this Agreement or materially affects the continuing operation
of this Agreement.
21.7 Severability.
If any provision of this Agreement or any portion of such provision or the
application thereof to any person or circumstance shall be held to be
invalid or unenforceable, or shall become a violation of any local, State, or
Federal laws, then the same as so applied shall no longer be a part of this
Agreement but the remainder of the Agreement, such provisions and the
application thereof to other persons or circumstances, shall not be
affected thereby and this Agreement as so modified remains in full force
and effect.
21.8 Riqht of Entry.
The City, at the direction of the City Manager, shall at all times during days
and hours of operation, have the right to enter into and upon any and all
parts of the Concession Area for the purposes of examining the same for
any reason relating to the obligations of parties to this Agreement.
21.9 Not a Lease.
It is expressly understood and agreed that no part, parcel, building, facility,
equipment or space is leased to the Concessionaire, that it is a
concessionaire and not a lessee; that the Concessionaire's right to
operate the concession shall continue only so long as this Agreement
remains in effect.
32
21.10
21.11
21.12
21.13
21.14
21.15
21.16
21.17
Siqnaqe.
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.
Use of the Right-of-Way.
The right-of-way is for the use and enjoyment of the public and the
public's right to such use shall not be infringed upon by any activity
of the Concessionaire. Upon execution of this Agreement,
Concessionaire acknowledges that all of the rights-of-way within the
Concession Area are public, and as such, concession operations
must not restrict, or appear to restrict, access to the general public,
or in any way limit the public nature or ambiance of the adjacent
area. The Concessionaire will conduct its operations so as to
maintain a reasonably quiet and tranquil environment for the
adjacent area, and make no public disturbances.
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.
Reasonableness.
Intentionally Omitted.
Procedure for Approvals 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 Beneficiary.
Nothing in this Agreement shall confer upon any person or entity,
including, but not limited to subconcessionaires, other than the parties
hereto and their respective successors and permitted assigns, any rights
or remedies by reason of this Agreement.
Attorneys' Fees.
If it becomes necessary for City or Concessionaire to enforce their
33
respective rights under this Agreement or any part hereof through
litigation, Concessionaire and City agree that the prevailing party shall be
entitled to recover from the other party all costs and expenses of such
litigation, including a reasonable attorneys' fee and costs, for all trial and
appellate proceedings.
SECTION 22. LIMITATION OF LIABILITY.
The City desires to enter into this Agreement only if in so doing the City can place a limit
on its liability for any cause of action for breach of this Agreement, so that its liability for
any such breach never exceeds the sum of Ten Thousand ($10,000) Dollars.
Concessionaire hereby expresses its willingness to enter into this Agreement with a
$10,000 limitation on recovery for any action for breach of contract. Accordingly, and in
consideration of the separate consideration of $10.00, the receipt of which is hereby
acknowledged, the City shall not be liable to Concessionaire for damages to
Concessionaire in an amount in excess of $10,000, for any action for breach of contract
arising out of the performance or non-performance of any obligations imposed upon the
City by this Agreement. Nothing contained in this paragraph or elsewhere in this
Agreement is in any way intended to be a waiver of limitation placed upon the City's
liability as set forth in Florida Statutes, Section 68.28.
SECTION 23. VENUE.
This Agreement shall be enforceable in Miami-Dade County, Florida, and if legal action
is necessary by either party with respect to the enforcement of any and all the terms or
conditions herein, exclusive venue for the enforcement of same shall lie in Miami-Dade
County, Florida. CITY AND CONCESSIONAIRE HEREBY KNOWINGLY AND
INTENTIONALLY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY ACTION OR
PROCEEDING THAT CITY AND CONCESSIONAIRE MAY HEREIN AFTER
INSTITUTE AGAINST EACH OTHER WITH RESPECT TO ANY MATTER ARISING
OUT OF OR RELATED TO THIS AGREEMENT OR THE CONCESSION AREA(S).
(REMAINDER OF PAGE INTENTIONALLY LEFT BLANK)
34
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
September 6 , 2006. 1
Attest: ~ ~ f ~
Robert Parcher, CITY CLERK
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(Print Name)
THE MARKET COMPANY, INC.
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Claire Tomlin, President
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APPROVED AS TO
FORM & LANGUAGE
a. FOR EXECUTION
35
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EXHIBIT 3.1
(Rental Fee Schedule)
FY 2007 Fee Schedule - Espanola Way
Winter/Spring Season (Dec - May)
400 Block Espanola Way
Fee Tax Subtotal Surcharge Ins Elect Total
Friday Night $ 29.91 $ 2.09 $ 32.00 $ 3.00 $ 5.00 $ 4.00 $ 44.00
Saturday (Day only) $ 50.47 $ 3.53 $ 54.00 $ 3.00 $ 5.00 $ 4.00 $ 66.00
Saturday (Night only) $ 50.47 $ 3.53 $ 54.00 $ 3.00 $ 5.00 $ 4.00 $ 66.00
Saturday (Day & night) $ 89.72 $ 6.28 $ 96.00 $ 3.00 $ 5.00 $ 4.00 $ 108.00
Sunday $ 59.81 $ 4.19 $ 64.00 $ 3.00 $ 5.00 $ 4.00 $ 76.00
Artists (Nights only) $ 19.63 $ 1.37 $ 21.00 $ 3.00 $ 5.00 $ 4.00 $ 33.00
Fri/Sat All/Sunday $ 179.44 $ 12.56 $ 192.00 $ 9.00 $ 15.00 $ 12.00 $ 228.00
Sat All/Sunday $ 149.53 $ 10.47 $ 160.00 $ 6.00 $ 10.00 $ 8.00 $ 184.00
Drexel Avenue
Saturday $ 59.81 $ 4.19 $ 64.00 $ 3.00 $ 5.00 $ 4.00 $ 76.00
Sunday $ 50.47 $ 3.53 $ 54.00 $ 3.00 $ 5.00 $ 4.00 $ 66.00
Summer Season (June - November)
400 Block Espanola Way
Fee Tax Subtotal Surcharge Ins Elect Total
Friday Night $ 29.91 $ 2.09 $ 32.00 $ 3.00 $ 5.00 $ 4.00 $ 44.00
Saturday (Day only) $ 42.06 $ 2.94 $ 45.00 $ 3.00 $ 5.00 $ 4.00 $ 57.00
Saturday (Night only) $ 50.47 $ 3.53 $ 54.00 $ 3.00 $ 5.00 $ 4.00 $ 66.00
Saturday (Day & night) $ 79.44 $ 5.56 $ 85.00 $ 3.00 $ 5.00 $ 4.00 $ 97.00
Sunday $ 49.53 $ 3.47 $ 53.00 $ 3.00 $ 5.00 $ 4.00 $ 65.00
Artists (Nights only) $ 19.63 $ 1.37 $ 21.00 $ 3.00 $ 5.00 $ 4.00 $ 33.00
Fri/Sat All/Sunday $ 158.88 $ 11.12 $ 170.00 $ 9.00 $ 15.00 $ 12.00 $ 206.00
Sat All/Sunday $ 128.97 $ 9.03 $ 138.00 $ 6.00 $ 10.00 $ 8.00 $ 162.00
Drexel Avenue
Saturday $ 49.53 $ 3.47 $ 53.00 $ 3.00 $ 5.00 $ 4.00 $ 65.00
Sunday $ 42.06 $ 2.94 $ 45.00 $ 3.00 $ 5.00 $ 4.00 $ 57.00
37
EXHIBIT 3.1.1
(Facilities Design)
tRt:.S", i.GV.lTrILIL.JCICES
VSALA.Q4S I) E 1-' H V Tel S
38
EXHIBIT 3.1.2.1
(Special Events Disability Access Punch List)
(Page 1 of 2)
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 ~ inch. Where such changes in level are
present. property bevel the change in level at a ..: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 behveen temporary pathways and any ramps,
sidewalks, streets, or parking lots. This means no change in level
exceeding ~ inch. Any change exceeding ~ 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 compHance with afl Florida
Accessibility Code requirements. including, but not limited to,
requirements regarding edge protection, handrails, and surface.
5. All cashier counters (counters where money transactions occur) must be
no higher than 36 inches maximum above finish floor, for a minimum
length of 36 inches.
6. Maintain an accessible route for access to merchandise that is both within
a vendor space, as weU 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 weJl as the placement of a pathway with a stable and firm
surface necessary for the use of wheelcnairsand mobility aids,
7. Merchandise for display should be within a line of sight no higher than 48
inches for persons of short stature or wheefchair users. If merchandise is
39
EXHIBIT 3.1.2.1
(Special Events Disability Access Punch List)
(Page 2 of 2)
displayed higher than 48 inches, merchant must provide assistance to
disabled customers in order to reach items.
8. AU 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. an 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 shan 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 availabJe at accessible tables within the same
area..
12. Where portable toilets are provided. an accessible route shall be provided
10 the toilets. Five percent of the total number of toilets must be
accessibJe. If clusters of portable toilets are distributed throughout the site,
then each cluster must have accessible units.
13.llgene(al 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.
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EXHIBIT 3.2.1
Espanola Way Street Market Product List
All products represented for sale in the Market must comply with Section 3.2 Permitted
Concession Operations / Uses of the Management and Operations Agreement.
Products listed as part of this Exhibit are not intended to be outside of the stated
definitions of Arts and Crafts; individually hand-crafted and not commercially mass
produced, Cut Flowers and Plants; and Fruits, Vegetables, Other Edible Products.
Edible Products must not include commercially-made products.
Baskets
Bead work
Cell phone covers
Ceramics and porcelain
Christmas decorations
Collage
Crochet, Embroidered & Needle work products
Dolls
Edible products
Ethnic Products (i.e. clothing - not commercially mass produced)
Flower arrangements
Furs & Skins
Gift baskets
Glass work
Hammocks
Hats
Incense
Jewelry
Jewelry boxes
Key rings
Lamps and mirrors
Leather products
Metal work
Paintings & drawings
Paper work
Picture frames
Plants
Pottery
Purses
Sculpture
Shell art
Soaps & Body Care Products
Sun catchers
Sunglasses
Switch plates
Wire work
Wood work
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