HomeMy WebLinkAboutExhibit 1CONCESSION LICENSE AGREEMENT
This Concession License Agreement (the "Agreement"), made this day
of , 2005, by and between the Bayfront Park Management Trust (the
"Trust"), a limited agency and instrumentality of the City of Miami, a municipal
corporation of the State of Florida, (the "City"), and SkyLift Holding, LLC, a Florida
limited liability company (the "Concessionaire").
RECITALS:
Whereas, the City Manager is authorized to enter into agreements to grant
concession privileges to concessionaires for concession services in the City's parks;
and
Whereas, pursuant to Chapter 38, Article III of the City of Miami Code, the Trust
has been empowered to direct, operate, manage and maintain all aspects of Bayfront
Park ("Park"); and
Whereas, the Trust's purpose is to ensure maximum community utilization of the
Park; and
Whereas, pursuant to Chapter 38, Article III, the Trust's Executive Director is
authorized to manage and operate the Park; and
Whereas, the Trust recognizes that in order to attract more persons to the Park
and maximize community utilization, it must enter into agreements with companies to
provide services to the public for their increased enjoyment of the Park; and
Whereas, the Trust, in its efforts to maximize community utilization and
enjoyment of the Park, has entered into concession agreements for valet parking, horse
and carriage rides and other services to be provided to the public in the Park; and
Whereas, the Trust desires to have a tethered balloon ride service ("the
Concession") in the Park which will significantly attract more City residents and tourists
to the Park and provide the public with a greater ability to view and experience the
City's skyline and its waterfront; and
Whereas, the Trust issued a Request for Letters of Interest No, 03-04-101 R (the
"RFLI") for companies to manage and operate a tethered balloon ride service and
requested proposals from companies with, 1) experience in the management and
operation of tethered balloon rides or similar relevant tourist/attraction experience, 2) an
understanding of Miami's multi -ethnic community, and 3) sufficient and qualified staff to
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manage and operate the Concession, as hereinafter defined, who will provide a
guaranteed income to the Trust as a result of the Concession; and
Whereas, the Concessionaire's proposal (the "Proposal") has been selected as
the top -ranked proposal to provide the service of managing and operating the
Concession and selected as the most qualified firm with whom to negotiate a contract;
and
Whereas, the Trust, at its July 26, 2004, board meeting, approved, by Motion No.
04-039.1, the selection of the Concessionaire and authorized the Executive Director to
enter into negotiations with the Concessionaire for an agreement; and
Whereas, the City Commission, by Resolution No. R-04-0566, adopted on
September 9, 2004, approved the selection of the Concessionaire and authorized the
Trust to negotiate a revocable license agreement with the Concessionaire; and
Whereas, the Concessionaire is willing and able to manage and operate such
Concession in the Park based upon the terms and conditions contained herein; and
Whereas, the Trust, by Resolution No. - , adopted on
, 2005, authorized the Executive Director to execute a contract, under
the terms and conditions set forth herein; and
Whereas, the City Commission, by Resolution No. - , adopted
on , 2005, authorized the Executive Director to enter into a contract,
under the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
hereafter set forth, the receipt and sufficiency of which are hereby acknowledged, to be
kept and performed by the parties, it is agreed between the Trust and the
Concessionaire as follows:
ARTICLE I
DEFINITIONS
For the purpose of this Agreement, the terms defined in this Article shall have
the meanings set forth below.
"Additional Fees" shall mean all other charges and payments payable by the
Concessionaire to the Trust in addition to the Concession Fee, the Ticket Fee, Event
Fee, Returned Check Fee and the Sponsorship Revenue Fee, but shall not include the
Security.
"Additional Term" shall have the meaning set forth in Section 2.3 hereof.
"Agreement" shall have the meaning set forth in the preamble.
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"Area" shall mean all portions of the Park, including, but not limited to, the
Concession Area and the Events Area, that are used by the Concessionaire for its
operations pursuant to this Agreement.
"Army Corps" shall mean the United States of America, U.S. Army Corps of
Engireers.
"City" shall have the meaning set forth in the preamble.
"City Commission" shall mean the City of Miami Commission.
"Commencement Date" means the date that the Concession shall be open for
business and is further defined in Article III entitled "Term."
"Complimentary Tickets" shall mean those tickets not transferring or exchanging
the absolute or general ownership of property from one person or corporate body to
another for a price, as a sum of money or any other consideration and does not involve
a transfer of title or possession, or both, exchange, barter, license, lease or rental,
conditional or otherwise, in any manner or by any means whatsoever, of tangible
personal property for a consideration. The Complimentary Tickets may be subject to
restrictions, including, but not limited to, black out dates.
"Concession" shall mean the passenger carrying captive gas tethered balloon
ride service that the Concessionaire operates and manages at the Park and all of the
activities related thereto, including but not limited to the sale of food, beverages and
Novelty Concessions.
"Concession Area" shall mean the area within the Park that is designated for the
operation of the Concession on Attachment A, attached hereto and made a part of the
Agreement.
"Concession Agreement Year" shall mean a consecutive twelve (12) month
period during the Term and each Additional Term, if exercised, commencing on the
Commencement Date.
"Concession Fee" shall mean the payments made to the Trust to manage and
operate the concession in the Park and is further determined in section 4.1(a) hereof.
"Concession Manager" shall mean the Concessionaire's manager or assistant
manager on duty.
"Concessionaire" shall have the meaning set forth in the preamble.
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"Concessionaire Administrator shall mean the person(s) authorized by the
Concessionaire to act fully on behalf of the Concessionaire in managing the
Concession as required by this Agreement.
"Concessionaire Event Days" shall mean the days or nights in which the
Concessionaire is conducting an Event within the Concession Area or in the Park.
"Corps Lease" shall mean the Lease Agreement between the City and the Army
Corps dated August 16, 1990, and any amendments thereto.
"Deposit" shall have the meaning set forth in Section 9.2 hereof.
"Event" shall mean events or activities of a temporary duration, including, but not
limited to, weddings, receptions, and corporate -sponsored events, that the
Concessionaire provides in connection with the Concession utilizing the Events Area, or
which uses other portions of the Park as provided herein.
"Event(s) Area" shall mean the area within the Park that is denoted on
Attachment A, attached hereto and made a part of the Agreement.
"Event Days" shall mean the days or nights in which there are events and
activities, other than the ones provided by the Concessionaire, that occur in the Park.
"Event Fee" shall mean the fees that the Concessionaire shall pay to the Trust
for the Events that it sponsors in the Concession Area and in Park.
"Executive Director" shall be the Trust's Executive Director who is authorized to
administer the Agreement and coordinate the activities of. the Concessionaire at the
Park.
"Food Concession" shall mean the sale of any and all beverages and food by the
Concessionaire, or its Subcontractor, in connection with, as a result of or arising out of
the Concession.
"Gross Revenues" shall mean the aggregate amount of all revenues including
taxes. prior to payment of commissions, derived from the sale of all tickets and from all
Sponsorship Revenues collected, arising or accruing by virtue of managing and
operating the Concession, whether such revenues shall be credit or cash or otherwise,
and shall include any finance charges or similar payments received by the
Concessionaire as a result of the Concession.
"Hazardous Materials" shall have the meaning set forth Section 10.1 hereof.
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"Hazardous Materials Laws" shall have the meaning set forth in Section 10.1
hereof.
"Hazardous Conditions" shall mean the conditions that occurred as a result of
noncompliance with the Hazardous Materials Laws.
'improvements" shall mean any building, structure, construction, demolition,
excavation, landscaping, or any part thereof existing, built, erected, placed, made, or
done within the Park for the its permanent benefit.
"Indemnitees" shall mean the Army Corps, the City, the Trust and their officials,
employees, agents and volunteers, collectively.
"Instrument" shall mean an irrevocable letter of credit or other form of security
instrument acceptable to and approved in writing by the Trust.
"Liabilities" shall have the meaning set forth in Section 14.1 hereof,
Modifications shall mean nonpermanent, removable alterations, major repairs,
modifications, additions, partitions or changes, including trade fixtures placed in the
Park by Concessionaire for the Concession pursuant to this Agreement.
"Novelty Concession" shall mean the sale of any paraphernalia, merchandise,
novelty items or souvenirs that are sold by the Concessionaire in connection with, as a
result of or arising out of the Concession,
"Operations Plan" shall mean the Management and Operations Plan for the
Concession, which is attached hereto as Attachment B and which is made a part of this
Agreement, as amended from time to time with the prior written approval of the
Executive Director.
"Park" shall have the meaning set forth in the preamble.
"Proposal" shall have the meaning set forth in the preamble.
"Required Operating Hours shall mean the hours in which the Concession shall
be open and available for operations as further defined in the Management and
Operations Plan.
"Returned Check Fee" shall have the meaning set forth in Section 4.6 hereof.
"RFLI" shall have the meaning set forth in the preamble.
"Sale," "Sell" or "Sold" shall mean the act of transferring the absolute or general
ownership of property from one person or corporate body to another for a price, as a
sum of money or any other consideration, as distinguishable from a gift, and includes
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any transfer of title or possession, or both, exchange, barter, license, lease or rental,
conditional or otherwise, in any manner or by any means whatsoever, of tangible
personal property for a consideration.
"Security" shall mean the financial security for the payment and performance by
the Concessionaire of all of the Concessionaire's obligations, covenants and conditions
pursuant to this Agreement.
"Solicitation Documents" shall mean the RFLI and the Proposal, which are by
this reference incorporated into and made a part of this Agreement.
"Sponsor" shall be any person or corporate entity which purchases name
placement, logo placement, advertising, and other forms of sponsorship, from
Concessionaire, or its agents or subcontractors, as a result of or in connection with the
Concession.
"Sponsorship Revenue Fee" shall mean for each Concession Agreement Year
(i) five percent (5%) of the first $1,000,000.00 of the gross annual sponsorship
revenues resulting from any sponsorship agreements pertaining to sponsorship
opportunities placed on or affixed to the envelope and gondola of the tethered balloon
or (ii) fifteen percent (15%) of the aggregate gross annual sponsorship revenues
resulting from any sponsorship agreements pertaining to sponsorship opportunities
placed on or affixed to the envelope and gondola of the tethered balloon if such gross
annual sponsorship revenues exceed $1,000,000.00.
"Subcontractor" or "Agent" shall mean any individual, partnership or corporation
who is contractually bound to the Concessionaire to perform a specific portion of the
total work package under this Agreement.
"Tax" shall mean any and all taxes, fees, costs, assessments or fines assessed
by a municipal, county, state or federal agency that is assessed against the
Concession, its operations, personal property of any kind, owned by or placed in, upon
or about the Concession Area by the Concessionaire, or arising as a result of the Trust
entering into this Agreement, whether assessed against the Concessionaire, the City or
the Trust.
"Term" shall have the meaning set forth in Section 2.1 hereof.
"Termination Date" shall mean the day on which this Agreement expires or such
earlier date as may be specified in accordance with the provisions of this Agreement.
"Trust" shall have the meaning set forth in the preamble.
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"Trust Fee" shall mean the aggregate of the Concession Fee, Ticket Fee,
Returned Check Fees, Additional Fees and Sponsorship Revenue Fee that the
Concessionaire shall pay to the Trust, as applicable.
"Trust's Tickets" shall mean the number of Complimentary Tickets that the
Concessionaire shall give to the Trust annually.
"Unavoidable Delay" means damage or destruction by fire or other casualty,
whether similar or dissimilar, acts of federal, state, county and/or city governments,
including acts pertaining to strikes, embargoes, shortages of material or labor, labor
troubles or labor disputes, force majeure, unusually adverse weather conditions, or
other like or unlike events or conditions beyond the control of the parties hereto,
including any court actions, and injunctions by third parties, which results in impossibility
of performance.
ARTICLE II
TERM
2.1 TERM. The term of this Agreement shall be for a period of five (5) years
from the Commencement Date (the "Term"), unless earlier terminated or extended as
provided herein.
2.2 COMMENCEMENT DATE. Within one hundred eighty (180) days after the
Army Corps, City Commission and Trust approval of the terms and conditions of the
Agreement, Concessionaire shall obtain all of the licenses and permits necessary for
the operation of the Concession. Concessionaire shall send a notice to the Executive
Director of the date that the Concession shall be open for business. The Executive
Director shall be able to extend the one hundred eighty (180) day period for an
additional one -hundred twenty (120) days with Trust approval. The commencement
date shall be the date which Concessionaire is open for business or up to three
hund red (300) days following Army Corps, City Commission and Trust Approval
2.3 OPTION. This Agreement may be extended for two (2) additional two-year
periods upon the same terms and conditions contained herein (each "Additional Term").
In order to exercise this extension, the Concessionaire must deliver written notice of its
intent to the Trust six (6) months in advance of expiration of the Term or Additional
Term, but no earlier than nine (9) months prior to the expiration of the Term or
Additional Term. Upon receipt of such notice, the Trust may conduct an audit of the
Concessionaire's compliance with the provisions of this Agreement. If the Trust
determines that the Concessionaire is in compliance with all of the provisions of this
Agreement, then the Agreement may be extended for an Additional Term. Should a
compliance audit reveal a default in performance, such as underpayment of any
amounts due from the Concessionaire, such default shall not be a basis to deny an
extension of this Agreement, provided that any such default is cured within thirty (30)
days of notice from the Trust. Regardless of the provisions above, habitual non-
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compliance with this Agreement by the Concessionaire shall be grounds for denial of an
Additional Term by the Trust.
ARTICLE III
CONCESSION
3.1 DESCRIPTION OF CONCESSION. The Concessionaire shall provide the
services further described herein, subject to the exceptions and conditions hereinafter
set forth, for purposes of providing the Concession in the Park within the terms and
conditions of the Management and Operations Plan, attached hereto as Attachment B
and is incorporated and made a part of this Agreement.
The Trust and the City reserve the right to enter the Concession Area or any
portion of the Park. Any such entry shall be performed in a reasonable manner and to
minimize any disruption to the Concessionaire's operation.
The Concessionaire shall not use the Concession Area or any other portion of
the Park for any purpose other than herein specifically designated without prior written
consent of the Trust.
3.2 NATURE OF CONCE
Concessionaire to provide s
and for no other purpose,
Agreement do not constitute
not those of a tenant, but
character within the Park an
The Army Corps, the City an
Park. Therefore, no lease
conferred upon the Concess
does not and shall not clai
whatsoever in the Park by vi g A
any other portion of the Par
and shall not claim at any tim
the Concession Area by virt
any Modifications, which
Concessionaire shall not con
may place Modifications in
Concession, with prior Trust
limited to, a removable n
Concession a portable offic
winch system, portable ticket
be placed or installed in the
which shall be removed in
contained in Section 2.4 her
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SION. This Agreement solely authorizes the
rvices as set forth herein for the purposes set forth herein
The parties hereby agree that the provisions of this
a lease. The rights of the Concessionaire hereunder are
re a personal privilege to do certain acts of a limited
to use the Park subject to the terms of this Agreement.
the Trust retain dominion, possession and control of the
nterest, or any other interest in property in the Park is
onaire under the provisions hereof. The Concessionaire
at any time any interest or estate of any kind or extent
rtue of this Agreement or its use of Concession rea, or
, hereunder. Additionally, the Concessionaire does not
any interest or estate of any kind or extent whatsoever in
e of any expenditure of funds by the Concessionaire for
ay be authorized by the City or the Trust. The
truct any Improvements in the Park. The Concessionaire
the park for the management and operation of the
approval. Such modifications may include, but are not
n-permanent structure(s) for ticket sales, its Novelty
or booth, etc. The parties agree that Concessionaire's
and/or office booth, balloon and other equipment that may
oncession Area are not Improvements, but are equipment
accordance with the restoration of the Park provisions
of.
8
The Concessionaire and its employees shall comply with all Trust rules and
regulations governing access to and conduct in the Park.
3.3 CONCESSION AREA. The Concessionaire hereby accepts the Concession
Area "as is" and "where is" and any other portion of the Park that may be utilized
pursuant to this Agreement, except that Section 10.1 shall apply hereto. The
Concessionaire shall not remove any of the Army Corps', the City's or the Trust's
Improvements, fixtures or personal property from the Park without the prior written
consent of the Executive Director.
The Concessionaire shall, at its sole cost and expense, be responsible for the
operation, cleaning, preventative maintenance and reasonable care and repair of all the
Improvements, fixtures and personal property that it uses for the Concession. The
Concessionaire shall replace or repair, at its sole cost and expense, any of those items
provided by the Trust Zest, damaged or destroyed due to the acts, omissions or
negligence of the Concessionaire or its Agents or employees. The Trust will remain
solely responsible for maintenance of the pumps of the fountain located on the
Concession Area. The Trust shall not be responsible for any damage to the pumps
caused by the Concessionaire or its Subcontractors.
3.4 CONCESSION AREA DESIGN. The Concessionaire recognizes the importance
of a consistent design to all elements in the Park, and therefore agrees to use and pay
for the services of a Trust designated architectural firm to ensure that the design
elements at the Concession are consistent with the other components of the Park.
3.5 INSTALLATION OF MODIFICATIONS: The Concessionaire shall furnish and
insta II, at its own expense: the equipment and personal property necessary to manage
and operate the Concession. Within sixty (60) days of execution of this Agreement, the
Concessionaire shall provide the Executive Director with its plans for the Modifications
for the Concession. Within ninety (90) days of execution of this Agreement, the
Concessionaire shall have a plan for the Modifications, approved by the Executive
Director. During this ninety -day period, the Executive Director shall have seven (7)
calendar days to approve modifications or request modifications to Concessionaire's
plans for the Modifications. If the Executive Director requests modifications, the
Concessionaire has thirty (30) days thereafter to submit revised plans. Within one
hundred twenty (120) days after the Executive Director sends notice of the approval of
the Modifications, the Concessionaire shall begin and continuously pursue to install
Modifications in the Concession Area. The Executive Director shall grant further
extensions for good reason, which shall not exceed an aggregate of one hundred eighty
(180) additional days from the Concessionaire's initial submission of its plans to the
Executive Director.
3.6 CONCESSIONAIRE RESPONSIBILITIES. The Concessionaire covenants
and agrees that the Concessionaire shall, at its sole cost and expense, operate,
manage and maintain the Concession and provide the Concession required under this
Agreement and specifically agrees as follows:
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A. The Concessionaire shalt, at its sole cost and expense purchase, lease or
finance all equipment and supplies and materials necessary for the operation of the
Concession.
B. The Concessionaire shall, at its sole cost and expense, provide telephone
service for its own use.
C. The Concessionaire shall be responsible for security at the Concession
Area. The Concessionaire shall insure that all appropriate equipment has been turned
off and appropriate doors locked at the close of operation within the Concession Area
each day. The lights in the Concession Area may remain lit to provide illumination for
the Concessionaire's signs and for security purposes and the balloon envelope may
remain internally illuminated, but the Concessionaire shall turn off all other lights that
are not needed after hours for these purposes.
D. The Concessionaire shall provide the Executive Director with the names,
phone numbers, beeper and cellular phone numbers of the Concessionaire
Administrator that will be available at any time to call in the case of emergencies.
These individuals must be available by phone twenty-four (24) hours a day, seven (7)
days a week. Initially the Concessionaire Administrators will be Mark Funnen and
Daniel Braverman.
E. The Concessionaire shall train all employees to respond to emergencies.
F. The Concessionaire shall include the organization chart listing the
employee titles in its Operations Plan.
G. The Concessionaire shall assume all costs of the Concession including,
but not limited to, security, staffing and maintenance of the Concession Area.
H. The Concessionaire shall be responsible for the provision, installation,
repair and preventive maintenance of all equipment necessary to operate the
Concession and keep the Concession Area in good repair.
The Concessionaire shall be responsible for providing, at its sole cost and
expense, plumbing maintenance and repair caused by its use of the Concession Area.
J. The Concessionaire shall be responsible for making Modifications
required for the safe operations of the Concession.
K. The Concessionaire shall operate and manage the Concession in a safe
manner and shall develop a safety plan (the "Safety Plan"), which shall be attached
hereto as Attachment C and is made a part of this Agreement. Concessionaire shall
adhere to the Safety Plan on a daily basis without exception, throughout the term of the
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Agreement. Amendments to the Safety Plan shall be submitted to the Executive
Director and maintained at all times in the Concession Area.
L. The Concessionaire shall have a marketing plan (the "Marketing Plan"),
which shall be attached hereto as Attachment D and is made a part of this Agreement.
Amended Marketing Plans shall be submitted to the Executive Director and maintained
at all times in the Concession Area.
M. Except as otherwise provided herein, the Concessionaire may sell
nonalcoholic beverages and food from vending machines and shall be responsible for
ensuring that the cans and wrappers are disposed of in trash cans and other containers
for proper disposal.
3.7 OPERATION OF CONCESSION. Starting on the Commencement Date,
the Concessionaire shall begin operating the Concession within the Concession Area in
accordance with the Operations Plan. The Concessionaire shall operate the
Concession seven days a week and 365 days a year, subject to the terms and
conditions of this agreement. Nothing contained herein shall cause the operation of the
balloon ride service in unsafe weather conditions. The Concessionaire may close the
Concession to the public for special events, movie shoots and advertising shoots.
Further, the Executive Director may request temporary amendment to the
Concession's hours of operation for Event Days, during a state of emergency, or for
other governmental purposes, and the Concessionaire agrees to reasonably
accommodate such requests. 1n the event that access to the Concession Area is
restricted by. the Trust or City for non -emergency governmental purposes, and which
requires closure of the Concession, the Concessionaire shall be entitled to a pro -rated
abatement of any Concession fee which may be due to the Trust pursuant to the terms
of this Agreement. The Trust and the City shall take all reasonable steps to avoid
closure of the Concession. For purposes of this Agreement, "closure" shall be defined
as a period of four consecutive hours or more during one 24 hour period, and shall
result in an abatement of one day payment of the Concession Fee. The Trust or City
may require closures of the Concession for up to 3 closures per Concession Agreement
Year prior to Concessionaire's entitlement to an abatement.
A. Event Days: The Concessionaire recognizes that events are regularly
scheduled in the Park. The Trust, through its Executive Director, will
reasonably ensure access to the Concession through at least two access
points in the facility, unless otherwise agreed upon in writing by the
parties.
B. State of Emergency/Hurricanes: The Concessionaire recognizes that
emergencies, both weather related and non -weather related may arise,
which would limit access to the Concession Area.
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3.8 QUALITY AND PRICE CONTROL. The Concessionaire shall operate the
Concession in the Park in a first class manner. The Concessionaire shall send the
Trust's Executive Director its list of prices. The Concessionaire's retail prices shall be
plainly displayed in the Concession Area.
3.9 FOOD AND BEVERAGE WARRANTY. The Concessionaire warrants that all
food and beverages dispensed or served hereunder in the Concession Area shall, in all
respects, be suitable for human consumption and, in particular, shall conform to all
applicable federal, state, county and local health laws.
3.10 SUPPLIER ACCESS TO CONCESSION AREA, The Concessionaire hereby
agrees that its suppliers shall only access the Concession Area between the hours of
12 midnight and 8 a.m., on Mondays through Thursdays. On Friday, Saturday, Sunday
and holiday nights, the Concessionaire's suppliers shall only access the Concession
Area or any other portion of the Park that may be used for Events between 2 a.m. and 6
a.m. The Concessionaire's supplier may access the Concession Area, or any other
portion of the Park that may be used for Events, at additional times, with the prior
written approval by the Executive Director.
3.11 SANITATION The Concessionaire shall, at its sole cost and expense,
maintain and keep fixtures, equipment, personal property, whether owned by the
Concessionaire or third parties, the Concession Area and any other Area(s) that may be
designated by the Trust for Concessionaire's use, in a clean and sanitary condition
satisfactory to the Trust. The Concessionaire shall manage and operate the
Concession in strict compliance with all applicable federal, state and focal laws and
regulations governing this type of operation. In the event of an inspection the
Concessionaire shall obtain and maintain a satisfactory rating on all government
inspections. The Concessionaire shall provide copies of each inspection report to the
Executive Director within two (2) business days of receipt of the same by the
Concessionaire.
If it does not result in an additional expense to the City or the Trust, the
Executive Director and the Concessionaire may agree, without additional Trust or City
Commission approval, for the Concessionaire to dispose of trash in areas designated
by the Executive Director. The Executive Director and the Concessionaire may elect at
any time and for any reason not to continue with this trash disposal option. If 1) both the
Executive Director and the Concessionaire do not agree, 2) the parties agree, but one
party subsequently elects not to have the Concessionaire's trash and garbage disposed
in the Park or 3) such disposal results in an additional expense to the City or the Trust,
then the Concessionaire shall make separate arrangements, at its sole expense, for the
disposal of the trash and garbage from the Concession. The Concessionaire shall, at
its sole cost and expense, provide a sufficient number of trash and garbage receptacles
within the Concession Area and other Areas designated for its use and for use by
invitees. The Concessionaire shall, at its sole cost and expense, be responsible for the
disposal of such receptacles and the removal of trash and garbage from the
Concession Area utilizing acceptable environmental techniques and canisters.
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The Concessionaire's employees handling Hazardous Waste must be trained in
the handling of Hazardous Waste. Concessionaire shall not dispose of any Hazardous
Waste in the Park. The Concessionaire further understands that the Concession Area
waste (disposed food) will be considered an environmentally controlled item. As such,
at such time as may be required by the Trust, the Concessionaire shall, at its sole cost
and expense, dispose of food products in one type of container and other waste (non -
biodegradable items such as plastic bags, empty food cans and the like) in another
container and shall comply with the Trust's policies, if any, for collection of paper,
aluminum cans and any other trash and waste generated in connection with or as a
result of the Concession.
3.12 UTILITIES. The Concessionaire shall be solely responsible for the cost and
expense, to furnish air conditioning, heat, hot and cold water, lights, electric current,
sewage, gas, and utilities and shall have installed metering devises which measures the
Concession's usage of utilities. The Concessionaire must abide by the rules,
regulations, schedules and practices that may be set forth by the Trust, in its
reasonable discretion.
When necessary to protect the health, safety and welfare of the Park and the
public, including, but not limited to, reason of accident, emergency or for any other
cause beyond the reasonable control of the Trust, the Trust reserves the right to
interrupt, curtail or suspend the provision of any utility service, including but not limited
to, heating, ventilating and air conditioning systems and equipment serving the
Concession Area, to which the Concessionaire may be entitled hereunder. The Trust
shall in no respect be liable for any failure of the utility companies or governmental
authorities to supply utility service to the Concessionaire or for any limitation of supply
resulting from governmental orders or directives. No diminution or abatement of the
Concession Fee or other charges, nor damages, shall be claimed by the
Concessionaire by reason of the Trust's or other person or entity's interruption,
curtailment or suspension of a utility service, nor shall this Agreement or any of the
Concessionaire's obligations hereunder be affected or reduced thereby. Provided,
however, that should there be a disruption of utility services which is out of the
Concessionaires control and results in closure of the Concession for more than forty
eight (48) hours, then such occurrence shall be treated as an Unavoidable Delay. In
the event that the Trust interrupts, curtails or suspends the provision of any utility
service serving the Concession Area, the Trust will take reasonable efforts to restore
such service within a reasonable time and manner. The Concessionaire shall make all
reasonable efforts to mitigate its damages.
3.13 PARKING. The Trust will not provide parking spaces for the Concessionaire
within the Park.
3.14 TRUST ACCESS TO FACILITY. The Trust and its authorized representative(s)
shall have access at all times to the Concession Area or any other Area in the Park that
may be used by the Concessionaire. The Concessionaire shall immediately provide
:449225-5 13
keys to the Trust for any new equipment or key changes. Changes to the locks must be
reported to the Executive Director. The Concessionaire shall immediately provide any
new keys to the Executive Director.
Trust access may include, but is not limited to, entering into the Concession Area
for repairs, alterations or Improvements which, in the judgment of Trust, may be
desirable or necessary to be made to the Park. The work of such repairs, alterations or
Improvements shall be completed by the Trust or its agents with reasonable diligence.
The Trust shall make its best efforts not to interfere with the operation of the
Concession.
3.15 PERMITS AND LICENSES. The Concessionaire, at its sole cost, shall
obtain any and all permits and licenses required for the Concession's operations
including, but not limited to, those permits and licenses required by the Federal Aviation
Administration and any other agency exercising authority over the Park's airspace and,
if applicable, an assembly permit from the Office of Fire Prevention as per Section No.
19-3 of the Code of the City of Miami as well as any approvals required for Sponsor
adve rtising.
The Concessionaire represents and warrants to the Trust as of the
Commencement Date that: (i) it possesses all qualifications, licenses and expertise
required under the Agreement for the performance of, management of and operation of
the Concession; (ii) it is not delinquent in the payment of any sums due to the City,
including payment of permit fees, occupational licenses, etc., nor in the performance of
any obligations to the City, (iii) all personnel assigned to perform the Concession are
and shall be; at all times during the term hereof, fully qualified and trained to perform
the tasks assigned to each; and (iv) the Concession will be performed in the manner
described in the Operations Plan.
3.16 PERFORMANCE REVIEW MEETINGS. The Concessionaire Administrator and
the Executive Director, or designee, will schedule meetings every ninety (90) days after
the Commencement Date, to review all aspects of the Concessionaire's performance
under this Agreement. The Concessionaire shall present to the Executive Director
operational issues, existing programs, ideas for new programs, any operational
improvements, the visitor count and ideas for coordinating the Events.
3.17 PROMOTIONAL MATERIAL. All of the Concessionaire's marketing material
shall include either "Bayfront Park" or "Bayfront Park Management Trust" and its
address, 301 N. Biscayne Blvd. Miami, Florida 33132, in a manner that can be
reasonably seen on the material.
ARTICLE IV
CONSIDERATION AND PAYMENTS
4.1 TRUST FEE. The Concessionaire agrees to pay the Trust an aggregate
Trust Fee, in the manner and upon the conditions hereinafter provided:
.449225-5
14
(a) a Concession Fee during each Concession Agreement Year, including any
extension hereof, in an amount equal to $270,000 annually (the "Concession Fee"),
which shall be paid in equal monthly payments of $22,500. In subsequent years, the
Concession Fee shall increase in accordance with increases with the Consumer Price
Index, which shall be determined by the last 12 month unadjusted percentage change
in the Consumer Price Index calculated by the Bureau of Labor Statistics of the U.S.
Department of Labor.
(b) the Sponsorship Revenue Fee; and
(c) a Ticket Fee which equals $1.00 for every ticket sold for admission onto the
Concession (including tickets distributed at an Event), for the first 100,000 patrons
during any Concession Agreement Year. In the event that the Concessionaire sells
more than 100,000 admission tickets during any Concession Agreement Year, then the
Concessionaire shall pay the Trust an additional $0.50 for every ticket sold over that
threshold. During each Concession Agreement Year, the Concessionaire is authorized
to distribute a maximum of 3,000 Complimentary Tickets, inclusive of the number of the
Trust's Tickets. The Concessionaire shall not pay a Ticket Fee on the amount of
Complimentary Tickets distributed during the Concession Agreement Year that is less
than the maximum amount. In the event that during the Concession Agreement Year,
the Concessionaire distributes more than the maximum number of Complimentary
Tickets authorized above, then such tickets shall be considered as "tickets sold" and the
Concessionaire shall pay to the Trust the Ticket Fee for the am
ount of tickets
During the first
distributed above that maximum amount of Complimentary Tickets
agreement year, the period between execution of this Agreement and the
Commencement Date shall be added to the Concession Agreement Year for purposes
of counting the amount of tickets distributed; and
(d) the Event Fees as provided in Article V entitled "Concessionaire Events";
and
(e) Returned Check Fee; and
(f) all Additional Fees
4.2 PAYMENTS OF THE TRUST FEE. Payment of the Trust Fee shall be as
follows:
Trust Fee
When Start
Concession
Fee
Upon
Commencement
Date
When Payment Due
Within the first seven (7) business
days at the beginning of each
calendar month with the prior
month's Ticket Fee.
15
:449225-5
Sponsorship
Revenue Fee
Ticket Fee
Event Fee
Additional Fees
Date of execution
Date of execution
Shall be paid to the Trust, ten (10)
business days after the
Concessionaire receives non-
refundable payment' for the sale of
sponsorship from a Sponsor
Sshall be paid monthly, within seven
(7) days after the end of the
calendar month
When offer first Shall be paid within seven (7) days
event following the end of the calendar
month during which payment of the
Event Fee accrued.
Date of execution
Unless provided herein, all
Additional Fees shall be paid within
the first seven days following the
end of the calendar month during
which such payment accrued.
Within seven .(7) business days after the end of each calendar month, the
Concessionaire shall deliver to the Trust a written report of its Gross Revenues for the
Concession for the preceding calendar month. The report
such Grosse signed
deby and
the
Concessionaire Administrator certifying the accuracy o
fshall also be accompanied by box office statements and ridership report, signed and
certified by the Concession's Administrator. Said box office statements must include
daily ticket sales by category and include Complimentary Tickets.
4.3 INTEREST ON LATE PAYMENTS. Any payment made by the
Concessionaire for any fees or charges as required to be paid under the provisions of
this Agreement, which is not received by the Trust within ten (10) business days after
same shall become due, shall be subject to interest at the prime interest rate which
shall be imposed starting on the thirty-first day after such payment is due until such time
as the payment is actually received by the Trust.
the
the
4.4 OVERPAYMENT AND UNDERPAYMENT.Inaccounting entincip es, that itConcessionaire can demonstrate, by generallyaccepted
has made an overpayment in the Trust Fee, the Trust shall refund such overpayment to
' Non-refundable in this instance means the payment that Concessionaire actually receives for placement
of a sponsors logo or message on or affixed to the balloon envelope or gondola of the Concession.
16
:449225-5
the Concessionaire. If the Concessionaire a d the made a underpayment
nderp ym ntin the
tsTrust
Fee, then said underpayment shall be p
and
underpayments shall be paid within thirty (30) days after the overpayment or
underpayment, as the case may be, has been determined.
of
ach
4.5 TRUST'S TICKETS. Within thirty says of shall provide thec Trustt withfive
Concession Agreement Year, the Concessionaire
hundred (500) Complimentary Tickets to the Concession per year.
4.6 RETURNED CHECK FEE. In the event that any Trust Fee is returned as
uncollectible, the Concessionaire shall pay to the Trust a returned check fee in the
amount of thirty dollars ($30) (the "Returned Check Fee") due upon notice of the Trust's
receipt of the unpaid item.
4.7 FORMS OF PAYMENT. Payments shall be made to the Bayfront Park
Management Trust, 301 N. Biscayne Blvd., Miami, Florida 33132, on the date that
payments are due. Payments shall be in the form of company
pn nythchecks,
form of cash.cashiers check,
money, or wire transfers. Payments shall not be tend
ARTICLE V
CONCESSIONAIRE'S EVENTS
5.1 EVENT AREA. Concessionaire may use the Event Area for Events that are
arising out and in connection with the tethered balloon ride services. However,
Concessionaire shall not assign or delegate the use of the Concession Area or the
Event Area. Nor shall Concessionaire be directly or indirectly in competition with the
Trust for entering into agreements for use of the Park.
5.2 EVENT FEE. The Concessionaire shall pay to the Trust $750,00 for the use of
Event Area for Events. Concessionaire's use of additional Areas in the Park shall be
subject to a separate use agreement between the parties.
5.3 SET UP AND LOAD OUT FOR EVENTS. For the set up and load out for the
Events within the Event Area, Concessionaire shall pay to the Trust $40.00 per hour,
but not to exceed $400,00 per day for as long as Events the
outsideArea
of the closed
Evento the Area, btlic.
he
For the set up and load out for the
Concessionaire shall pay a fee, which shall be contained in the separate use
agreement between the parties. approval of the
5.4 TRUST APPROVAL.The andhalt provide Concessionairesreasonablell require the nonce to thea
Executive Director to conduct
eachEvent
Executive Director that it will be conducting an Event prior to such Event so that the
Trust has sufficient time to coordinate the EventEvent, with
theother
nurnber of people ea pecte, the
d
Trust. The notice shall include the type of th
the date and time of the event, the types of items needed to support the event,
17
:449225-5
including, but not limited to tents, chairs, and caterers. The Executive Director shall
approve or disapprove such event in his/her reasonable discretion.
5.5 EVENTS TICKETING. It is understood that for Events, Conce3sionaire may
enter into an agreement and/or charge per person an Event price for tickets that is
different than the ones included in its Operations or Marketing Plan. It is also
understood by the parties that Concessionaire may enter into an agreement to charge a
flat fee for people admitted unto the tethered balloon. It is also understood that there
are some people who may be admitted to the Event Area, but may not ride the tethered
balloon. For Events, the tickets distributed to patrons who actually ride on the
Concession will be counted for purposes of determining the Ticket Fee.
5.6 VENDORS/PROVIDERS FOR EVENTS. The Concessionaire and
as such hasizes vendorsd
agrees that the Trust hosts numerous events throughout year
e
and providers of goods and services for events in the Park. As the Trust has vendors
which are aware of the rules and regulations of the Park and which are familiar with the
set up for events in the Park, Concessionaire, through the Trust, agrees to use the
same vendors as the Trust for the Events, and Concessionaire shall pay the fee that is
charged by the Trust for such operations, unless it is for a good or service for which the
Trust does not have a contract.
5.7 ALCOHOLIC AND NON-ALCOHOLIC BEaVgeRAs a ESe FEvents tEV NTS.
h a
Concessionaire may dispense or sell alcoholic
property licensed caterer which is duly permitted to sell or dispense alcoholic
beverages. Concessionaire may dispense beverages in glasses, paper and plastic
cups. The Concessionaire shall provide proof that the caterer for the Event has
insurance coverage and that the Army Corps, City and Trust are named as an
additional insured.
5.8 SECURITY DURING EVENTS. tfSe feet that svchaS charged shall
byethet Trust ed forby the
such
Trust and Concessionaire shall pay
operations.
ARTICLE VI
PERSONNEL
de
6.1 PERSONNEL. The Concessionaire shall,
trained inown expense, the management and1
adequate staff for the provision of the
operation of the Concession. The Concessionaire's staff shall provide courteous,
efficient and sanitary service to the
invitees.
Persons
diseasehandling
Whenoinformed thatan beverages shall be dean and free from any communicable
employee of the Concessionaire has a condition, which reveals the existence of an
illness or communicable disease or other condition, which could affect the safe, sanitary
or healthful operation of the Concession, the Concessionaire will ensure that the said
-18
:449225-5
employee undergo, by a licensed physician approved by the Trust, an examination,
which would either verify or contradict the existence of the condition. If such condition
is ve rifled, the Concessionaire will not utilize the services of said employee until the
condition of that employee returns to a healthful status as indicated in writing and
signed by the physician.
Food handling and sanitation shall conform to such requirements as may be
prescribed by law and local and State health authorities. The Concessionaire shall
require all of its actual Concession balloon operators to take a pre -employment drug
screening test.
The Concessionaire agrees to furnish its personnel with identification required for
entrance to or exit from the Concession Area during normal work hours.
6.2 CONCESSIONAIRE ADMINISTRATOR AND MANAGERS). The
Concessionaire Administrator shall be responsible for daily oversight of the Concession
as specified in this Agreement. The Concessionaire may also have a Concessionaire
Manager(s) who shall be on -site during all hours that the Concession is open. The
Concessionaire's Manager(s) must have experience in a similar operation with
comparable responsibilities.
6.3 PERSONNEL TRAINING. The Concessionaire shall have adequately trained
personnel to maintain a high quality Concession. The Concessionaire shall ensure that
critical positions (those that are necessary to open and operate the Concession Area)
will have adequate back-up employees on -call to cover for absenteeism. The
Concessionaire shall require employees to comply with all instructions, rules and
regulations of the Trust regarding the Park operations.
The Concessionaire shall instruct its employees and agents that no gratuities
shall be solicited or accepted for any reason whatsoever from the employees of the
Trust, its invitees and guests.
6.4 LABOR RELATIONS. The Concessionaire shall be responsible for its own
labor relations with any trade or union representative among its employees and shall
negotiate and be responsible for adjusting all of the disputes between itself and its
employees or any union representing such employees.
Whenever the Concessionaire has knowledge that any actual or potential labor
dispute is delaying or threatens to delay the timely performance of the Concession, the
Concessionaire shall immediately contact the Executive Director by phone or pager and
provide a written follow-up notice of the dispute.
ARTICLE VII
AFFIRMATIVE ACTION AND NONDISCRIMINATION
:449225-5 19
7.1 AFFIRMATIVE ACTION. The Concessionaire shall have in place an
Affirmative Action/Equal Employment Opportunity Policy and shall institute a plan for its
achievement, which will require that action be taken to provide equal opportunity in
hiring and promoting for women, minorities, individuals with disabilities, and veterans.
Such plan will include a set of positive measures, which will be taken to insure
nondiscrimination in the work place as it relates to hiring, firing, training and promotion.
In lieu of such a policy/plan, the Concessionaire shall submit a statement of assurance
indicating that their business is in compliance with all relevant. Civil Rights laws and
regulations.
7.2 NONDISCRIMINATION. The Concessionaire agrees that there will be no
discrimination against any person based upon race, religion, color, sex, ancestry, age,
national origin, or mental or physical handicap, while providing the Concession or within
the Concession Area. An allegation of discrimination shall not be deemed a violation
of this provision until there is a final determination by a court of competent jurisdiction
that discrimination has occurred. If such determination is made by a court, and all
appellate review has been exhausted, then the Concessionaire shall take reasonable
actions to eliminate the conditions which were determined to be the cause of the
discriminatory act(s).
ARTICLE VIII
MINORITY PROCUREMENT
The Concessionaire shall make every good faith effort to purchase/contract fifty-one
(51%) of its annual goods and services requirements from Hispanic, Black and Women
businesses/professionals registered/certified with the Trust of Miami's Office of
MinorityMlomen Business Affairs. Such. lists will be made available to the
Concessionaire upon request and updates may be routinely obtained from the City's
Office of Procurement.
ARTICLE IX
SECURITY AND LIQUIDATED DAMAGES
9.1 SECURITY. Security shall consist of a Deposit and an Instrument,
9.2 DEPOSIT. The Concessionaire shall deposit with the Trust the sum of $
67,500.00 as a security deposit (the "Deposit'). At least one-half (1/2) of the Deposit,
or an amount not less than $33,750.00, shall be paid within five (5) days after the
Agreement is approved by the City Commission, with the remaining balance payable no
later than five (5) days prior to Concessionaire's placement of any equipment,
Modifications, or any personal property on the Park, necessary to manage and operate
the Concession. The Deposit shall not be deemed liquidated damages but shall be
used for damages to the Park and for restoration of the Concession Area in accordance
with Section 22.4 hereof and non -monetary defaults not directly associated with the
nonpayment of the Trust Fee. The Deposit shall be held in an interest bearing account
in a financial institution as determined by the Trust. All interest accruing on the Deposit
:449225-5 20
shall be for the benefit of the Concessionaire and made payable to Concessionaire on
a yearly basis.
In the event that there are damages to the Park as a result of the Concession,
the Executive Director shall send a notice to the Concessionaire to repair such
damages. Concessionaire shall commence and continuously prosecute the repair of
such damages within thirty (30) days of the Executive Director's notice, If
Concessionaire fails to commence such repairs within such time, the Executive Director
shall apply the Deposit towards the payment of such repairs. Concessionaire shall be
liable for the cost of such repairs and application of Deposit to reduce damages to the
Park shall not preclude the Trust from recovering from Concessionaire all additional
damages incurred by the Trust to the extent permitted under this Agreement.
9.3 INSTRUMENT. Within sixty (60) days commencing after the execution of the
Agreement, but prior to the installation of any equipment, Modifications, or personal
property within the Park, the Concessionaire shall provide the Trust with an instrument,
in a form acceptable to the Trust and the City Risk Administrator, in the amount equal to
$270,000. The Instrument shall be used for monetary defaults resulting from the
nonpayment of the Trust Fee. At the beginning of each Concession Agreement Year,
the amount of the Instrument shall increase in accordance with the increases in the
Concession Fee. In the event that there is an increase in the amount of the
Concession Fee, the Concessionaire shall provide to the Trust an Instrument in the
amount equal to the Concession Fee for that Concession Agreement Year.
In the event that Concessionaire fails to pay the Trust Fee within thirty (30) days
after the Trust Ffee becomes due, the Trust shall apply the Instrument towards the
payment of the Trust Fee, inclusive of 'the interest on the Trust Fee.
9.4 REPLIN1SHMENT OF SECURITY. The Trust shall have the right, but not
the obligation, to apply all or any portion of the Security to cure a default in accordance
with Sections 9.2 and 9.3. In the event that the Trust applies the Ssecurity, or a portion
thereof to cure a default, the Concessionaire shall promptly, within five (5) business
days, deposit with the repository of the funds for the Security', the amount necessary to
restore the Security to its original amount. The Trust shall have the full Security on
hand at all times during the term of this Agreement. Failure to replenish the Security
within five (5) business days shall result in termination of this Agreement by the Trust.
Application of the Security to reduce the Trust's damages shall not preclude the Trust
from recovering from the Concessionaire all additional damages incurred by the Trust.
9.5 RETURN OF SECURITY. If the Concessionaire fully and faithfully
complies with all of the terms, provisions and conditions of the Agreement, the Security
shall be returned to the Concessionaire after both: (i) the expiration of the Term, as may
be extended pursuant to the provisions of this Agreement, and (ii) the Concessionaire's
delivery to the Trust of the entire Concession Area in the same condition or better than
z In the case of the Deposit, the funds shall be with the Trust. In the case of the Instrument, then the funds
shall be deposited with the institution which holds the funds for the Instrument.
:449225-5 21
existed on the Commencement Date, except for ordinary wear and tear and the
restoration of the park as provided in Section 22.4 hereof. The Trust shall have fifteen
(15) days from the time the Concessionaire vacates the Concession Area to notify the
Concessionaire of any damages to the property. The Concessionaire shall have thirty
(30) days from its receipt of notice to cure the damage. If Concessionaire does not
cure the damage, then the Trust shall be entitled to apply funds from the Security
towards the cost of such repairs, and the balance of the security shall be returned to
Concessionaire.
9.6 LIQUIDATED DAMAGES. The parties understand and agree that in the event
that this Agreement is terminated for cause, based upon a default in performance by
Concessionaire, calculation of actual damages incurred by the Trust would be uncertain
and difficult, if not impossible to determine. As a result, the parties hereby stipulate and
agree that upon a termination for cause occurring within the first year of the initial term
of this Agreement, the Trust shall be entitled to the sum of $270,000 from the
Instrument as liquidated damages. Thereafter, should this Agreement be terminated for
cause, based upon a default in performance by Concessionaire, the amount of
liquidated damages shall be reduced by twenty (20%) percent each year. (e.g, second
year: $216,000, third year: $172,800, fourth year: $138,240 and fifth year: $110,592). If
this Agreement is terminated for cause during any renewal period, the amount of
liquidated damages to be retained from the Instrument shall be the sum of $138,240 if
termination occurs during the first year, and $110,592 if termination occurs during the
second year. In the event of a termination for cause, the balance of the Instrument shall
be returned to the Concessionaire or otherwise discharged in accordance with the
terms of the Instrument.
ARTICLE X
HAZARDOUS MATERIALS
10.1 ENVIRONMENTAL WARRANTY. The Concessionaire shall, at its sole
cost and expense, at all times and in all respects comply with all federal, state and local
laws, statutes, ordinances and regulations, rules, rulings, policies, orders and
administrative actions and orders ("Hazardous Materials Laws"), including, without
limitation, any Hazardous Materials Laws relating to industrial hygiene, environmental
protection or the use, storage, disposal or transportation of any flammable explosives,
toxic substances or other hazardous, contaminated or polluting materials, substances
or wastes, including, without limitation, any hazardous substances, hazardous wastes,
:449225-5
22
hazardous materials or toxic substances, under any such laws, ordinances or
regulations (collectively 'Hazardous Materials"). The Concessionaire shall, at its sole
cost and expense, procure, maintain in effect and comply with all conditions of any and
all permits, licenses and other governmental and regulatory approvals relating to the
presence of Hazardous Materials within, on, under or about the Park required for the
Concessionaire's use of any Hazardous Materials in or about the Park in conformity
with all applicable Hazardous Materials Laws and prudent industry practices regarding
management of such Hazardous Materials. The Trust recognizes and agrees that the
Concessionaire may use materials in normal quantities that are applicable to the
Concession for the purposes stated herein and that such use by the Concessionaire
shall not be deemed a violation of this Article, so long as the levels are not in violation
of any Hazardous Materials Laws. The Trust acknowledges that it is not the intent of
this Article X to prohibit the Concessionaire from operating in the Park for the use
described in this Agreement. The Concessionaire may operate according to the custom
of the industry so long as the use or presence of Hazardous Materials is strictly and
properly monitored according to all applicable governmental requirements.
The Concessionaire shall not be liable for Hazardous Conditions that existed in
the Park prior to the execution of the Agreement.
10.2 DISCLOSURE, WARNING AND NOTICE OBLIGATIONS. The Concessionaire
shall comply with all laws, ordinances and regulations regarding the disclosure of the
presence or danger of Hazardous Materials. The Concessionaire acknowledges and
agrees that all reporting and warning obligations required under the Hazardous
Materials Laws are the sole responsibility of the Concessionaire, whether or not such
Hazardous Materials Laws permit or require the Trust to provide such reporting or
warning, and the Concessionaire shall be solely responsible for complying with
Hazardous Materials, Laws regarding the disclosure of, the presence or danger of
Hazardous Materials. The Concessionaire shall immediately notify the Trust, in writing,
of any complaints, notices, warning, reports or asserted violations of which the
Concessionaire becomes aware relating to Hazardous Materials on or about the Park.
The Concessionaire shall also immediately notify the Trust if the Concessionaire knows
or has reason to believe a complaint, notice, warning, report or violation will be released
on or about the Park.
Notwithstanding the above, the Concessionaire must submit a list to the
Executive Director of all chemical products (soaps, glass cleaners, detergents,
degreasers, etc.) it proposes to use in its operations. Such list shall be accompanied by
a Material Safety Data Sheet for each product. It shall be the responsibility of the
Concessionaire to keep the list updated as Sheetssasare
cand� on s warrant. or elThe Truand st
l
provide new or updated Material Safety Data
reserves the right to require any product to be deleted from such list if, in the sole
opinion of the Trust, such product is causing damage to the Park or is unsafe.
10.3 SURVIVAL OF THE CONCESSIONAIRE'S OBLIGATION. The respective
rights and obligations of the Trust and the Concessionaire under this Article X entitled
23
:449225-5
"Hazardous Materials" shall survive the expiration or earlier termination of this
Agreement and shall remain in effect until the applicable statute of limitations has
lapsed.
ARTICLE X1
SPECIAL ASSESSMENTS OR TAXES
CONCESSIONAIRE TO PAY. During the term hereof, Concessionaire covenants and
agrees to pay before delinquency all Taxes assessed as a result of or in connection
with the Concession. In the event Concessionaire appeals a Tax, Concessionaire shall
immediately notify Trust of its intention to appeal said Tax and shall furnish and keep in
effect a surety bond of a responsible and substantial surety company acceptable to the
Trust or other Security satisfactory to the Trust in an amount sufficient to pay one
hundred percent of the contested Tax with all interest on it and costs and expenses,
including attorneys' fees, to be incurred in connection with the appeal and amount of
tax owed. As provided in Article XIV, Concessionaire agrees to indemnify,, defend and
hold harmless the City, Trust or Army Corps against a Tax that is assessed against
them as a result of or in connection with the Concession or Concessionaire.
ARTICLE XII
INSPECTION OF BOOKS AND RECORDS
12.1 BOOKS AND RECORDS. During the term of this Agreement and any
extension thereto, the Concessionaire shall maintain and keep, or cause to be
maintained and. kept at the Concession Area or such other location in Miami -Dade
County approved in writing by the Executive Director, the complete and accurate
books, records and accounting of the number of balloon passengers, and Gross
Revenues, as defined herein, and any other supporting documentation for such
determination. The Trust, or its duly authorized agents or representatives, during
the hours of 9:00 AM to 5:00 PM, Monday through Friday, with five (5) days prior
written notice, shall have the right to examine and inspect such books and
records, which shall exclude specifically any financial data and corporate records
not related to the Concession, but shall include copies of existing agreements in
that regard. The Concessionaire shall keep and preserve, or cause to be kept and
preserved, said records for not less than three (3) years after the payment of the
Concession Fee due under the terms hereof.
12.2
All books records and accounts including sales slips (which will be serially
numbered), cash register tapes, bank statements or duplicate deposit slips, mail orders,
telephone orders, settlement report sheet of transactions with subcontractors,
Concessionaire's sales tax returns applicable to Gross Revenues and all other
supporting records, shall be available for inspection and audit by the Trust, or its duly
authorized agents or representatives, during the hours of 9:00 AM to 5:00 PM, Monday
through Friday, and shall be maintained in accordance with generally accepted
:449225-5
24
accounting procedures. Concessionaire must provide point of sale machines or such
other cash registers or accounting control equipment deemed reasonably necessary
and consented to by the Trust's Executive Director, for proper control of cash and
payments whether such transaction is a cash or credit transaction.
For the same period of time, Concessionaire shall also retain copies of all sales
tax returns covering its management and operation of the Concession, and any other
governmental tax or other returns which show Concessionaire's sales therein, and shall,
upon demand, deliver photographic copies thereof to the Trust. The Concessionaire
will cooperate with the Trust's internal auditors (or such other auditors designated by
Trust) in order to facilitate the Trust's examination of records and accounts.
12.3 AUDITS. The Trust may inspect the books and records of the Concessionaire
relating to the performance of this agreement, and shall be permitted to conduct ari
audit pursuant to Section 18-102 of the City of Miami Code of Ordinances. With each
audit, the Concessionaire shall pay to the Trust any unpaid balance of the Trust Fee, if
any, and the Trust shall refund overpayments, if any, and in either case payment shall
be made within thirty (30) days notice from the Trust as to the results of the audit.
The Concessionaire shall allow the Trust or the auditors of the Trust to inspect
all or any part of the compilation procedures for the aforesaid monthly reports. Said
inspection shall be reasonable and is at the sole discretion of the Trust. Records shall
be available Monday through Friday, inclusive, between the hours of 9:00 AM and 5:00
PM at the Concession Area or at such other location in Miami which may be approved
by the Trust's Executive Director.
. The acceptance by Trust of payments of the Trust Fee shall be without prejudice
to Trust's right to conduct an audit in order to verify the amount of annual Gross
Revenues made by Concessionaire in connection with or as a result of the Concession.
ARTICLE XIII
MODIFICATIONS AND IMPROVEMENTS FOR
CONCESSION OPERATIONS
13.1 MODIFICATIONS. The Concessionaire shall not make or permit to be made
any Modifications without the prior written consent of the Executive Director. The Trust
consents to the Modifications to the Concession Area as delineated in Attachment E.
If the Executive Director grants consent for Modifications to be made to the
Concession Area, then:
ike
r in
(i) Modifications shall be performed and local statutes, lawsa ordinances nanceseand
accordance with all applicable Federal,
regulations, as they presently exist and as they may be amended hereafter.
25
:449225-5
(ii) All Modifications shall be made at the Concessionaire's sole cost and
expense.
(iii) The Concessionaire shall pay for and obtain the necessary and applicable
permits in compliance with all Federal, State and local laws, rules and regulations in
connection with any Modification made by the Concessionaire to the Concession Area.
(iv) Upon the termination of the Agreement, Concessionaire shall remove the
Modifications from the Concession Area. If any part of the Park is in any way damaged
by the removal of such items, said damage shall be repaired by the Concessionaire at
its sole cost and expense.
(v) Should the Concessionaire fail to repair any damage caused by the
Concessionaire to the Park within thirty (30) days after receipt of written notice from the
Executive Director directing the required repairs, the Concessionaire shall be in default
and the Trust shall cause the Concession Area to be repaired at the sole cost and
expense of the Concessionaire. The Concessionaire shall pay the Trust the full cost of
such repairs within thirty (30) days of receipt of an invoice indicating the cost of such
required repairs, Failure to pay such invoice within such time period shall result in the
Trust applying the Deposit towards the past due amount. This provision shall survive
the termination of this Agreement.
13.2 LIENS AND ENCUMBRANCES. The Concessionaire shall keep the Park free
and clear of any liens and encumbrances in connection with the Concession. Nothing
in this Agreement shall be construed as constituting the consent or request of the Trust,
expressed or implied, by inference or otherwise, to any contractor, subcontractor,
laborer or material men to perform of any labor or the furnishing of any materials for any
specific Modification, or repair of or to the Concession Area or any other portion of the
Park, nor as giving the Concessionaire the right, power or authority to contract for or
permit the rendering of any services or the furnishing of any materials that would give
rise to the filing of any mechanics liens or other encumbrance against the Army Corps,
the City or the Trust's interest in the Park, respectively.
If any lien shall at any time be filed against the Army Corps, the City or the Trust
as a result of any Modification undertaken by the Concessionaire, the Concessionaire
shall cause it to be discharged of record within twenty (20) days after the date the
Concessionaire has knowledge of its filing or institute an action challenging the lien. If
the Concessionaire shall fail to discharge a lien; or, Concessionaire shall institute an
action with the appropriate Court seeking the discharge within that period, then in
addition to any other right or remedy, the Trust may, but shall not be obligated to,
discharge the lien either by paying the amount claimed to be due or by procuring the
discharge of the lien by deposit in court of bonding, or in the event the Trust shall be
entitled, if it so elects, to compel the prosecution of any action for the foreclosure of the
lien by the lienor and to pay the amount of the judgment, if any, in favor of the lienor
with interest, costs and allowances with the understanding that all amounts paid by the
Trust shall constitute Additional Fee due and payable under this Agreement and shall
:449225-5
26
be repaid to the Trust by the Concessionaire immediately upon rendition of an invoice
or bill by the Trust. The Concessionaire shall not be required to pay or discharge any
lien so long as the Concessionaire shall in good faith proceed to contest the lien by
appropriate proceedings and if the Concessionaire shall have given notice in writing to
the Trust of its intention to contest the validity of the lien and shall furnish and keep in
effect a surety bond of a responsible and substantial surety company reasonably
acceptable to the Trust or other security reasonably satisfactory to the Trust in an
amount sufficient to pay one hundred ten (110) percent of the amount of the contested
lien claim with all interest on it and costs and expenses, including reasonable attorneys'
fees, to be incurred in connection with it.
ARTICLE XIV
INDEMNIFICATION AND INSURANCE
14.1 INDEMNIFICATION AND HOLD HARMLESS..
es and each of them from he Concessionaire shall
and
indemnify, defend and hold harmless the
against all Toss, costs, penalties, fines, damages, claims, expenses (including attorney's
fees) or liabilities (collectively referred to as "Liabilities") by reason of any injury to or
death of any person or damage to or destruction or loss of any property arising out of,
resulting from, or in connection with (i) the performance or non-performance of the
Concession services contemplated by this Agreement, which is or is alleged to be
directly or indirectly caused, in whole or in part, by any act, omission, default or
negligence (whether active or passive) of the Concessionaire or its employees, agents
or Subcontractors (collectively referred to as "Concessionaire"), regardless of whether it
is, or is alleged to be, caused in whole or part (whether joint, concurrent or contributing)
by any act, omission, default or negligence (whether active or passive) of the
indernnitees, or any of them or (ii) the failure of the Concessionaire to comply with any
of the paragraphs herein or the failure of the Concessionaire to conform to statutes,
ordinances, or other regulations or requirements of any governmental authority, federal
or state, in connection with the performance of this Agreement. The Concessionaire
expressly agrees to indemnify and hold harmless the Indemnitees, or any of them, from
and against all liabilities, which may be asserted by an employee or former employee of
the Concessionaire, or any of its Subcontractors, as provided above, for which the
Concessionaire's liability to such employee or former employee would otherwise be
limited to payments under state Workers' Compensation or similar laws.
in case any action or proceeding shall be brought against Indemnitees by
reason of any claim, the Concessionaire upon notice from Indemnitees shall defend the
same at the Concessionaire's expense by counsel approved in writing by Indemnitees.
Indemnitees reserve the right to defend themselves.
The Concessionaire shall immediately notify the Indemnitees, in writing, of any
claim or action filed, of whatever nature, arising out of the use or operation of the
Concession Area by the Concessionaire, its agents, contractors, employees, servants
or invitees. The Concessionaire shall also immediately notify the Indemnitees if the
Concessionaire knows or has reason to believe a claim or action will be filed, of
27
:449225-5
whatever nature, arising out of the operation of the Concession or use of the
Concession Area by the Concessionaire, its agents, contractors, employees, servants
or invitees.
The Concessionaire shall also indemnify, protect, defend and hold the Trust free
and harmless from and against any and all claims, liabilities, penalties, forfeitures,
losses and expenses (including attorneys' fees) or death of or injury to any person or
damage to any property whatsoever, arising from or caused in whole or in part, directly
or indirectly, by the presence in or about the Park of any Hazardous Materials placed in
or about the Park by the Concessionaire or at the Concessionaire's direction or used by
the Concessionaire or by the Concessionaire's failure to comply with any Hazardous
Materials Law or in connection with any removal, remediation, cleanup, restoration and
materials required hereunder to return the Concession Area and any other property of
whatever nature to their condition existing prior to the appearance of the Hazardous
Materials,
The Concessionaire shall hold harmless and indemnify the lndemnitees for any errors
in the provision of the Concession or for any fines, which may result from the
Concessionaire's services.
14.2 INSURANCE. Prior to the installation of any equipment, Modifications, or
personal property within the Park, the Concessionaire shall provide the Trust with a
certificate of insurance acceptable to the Trust and the City Risk Administrator, and the
Concessionaire shall, and at all times thereafter during the term hereof, maintain such
insurance coverage as is set forth on Attachment F hereto.
The I ndemnitees shall be named additional insureds an all insurance policies required
herein. All such insurance, including renewals, shall be subject to the approval of the
City for adequacy of protection and evidence of such coverage shall be furnished to the
City on Certificates of Insurance indicating such insurance to be in force and effect and
providing that it will not be canceled during the performance of the services under this
contract without thirty (30) calendar days prior written notice to the City. Completed
Certificates of Insurance shall be filed with the City prior to the performance of services
hereunder, provided, however, that the Concessionaire shall at any time upon request
file duplicate copies of the policies of such insurance with the City.
lf, in the judgment of the City, prevailing conditions warrant the provision by the
Concessionaire of additional liability insurance coverage or coverage, which is different
in kind, the City reserves the right to require the provision by the Concessionaire of an
reasonable amount or type of coverage different from the amounts or kind previously
required and shall afford written notice of such change in requirements thirty (30) days
prior to the date on which the requirements shall take effect. Should the
Concessionaire fail or refuse to satisfy the requirement of changed coverage within
thirty (30) days following the City's written notice, this Contract shall be considered
terminated on the date that the required change in policy coverage would otherwise
:449225-5
28
take effect; provided, however, that this Agreement shall not be terminated if the
additional insurance coverage specified is not available from the insurance industry.
ARTICLE XV
DAMAGE OR LOSS TO THE CONCESSIONAIRE'S PROPERTY
15.1 RISK OF LOSS. The Indemnitees assume no responsibility whatsoever for
any person or property that enters any area that Concessionaire or its invitees may use
as a result of or in connection with the Concessieo�eleases # In �erintion of the demnitees�of and
xecution of
this Agreement by the Trust, the Concessions persons any ar d
all liability for any loss, injury, death, theft, damage or destruction to any
f
any goods or personal property, which may occur in or about the Concessionaire
including such circumstances where it could be alleged that the Indemnitees or their
contractors were negligent.
15.2 NOTICE OF DAMAGES OR INJURIES, The Concessionaire shall give the Trust
prompt written notice of any fire, damage or injury occurring at the Concession Area.
15.3 VANDALISM AND THEFTS. Where vandalism or theft occurs to the
Concessionaire's machines, equipment, trade fixtures or operation, it shall be the sole
responsibility and liability of the Concessionaire to insure, repair or replace damaged or
stolen equipment at the Concessionaire's expense within forty-eight (48) hours. Upon
request of the Concessionaire, the Executive Directorvandalized
may grant an ndalz d property.itlonal period of
All vandalism
time for the repair and replacement of the stolen
or theft shall be reported to the Executive Director immediately upon discovery..
15.4 THEFT AND LOSS LIABILITY. The Trust will not be responsible for any of the
Concessionaire's internal losses or thefts, and any such losses must be borne solely by
the Concessionaire out of its own funds they may not be used to diminish or be
absorbed by payment due the Trust.
ARTICLE XVI
NON -ASSIGNMENT
16.1 NON -ASSIGNMENT. The Concessionaire shall not sell, assign or otherwise
transfer the Concession or any rights and privileges under this Agreement or its
ownership or control of the Concession to a third party .
ARTICLE XVII
SIGNAGE
17.1 DIRECTIONAL SIGNAGE. Until such time as the Trust develops a uniform
system for directional signage in the Park, the Concessionaire shall be permitted, at its
29
:449225-5
sole cost, to place a maximum of five (5) directional signs within the Park directing
invitees to the location of the Concession Area. The directional signs shall be no larger
than the following dimensions: 2' X 2' and shall only include the Concessionaire's name
and directions to the Concession. Additional signs may be placed in the Park at the
Executive Director's sole discretion. The Executive Director shall approve, at his or her
sole discretion, the placement of the Concessionaire's
ThedContional sign cessiona �e shall not permit
determine
its compatibility with the appearance of the Park
any signs or advertising matter, other than those directly related to the Concession, to
be placed on the directional signs,
17.2 PROMOTIONAL SIGN PLACEMENT. The Concessionaire shall be permitted to
have a maximum of three (3) promotional signs within the Park, which includes one
promotional sign in the Concession Area. Promotional signs shall only include the
Concessionaire's name and information that is directly related to the Concession. The
Executive Director shall approve, in his or her sole discretion, the placement of the
Concessionaire's promotional signs in the Park and determine its compatibility with the
appearance of the Park. The Concessionaire shall not permit any signs or advertising
matter to be placed on any portion of the Concession Area. The promotional signs shall
be no larger than the following dimensions: 2' X 2'
17.3 MARQUEE SIGNAGE. The Trust has a marquee sign located on Biscayne
Boulevard. Concessionaire may place information about the Concession on the Trust's
marquee sign, but the terms and conditions shall be subject to a separate written
agreement of the parties,
17.4 SIGN MAINTENANCE. The Concessionaire shall, at its sole cost and
expense, install, provide, maintain its sign, decoration, advertising matter or other
media as may be permitted hereunder in good condition and repair at all times.
ARTICLE XVIII
TETHERED BALLOON SPONSORSHIP
Concessionaire agrees to provide the Trust with copies of the sponsorship
agreements within ten (10) days of their execution.
ARTICLE XIX
NOTICE
All notices or other communications, which shall or may be given pursuant to this
Agreement shall be in writing and shall be delivered certified mail addressed to the
parties at their respective addresses indicated below or as the same may be changed in
writing from time to time. Such notice shall be deemed given on the day on which
personally served, or if by certified mail, on the fifth day after being posted or the date
of actual receipt, whichever is earlier.
To the Concessionaire:
To the Trust:
:449225-5
To the Army Corps: 1
30
Mark A. Funnen
President
SkyLift Holding, LLC
1109 Ponce de Leon Blvd.
Coral Gables, FL 33134
With a copy to:
Mark S. Scott, Esq.
Becker & Poliakoff, P.A.
121 Alhambra Plaza
10th Floor
Coral Gables, Florida
33134
Timothy F. Schmand
Executive Director
Bayfront Park
Management Trust
301 N. Biscayne Blvd.
Miami, Florida 33132
With a copy to:
Jorge L. Fernandez
City Attorney
City of Miami
444 SW 2 Avenue, Suite
945
Miami, Florida 33130
ARTICLE XX
DEFAULT
if Concessionaire fails to comply with any term or condition of this Agreement, or
fails to perform any obligations hereunder, then Concessionaire shall be in default.
Upon the occurrence of a default hereunder, the Concessionaire shall have thirty (30)
days from its receipt of written notice to cure the default(s), except that in the event of
equipment damage, where the Concessionaire is unable to obtain replacement parts
from the manufacturer within the thirty (30) days, the Executive Director shall extend
such time period by a reasonable period of time. Failure to cure the default(s) within
such period may, in addition to all remedies available to it by law, immediately result in
termination of this Agreement by the Trust. The Concessionaire understands and
agrees that termination of this Agreement under this section shall not release
Concessionaire from any obligation accruing prior to the effective date of termination.
ARTICLE XXI
CONTRACT DISPUTE RESOLUTION
21.1 DISPUTE RESOLUTION PROCEDURE. The Concessionaire understands and
agrees that all disputes between the Concessionaire and the Trust based upon an
alleged violation of the terms of this Agreement by the Trust shall be resolved in
accordance with the procedure outlined below, prior to the Concessionaire being
entitled to seek judicial relief in connection therewith.
Disputes less than $5,000: The Executive Director, after obtaining the approval of the
City Attorney, shall have the authority to resolve controversies between the
Concessionaire and the Trust, which arise under, or by virtue of this Agreement;
:449225-5
31
Disputes _ between $5.000 - S25,000: The Executive Director's decision shall be
approved or disapproved by the City Attorney and the Trust.
Disputes more than $25,000: In cases involving an amount greater than $25,000.00,
the City Commission must approve the Trust's decision.
Such authority extends, without limitation, to controversies based upon breach of
contract, mistake, misrepresentation or lack of complete performance, and shall be
invoked by a contractual party by submission of a protest to the Executive Director.
21.2 CONTRACT DISPUTE DECISIONS. If a dispute is not resolved by mutual
consent, the Executive Director shall promptly render a written report stating the
reasons for the action taken by Executive Director, the Trust or the City Commission, as
applicable, which shall be final and conclusive, A copy of the decision shall be
immediately provided to the protesting party, along with a notice of such party's right to
seek judicial relief, provided that the protesting party shall not be entitled to such judicial
relief without first having followed the procedure set forth in this section,
ARTICLE XXII
TERMINATION OF CONCESSION AGREEMENT
22.1 TERMINATION BY THE TRUST FOR CAUSE. In the event the Concessionaire
fails to cure a default as set forth at Article XX, the Trust shall have the right to
terminate this Agreement. Upon termination, the Concessionaire's rights to manage
and operate the Concession will end forthwith.
22.2TERMINATION BY EITHER PARTY WITHOUT CAUSE. Either party may
terminate this Agreement at its sole option, for any reason whatsoever, upon at
least thirty (30) days written notice to the other Party. Upon such termination, the
Concessionaire agrees to waive any claims for damages, including Toss of
anticipated fees and profits, arising out of the termination of this Agreement.
The Concessionaire or its personal property shall not continue to be in the Park thirty
(30) days after the Termination Date. 1f the Concessionaire or its personal property
remains within the Park after thirty (30) days following the Termination Date, the Trust
shall utilize any and all remedies at law or at equity to effectuate removal of the
Concessionaire or its personal property.
22.3 TERMINATION BY THE CONCESSIONAIRE WITH CAUSE. In the event the
Trust defaults or fails to observe the terms and conditions of this Agreement in any
material aspect, the Concessionaire shall have the right to terminate the Agreement
after notifying the Trust in writing of the action required to correct the problem and
giving the Trust thirty (30) days from receipt of said notice to correct the problem.
32
:449225-5
22.4 RESTORATION OF THE PARK. At the expiration of the Term or earlier
termination of this Agreement, the Concessionaire shall no longer provide Concession
services to the Park and shall deliver to the Trust all keys that it has to any part of the
Concession Area or the Concession Area. The Concessionaire shall return all facilities,
equipment and other items furnished by the Trust, including any portion of the Park that
may have been used by the Concessionaire, in the condition in which received,
reasonable wear and tear excepted, It is agreed that, upon the expiration of the Term
or earlier termination of this Agreement, Concessionaire shall be responsible for
restoring the portions of the Park as outlined in Attachment G.
The Concessionaire will be responsible for all losses and damages to the Park
resulting from its default, failure or negligence during the Term of this Agreement. If
within thirty (30) days of termination of this Agreement the Trust determines that any
part of the Park is damaged as a result of the Concession, and that such condition was
not readily evident at the time of the Concessionaire surrendered possession of the
Concession Area, the Trust reserves the right to have the Concessionaire pay for the
repairs to said portions of the Park. This clause shall survive the expiration of this
Agreement.
22.5 HAZARDOUS WASTE. Upon termination or expiration of this Agreement, the
Concessionaire shall, at its sole cost and expense, cause all Hazardous Materials,
including their storage devices placed in or about the Concession Area by the
Concessionaire or at the Concessionaire's direction to be removed from the
Concession Area and transported for use, storage or disposal in accordance and
compliance with all applicable Hazardous Materials Laws.
ARTICLE XXIII
ABANDONMENT
if the Concessionaire shall vacate or abandon the Concession Area during the
Term or Additional Term of this Agreement for a period of ten (10) consecutive days or
thirty (30) days during a Concession Agreement Year, except as provided in this
Agreement, the Trust, at its option and without serving notice elsewhere required in this
Agreement, may either:
(i) Take immediate possession of the Concession Area for the remainder of the
Term or Additional Term, and contract with another person or corporation for the
provision of Concession at the Concession Area. In such event the Concessionaire
shall remain liable for all obligations under this Agreement; or
(ii) Cancel this Agreement; or
(iii) Remove and store Concessionaire's Modifications and personal property at
Concessionaire's expense. Such items shall otherwise be disposed of according to
Florida law, as abandoned property.
:449225-5 33
ARTICLE XXIV
UNAVOIDABLE DELAY AND IMPOSSIBILITY
24.1 UNAVOIDABLE DELAY. For the purpose of any of the provisions of this
Agreement, neither the Trust nor the Concessionaire shall be considered in breach of
or in default of any obligations under this Agreement in the event of an Unavoidable
Delay, which results in impossibility of performance, in accordance with the provisions
of Article below entitled "Performance of Obligations."
24.2 PERFORMANCE OF OBLIGATIONS. In the event of an Unavoidable Delay
resulting in impossibility of performance, the time for performance of obligations,
covenants, and/or agreements, which are affected by the Unavoidable Delay shall be
extended for the period of time of the Unavoidable Delay or for such period of time as
may be necessary under the circumstances, provided that the party seeking the benefit
of the provisions of this Article shall:
(a) As soon as reasonably possible, but no later than thirty (30) days after
such party shall have become aware of the Unavoidable Delay, give
notice, in writing to the other party hereto of the Unavoidable Delay, which
notice shall specify, which of the obligations, covenants, and/or
agreements of this Agreement the notifying party is unable to perform at
the time of such notice and how the Unavoidable Delay has affected the
party's performance of such obligations, covenants, and/or agreements;
and
(b) As soon as reasonably possible, the party claiming such an Unavoidable
Delay shall commence and shall continue diligently the performance of
such obligations, covenants, and/or agreements so delayed.
ARTICLE XXV
MISCELLANEOUS
25.1 COMPLIANCE WITH LAWS. The Concessionaire shall comply with all applicable
federal, state and local laws, regulations, orders, ordinances and codes pertaining to its
performance under this Agreement.
25.2 INDEPENDENT CONTRACTOR. The Concessionaire and its employees and
agents shall be deemed to be independent contractors, and not agents, employees or
representatives of the Army Corps, the City or the Trust and shall not attain rights or
benefits under the Civil Service or Pension Ordinances of the City nor any rights
: 449225-5 34
generally afforded classified or unclassified employees; further they shall not be entitled
to the Florida Workers Compensation benefits as employees of the City or the Trust.
25.3 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the
parties herein, their heirs, executors, legal representatives, successors and assigns.
25.4 AMENDMENTS. The Trust and the Concessionaire by mutual agreement shall
have the right but not the obligation to amend this Agreement. Such amendments must
be in writing and shall be effective only when approved by the Trust and signed by the
Executive Director and the Concessionaire and shall be incorporated as a part of this
Agreement.
25.5 AWARD OF CONCESSION AGREEMENT. The Concessionaire warrants that it
has not employed or retained any person employed by the Trust to solicit or secure this
Agreement and that it has not offered to pay, paid, or agreed to pay any person
employed by the Trust any fee, commission, percentage, brokerage fee, or gift of any
kind contingent upon or resulting from the award of this Agreement.
25.6 CONFLICT OF INTEREST. The Concessionaire is aware of the conflict of
interest laws of the City of Miami (Miami City Code Chapter 2, Article V), Dade County,
Florida (Dade County Code, Article 2-11.1 et, seq.) and of the State of Florida as set
forth in the Florida Statutes, and agrees that it will fully comply in all respects with the
terms of said laws and any future amendments thereto.
25.7 GOVERNING LAW. This Agreement shall be construed and enforced according
to the laws of the State of Florida,
25.8 COURT COSTS AND .ATTORNEYS' FEES. In the event that itbecomes
necessary for the Trust to institute legal proceedings to enforce the provisions of this
Agreement, each party shall pay its own court costs unless otherwise provided by
federal or state law.
25.9 SEVERABILITY. If any provision of the Agreement, or any paragraph, sentence,
clause, phrase, or word, or the application thereof, is held invalid, the remainder of the
Agreement shall be construed as if such invalid part were never included herein and the
Agreement shall be and remain valid and enforceable to the fullest extent permitted by
law.
25.10 WAIVER. No waiver of any provision hereof shall be deemed to have been
made unless such waiver is in writing and signed by the Trust or the Concessionaire.
The failure of either party to insist upon the strict performance of any of the provisions
or conditions of this Agreement shall not be construed as waiving or relinquishing in the
future any such covenants or conditions but the same shall continue and remain in full
force and effect.
:449225_5 35
25.11 CAPTION. The captions contained in this Agreement are inserted only as a
matter of convenience and for reference and in no way define, limit or prescribe the
scope of this Agreement or the intent of any provisions thereof.
25.12 PUBLIC RECORDS. To the extent applicable to the Concessionaire, it shall
comply with the Public Records Law, Florida Statutes, Chapter 119, The
Concessionaire shall not be deemed to acknowledge the applicability of the Public
Records Law to its operation by entering into this Agreement,
25.13 VENUE. Venue for any legal proceedings shall be Miami -Dade County.
25.14 REAFFIRMATION. The Concessionaire hereby reaffirms all of the
representations contained in the Solicitation Documents which is incorporated by
reference and made a part of this Agreement.
25.15 TIME. If a provision in the Agreement does not clarify whether it is
calculated in calendar or business days, then the days shall be calculated in calendar
days. If the time that any act, duty or obligation becomes due falls an a Saturday,
Sunday or holiday, then unless otherwise provided in this Agreement, such act, duty or
obligation shall become due the next business day,
ARTICLE XXVI
APPROVAL BY THE UNITED STATES ARMY CORPS OF ENGINEERS
The Army Corps owns a portion of the Park and has leased that portion to the
City under the Army Corps Lease. This Agreement is subject to the. approval and
conditions of the Corps. Lease and shall not be binding until the Trust receives written
approval of this Agreement from the Army Corps. In the event that the Army Corps
does not grant its approval of this Agreement, the parties will endeavor to locate
another site for the Concession. However, if the parties are not able to agree upon the
location and the terms and conditions of such use at that location within 180 days after
the denial from the Army Corps, then this Agreement shall be terminated upon thirty
(30) days notice to the other party to this Agreement. The Trust, by letter from the
Executive Director, may have the option to continue negotiations for use of an alternate
location for an additional sixty (60) days without approval from the Trust.
ARTICLE XXVII
AMENDMENTS TO PLANS
Pursuant to this. Agreement, the Concessionaire shall submit an Operations
Plan, Marketing Plan and a Safety Plan which shall be attached to and incorporated
with this Agreement which has obtained Trust and Commission approval. The Trust
:449225-5 36
shall approve, without additional Commission approval, any subsequent amendments
to these aforementioned plans that solely pertain to the Concession Area.
ARTICLE XXVIII
ENTIRE AGREEMENT
This Agreement represents the total agreement between the parties. All other
prior agreements between the parties, either verbal or written, are superseded by this
Agreement and therefore no longer valid.
IN WITNESS WHEREOF, the Parties hereto have caused this instrument to be
executed, through their proper officials, the day and year first above written.
Attest: THE CONCESSIONAIRE
By: By:
Print Name Print Name
Print Title Print Title
❑ate: Date:
Attest:
Print Name:
Print Title:
Bayfront Park Management Trust,
a limited agency and instrumentality
of the City of Miami
Timothy F. Schmand
Executive Director
:449225-5 37
Date: Date:
APPROVED AS TO FORM APPROVED AS TO INSURANCE
AND CORRECTNESS REQUIREMENTS
Jorge L. Fernandez
City Attorney
Date:
Dania Carrillo
Risk Management Administrator
Date:
:449225-5 38