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HomeMy WebLinkAboutExhibitCONCESSION AGREEMENT between CITY OF MIAMI and KARLEN FOODS, INC. dated , 2005 Re6 CONCESSION AGREEMENT THIS AGREEMENT made and entered into this day of , 2003, by and between the City of Miami, Florida, a municipal corporation of the State of Florida, (hereinafter referred to as "City"), Karlen Foods, Inc., a corporation duly organized and existing according to the laws of the State of Florida and having an usual place of business at 1000 Ponce De Leon, #325, Coral Gables, Florida 33134 (hereinafter referred to as "Concessionaire"). RECITALS WHEREAS, the City has issued a Request for Letters of Interest ("RFLI") for the operation of the food, beverages and related services and other authorized concessions at the Coconut Grove Expo Center (the "Facility"); and WHEREAS, Concessionaire submitted its proposal ("Proposal") which has been selected as the most qualified proposal for the provision of the concessions. The RFLI and the Proposal are sometimes referred to herein, collectively, as the Solicitation Documents, and are by this reference incorporated into and made a part of this Agreement. WHEREAS, the Commission of the City of Miami, by Resolution No. - , adopted on , 2005, approved the selection of Concessionaire and authorized the City Manager to execute a contract, under the terms and conditions set forth herein. NOW THEREFORE, in consideration of the premises and of the terms, covenants and conditions hereinafter contained to be kept and performed by the respective parties, it is agreed as follows: I DEFINITIONS A. "Location" means the Coconut Grove Expo Center, located at 2700 South Bayshore Drive, Miami, Florida 33133. B. "Concessions" means the sale of Concession Products (hereinafter defined) in the Concession Areas (hereinafter defined) to patrons of events at the Location, and all operations necessarily incidental to such sale in accordance with the provisions of this Agreement. C. "Concession Areas" means all food and refreshment stands and vending areas in the interior of the Location and in the area between the exterior of the Coconut Grove Expo Center structure and the parking areas surrounding the structure, "Concession Areas" does not mean tenant office spaces, City's office space, City's operations spaces, or any adjacent areas outside the confines of the Location. D. "Concession Products" means all food, beverages (alcoholic and nonalcoholic), candy, and similar products, which the City directs or allows the Concessionaire to sell to patrons of events in the Concession Areas pursuant to this Agreement. E. "Manager" means the Coconut Grove Expo Center Manager or his/her designee, or any other person designated by the City in writing. F. "User" means any person or persons, group or groups, other than the City, who use any or all portions of the Location, for the purpose of conducting entertainment, sporting, conferences, exhibits, banquets, seminars, concerts or other events and/or activities. G. "Gross Receipts" means all moneys received by, or due to, the Concessionaire for sales made or services rendered at or from the concessions, catering or from any other source related directly or indirectly to the concessions, including catering revenues from Subcontractor Items (hereinafter defined), whether collected or uncollected, for cash or for credit. Gross receipts includes all moneys from any temporary and permanent concession stands and sales by Concessionaire's employees or any others acting on behalf of Concessionaire. These individuals are sometimes referred to as Concessionaires, traveling concessionaires, whether collected or uncollected, for cash or credit, provided however, that any sales taxes imposed by local or federal law which are separate to, and paid by, purchaser of any item sold by the concessionaire or any other authorized service or activity of the Concessionaire and directly payable to a taxing authority shall be excluded from the computation of "Gross Receipts." Gross Receipts shall be computed prior to any deduction for "spoilage" or "shortage." Inventory disappearances or shrinkage's up to a maximum of one percent (1%) of gross receipts are excluded from the "gross receipts" provided, that any such inventory disappearances or shrinkage's must be immediately reported to the City. Gross Receipts also includes all amounts received by the Concessionaire from sales made by Subcontractors. Gross receipts shall be maintained for accounting purposes in a segregated account acceptable to the City, which shall be with a bank located within the City of Miami, Florida. H. "Subcontracted Items" means concession products authorized by the Manager, in writing, to be sold by Subcontractors, provided, however, that in no event shall the following items be deemed "Subcontractor Items": hot dogs, sausage sandwiches, hamburgers, candy, popcorn and potato chips. "Subcontractors" means those individuals hired by the Concessionaire to sell Subcontracted Items which have been authorized by the City, in writing, to be sold or provided by an approved subcontractor. II. LICENSE GRANTED The City hereby grants to the Concessionaire, and the Concessionaire hereby accepts from the City, the exclusive right and privilege to operate the Concessions in the Concession Areas in accordance with the terms and provisions set forth herein. The license herein granted is also referred to herein as the "Concession". The Concessionaire agrees to operate the Concessions in accordance with, and perform all of the services and assume all of the obligations set forth in, the Proposal, as supplemented or amended in this Agreement. The Concessions hereby granted shall apply to events conducted at the Location during the term of this Agreement, provided, however, that the City retains the right to determine which events will not require the services of the Concessionaire. The Concession herein granted also grants the Concessionaire the right to hire Subcontractors to sell Subcontractor Items provided that the Subcontractors and the Subcontracted Items are first approved by the Manager in writing. In such event the Concessionaire shall be fully responsible for the Subcontractor's performance hereunder. The Manager retains the right to reject a proposed Subcontractor or the Subcontracted Items, in his/her sole discretion. The City agrees that, upon granting the use of the Location to Users, it will not grant any rights for food and beverage Concession to any User other than as herein excepted. III TERM With the understanding that the City is considering alternative use for the Facility and its land, the term of this Agreement shall be for an initial period of one (1) year commencing on the date hereof. The City shall have two (2) options to extend the term, each for a period of (1) year each, at the City's sole discretion. The City shall exercise each option by the City Manager giving written notice of the City's exercise to the. Concessionaire at least thirty (30) days prior to the expiration of the then current term. IV CONSIDERATION In consideration for the concessions privileges herein granted, the Concessionaire agrees to pay to the City a rate of 33 percent of Gross Receipts. (a) Percentage Fee: The Percentage Fee shall be based on a percentage of Gross Receipts, as set forth below, and shall be paid to the City on the tenth (l5th) day of each month during the Term, for sales during the immediately preceding month: On the fifteenth (15`h) day of each month, together with the payment of the Percentage Fee, Concessionaire shall deliver to the City a report of Gross Receipts for the preceding month, in such form as is acceptable to the City, detailing each source of sale and such additional information as the City may reasonably require (the Monthly Gross Receipt Report"). If such payment is not received by the 15th day of the month, Concessionaire shall be subject to a 5% late fee which will be assessed on the amount owed to the City of Miami. Concessionaire shall also submit to the City, simultaneously with the Monthly Gross Receipt Report, a copy of the monthly State of Florida prescribed Sales and Use Tax return on an applicable Daily Inventory Report indicating the specific types of products sold during the applicable period, including alcoholic and nonalcoholic beverages sales. Not later than sixty (60) days after each anniversary date of this Agreement, Concessionaire shall deliver to the City its annual audited financial statements, for the immediately preceding year, together with a certification, showing the amount of Gross Receipts and sources of sales, prepared by a certified public accountant, and certifying the amount of compensation due and/or paid to the City in accordance with the provisions of this Section. In the event that the amount paid and/or due to the City is greater than the amount of the Guarantee, then the Concessionaire shall pay the difference to the City within ten (10) days after delivery of the annual report. For purposes of this Agreement each Agreement Year shall consist of a twelve (12) month period ending on each anniversary date of this Agreement. V PERFORMANCE BOND/ IRREVOCABLE LETTER OF CREDIT Upon execution of this Agreement, Concessionaire shall deliver to the City an Unconditional Irrevocable Letter of Credit ("L/C") in the amount of $5,000, to secure Concessionaire's performance under this Agreement. The L/C shall be satisfactory to the City, in form and substance. The City shall have the right to draw upon the L/C immediately upon the occurrence of a default. In such event, the Concessionaire shall have a period of thirty (30) business days in which to replace the L/C by a new one in the amount of $5,000. VI ACCOUNTING AND FISCAL CONTROLS Concessionaire shall provide, at its sole cost and expense, the services of an independent Certified Public Accountant (CPA) who shall be responsible for the accounting and fiscal control of the Concession, including, without limitation, daily inventory, sales records, and revenue reports.. The CPA shall prepare all reports required hereunder. Concessionaire shall make available to the City a daily opening and closing inventory of all novelties and/or merchandise on a form approved by the City. Concessionaire shall keep a record of gross sales of all concession goods and merchandise by category. The payment of State of Florida Sales Tax on concession goods and merchandise is the sole responsibility of Concessionaire, and such tax shall be included in the price of the goods and merchandise. Concessionaire shall allow the City to inspect, check and/or inventory concession goods and merchandise, inspect the stands and areas prior to opening, both during the operation or after the close of the concession. VII MAINTENANCE The Concessionaire shall repair and maintain, at his own cost and expense, all Concession equipment and furnishings needed to conduct it's operation according to reasonable standards acceptable to the City. At the expiration of this Agreement, Concessionaire shall leave the Concession Areas in at least the same condition, as they were at commencement of this Agreement, normal wear and tear excepted. Further, the Concessionaire will furnish, at its own cost and expense, all expendable equipment necessary to the successful operation of the Concessions and shall replace at its own expense any equipment provided under the Agreement which has been destroyed, damaged, or become inoperable due to normal wear and tear, with like equipment. The City will maintain the below ground level connection lines for water and sewer utilities during the term of this Agreement. Concessionaire will furnish and maintain all fire equipment in all concession stands and vending areas as required by the City of Miami Fire Department. The City shall not be responsible for any goods, merchandise or equipment stored at the location; nor, will it be responsible for damage resulting from a power failure, hurricane, tornado, flood, fire, explosion and/or other causes. Concessionaire shall not maintain, keep or erect any structure or equipment or make any alterations or additions to the location without the City Manager's prior express written permission. The City shall provide all electricity and water, except that utility connections required for improvements to the Concession Areas installed by Concessionaire shall be the financial responsibility of the Concessionaire. The City and the Concessionaire agree that prior to the beginning of each Agreement Year, a representative of the parties hereto shall inspect the equipment used in the operation of the Concessions, whether owned by the City or Concessionaire. Should the City reasonable determine that an equipment is in need of replacement, then Concessionaire shall, at its sole cost and expense, provide such replacements. The Concessionaire shall provide, at his own expense, all garbage, trash, and rubbish receptacles within the confines of its designated areas, and shall provide a sufficient number of these receptacles for its own use and or the use of the public. Dumping of such receptacles and the removal of trash, rubbish, and garbage from Concession Areas shall be the responsibility of the Concessionaire. The Concessionaire shall provide its own janitorial services, and shall pick up, clean up and dispose of all litter for all space assigned or used in its operations immediately after the conclusion of each event. The Concessionaire shall also clean and keep Concession Areas free of debris before, during and after events. The Concessionaire shall provide sufficient waste receptacles at each Concession Area and make certain that they are kept clean and promptly serviced during and after each event. The Concessionaire shall be responsible for the entire area, except public seating areas and restrooms, vending areas and work area, and such areas shall be kept clean and free from all rubbish. Concessionaire shall be responsible for the removal of all vendors' effects from the site within the time mutually determined by the Manager and .the Concessionaire. Any effects remaining in the site beyond the time allowed for its removal shall be removed and stored by the City at Concessionaire's sole cost and expense. The intent of this provision is to avoid slip -and -fall hazards. Repair for damage done by the Concessionaire to floors, walls, windows or other property in said radius by reason of the operation of said stand will be the responsibility of the Concessionaire. The Concessionaire must employ the necessary personnel before, during and after the hours of any event to comply with these provisions. The Concessionaire shall comply with and observe all federal, state and local laws, ordinance and regulations as to sanitation and the purity of food and beverages or otherwise relating to its operation under this Agreement. The Concessionaire shall be responsible for arranging for pest control service to ensure conformance with the State and county health codes. Concessionaire shall provide a copy of the service agreement of the pest control firm that is retained to the City. VIII CONCESSION STANDS The Concessionaire shall re -design and operate all concession facilities or stands ("Stand") as provided in the Proposal, and at the designated and mutually agreed upon Iocations. Each Stand shall be attractive, sanitary, and fully self-contained as authorized by the Concessionaire and City. . Stands may be mobile units brought onto the site, or if stationary, must be easily erected and broken down. Size and location requirements for Stands are to be determined by the Concessionaire, subject to the Manager's approval and space limitations for specific locations. Ix PERSONNEL Concessionaire shall comply with all of the provisions, and observe the procedures, set forth in the Proposal in the staffing of its operations at the Location. Without limiting the generality of the foregoing, Concessionaire agrees to hire the personnel dedicated to the Location. The Concessionaire shall employ, train and supervise personnel with appropriate qualifications and experience in sufficient numbers to provide all services appropriate for the operations of the Concessions granted under this Agreement. The Concessionaire shall be deemed to represent and warrant to the City that all personnel engaged in the provision of services hereunder is fully qualified to perform such services. Concessionaire shall have a hiring practice regarding minorities and women, which will ensure equity in the employment and utilization of same. Concessionaire acknowledges that it has been furnished a copy of Ordinance No. 10062, the Minority and Women Business Affairs Procurement Program Ordinance of the City of Miami, and agrees to comply with all applicable substantive and procedural provisions therein, including any amendments thereto. Concessionaire acknowledges that it has been furnished a copy of City of Miami Ordinance No. 10032, the First Source Hiring Ordinance, and shall comply with the applicable provisions including any amendments thereto. X MANAGEMENT / TRAINING PROGRAM Concessionaire shall designate a general manager for the Location, (the "General Manager") who shall be responsible for the overall management and operation of the concessions at the Coconut Grove Expo Center. Said General Manager shall remain on call on a 24-hour basis during events at the Location should he/she need to be contacted by the Manager. In addition, the Manager shall be provided with a telephone number and beeper where said individual can be reached at all times, 24 hours per day, 7 days per week. The General Manager shall immediately respond to any requests and/or concerns by the Manager within a maximum of 24 hours, or irmediately on the day of event. The General Manager and the Manager shall consult from time to time with reference to the operations of Concessionaire to review such operations to provide concession services in a proper manner for persons attending the Location. Additionally, prior to an event, the General Manager and the Manager shall meet to discuss the concessions operational requirements for the particular event. XI FOOD QUALITY AND PRICING Concessionaire shall provide the highest quality of both food and beverage products to the patrons of the Location, and the City reserves the right to determine, in good faith, where a particular product or ingredient complies with the aforementioned standard. Further, the Manager reserves the right to approve the quality of menus and prices to be offered by Concessionaire. Food and beverages sold in the Location shall be at prices competitive to other convention and expo facilities or arenas in the South Florida area. The Concessionaire shall not charge prices more than is standard in the industry in the area. Menu prices shall include all applicable sales taxes. All products listed on the menu board for sale at any event must be available for sale in sufficient quantities to meet expected demands at each event. If, during an event, Concessionaire runs out of water, beer or soda, it will be required to pay to the City percentage rent on such products in order to compensate the City for loss revenue. The amount of the loss revenue shall be determined based on the amount of such products sold at the last comparable event. XII BEER OR WINE CONCESSIONS The type of event at which beer, and/or wine may be sold shall be designated by the Manager. The final decision as to when, where, if, and which types of alcoholic beverages may be sold is at the sole discretion of the City. It is agreed and understood that there shall be no adjustment of the percentage payment to be paid by the Concessionaire should the City restrict or prohibit the sale of alcoholic beverages at certain events. Sales of beer and wine shall be confined to the areas of the Location designated and approved by the Manager and by the licenses held by the Concessionaire for the sale of beer and wine. The privilege to sell alcoholic beverages shall be subject to the provision of all laws of the State of Florida, City, and County of Dade, applicable to the sale of wine, and beer. The Concessionaire shall be responsible for obtaining and maintaining throughout the term of this Agreement all necessary licenses for the sale of such beverages, and shall pay all fees and costs incurred for such licenses. Concessionaire represents and warrants to the City that it currently possesses all necessary licenses to provide the food and beverage concessions, and specifically the sale of beer. The Concessionaire shall comply with and observe all the laws and regulations governing the serving of beer. Violation of this provision shall give the City the right to terminate this Agreement without notice. Service of beer and wine will be the exclusive right of the Concessionaire. The City may prohibit the sale of beer before, during, or after any event, including but not limited to gun and knife shows, and or at a specific point in time during the event, when City deems it proper to do so. This right of prohibition shall not be unreasonably applied and shall be exercised by the Manager. The Manager, to the extent possible, shall notify Concessionaire in writing at least one (1) week in advance of the date of any event at which this right of prohibition is to be exercised. XIII LICENSES AND TAXES The Concessionaire shall pay for and obtain all licenses and permits necessary for the operation of said business, including those required for the on -premise sale of beer and wine. Concessionaire represents and warrants that it currently has, and at all times during the term hereof shall maintain, all licenses and permit required for the full and proper performance of this Agreement. The Concessionaire specifically agrees to conform to the terms and provisions of the applicable Retailers Occupational Tax Law and to pay to the State of Florida, promptly when due, all taxes assessed against the Concessionaire or the City by the State of Florida. Concessionaire agrees to include the State Sales Tax in all the advertised prices. Concessionaire further agrees to pay promptly all taxes imposed in connection with its performance under this Agreement. The Concessionaire shall pay all social security, unemployment insurance, old age retirement and other federal and state taxes which are measured by the wages, salaries or other remuneration paid to persons employed by Concessionaire. XIV HOURS/DAYS OF OPERATION Unless otherwise agreed to by the Manager, the Concessionaire must have the Concessions open and in operation at any and all events from the time the doors are opened until the conclusion of the events. XV CONDITION OF LOCATION/CAPITAL IMPROVEMENTS The Concessionaire has inspected the Location, including all food service equipment and facilities presently thereon, and accepts it in "as is" condition. Concessionaire shall provide, purchase, install and/or construct, at its sole cost and expense, the equipment, fixtures and improvements. The location, type, price and installation of the Improvements shall be approved by the Manager. All improvements shall be made in accordance with all applicable laws, codes and regulations and shall belong to the City. Concessionaire shall secure all necessary permits, licenses, and taxes for the construction of improvements hereunder, including but not limited to, permits and utility connection fees, if required. Concessionaire agrees also that any and all building permits, and any other necessary approvals, including approval of the Manager, shall be obtained prior to the commencement of each applicable component of construction. XVI INDEMNIFICATION Concessionaire shall indemnify, defend and hold harmless the City and its officials, employees and agents (collectively referred to as "Indemnities") and each of them from and against all loss, costs, penalties, fines, damages, claims, expenses (including attorney's fees) or liabilities (collectively referred to as "Liabilities") arising out of, resulting from, or in connection with (i) the performance or non-performance of the services contemplated by this Agreement which is directly or indirectly caused, in whole or in part, by a default or negligence (whether active or passive) of Concessionaire or its employees, agents or subcontractors (collectively referred to as "Concessionaire"), 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. Concessionaire expressly agrees to indemnify and hold harmless the Indemnities, or any of them, from and against all liabilities which may be asserted by an employee or former employee of 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. Concessionaire further agrees to indemnify, defend and hold harmless the Indemnities from and against (i) any and all Liabilities imposed on account of the violation of any law, ordinance, order, rule, regulation, condition, or requirement, in any way related, directly or indirectly, to Concessionaire's performance hereunder, compliance with which is left by this Agreement to the Concessionaire, and (ii) any and all claims, liens and/or suits for labor and materials furnished by the Concessionaire or utilized in the performance of this contract or otherwise. Where not specifically prohibited by law, Concessionaire further specifically agrees to indemnify, defend and hold harmless the Indemnities from all claims and suits for any liability, including, but not limited to, injury, death, or damage to any person or property whatsoever, caused by, arising from, incident to, connected with or growing out of the performance or non-performance of this Agreement which is, or is alleged to be, caused in part (whether joint, concurrent or contributing) or in whole by any act, omission, default, or negligence (whether active or passive) of the Indemnities. The foregoing indemnity shall also include liability imposed by any doctrine of strict liability. XVII INSURANCE The Concessionaire shall maintain in effect at all times during the term of this Agreement the following insurance: Commercial General Liability with limits of $1,000,000 per occurrence $2,000,000 Aggregate for bodily injury and property damage. The certificate must also contain equal limits of coverage for Products Liability, and personal and advertising injury liability, and must further include coverage for waiver of subrogation, contractual liability, and Fire Damage for (Any One Fire) with limits of $100,000, City of Miami must appear as an additional insured on this coverage. Automobile Liability covering all owned, hired and non -owned autos with limits of at least $300,000 (combined Single Limit) for bodily injury and property damage. City of Miami must appear as an additional insured on this coverage. Worker's Compensation as defined in section 440.107 (2), FS.. The employer's liability section must reflect limits of $100,000 each accident, $100,000 disease, each employee, and $500,000 policy limit for any one disease. The certificate must contain waiver of subrogation in favor of the City of Miami. Liquor Liability must be included with limits of at least $3,000,000. The above policies shall provide the City of Miami with written notice of cancellation or material change from the insurer not less than (30) days prior to any such cancellation or material change.: Companies authorized to do business in the State of Florida, with the following qualifications, shall issue all insurance policies required above: The company must be rated not less than "A" as to Management, and not less than "Class V" as to Financial Strength, by the latest edition of Best's Insurance Guide, published by A.M. Best Company Oldwick, New Jersey, or its equivalent. All policies and/or certificates of insurance are subject to review and verification by Risk Management prior to insurance approval. In no event shall the provisions of this Section be construed in any way to limit Concessionaire's obligations under any provision of this Agreement, including, but not limited to, Concessionaire's obligations to indemnify, defend and hold harmless the City. 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 Agreement 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 Concessionaire shall at any time upon request file duplicate copies of the policies of such insurance with the City. If, in the judgment of the City, prevailing conditions warrant the provision by Concessionaire of additional liability insurance coverage or coverage which is different in kind, the City reserves the right to require the provision by Concessionaire r of an amount of coverage different from the above stated amounts or kind 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 Agreement shall be considered terminated on the date that the required change in policy coverage would otherwise take effect. XVIII DEFAULT If Concessionaire fails to comply with any term or condition of this Agreement, or fails to perform any of its obligations hereunder, then Concessionaire shall be in default. Upon the occurrence of a default hereunder, the City, in addition to all remedies available to it by law, shall have the following options, and its choice of any option shall in no way waive its right to select any other option at any time: (a) The City must give Concessionaire written notice of such default. If the Concessionaire does not cure said default within thirty (30) days, in the event of a non - monetary default, and within seven (7) days in the event of a monetary default, after written notice thereof is given to Concessionaire, then the City may terminate this Agreement, assume the operation of the Concession, and exclude the Concessionaire from the Location, and/or the City may recover at law any and all claims which may be due the City and/or (b) The City may perform such work as it deems necessary to cure said default and charge the Concessionaire for the full cost of labor and materials expended. Concessionaire understands and agrees that termination of this Agreement under this Section shall not release Concessionaire from any obligations accruing prior to the effective date of termination. In the event the City defaults in the performance of any of the provisions of this Agreement, Concessionaire may give the City written notice of such default. If the City fails to cure said default within thirty (30) days after written notice was given, or make reasonable progress to cure said default, then Concessionaire may terminate this Agreement. XIX CITY'S TERMINATION RIGHTS The City shall have the right to terminate this Agreement, in the event of a default, as described in Section XVII above, if the City decides to suspend or permanently terminate the operations of the Expo Center, or like events, by giving written notice to Concessionaire at least sixty (60) days prior to the effective date of such termination. Concessionaire shall be reimbursed for the depreciated capital improvements made to the facility and will not be responsible to pay the City of Miami for the minimum guarantee of that year. XX ASSIGNMENT, SUBLEASE Concessionaire shall not sublet, transfer, convey, assign nor permit the use of the rights, privileges or premises granted under this Agreement in whole or in part to any other person, firm or corporation without written consent of the City Manager which consent may be withheld, in the City Manager's sole discretion which will not be unreasonable withheld. XXI ABANDONMENT If Concessionaire vacates or abandons its operations hereunder for a period of twenty (20) days, and the abandonment continues for a period of seven (7) calendar days after written notice thereof is given to Concessionaire by the Manager, the City Manager, at his/her option and without serving notice elsewhere required in this Agreement, may: (a) take immediate possession thereof for the remainder of the said term, and, at his/her discretion, re -advertise and solicit proposals for the provision of concession services, with Concessionaire remaining liable for the payments of Minimum Guarantee, and for all other obligations under this Agreement to the same extent as if said abandonment had not taken place; or (b) cancel this Agreement, without prejudice to its rights and remedies under applicable laws. XXII BUSINESS RECORDS The Concessionaire shall maintain, in Miami -Dade County, Florida, complete and accurate books and records reflecting its operations under this Agreement and these shall be open for inspection at reasonable times during the term of this Agreement. The books and records shall include daily sequentially renumbered receiving reports and supporting vendor documentation indicating description and quantity of goods received: Photocopies of payment checks shall be attached to the invoices; where payment has been made in cash, the person making payment to the Concessionaire shall sign the applicable invoice acknowledging the amount paid. XXIII AUDIT AND INSPECTION RIGHTS The City may, at reasonable times, and for a period of up to three (3) years following the date of final payment by Concessionaire to the City under this Agreement, audit, or cause to be audited, those books and records of Concessionaire which are related to Concessionaire's performance under this Agreement. Concessionaire agrees to maintain all such books and records at its principal place of business, in Miami -Dade County, Florida for a period of three (3) years after final payment is made under this Agreement. The City may, at reasonable times during the term hereof, inspect Concessionaire's facilities and perform such tests, as the City deems reasonably necessary, to determine whether the goods or services required to be provided by Concessionaire under this Agreement conform to the terms hereof and/or the terms of the Solicitation Documents, if applicable. Concessionaire shall make available to the City all reasonable facilities and assistance to facilitate the performance of tests or inspections by City representative XXIII AWARD OF AGREEMENT Concessionaire represents and warrants to the City that it has not employed or retained any person or company employed by the City to solicit or secure this Agreement and that it has not offered to pay, paid, or agreed to pay any person any fee, commission, percentage, brokerage fee, or gift of any kind contingent upon or in connection with, the award of this Agreement. XXIV PUBLIC RECORDS Concessionaire understands that the public shall have access, at all reasonable times, to all documents and information pertaining to City contracts, subject to the provisions of Chapter 119, Florida Statutes, and agrees to allow access by the City and the public to all documents subject to disclosure under applicable law. Concessionaire's failure or refusal to comply with the provisions of this section shall result in the immediate cancellation of this Agreement by the City. XXV COMPLIANCE WITH LAWS, REGULATIONS AND DIRECTIVES Concessionaire understands that agreements between private entities and local governments are subject to certain laws and regulations, including laws pertaining to public records, conflict of interest, record keeping, etc. City and Concessionaire agree to comply with and observe all applicable laws, codes and ordinances as the may be amended from time to time. Concessionaire will use the subject premises for no purpose other than specified in this Agreement and shall conduct its business and operate the concessions in strict compliance with all applicable laws, including specifically, without limitation, laws, ordinances and regulations pertaining to the operation of food serving establishments and all applicable health and fire codes. Concessionaire understands that the City reserves the right in its sole discretion to cancel, interrupt, or terminate any performance, event, public or private gathering upon its premises, whether or not admission has been charged, and to dismiss the audience, or cause the same to be dismissed; and the Concessionaire hereby agrees that it will not make or allow to be made against the City, any claim for damages to the Concessionaire or other party arising out of any acts of the City, its officers, agents, or employees, in the exercise of the City's discretion as aforesaid. All areas which are open to the public shall be available for use and enjoyment by the public without regard to race, color, creed, sex, age, national origin, marital status, sexual preference or disability. XXVI CONFLICT OF INTEREST Concessionaire is aware of the conflict of interest laws of the City of Miami (Miami City Code Chapter 2, Article V), Miami -Dade County, Florida (Dade County Code, Section 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. Concessionaire, in the performance of this Agreement, shall be subject to the more restrictive law and/or guidelines regarding conflict of interest promulgated by federal, state or local government. XXVII • NONDISCRIMINATION Concessionaire represents and warrants to the City that Concessionaire does not and will not engage in discriminatory practices and that there shall be no discrimination in connection with Concessionaire's performance under this Agreement on account of race, color, sex, religion, age, disability, marital status, national origin or sexual preference. Concessionaire further covenants that no otherwise qualified individual shall, solely by reason of his/her race, color, sex, religion, age, disability, marital status, national origin, or sexual preference, be excluded from participation in, be denied services, or be subject to discrimination under any provision of this Agreement. XXVIII MINORITY AND WOMEN BUSINESS AFFAIRS AND PROCUREMENT PROGRAM The City has established a Minority and Women Business Affairs and Procurement Program (the "M/WBE Program") designed to increase the volume of City procurement and contracts with Blacks, Hispanic and Women -owned business. The MIWBE Program is found in Ordinance No, 10062, a copy of which has been delivered to, and receipt of which is hereby acknowledged by, Concessionaire. Concessionaire understands and agrees that the City shall first give written notice of non-compliance before terminating or canceling this Agreement, without penalty to the City, and to eliminate Concessionaire from consideration and participation in future City contracts if Concessionaire, in the preparation and/or submission of the Proposal, submitted false of misleading information as to its status as Black, Hispanic and/or Women owned business and/or the quality and/or type of minority or women owned business participation. XXIX NOTICES All notices or other communications required under this Agreement shall be in writing and shall be given by hand -delivery or by registered or certified U.S. Mail, return receipt requested, addressed to the other party at the address indicated herein or to such other address as a party may designate by notice given as herein provided. Notice shall be deemed given on the day on which personally delivered; or, if by mail, on the fifth day after being posted or the date of actual receipt, whichever is earlier. TO PROVIDER: Karl Allen, President Karlen Foods, Inc. 1000 Ponce De Leon Coral Gables, Florida 33134 TO THE CITY: Joe Arriola, City Manager Miami City Hall 3500 Pan American Drive Miami, Florida 33133 Alejandra Argudin, Acting Director Department of Public Facilities 400 SE 2"d Avenue Miami, Florida 33131 City Attorney 444 S.W. 2" Avenue, Suite 940 Miami, Florida 33130 XXX MISCELLANEOUS PROVISIONS A. This Agreement shall be construed and enforced according to the Iaws of the State of Florida. B. Title and paragraph headings are for convenient reference and are not a part of this Agreement. C. No waiver or breach of any provision of this Agreement shall constitute a waiver of any subsequent breach of the same or any other provision hereof, and no waiver shall be effective unless made in writing. D. Should any provision, paragraph, sentence, word or phrase contained in this Agreement be determined by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable under the laws of the State of Florida or the City of Miami, such provision, paragraph, sentence, word or phrase shall be deemed modified to the extent necessary in order to conform with such laws, or if not modifiable, then same shall be deemed severable, and in either event, the remaining terms and provisions of this Agreement shall remain unmodified and in full force and effect or limitation of its use. E. This Agreement constitutes the sole and entire agreement between the parties hereto. No modification or amendment hereto shall be valid unless in writing and executed by property authorized representatives of the parties hereto. xxXl SUCCESSORS AND ASSIGNS This Agreement shall be binding upon the parties hereto, their heirs, executors, legal representatives, successors, or assigns. XXXII INDEPENDENT CONTRACTOR Concessionaire has been procured and is being engaged to provide services to the City as an independent contractor, and not as an agent or employee of the City. Accordingly, Concessionaire shall not attain, nor be entitled to, any rights or benefits under the Civil Service or Pension Ordinances of the City, nor any rights generally afforded classified or unclassified employees. Concessionaire further understands that Florida Workers' Compensation benefits available to employees of the City are not available to Concessionaire, and agrees to provide workers' compensation insurance for any employee or agent of Concessionaire rendering services to the City under this Agreement. XXXIII CONTINGENCY CLAUSE Funding for this Agreement is contingent on the availability of funds and continued authorization for program activities and the Agreement is subject to amendment or termination due to lack of funds, reduction of funds and/or change in regulations, upon thirty (30) days notice. XXXIV REAFFIRMATION OF REPRESENTATIONS Provider hereby reaffirms all of the representations contained in the Solicitation Documents. xxxv ENTIRE AGREEMENT/ INTERPRETATION/CONFLICT This instrument, its attachments and the Solicitations Documents constitute the sole and only agreement of the parties relating to the subject matter hereof and correctly set forth the rights, duties, and obligations of each to the other as of its date. Any prior agreements, promises, negotiations, or representations not expressly set forth or incorporated into this Agreement are of no force or effect. In the event of a conflict or inconsistency between the provisions of this Agreement and the Proposal, the provision that is most favorable to the City shall be deemed to control. xxxvI COUNTERPARTS This Agreement may be executed in two or more counterparts, each of which shall constitute an original but all of which, when taken together, shall constitute one and the same agreement. IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed by their respective officials thereunto duly authorized, this the day and year above written. "City" ATTEST: City of Miami, a municipal corporation By: Priscilla Thompson, City Clerk Joe Arriola, City Manager "Concessionaire" ATTEST: Karlen Foods, Inc. a Florida corporation Print Name: Title: Corporate Secretary By: Print Name: Title: President APPROVED AS TO FORM AND APPROVED AS TO INSURANCE CORRECTNESS: REQUIREMENTS: Jorge L. Fernandez Dania Carrillo City Attorney Risk Management Administrator