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HomeMy WebLinkAboutExhibite • CONCESSION AGREEMENT ISSUED BY THE CITY OF MIAMI TO KARLEN FOODS, INC. DB/A TROPICS FOR THE OCCUPANCY OF THE CONCESSION FACILITY LOCATED AT GRAPELAND AQUATIC CENTER 1550 NW 37th AVENUE, MIAMI, FLORIDA CONCESSION AGREEMENT This Concession Agreement ("Agreement"), made this day of 2008, by and between the City of Miami, a municipal corporation of the State of Florida, (hereinafter referred to as the "City") and Karlen Foods, Inc., d/b/a Tropics (hereinafter referred to as the "Concessionaire") an organization incorporated under the Laws of the State of Florida. WITNESS: WHEREAS, the City desires to have quality food and beverage services provided through a Concessionaire at the Grapeland Aquatic Center ("Aquatic Center") located within the Grapeland Heights Park at 1550 NW 37th Avenue, Miami, Florida ; and WHEREAS, the City issued a Request for Letters of Interest (RFLI) for the operation of a food and beverage Concession Facility and related catering, mobile vending carts or kiosks and vending machine services at the Premises; and WHEREAS, the City and Concessionaire ("the Parties") desire and intend to enter into this Agreement for Concessionaire's use of a portion of the Premises ("Area"); and WHEREAS, Concessionaire submitted its proposal response ("Proposal") and has been selected as the most qualified Respondent for the provision of the concessions; and NOW, THEREFORE, in consideration of the mutual covenants and agreements herein set forth, the Parties agree as follows: ARTICLE I TERMS 1.1 DEFINITIONS OF TERMS. For the purpose of this Concession Agreement, the terms defined in this Article shall have the following meanings: 1. "Additional Terms" shall mean each additional one-year renewal period over and above the initial three year Term (as defined below) of this Agreement. 2. "Area(s)" shall mean the Concession Facility situated near the southeast corner of the Grapeland Aquatic Center located at 1550 NW 37th Avenue, Miami, Florida as depicted in Exhibit "A" attached hereto and made a part hereof, vending machine and up to two (2) mobile vending locations, if any, as specified by the Director of the Parks and Recreation Department and as amended from time to time. 3. "City Manager" is the City Manager for the City of Miami who is the administrative head of the City's government who has been appointed by the City Commission of the 2 City of Miami in accordance with the provisions of Section 15 of the Charter of the City of Miami, as amended, and who is authorized to execute this Agreement and other documents including notices required hereunder. 4. "Concession Agreement Year" shall mean a consecutive twelve (12) month period during the Term and Additional Terms, if exercised, commencing on the Commencement Date, provided that the Concession Agreement Year may be adjusted by City to commence on the first day of a calendar month. 5. "Concession Facility" shall mean approximately 625 square feet of space on the Premises consisting of a kitchen preparation space, pass -through window, together with certain furniture, fixtures and equipment set forth in the Inventory. 6. "Commencement Date" shall mean the date that the City notifies the Concessionaire in writing that the Concession Facility is available for occupancy by the Concessionaire. 7. "Concessionaire Manager" shall mean the person authorized by the Concessionaire to act fully on behalf of the Concessionaire in managing the Food and Beverages Concession Facility and ancillary mobile vending carts, vending machine and catering services, if any, as required by this Agreement. 8. "Contract Administrator" shall be the Director of Public Facilities authorized by the City to administer the Agreement and coordinate the activities of the Concessionaire at the Premises. 9. "Director" shall mean the Director of the Parks and Recreation Department. 10. "Fiscal Year" means the twelve month tax reporting period chosen by the Concessionaire. 11. "Food and Beverages Services" shall mean all services necessary for furnishing and operating the Concession Facility, catering service, mobile vending cart or kiosk and vending machine services at the Premises. 12. "Grapeland Aquatic Center" shall be referred to throughout this document as the Aquatic Center. 13. "Gross Revenues" shall mean all revenues received by the Concessionaire derived directly from concession business operations located on, consummated, initiated or concluded on or at the Areas, including business made or performed by means of mobile vending cart or kiosk concessions, vending machine and/or catering services, whether such sales shall be credit or cash sales or otherwise. Gross Revenues shall be reduced by: (i) cash or credit card refunds for returned merchandise provided said amounts had been previously included as part of Gross Revenues; (ii) amount of any sales or excise tax levied upon any sales, rentals and/or services rendered and payable to the appropriate 3 governmental authority; (iii) exchanges of merchandise between different locations of Concessionaire; (iv) sales of non -inventory items such as fixtures and furniture; (v) gratuities paid to employees; and (vi) interest earned on Concessionaire's deposit accounts, earnings or profits on Concessionaire's investments, and similar passive or investment income of Concessionaire. 14. "Inventory" shall mean furniture, fixtures and equipment provided by City to Concessionaire for its use at the Concession Facility, a list of which is provided in Exhibit "B" attached hereto and made a part hereof. 15. "Premises" shall mean the City -owned real property and improvements located approximately at 1550 NW 37th Avenue, Miami, Florida also known as the Aquatic Center, as depicted in Exhibit "C" attached hereto and made a part hereof. 16. "Subcontractor" shall mean any individual, partnership or corporation who is contractually bound to the Concessionaire to perform a specific portion of the total services under this Agreement, only after prior approval by the Director. 17. "Term" shall mean the initial three-year period of time granted to the Concessionaire for use of the Concession Facility and the Additional Terms once exercised and approved by the City. 18. "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. ARTICLE II GENERAL DESCRIPTION OF CONCESSION 2.1 DESCRIPTION OF CONCESSION PRIVILEGES. The City grants to Concessionaire, subject to the exceptions and conditions hereinafter set forth, the privilege to use the Areas for the following purposes and for no other purpose whatsoever other than specified herein without prior written consent of the Director, which consent may be conditioned or withheld at the Director's sole discretion: (i) To occupy and use the Concession Facility on an exclusive basis for the purposes of providing food and beverage services ("Services") to Aquatic Center customers; and (ii) To use the outdoor picnic tables adjacent to the Concession Facility and the available parking as existing at the Commencement of this Agreement on a non-exclusive basis to accommodate Concessionaire's customers and employees. (iii) To use restrooms on a non-exclusive, shared basis to accommodate Concessionaire's customers and employees. (iv) Concessionaire may be offered the opportunity to provide catering and may use the Concession Facility for such, however, the City reserves the right to negotiate with other vendors for catering City events and functions. The Concessionaire is hereby permitted to utilize the physical facilities and equipment in the Concession Facility to additionally provide catering services exclusively for non -city events or non -city functions at the Premises and off -site subject to the payment of fees as provided in Section 5.1 during 4 Aquatic Center hours. The City Manager may terminate this privilege of permitting catering at any time, with or without cause, upon providing Concessionaire sixty (60) days advance written notice. (v) To operate up to two (2) mobile vending carts or kiosks at the locations determined by the Director. (vi) To operate vending machines at locations determined by the Director. The privilege to operate and provide the Concession Facility, mobile vending carts or kiosks, vending machines and catering services for the provision of Services is expressly limited to the provision of these services at the Aquatic Center. 2.2 OPERATION OF CONCESSION PRIVILEGES. Starting on the Commencement Date, the Concessionaire shall provide the Services at the Concession Facility in a first class and reputable manner continuously during the entire term of this Agreement. Concessionaire's use and operation of the Areas shall be seasonal and shall coincide with the Aquatic Center's hours of operation, generally from 10:00 to 8:00 pm, as amended from time to time by the Director. The Proposed Seasonal Concession Schedule ("Seasonal Concession Schedule") is depicted in Exhibit D as attached and incorporated hereto. The Director at his sole discretion has the power to extend or otherwise modify these opening hours. It is the intent of the City to allow the Concessionaire to utilize the Concession Facility during the off-season for catering activities, the hours of operation which shall be agreed upon by the parties; however, the Director shall have the final authority as to the approval of such hours. The proposed Commencement Date is subject to construction delays and the City shall not be liable to the Concessionaire for any inconvenience caused or any prospective loss of revenues caused by such delays. If Concessionaire fails or refuses to satisfy any of the foregoing requirements, then in such event, City shall have the right, in addition to all other remedies provided for in this Agreement, to collect, and Concessionaire shall be obligated to pay, as Additional Fees one hundred dollars ($100.00) for each day that Concessionaire does not comply with said requirements. Additionally, the City may provide such Services in any manner it may deem appropriate (subject to City's right to terminate under Section 6.1), and to use any of the food, beverage or other supplies of Concessionaire, which are available, and City shall be entitled to receive all revenues. City shall reimburse Concessionaire for Concessionaire's actual cost of the food, beverage and other supplies actually used. The Concessionaire shall within three (3) days of the Commencement Date, furnish and install, at its own expense, all the vending equipment required to operate and provide the mobile vending carts or kiosks and vending machines and shall at all times keep such mobile and fixed vending machines fully stocked with fresh food and beverages, in good order, condition and repair and in a clean and sanitary condition. 2.3 SANITATION. The Concessionaire shall, at its sole cost and expense, maintain and keep fixtures, Concession Facility's kitchen equipment and personal property and outside seating areas nearby the Concession Facility, whether 5 owned by the Concessionaire, the City or third parties, and all Areas of the Concession Facility and other areas designated for its use, in a clean and sanitary condition satisfactory to the City. Concessionaire is responsible for all janitorial related services including the necessary equipment and cleaning supplies to fulfill the janitorial requirements for the cleaning of the Concession Facility, the outside seating areas nearest the Concession Facility and the Locations of the mobile vending carts or kiosks upon the close of business of each working day. The Concessionaire shall provide the food and beverage services in strict compliance with all applicable Federal, State and local laws and regulations governing this type of operation. Concessionaire shall obtain and maintain a satisfactory rating on all health department sanitation inspections. The Concessionaire shall provide copies of each inspection report to the Contract Administrator and Director within two (2) business days of receipt of the same by Concessionaire. In addition to other rights granted to the City herein, Concessionaire agrees that should its operation or any portion thereof be shutdown for its failure to comply with the requirements of the Health Department of the State of Florida, and such shutdown could have reasonably been averted by Concessionaire, its agents or employees, Concessionaire shall pay to the City as liquidated damages, and not as any penalty therefore, the sum of one hundred dollars ($100.00) per day for each day said shutdown continues. 2.4 QUALITY AND PRICE CONTROL. The Concessionaire shall provide the City employees and the public with Services of the highest quality, which shall include a minimum menu of hamburgers, hot dogs, pizza, french fries, sandwiches, chicken and steak sandwiches, nachos and cheese, popcorn, pastries, pastelitos, croquettes, ice cream and sodas at reasonable prices. As a condition of this Agreement, the Concessionaire agrees to comply with such standards of quality as may from time to time be adopted by the City in order to insure attainment of quality of Services as hereinabove set forth. It is the intention of the parties that all matters such as prices, portions and quality of food and beverages shall be the same as, or better than that available in comparable concession facilities in the Greater Miami area and for that purpose all such matters shall be proposed by the Concessionaire but shall be subject to the prior written approval of the Director. All items offered for sale must be sold at prices, which are plainly displayed. Concessionaire shall charge reasonable prices for food and beverage products and shall be required to seek approval from the Director for any increases or reductions in prices exceeding 15% of the then -existing prices by submitting a minimum ten (10) days written notice to the Director. The Concessionaire may however, increase or reduce prices by less than 15% without prior approval from the Director. Concessionaire shall not submit request for price changes more frequently than twice during an Agreement Year. City reserves the right to review the prior year's income statement before granting any price increase and to compare with other food and beverage service operations in the Miami area. The failure on the part of the Concessionaire to comply with such price and quality standards as the City may from time to time require, or failure of the Concessionaire to change, correct, or modify its price or quality after written notice duly given by the City to do so, shall be cause for cancellation of this Agreement; provided, however, that no action by the City shall be arbitrary and capricious and the 6 Concessionaire shall be afforded notice by the City in writing, specifying the violations of the standards required under this Agreement, and the date by which compliance must be accomplished. Thereafter, any repetition of the same violations shall be considered a breach of contract and shall be cause for immediate cancellation of this Agreement by the City without further notification. In order to promote the success of the Concessionaire, the City will make reasonable efforts to prevent the Aquatic Center customers from entering the Property with beverage coolers, packaged food and cooked food into the Aquatic Center. 2.5 FOOD AND BEVERAGE WARRANTY. Concessionaire warrants that all merchandise dispensed or served hereunder (Concession Facility, mobile vending carts or kiosks and/or catering services) shall, in all respects, be suitable for human consumption and, in particular, it shall conform to whatever Federal, State, county and local health laws which relate to it. 2.6 PRODUCTS AND PRODUCT/SERVICE PROHIBITIONS. The Concessionaire shall be permitted to use the Concession Facility for the sale of cooked food, snack foods, beverages, sunscreen, sun block, suntan lotion, sun visors, hats, flip flops, aspirin and over the counter medicine, towels (sales or rentals). Any additional items are subject to the prior written approval by the Director. Concessionaire shall also be prohibited from selling, serving or distributing alcohol to customers, from serving beverages to customers in glasses or styrofoam cups, from providing straws to customers. 2.7 CONCESSIONAIRE RESPONSIBILITIES. The Concessionaire covenants and agrees that Concessionaire shall, at its sole cost and expense, operate, manage and maintain the Concession Facility, provide Services, catering and mobile vending cart or kiosk and vending machines services (if any) as required under this Agreement and specifically agrees as follows: A. Concessionaire shall, at its sole cost and expense: (i) purchase all food, beverages, supplies and materials necessary for the operation of its Concession Facility. (ii) provide and maintain credit/debit card services and equipment capable of accepting payment from customers. (iii) make its best efforts to adopt the use of "environmentally -friendly" products in the operation of the Areas, sample products, sample sample product prices and environmentally -friendly management guidelines of which are furnished in Exhibit "E", attached herewith and incorporated herein. (iv) provide and replace, as necessary, all short life small ware including, but not limited to, all paper products including paper 7 cups, paper plates, cookware, cooking and eating utensils, serving utensils, trays, laundry items, and cleaning supplies. (v) provide, clean, maintain, store and secure up to two (2) mobile vending carts or kiosks and vending machines, if any, at its sole expense. (vi) furnish and remove all decorations and promotional material for merchandising in serving and dining areas. (vii) provide all pest control services for the Concession Facility. (viii) provide all cleaning and janitorial services for the Concession Facility and the outside seating areas adjacent and nearest to the Concession Facility including but not limited to vacuuming; spot and deep cleaning of all Concession Facility's flooring, emptying of trash containers, wiping all tables and chairs, pass -through window, microwave, window sill; cleaning of all kitchen equipment, walls and floor tiled areas using a safe method for the grease removal without damaging the equipment and floor, wall and kitchen surfaces. B. The Concessionaire shall, at its sole cost and expense, pay all federal, state and local taxes which may be assessed against its operations, equipment, or merchandise while in or upon the Premises. C. The Concessionaire shall, at its sole cost and expense, provide telephone equipment and service for its own use. D. The Concessionaire shall be responsible for security at the Concession Facility during the scheduled hours of operation. The Concessionaire shall insure that all appropriate equipment and lights have been turned off and appropriate doors locked at the close of operation within the Concession Facility each day and insure that no cash is left on the premises. E. The Concessionaire shall provide the Contract Administrator and Director with the name, phone number, pager number and cellular phone number of a management individual that will be available at any time to call in the case of emergencies. This individual must be available by phone 24 hours a day, seven days a week. F. Concessionaire shall assume all operating costs except as provided herein, retain all receipts and be responsible for payment of all labor, food, operating supplies and all other general administration expenses. G. Concessionaire shall, at its sole cost and expense, be responsible for the provision, installation, repair and preventive maintenance of all food and beverage service equipment necessary to operate the Premises that is not part of the Inventory. 8 H. Concessionaire shall, at its sole cost and expense, provide proper cleaning and removal of grease monthly from exhaust hoods and at least two semi-annual range hood system inspections or more often if circumstances dictate and ensure the proper maintenance, pump -out and removal of grease from grease traps by a certified septic tank hauler not less than once per year and as required by Miami -Dade County Department of Environmental Resources Management (DERM). Concessionaire shall further be responsible for providing, at its sole cost and expense, plumbing maintenance and repair caused by its use of the Concessionaire Facility. Concessionaire shall be responsible for compliance of any applicable laws to operate the business and to provide copies of the operational licenses, permits and required inspection certificates to the Contract Administrator and Director upon request. 2.8 FURNISHINGS AND EQUIPMENT. The City has title to all items listed in the Inventory attached hereto and incorporated herein as Exhibit "B", including the kitchen equipment list. The Concessionaire may use such Inventory, free of any charge, and the Concessionaire hereby accepts the use of such Inventory "as is" and "where is". In the event that the City cannot deliver equipment reasonably suitable for Concessionaire to operate, the City and Concessionaire shall do a walk thru and prepare a punch list of those items in need of repair. Concessionaire shall perform the necessary repairs with the City's prior approval of the repairs. The Concessionaire shall not remove any of the Inventory from the Premises. The City shall replace the kitchen equipment and furniture outlined in the Inventory assuming the replacement of such is not caused by any negligence of the Concessionaire, its employees, agents or representatives. Prior to the beginning of each Agreement Year, City and Concessionaire shall inspect the kitchen equipment as more specifically identified and described in the Inventory and if by mutual agreement they determine that replacement of the equipment is desirable or necessary, then the City shall, at its sole cost and expense, provide such replacements. All of the above mentioned the City shall make replacements with reasonable diligence. Concessionaire shall, at its sole cost and expense, be responsible for the normal operation, cleaning, preventative maintenance, reasonable care and repair of all the equipment and furnishings listed in the Inventory. Concessionaire shall submit a preventative maintenance checklist ("Preventative Maintenance Checklist) as approved by the Department of Public Facilities for the major Inventory items and components of the Concession (the inclusive Inventory list of which shall be determined and provided to the Concessionaire by the Department of Public Facilities within forty-five (45) days of the Commencement Date). Such Preventative Maintenance Checklist for the major components and service and repair logs of all the remaining Inventory items shall be completed and submitted to the Director of the Department of Public Facilities Department by March 31 st, June 30t' September 30th, December 31 st of each Concession Agreement Year and should additionally be made available to the Department of Public Facilities staff upon demand. The Concessionaire shall replace or repair, at its sole cost and expense, any, of those items and any fixture or furnishing provided by the City lost, damaged or destroyed due to the acts, omissions or negligence of the Concessionaire or its agents or employees. 9 2.9 GARBAGE REMOVAL AND RECYCLING. The Concessionaire shall, at its sole cost and expense, provide a sufficient number of trash and garbage receptacles within the Concession Facility. The Concessionaire shall, at its sole cost and expense, be. responsible for the disposal and removal of such interior receptacles, trash and garbage from the Areas utilizing acceptable recycling and environmental techniques and canisters. All trash and garbage collected by the Concessionaire must be removed at the time of collection and sent to areas designated by the Director. The City will provide dumpsters and exterior dumpsters and garbage and trash receptacles for use by the Concessionaire and its customers. Upon implementation of a recycling program at the Premises, the Concessionaire shall separate trash according to classification and send the same to areas designated by Director at no cost to the City. Concessionaire understands that all recyclables are the property of the City. Employees handling hazardous wastes must be trained in the handling of hazardous wastes. Concessionaire shall comply with City policies for collection of paper, aluminum cans and any other products designated by the Director. 2.10 UTILITIES. The City shall provide all utilities (electricity, water, garbage/sewage) available in the Areas, except for HVAC, gas, telecommunications and computer services and networking required for the Concessionaire's use of the Concession Facility. The City reserves the right to interrupt, curtail or suspend the provision of any utility service, including but not limited to, mechanical ventilation and equipment serving the Premises, to which Concessionaire may be entitled hereunder when necessary by reason of accident or emergency, or for repairs, alterations or improvements in the judgment of City desirable or necessary to be made or due to difficulty in obtaining supplies or labor or for any other cause beyond the reasonable control of the City. The work of such repairs, alterations or improvements shall be implemented with reasonable diligence. The City shall in no respect be liable for any failure of the utility companies or governmental authorities to supply utility service to Concessionaire or for any limitation of supply resulting from governmental orders or directives. No diminution or abatement of Use Fees or other charges, nor damages, shall be claimed by Concessionaire by reason of the City's or other individual's interruption, curtailment or suspension of a utility service, nor shall this Agreement or any of Concessionaire's obligations hereunder be affected or reduced thereby. 2.11 CITY TO PROVIDE PARKING/RESTROOMS. The Concessionaire will have access to use any available parking spaces and restrooms at the Aquatic Center for use by its customers and employees on a non-exclusive basis. Concessionaire shall provide its management and employees with identification to facilitate their authorized entry into the parking during their hours of employment. Concessionaire and its employees shall comply with all established parking rules. 2.12 CITY ACCESS TO FACILITY. City and its authorized representative shall have at all times access to Areas assigned to the Concessionaire. City will maintain a complete set of keys to the Concession Facility. Concessionaire shall immediately 10 provide keys to the City for any new equipment or key changes. Key changes must be approved in advance by the Director. 2.13 SAFETY. Concessionaire will allow City inspectors, agents or representatives the ability to monitor its compliance with safety precautions as required by federal, state or local laws, rules, regulations and ordinances. By performing these inspections, the City, its agents, or representatives are not assuming any liability by virtue of these laws, rules, regulations and ordinances. Concessionaire shall have no recourse against the City, its agents or representatives from the occurrence, non-occurrence or result of such inspection(s). Upon occupancy of the Areas, Concessionaire shall contact the City's Risk Management Department to schedule the inspection(s). 2.14 PERFORMANCE REVIEW/INSPECTIONS. 2.14(a) PROBATION REVIEW. At the end of the first season of Concessionaire's occupancy and operation of the Concession Facility, currently proposed to end October 31, 2008, City staff shall perform a Probation Review ("Probation Review") of the Concessionaire's performance under this Agreement, including overall quality of performance, customer service, cleanliness and maintenance of facility and timeliness of payments. In addition to City's termination rights in Paragraphs 6.1 and 6.2 herein, if upon completion of the Probation Review, it indicates poor or unsatisfactory performance in the City's sole discretion, the City shall have the option to terminate this Agreement, without cure, upon providing Concessionaire fifteen (15) days written notice to vacate the Premises. 2.14(b) PERFORMANCE REVIEW/INSPECTIONS. Subsequent to the preliminary Probation Review, the Director or his designee will conduct Performance Reviews and Inspections with the Concessionaire's Manager once yearly to review all aspects of Concessionaire's performance and to examine the Concessionaire's maintenance of the Areas. The Concessionaire shall present to City operational issues, improvements and financial results and disclose any damages or repairs performed to the Premises. 2.15 CONDITION OF PREMISES. Concessionaire accepts the Areas in their present condition and state of repair and without any representation by or on behalf of City, and agrees that City, shall, under no circumstances, be liable for any latent, patent or other defects in the Areas. No representations or warranties whatsoever are made as to its condition, state or characteristics. EXPRESSED WARRANTIES AND IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR USE AND HABITABILITY ARE HEREBY DISCLAIMED. IMPLIED WARRANTIES OF MERCHANTABILITY AND/OR SUITABILITY ARE HEREBY DISCLAIMED. No representation whatsoever is made as to any environmental or soil matter. 11 Concessionaire represents that it has been afforded the opportunity and has the expertise, or the resources necessary to engage others with the expertise, to fully inspect and examine the condition of the Areas and Concessionaire has concluded that the existing condition of the Areas is acceptable to Concessionaire and suitable for Concessionaire's intended operations. ARTICLE III PERSONNEL 3.1 PERSONNEL. The Concessionaire shall, at its own expense, provide adequate staff for the provision of the Services, trained in food and beverage handling. Concessionaire's staff shall provide courteous, efficient and sanitary service to the customers. Persons handling and vending products under this Agreement shall be clean and free from any communicable disease. When informed that an employee of Concessionaire has a condition which reveals that existence of an illness or communicable disease or other condition which could affect the safe, sanitary or healthful operation of the food and beverage service, Concessionaire will ensure that the said employee undergo, by a licensed physician approved by the City, an examination which would either verify or contradict the existence of the condition. If such condition is verified, Concessionaire will not utilize the services of said employee for food handling services until the condition of that employee returns to a healthful status as indicated in writing and signed by the physician. Concessionaire shall conform to such sanitation and food handling requirements as may be prescribed by law and federal, state, and local health authorities. All Concessionaire employees engaged in handling food shall wear when on duty, distinctive uniforms in color and design approved by the City and said uniforms shall be maintained and laundered as necessary by Concessionaire at its sole cost and expense. Additionally, employees engaged in food handling or vending shall also wear hairnets and disposable sanitary gloves at all times. No person shall be allowed to cook, handle, sell or dispense food at the Concession Facility unless he or she is wearing such uniform. The Concessionaire shall, upon written notice from the City, immediately dismiss any employee of the Concessionaire who shall be, in the sole discretion of the City, objectionable and shall cause such person forthwith to leave the Premises. The Concessionaire and its employees shall comply with all City rules and regulations governing access to and conduct on City property. City agrees to furnish the Concessionaire's personnel with identification required for entrance to or exit from the Premises during normal work hours. Concessionaire shall immediately give notice to the Director of any employee no longer performing services on behalf of Concessionaire pursuant to this Agreement. Concessionaire shall return any and all identification media of any such personnel to the Director within one (1) day following the day that the Director is notified as provided in this paragraph. Concessionaire must further immediately return all identification media to Director upon the expiration or earlier termination of this Agreement. Concessionaire's employees may be subject to a background investigation by the City at the Concessionaire's sole cost and expense. Concessionaire agrees that it shall not 12 employ any person to work in the Premises who cannot satisfy said background investigation. 3.2 CONCESSIONAIRE MANAGER. Concessionaire shall have one full-time manager (Concessionaire's Manager) responsible for all food service functions at the Premises as specified in this Agreement. The Concessionaire Manager shall be on -site during all hours the Concession Facility is open. The Concessionaire's Manager must have a minimum of three consecutive years within the last five years of experience in a similar operation with comparable responsibilities. The Concessionaire's Manager will have education and/or experience in food service with particular emphasis upon effective financial controls and merchandising techniques. 3.3 PERSONNEL TRAINING. The Concessionaire shall recruit, train, supervise, direct, discipline and if necessary, discharge any and all personnel working in the Food and Beverage Service facilities employed by the Concessionaire. The Concessionaire shall have adequately trained personnel to maintain a high quality of food and beverage services as required by the City. Concessionaire shall ensure that critical positions (those that are necessary to open and operate the Concession Facility) will have adequate back- up employees to call in to cover for absenteeism. Concessionaire shall require employees to comply with all instructions, rules and regulations of the City. Concessionaire's employees must comply with City's no smoking policy. 3.4 LABOR RELATIONS. 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 Concessionaire has knowledge that any actual or potential labor dispute is delaying or threatens to delay the timely performance of the food and beverage services called for under this Agreement, Concessionaire shall immediately contact the Director by phone or pager and provide a written follow-up notice of the dispute. Concessionaire shall continue to provide services under the Agreement in the event of strikes and other labor disturbances. ARTICLE IV TERM 4.1 TERM. The term of this Agreement shall be for a period of three (3) years from the Commencement Date unless sooner terminated as provided herein (the "Term"). This Agreement may be extended by mutual consent for two (2) additional one (1) year periods upon the same terms and conditions contained herein (the "Additional Terms"). In order to exercise each extension, Concessionaire must deliver written notice of its intent to extend the Agreement to the City three (3) months in advance of expiration of the Term or Additional Term, but no earlier than six (6) months prior to the expiration of the Term or Additional Term. Upon receipt of such notice, City shall conduct an audit of Concessionaire's compliance with the provisions of this Agreement and notify Concessionaire within forty-five (45) days from receipt of the request of its intent to grant 13 or deny the request for extension. Before extending the Agreement, the City reserves the right to review the income statement for the most recent year's operation and make mutually agreed upon revisions in the financial arrangements. The City Manager has the right to extend this Agreement for the additional terms stated in the Agreement. 4.2 HOLDING OVER. If Concessionaire shall be occupying and using the Concession Facility and operating and/or providing catering for city -sponsored or non - city events and functions, vending machines and mobile vending carts or kiosks, if any, after the Termination Date or after the termination of any of the Additional Terms, with the expressed or implied consent of the City, the use granted under this Agreement shall become one from month -to -month terminable by either party on thirty (30) days prior written notice. Such occupancy shall be subject to all terms, conditions, provisions and obligations of this Agreement including the payment of all existing fees and charges, taxes, assessments as detailed in Section 10.1 herein. The provisions of Section 4.2 shall be in addition to any liability Concessionaire may have to City in respect of its holdover. In the event that Concessionaire fails to peacefully surrender the Premises at the expiration of the 30-day notice period required above for cancellation of this Agreement, then the City shall, in addition to all other remedies, be entitled to collect from Concessionaire, and Concessionaire shall pay to the City a fifty percent (50%) increase to the Concession Fee ("Increased Fee") then in effect. Acceptance of the Increased Fee by City shall, in no event, constitute a waiver of the City's rights under this Agreement and shall not prevent the City from pursuing all other remedies to which is entitled including but not limited to the right to seek injunctive relief to eject Concessionaire from the Premises. Concessionaire shall also reimburse the City for and indemnify the City against all damages incurred by the City from any delay by Concessionaire in vacating the Premises. ARTICLE V PAYMENTS 5.1 CONCESSION FEE. Commencing on the Commencement Date and on or before the 10th day of each calendar month thereafter during the Term, Concessionaire agrees to pay the City a Minimum Monthly Use Fee ("Minimum Monthly Use Fee') of $250.00 for each calendar month and a Percentage Fee ( the "Percentage Fee") in an amount equal to the following: (i) Ten percent (10%) of Gross Revenues generated from Concession Facility services during the preceding month; (ii) Ten percent (10%) of Gross Revenues generated from catering of city -sponsored and non -city events and functions during the preceding month. (iii) Ten percent (10%) of Gross Revenues generated from mobile vending carts or kiosks and vending machines, if any, during the preceding month. Together with the payment of Percentage Fee, and, in any event, within ten (10) days after the end of each calendar month, Concessionaire shall deliver to City a written Gross Revenue Report of revenues generated during the preceding calendar month, on forms approved by City, as attached herewith and incorporated herewith as 14 Exhibit "F." This report shall be signed by Concessionaire certifying to the accuracy of such Gross Revenues. 5.2 ADDITIONAL FEES. In addition to the Concession Fee under Section 5.1, all other payments or charges payable by Concessionaire, however denoted, are called "Additional Fees". Unless this Agreement provides otherwise, all Additional Fees shall be paid with the next installment of the Concession Fee. 5.3 RETURNED CHECK FEE. In the event any check is returned to the City as uncollectible, the Concessionaire shall pay to City a returned check fee (the "Returned Check Fee") based on the following schedule: Returned Amount $00.01 - 50.00 $50.01 - 300.00 $300.01 - 800.00 OVER $800 Returned Check Fee $20.00 $30.00 $40.00 5% of the returned amount. The Returned Check Fee shall constitute Additional Fees due and payable, to City by Concessionaire, upon the date of payment of the delinquent payment referenced above. Acceptance of Returned Check Fee by City shall, in no event, constitute a waiver of Concessionaire violations with respect to such overdue amount nor prevent City from the pursuit of any remedy to which City may otherwise be entitled. 5.4 LATE FEE. In the event any installment of the Monthly Fee is not received by City on or before the fifteenth day of the month, Concessionaire shall pay the City a late charge of five percent (5%) of the amount due. Such late fee shall constitute Additional Fees due and payable to City by Concessionaire upon the date of payment of the delinquent payment referenced above. Acceptance of such late charge by City shall, in no event, constitute a waiver of Concessionaire's violations with respect to such overdue amount nor prevent City from the pursuit of any remedy to which City may otherwise be entitled. 5.5 OVERPAYMENT AND UNDERPAYMENT. In the event that the Concessionaire can demonstrate, in accordance with generally acceptable accounting principles, that it has made an overpayment in the Concession Fee in remitting the sum due in accordance with Section 5.1 of this Agreement, such overpayment shall be refunded promptly to the Concessionaire exclusive of interest thereon, but if the Concessionaire has made an underpayment in the Concession Fee then said underpayment shall be paid to the City with interest thereon at five percent (5%) per annum from the date that it was originally due until it is paid. ARTICLE VI TERMINATION OF AGREEMENT 15 6.1 TERMINATION BY CITY FOR CAUSE. In the event the Concessionaire defaults or fails to observe the terms and conditions of this Agreement in any material aspect, City shall have the right to do any one of the following: A) Give Concessionaire notice of the default, specify required corrective action, and the time period within which corrective action is required to avoid immediate termination of this Agreement; B) Give Concessionaire thirty (30) days written notice of its intention to terminate this Agreement for cause. Thirty (30) days thereafter, this Agreement and Concessionaire's occupation of the Premises will end regardless of any corrective action by Concessionaire; and/or C) Immediately terminate this Agreement, if in the sole discretion of the City, the default or failure to observe terms and conditions is so egregious as to warrant immediate termination. Upon such termination, Concessionaire's rights to occupy the Premises will end forthwith. 6.2 TERMINATION BY CITY WITHOUT CAUSE. The City shall have the right to terminate this Agreement at its sole option, for any reason whatsoever, upon at least forty-five (45) days written notice to the Concessionaire. Upon such termination, the occupancy of the Premises will end and Concessionaire agrees to waive any claims for damages, including loss of anticipated fees and profits. 6.3 TERMINATION BY CONCESSIONAIRE WITHOUT CAUSE. Concessionaire may terminate this Agreement at its sole option, for any reason whatsoever, upon at least ninety (90) days written notice to the City. Upon such termination, the Concessionaire's right to occupy and use the Premises will end and Concessionaire agrees to waive any claims for damages, including loss of anticipated fees and profits. 6.4 TERMINATION BY CONCESSIONAIRE WITH CAUSE. In the event the City defaults or fails to observe the terms and conditions of this Agreement in any material aspect, Concessionaire shall have the right to terminate the Agreement after notifying City in writing of the action required to correct the problem and giving City thirty (30) days from receipt of said notice to correct the problem. 6.5 SURRENDER OF CONCESSION OF PREMISES. At the expiration of the term or earlier termination of this Agreement, Concessionaire shall promptly surrender possession and shall deliver to the City all keys that it has to any part of the Concession Facility or the Premises. The Concessionaire shall return all facilities, equipment and other items furnished by City in the condition in which received, reasonable wear and tear excepted. Additionally, at the expiration of the term or earlier termination of this Agreement, if the City desires, it may purchase all or any part of the movable personal 16 property owned by the Concessionaire under this Agreement at prices equal to the lower of either the depreciated cost or fair market value. This provision shall not apply to fixtures, which become part of the Concession Facility and are owned by the City under Section 12.1 hereof. Concessionaire will be responsible for all losses and damages to the Concession Facility, the Premises and/or Inventory resulting from its default, failure or negligence during the term of this Agreement. If within thirty (30) days of termination of this Agreement the City determines that any part of the Concession Facility, the Premises and/or Inventory are damaged or missing as applicable, and that such condition was not readily evident at the time of Concessionaire surrendered possession of the Concession Facility, City reserves the right to have Concessionaire pay for the repairs to said damaged facilities and/or repair or replacement of said equipment as applicable. This clause shall survive the expiration of this Agreement. ARTICLE VII HAZARDOUS MATERIALS 7.1 ENVIRONMENTAL WARRANTY. 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 ("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 flanunable explosives, toxic substances or other hazardous, contaminated or polluting materials, substances or wastes, including, without limitation, any "Hazardous Substances," "Hazardous Wastes," "Hazardous Materials" or "Toxic Substances," under any such laws, ordinances or regulations (collectively "Hazardous Materials"). 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 Premises required for Concessionaire's use of any Hazardous Materials in or about the Premises in conformity with all applicable Hazardous Materials Laws and prudent industry practices regarding management of such Hazardous Materials. City recognizes and agrees that Concessionaire may use materials in normal quantities that are applicable to the use of the Premises for the purposes stated herein and that such use by Concessionaire shall not be deemed a violation of this Section, so long as the levels are not in violation of any Hazardous Materials Laws. Upon termination or expiration of this Agreement, Concessionaire shall, at its sole cost and expense, cause all Hazardous Materials, including their storage devices, placed in or about the Premises by Concessionaire or at Concessionaire's direction to be removed from the Premises and transported for use, storage or disposal in accordance and compliance with all applicable Hazardous Materials Laws. City acknowledges that it is not the intent of this Article VII to prohibit Concessionaire from operating in the Premises for the use described in Section 2.1. 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. 1 17 7.2 INDEMNIFICATION. Concessionaire shall indemnify, protect, defend and hold City 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 Premises of any Hazardous Materials placed in or about the Premises by Concessionaire or at Concessionaire's direction or used by Concessionaire or by 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 Premises and any other property of whatever nature to their condition existing prior to the appearance of the Hazardous Materials. 7.3 DISCLOSURE, WARNING AND NOTICE OBLIGATIONS. Concessionaire shall comply with all laws, ordinances and regulations in the State of Florida regarding the disclosure of the presence or danger of Hazardous Materials. Concessionaire acknowledges and agrees that all reporting and warning obligations required under the Hazardous Materials Laws are the sole responsibility of Concessionaire, whether or not such Hazardous Materials Laws permit or require the City to provide such reporting or warning, and Concessionaire shall be solely responsible for complying with Hazardous Materials Laws regarding the disclosure of, the presence or danger of Hazardous Materials. Concessionaire shall immediately notify City, in writing, of any complaints, notices, warning, reports or asserted violations of which Concessionaire becomes aware relating to Hazardous Materials on or about the Premises. Concessionaire shall also immediately notify City if Concessionaire knows or has reason to believe a complaint, notice, warning, report or violation will be released on or about the Premises. Notwithstanding the above, Concessionaire must submit a list to 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 Concessionaire to keep the list updated as products are added or deleted and shall provide new or updated Material Safety Data Sheets as conditions warrant. City reserves the right to require any product to be deleted from such list if, in the sole opinion of the City, such product is causing damage to the Premises or is unsafe. 7.4 SURVIVAL OF CONCESSIONAIRE'S OBLIGATION. The respective rights and obligations of City and Concessionaire under this Article VII shall survive the expiration or earlier termination of this Agreement. ARTICLE VIII SECURITY DEPOSIT 18 8.1 SECURITY DEPOSIT. Simultaneously with the execution of this Agreement by Concessionaire, Concessionaire shall deposit with City the total sum of $5,000.00 as a security deposit (the "Security"). The Security shall be security for the payment and performance by Concessionaire of all of Concessionaire's obligations, covenants, conditions, and agreements under this Agreement, including the maintenance of the Areas and Inventory. The Concessionaire shall pay the Security to the City in six (6) installment payments as guarantee for the full and faithful performance by Licensee of all obligations of Licensee under this Agreement or in connection with this Agreement. The first installment payment of Two Thousand Five Hundred Dollars and 00/100 ($2,500.00) shall be made upon execution of this Agreement. The balance of Two Thousand Five Hundred Dollars and 00/100 ($2,500.00) shall be paid in five (5) equal monthly installments of Five Hundred Dollars 00/100 ($500.00) each calendar month commencing on the first day of the first month following the Commencement Date and each month thereafter for a period of five (5) months. The installment payments for the Security shall be made by separate checks and not included in the check for payment of the Use Fee. The checks shall be labeled "Security Deposit" and shall be made payable to the City of Miami and sent to c/o Finance Director, 444 SW 2nd Avenue, 6111 Floor, Miami, Florida 33130, Attention: Treasury Management/Receipts. City shall have the right, but shall not be obligated, to apply all or any portion of the Security to cure any default, in which event, Concessionaire shall promptly deposit with City the amount necessary to restore the Security to its original amount. The Security shall not be deemed liquidated damages and application of the Security to reduce City's damages, shall not preclude City from recovering from Concessionaire all additional damages incurred by City. If Concessionaire fully and faithfully complies with all of the terms, provisions and conditions of the Agreement, the Security shall be returned to Concessionaire without interest within ninety (90) days after the following occurs: (i) the expiration of the Agreement term, as may be extended pursuant to the provisions of this Agreement, and (ii) Concessionaire's delivery to City of the entire Premises in the same condition or better than existed on the Commencement Date, ordinary wear and tear excepted. Upon termination of this Agreement by either party, if Concessionaire fails to pay within ten (10) days after the date of said termination the cost of repair or replacement of equipment or furnishings which are necessitated by the neglect, negligence or intentional misconduct of Concessionaire, then said failure shall be a breach of this Agreement and the costs of such repairs shall be payable out of said Security. ARTICLE IX ABANDONMENT 9.1 ABANDONMENT. If Concessionaire shall vacate or abandon the Concession Facility during the Term or Additional Terms of this Agreement for a period of two (2) 19 consecutive workdays, the City, at its option and without serving notice elsewhere required in this Agreement, may: (i) take immediate possession of the Concession Facility for the remainder of the Term or Additional Term, and contract with another person or corporation for the provision of food and beverage services at the Concession Facility. In such event the Concessionaire shall remain liable for all obligations under this Agreement. OR (ii) immediately cancel this Agreement. ARTICLE X SPECIAL ASSESSMENTS OR TAXES 10.1 CONCESSIONAIRE TO PAY. During the term hereof, Concessionaire covenants and agrees to pay before delinquency all municipal, county or state taxes assessed against any occupancy interest or personal property of any kind, owned by or placed in, upon or about the Premises by Concessionaire. In the event Concessionaire appeals a tax, Concessionaire shall immediately notify City of its intention to appeal said tax and shall furnish and keep in effect a surety bond of a responsible and substantial surety company reasonably acceptable to City or other security reasonably satisfactory to City in an amount sufficient to pay one hundred percent of the contested tax with all interest on it and costs and expenses, including reasonable attorneys' fees, to be incurred in connection with it. ARTICLE XI RECORDS AND AUDITING 11.1 RECORDS OF SALES. During the term of this Agreement and any extension thereto, Concessionaire shall maintain and keep, or cause to be maintained and kept at the Premises or such other location in Miami to be approved by Contract Administrator, a full, complete and accurate record and account of all Gross Revenues arising or accruing by virtue of its operations conducted at or from the Premises, for each day of the term and all extensions thereof. All 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' and Concessionaire's, income and sales tax returns and all other supporting records, shall be available for inspection and audit by the City and its duly authorized agents or representatives during the hours of 10:00 AM to 5:00 PM, Monday through Friday, and shall be in accordance with generally accepted 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 Contract Administrator, for proper control of cash and payments whether such transaction is a cash or credit transaction. 20 Concessionaire shall keep and preserve, or cause to be kept and preserved, said records for not less than sixty (60) months after the payment of the Concession Fee due under the terms hereof for any given Concession Year. For the same period of time, Concessionaire shall also retain copies of all sales and tax returns covering its operations at the Premises, and any other governmental tax or other returns, which show Concessionaire's sales therein, and shall, upon demand, deliver photographic copies thereof to the City at no cost. The Concessionaire will cooperate with the City's internal auditors (or such other auditors designated by City) in order to facilitate the City's examination of records and accounts. Concessionaire shall acknowledge that said records as listed above may also be subject to inspection by the federal Internal Revenue Service (IRS) on an as needed basis due to bond funding provided to the Aquatic Center. 11.2 AUDITS. Commencing within sixty (60) days after the end of each Fiscal Year for the Concessionaire, Concessionaire shall deliver or cause to be delivered to the City of Miami, Department of Public Facilities, Asset Management Division, 444 S.W. 2nd Avenue, 3rd Floor, Miami, FL 33130, a financial statement for the Agreement Year, prepared and certified by an independent Certified Public Accountant (CPA) employed at the Concessionaire's sole cost and expense. Said C.P.A. shall certify that he made a complete examination of the books, state sales tax returns, and federal income tax returns of the Concessionaire and that the financial statement is prepared in accordance with generally accepted accounting principles and practices and represents the Gross Revenues, or other revenues, if any, and expenses of the Concessionaire for the period indicated therein. With each financial statement, Concessionaire shall pay to City any unpaid balance of the Concession Fee, if any, and City shall refund any overpayments, if any. Such underpayment or overpayment shall be paid as set forth in Section 5.5 Overpayment and Underpayment. In the event the Concessionaire fails to prepare or deliver any required Audited Financial Statement to the City within the time set forth above, the City, upon fifteen (15) days written notice to Concessionaire, may elect to exercise either or both of the following remedies: (i) To treat, as a default of this Agreement, any such omission continuing after thirty (30) days notice thus entitling the City, without further notice, to exercise its right to cancel this Agreement and resort to other legal remedies; and/or (ii) To cause an audit and/or accounting, pursuant to the provisions of this Agreement to be made at the sole cost and expense of Concessionaire. Concessionaire shall pay the full cost of such audit within ten (10) days of receipt of an invoice indicating the cost of such audit. Notwithstanding the above, at its option, City may cause, at any time within sixty (60) months of receipt of any Concession Fee furnished by Concessionaire, a complete audit to be made of Concessionaire's business affairs, records, files, sales slips and sales 21 tax records in connection with Concessionaire's sales on, from or related to the Premises for the period covered by any such statement furnished by Concessionaire. If such audit shall disclose an underpayment of fees, Concessionaire shall pay City any unpaid balance within thirty (30) days of receipt of notice from City that such balance is due. If such audit shall disclose an overpayment, City shall refund such to Concessionaire. Such underpayment or overpayment shall be paid as set forth in Section 5.5 Overpayment and Underpayment. Concessionaire shall allow the City or the auditors of the City 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 City. Records shall be available Monday through Friday, inclusive, between the hours of 8:00 AM and 5:00 PM at the Premises or at such other location in Miami, which may be approved by the Contract Administrator. The acceptance by City of payments of the Concession Fee shall be without prejudice to City's right to conduct an examination of Concessionaire's books and records of its Gross Revenues and inventories of merchandise on or for the Premises in order to verify the amount of annual Gross Revenues made by Concessionaire in and from the Premises. The Concessionaire shall further be subject to periodic, unannounced operational audits of the Services by a representative of the City. Such audits shall include a review of the following: Service quality, attentiveness, courteousness, etc Food/Beverage quality, quantity, presentation, merchandising Sanitation practices and conditions Personnel appearance Training program techniques, schedules and records Operation performance from a financial perspective Other related operational conditions and/or practices City shall prepare a report as a result of the operational audit notifying the Concessionaire of conditions needing correction or improvement. ARTICLE XII ALTERATIONS AND IMPROVEMENTS 12.1 ALTERATIONS AND IMPROVEMENTS. Concessionaire shall not make or permit to be made any construction, repairs, alterations, additions, partitions or changes to the Concession Facility (hereinafter collectively called "Alterations") without the prior written consent of the City Manager or his/her designee. If Director grants consent: (i) the Alterations shall be performed in a good and workmanlike manner in accordance with all applicable Federal, State and local statutes, laws, ordinances and regulations, as they presently exist and as they may be amended hereafter. 22 (ii) all Alterations shall be provided at Concessionaire's sole cost and expense. (iii) 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 Alteration made by Concessionaire to the Premises. (iv) Alterations (other than movable trade fixtures, which can be removed without injury to the Concession Facility) shall at once become a part of the Premises, the property of the City and shall be included in the Inventory. Concessionaire shall have the right to remove any movable personal property and trade fixtures that it places in or at the Premises. If any part of the Premises is in any way damaged by the removal of such items, said damage shall be repaired by Concessionaire at its sole cost and expense. Should Concessionaire fail to repair any damage caused to the Premises within ten (10) days after receipt of written notice from City directing the required repairs, City shall cause the Premises to be repaired at the sole cost and expense of Concessionaire. Concessionaire shall pay City the full cost of such repairs within ten (10) days of receipt of an invoice indicating the cost of such required repairs. Failure to pay such invoice shall be sufficient cause to terminate this Agreement as provided in Section 6.1 herein. Notwithstanding the above, this Agreement may be terminated due to Concessionaire's failure to repair the Premises as directed without the necessity of City repairing the Premises. 12.2 LIENS AND ENCUMBRANCES. The Concessionaire shall keep the Premises free and clear of any liens and encumbrances. Nothing in this Agreement shall be construed as constituting the consent or request of the City, expressed or implied, by inference or otherwise, to any contractor, subcontractor, laborer or material man for the performance of any labor or the furnishing of any materials for any specific alteration, or repair of or to the Premises 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 City's interest in the Premises. If any lien shall at any time be filed against the Premises as a result of any Alteration undertaken by Concessionaire, the Concessionaire shall cause it to be discharged of record within ten (10) days after the date the Concessionaire has knowledge of its filing. If the Concessionaire shall fail to discharge a lien within that period, then in addition to any other right or remedy, the City may, but shall not 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 City shall be entitled, if it so elects, to compel the prosecution of any action for the foreclosure of the lien by the lien or and to pay the amount of the judgment, if any, in favor of the lien or with interest, costs and allowances with the understanding that all amounts paid by the City shall constitute Additional Fees due and payable under this Agreement and shall be repaid to the City by the Concessionaire immediately upon rendition of an invoice or bill 23 by the City. 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 City 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 City or other security reasonably satisfactory to City in an amount sufficient to pay one hundred ten percent (110%) 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 XIII INDEMNIFICATION AND INSURANCE 13.1 INDEMNIFICATION AND HOLD HARMLESS. Concessionaire shall indemnify, protect, defend and hold harmless the City, its officials and employees, from and against any and all claims, suits, actions, damages or causes of action of whatever nature arising out of the use or operation of the Concession Facility and the Premises by Concessionaire, its agents, contractors, employees or servants, whether such claim shall be made by an employee of Concessionaire, an employee of the City or by any third party, and whether it relates to injury to persons (including death) or damage to property and whether it is alleged that the City or its employees or officials were negligent. Concessionaire shall at its own cost and expense pay and satisfy all costs related to any orders, judgments or decrees which may be entered thereon, and from and against all costs, attorneys' fees, expenses and liabilities incurred in and about the defense of any such claims and the investigation thereof. Concessionaire shall further indemnify, defend, protect and hold City harmless from and against any and all claims arising from any breach or default in performance of any obligation of Concessionaire's part to be performed under the terms of this Agreement, or arising from any act, neglect, fault or omission of Concessionaire or its agents, contractors, employees and servants and from and against all costs, attorneys' fees, expenses and liability incurred in connection with such claim or any action or proceeding brought thereon. In case any action or proceeding shall be brought against City by reason of any claim, Concessionaire upon notice from City shall defend the same at Concessionaire's expense by counsel approved in writing by City. City reserves the right to defend itself. Concessionaire shall immediately notify City, in writing, of any claim or action filed, of whatever nature, arising out of the use or operation of the Areas by Concessionaire, its agents, contractors, employees or servants. Concessionaire shall also immediately notify City if Concessionaire knows or has reason to believe a claim or action will be filed, of whatever nature, arising out of the use or operation of the - Concession Facility or Areas by Concessionaire, its agents, contractors, employees or servants. 24 13.2 INSURANCE. In connection herewith, Concessionaire shall obtain and maintain or cause to obtained and maintained throughout the term of this Agreement, the types and amounts of insurance coverage set forth in Exhibit "G," attached hereto and incorporated herein by this reference. The City reserves the right to reasonably amend the insurance requirements by the issuance of a notice in writing to Concessionaire. The Concessionaire shall provide any other insurance or security reasonably required by the City. The Concessionaire shall provide any other insurance or security required by the City. The policy or policies of insurance required shall be so written that the policy or policies may not be canceled or materially changed without thirty (30) days advance written notice to City. Said notice should be delivered to the City of Miami, Department of Risk Management, 444 S.W. 2nd Avenue, 9th floor, Miami, Florida 33130 with copy to City of Miami, Office of Asset Management, 444 S.W. 2nd Avenue, Suite 325, Miami, FL 33130. A current Evidence of Insurance and Policy of Insurance evidencing the aforesaid required insurance coverage shall be supplied to the Department of Public Facilities, Asset Management Division at the commencement of the term of this Agreement and a new Evidence and Policy shall be supplied at least twenty (20) days prior to the expiration of each such policy. Receipt of any documentation of insurance by the City or by any of its representatives, which indicates less coverage than required does not constitute a waiver of the Concessionaire's obligation to fulfill the insurance requirements herein. In the event Concessionaire shall fail to procure and place such insurance, the City may, but shall not be obligated to, procure and place same, in which event the amount of the premium paid shall be paid by Concessionaire to the City as Additional Fees upon demand and shall in each instance be collectible on the first day of the month or any subsequent month following the date of payment by the City. Failure to pay such amount within the time frame provided shall be sufficient cause to terminate this Agreement as provided in Section 6.1 hereof. Concessionaire's failure to procure insurance shall in no way release Concessionaire from its obligations and responsibilities as provided herein. ARTICLE XIV DAMAGE OR LOSS TO CONCESSIONAIRE'S PROPERTY 14.1. RISK OF LOSS. City shall not be liable for injury or damage to the property or merchandise of the Concessionaire or its employee's, invitees, customers occurring in or about the Areas caused by or resulting from anyone or any peril whatsoever which may affect the Areas, including, without limitation, fire, steam, electricity, gas, water, 25 rain, vandalism or theft which may leak or flow from or into any part of the Premises, or from the breakage, leakage, obstruction or other defects of the pipes, sprinklers, wires, appliances, plumbing, air conditioning or lighting fixtures of the Areas, or from hurricane or any act of God or any act of negligence of any user of the facilities or occupants of the Areas or any person whomsoever, whether such damage or injury results from conditions arising upon the Areas or upon other portions of the Areas or from other sources. 14.2 NOTICE OF DAMAGES OR INJURIES. The Concessionaire shall give City prompt written notice of any fire, damage or injury occurring in the Areas. 14.3. VANDALISM AND THEFTS. Where vandalism or theft occurs to Concessionaire's machines, equipment or operation, it shall be the sole responsibility and liability of Concessionaire to insure, repair or replace damaged or stolen equipment at Concessionaire's expense within forty-eight (48) hours. All vandalism shall be reported to the Director immediately upon discovery. 14.4. THEFT AND LOSS LIABILITY. City will not be responsible for any of Concessionaire's 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 City. ARTICLE XV ASSIGNMENT AND SUBCONTRACTING 15.1 ASSIGNMENT. Concessionaire shall not: (1) assign or transfer this Agreement, in whole or in part; (2) subcontract the Concession Facility operations, in whole or in part; (3) subcontract any other listed responsibilities, or any part hereof; or (4) permit any third party or parties other than Concessionaire, its authorized agents and employees, to occupy or use the Premises, or portion thereof (hereinafter individually and collectively referred to as a "Subcontract") without prior review and written consent of the City Manager, which consent may be conditioned or withheld for any or no reason, including, but not limited to additional financial consideration. Any assignment, transfer or subcontract in violation of this Agreement or without the written approval of the City Manager shall be void and have no binding effect upon City. If any portion of the work or services, which have been subcontracted by the Concessionaire, is not executed in accordance with this Agreement, the Subcontractor shall be replaced on request of the City Manager. No Subcontract entered into by the Concessionaire shall relieve the Concessionaire of any of its liabilities and obligations. It is agreed that all terms and conditions of this Agreement shall extend to and be binding on all Subcontractors as may be approved by the City Manager. Concessionaire shall be liable for acts and omissions by any Subcontractor affecting this Agreement. City reserves the right to directly terminate any Subcontractor for any cause for which Concessionaire may be terminated. 26 15.2 PROCEDURE FOR SUBCONTRACT. Should Concessionaire desire to make a Subcontract hereunder, Concessionaire shall give written notice of its intention to do so to the City Manager at least sixty (60) days prior to the effective date of any such proposed Subcontract, specifying in such notice the nature of such proposed Subcontract and the proposed date thereof and specifically identifying the proposed Subcontractor. Such notice shall be accompanied by a copy of the proposed Subcontract Agreement, and any other documents or financial information (including without limitation, three years audited financial statements) City may require in order to make a determination as to the suitability of the Subcontractor. City shall, within thirty (30) days after its receipt of such notice of a proposed Subcontract from Concessionaire, either (i) withhold consent to the Subcontract or (ii) consent to such Subcontract subject to the terms and conditions provided for in this Article. Concessionaire acknowledges and agrees that the imposition of the conditions described in this Article 15 as a condition of Concessionaire's consent is reasonable. ARTICLE XVI SIGNAGE AND ADVERTISING 16.1 SIGNAGE AND ADVERTISING. Concessionaire shall not permit any signs or advertising matter to be placed on any portion of the Areas and/or Premises except with prior written approval of the Director. Concessionaire shall, at its sole cost and expense, install, provide, maintain such sign, decoration, advertising matter or other things as may be permitted hereunder in good condition and repair at all times. Concessionaire must further obtain approval from all governmental authorities having jurisdiction, and must comply with all applicable requirements set forth in the City of Miami Code and Zoning Ordinance. Upon the expiration or earlier termination of this Agreement, Concessionaire shall, at its sole cost and expense, remove any sign, decoration, advertising matter or other thing permitted hereunder from the Areas and/or Premises. If any part of the Areas and/or Premises is in any way damaged by the removal of such items, said damage shall be repaired by Concessionaire at its sole cost and expense. Should Concessionaire fail to repair any damage caused to the Areas and/or Premises within ten (10) days after receipt of written notice from City directing the required repairs, City shall cause the Areas and/or Premises to be repaired at the sole cost and expense of Concessionaire. Concessionaire shall pay City the full cost of such repairs within ten (10) days of receipt of an invoice indicating the cost of such required repairs. ARTICLE XVII NOTICE 17.1 NOTICE. All notices or other communications which shall or may be given pursuant to this Agreement shall be in writing and shall be delivered by personal service or by 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. 27 NOTICE TO CITY: City of Miami City Manager 444 S.W. 2nd Avenue 10th Floor Miami, Florida 33130 WITH COPIES TO: City of Miami City Attorney's Office 444 S.W. 2na Avenue 9th Floor Miami, FL 33130 City of Miami Department of Parks & Recreation Attn: Director 444 S.W. 2nd Avenue 8th Floor Miami, FL 33130 City of Miami Department of Public Facilities Asset Management Division Attn: Director 444 S.W. 2nd Avenue Suite 325 Miami, FL 33130 NOTICE TO CONCESSIONAIRE: Karlen Foods, Inc. d/b/a Tropics 1000 Ponce de Leon # 325 Coral Gables, FL. 33134 ARTICLE XVIII MISCELLANEOUS 18.1 COMPLIANCE WITH LAWS. Concessionaire shall comply with all applicable federal, state and local laws, regulations, orders, ordinances and codes pertaining to its performance under this Agreement. 18.2 INDEPENDENT CONTRACTOR. Concessionaire and its employees and agents shall be deemed to be independent contractors, and not agents, employees or representatives of the City and shall not attain rights or benefits under the Civil Service or Pension Ordinances of the City nor any rights generally afforded classified or unclassified employees; further they shall not be entitled to the Florida Workers Compensation benefits as employees of the City. 28 18.4 PUBLIC RECORDS. Concessionaire understands that the public shall have access, at all reasonable times 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 discover under the applicable law. 18.5 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the parties herein, their heirs, executors, legal representatives, successors and assigns. 18.6 AMENDMENTS. City and Concessionaire by mutual agreement shall have the right but not the obligation to amend this Agreement. The City Manager has the right to execute any amendments to this Agreement and shall be effective only when signed by City Manager and Concessionaire and shall be incorporated as a part of this Agreement. 18.7 AWARD OF AGREEMENT. Concessionaire warrants that it has not employed or retained any person employed by City to solicit or secure this Agreement and that it has not offered to pay, paid, or agreed to pay any person employed by City any fee, commission, percentage, brokerage fee, or gift of any kind contingent upon or resulting from the award of this Agreement. 18.8 CONFLICT OF INTEREST. Concessionaire is aware of the conflict of interest laws of the City (Miami City Code Chapter 2, Article V), 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 and any future amendments thereto. Concessionaire further covenants that no person or entity under its employ, presently exercising any functions or responsibilities in connection with this Agreement, has any personal financial interests, direct or indirect, with the City. Concessionaire further covenants that, in the performance of this Agreement, no person or entity having such conflicting interest shall be utilized in respect to services provided hereunder. Any such conflict of interest(s) on the part of Concessionaire, its employees or associated persons, or entities must be disclosed in writing to the City. 18.9 CONSTRUCTION OF AGREEMENT. This Agreement shall be construed and enforced according to the laws of the State of Florida. 18.10 COURT COSTS AND ATTORNEYS' FEES. In the event that it becomes necessary for City to institute legal proceedings to enforce the provisions of this Agreement, Concessionaire shall pay City's court costs and attorney(s)' fees. Concessionaire acknowledges that Florida law provides for mutuality of attorney's fees as a remedy in contract cases and specifically and irrevocable waives its right to collect attorney's fees from the City under applicable laws, including specifically, but not limited to Section 57.105, Florida Statutes. It is the express intent of the parties hereto that in no event will the City be required to pay Concessionaire's attorney's fees and court costs for any action arising out of this Agreement. In the event that Concessionaire's waiver under this section is found to be invalid then Concessionaire agrees that the City's liability for 29 Concessionaire's attorney's fees and court costs shall not exceed the sum of $100.00. In the event that the waiver and limitations contained herein are found to be invalid, or are otherwise not upheld, then the provisions of this Section shall become null and void and each party shall be responsible for its own attorney's fees and costs. 18.11 WAIVER OF JURY TRIAL. The parties hereby knowingly, irrevocable, voluntarily and intentionally waive any right either may have to a trial by jury in respect of any action, proceeding or counterclaim based on this Agreement, or arising out of, under or in connection with this Agreement or any amendment or modification of this Agreement, or any other agreement executed by and between the parties in connection with this Agreement, or any course of conduct, course of dealing, statements (whether verbal or written) or actions of any party hereto. This waiver of jury trial provision is a material inducement for the City and Concessionaire entering into the subject transaction. 18.12 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. 18.13 WAIVER. No waiver of any provision hereof shall be deemed to have been made unless such waiver is in writing and signed by City or 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. 18.14 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. ARTICLE XIX AFFIRMATIVE ACTION AND NONDISCRIMINATION 19.1 AFFIRMATIVE ACTION. 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, Concessionaire shall submit a Statement of Assurance indicating that their business is in compliance with all relevant Civil Rights laws and regulations. 30 19.2 NONDISCRIMINATION. Concessionaire shall not discriminate in its occupancy and use of the Concession Facility and Premises and improvements thereon with respect to race, color, religion, age, sex, age, national origin, disability, marital status, familial status or sexual orientation. It is expressly understood that upon a determination by a court of competent jurisdiction that discrimination has occurred, City shall have the right to terminate this Agreement. 19.3 AMERICANS WITH DISABILITIES. Concessionaire shall affirmatively comply with all applicable provisions of the Americans with Disabilities Act ("ADA") in the course of utilizing the Concession Facility and Premises including Titles I and II of the ADA (regarding nondiscrimination on the basis of disability) and all applicable regulations, guidelines and standards. Additionally, Concessionaire shall take affirmative steps to ensure nondiscrimination in the employment of disabled persons. ARTICLE XX MINORITY PROCUREMENT 20.1 MINORITY PROCUREMENT. 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 City of Miami's Office of Minority/Women Business Affairs. Such lists are available in the Purchasing Department at the time of signing of the Agreement with the City of Miami. ARTICLE XXI ENTIRE AGREEMENT 21.1 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 individually, through their proper officials, executed this Agreement the day and year first herein above written. THIS SPACE LEFT INTENTIONALLY BLANK 31 ATTEST: THE CITY OF MIAMI, A municipal corporation Of the State of Florida By: By: Priscilla A. Thompson Pedro G. Hernandez City Clerk City Manager APPROVED AS TO FORM AND APPROVED AS TO INSURANCE CORRECTNESS: REQUIREMENTS: By: By: Julie O. Bru LeeAnn Brehm, Director City Attorney Risk Management 32 WITNESSES: CONCESSIONAIRE: KARLEN FOODS, INC. DB/A TROPICS Signature Company Name Print Name Print Name Title Signature Print Name CORPORATE SEAL