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HomeMy WebLinkAboutExhibitCONCESSION AGREEMENT ISSUED BY THE CITY OF MIAMI TO LOPETIGUI'S CORPORATION FOR FOOD AND BEVERAGE SERVICES AT CITY OF MIAMI POLICE -HEADQUARTERS 400 NW 2ND AVENUE MIAMI, FLORIDA, 33128 GP (3- aLi(,qt„. CONCESSION AGREEMENT This Concession Agreement, made this day of 2013, by and between the City of Miami, a municipal corporation of the State of Florida, (the "City") and Lopetigui's Corporation (the "Concessionaire") an organization incorporated under the Laws of the State of Florida. WITNESS: Whereas, the City desires to have quality food and beverage service be provided through concession operations in the City of Miami Police Headquarters building, located at 400 N.W. 2nd Avenue, Miami, Florida 33128 (the "Premises"); and Whereas, the Concessionaire is willing and able to provide such food and beverage services at the Premises; and Now, therefore, in consideration of the mutual covenants and agreements set forth, to be kept and performed by the parties, it is agreed between the City and Concessionaire 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.. "City Manager" means the administrative head of the City's government who has been appointed by the City Commission of the 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 Concession Agreement and other documents including notices required hereunder. 2. "Concession Agreement" shall mean this written agreement. 3. "Concession Agreement Year" shall mean a consecutive twelve (12) month period during the Term and Additional Term, 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. 4. "Cafeteria" shall mean approximately 1,416 square feet of space on the third floor of the Premises, consisting of a kitchen, serving area, dining area, and storage area together with certain furniture, fixtures and equipment set forth in the Inventory. 5. "Commencement Date" shall mean the date that this Agreement is fully executed. 2 6. "Concessionaire Manager" shall mean the person authorized by the Concessionaire to act fully on behalf of the Concessionaire in managing the Food Services as required by this Concession Agreement, at each location. 7. "Contract Administrator" shall be the Director of the Department of Public Facilities authorized by the City to administer the Concession Agreement and coordinate the activities of the Concessionaire at the Premises. 8. "Food Services" shall mean all services necessary for furnishing and operating the cafeteria dining service and catering service for the Premises and off -site. 9. "Gross Revenues" shall mean the entire amount of revenues and/or percentages of revenues collected or accrued, from the sale of all food and beverages, conducted on the Premises or off -site, whether such revenues shall be credit or cash or otherwise, and whether the foregoing be collected or uncollected and shall include any finance charges or similar payments received by Concessionaire as a result of any of the foregoing. Gross Revenues shall not include any-amount-ofany--sales-use or--gross-sales tax -imposed -by -- any Federal, State or governmental authority directly on sales and collected from customers, provided that the amount is added to the selling price therein and paid by the Concessionaire to such governmental authority. 10. "Inventory" shall mean furniture, fixtures and equipment provided by City to Concessionaire for its use at the Cafeteria, as described in "Exhibit D". 11. "Premises" shall mean the Cafeteria located at 400 NW 2 Avenue, Miami, Florida, more particularly described in "Exhibit A". 12. "Subcontractor" shall mean any individual, partnership or corporation who is contractually bound to the Concessionaire to perform a specific portion of the total work package under this Concession Agreement, as approved by the Contract Administrator. 13. "Termination Date" shall mean the day on which this Concession Agreement expires or such earlier date as may be specified in accordance with the provisions of this Concession Agreement. ARTICLE II GENERAL DESCRIPTION OF CONCESSION 2.1 DESCRIPTION OF CONCESSION PRIVILIGES. The City grants to Concessionaire, subject to the exceptions and conditions hereinafter set forth, the exclusive privilege to occupy the Cafeteria for purposes of providing Food Services at the Premises. The exclusive privilege herein granted expressly excludes food and beverage catering services. The City may, on occasion, solicit catering from the Concessionaire City functions at the Premises and to other City facilities and Concessionaire may utilize the Cafeteria for purposes of providing such catering to the City; however, the City reserves the right to negotiate with other vendors for catering. 3 The City, its officers, employees and agents may utilize the dining area of the Cafeteria during Required Operating Hours, as such term is defined in subsection 2.2 below, for purposes of eating "bagged lunches". City further reserves the right to utilize the Cafeteria dining areas for special occasions, meetings or other assemblies upon providing three (3) days advance notice to Concessionaire and provided that after each use, the space is cleaned and rearranged without any additional expense to Concessionaire. The Concessionaire shall not use the Cafeteria for any purpose other than herein specifically designated without prior written consent of the Contract Administrator, which may include additional consideration. 2.2 OPERATION OF CONCESSION PRIVILIGES. Starting on the Commencement Date, the Concessionaire shall provide Food Services in a first class and reputable manner continuously during the entire term of this Concession Agreement, Monday through Friday, excluding legal holidays or when Police Headquarters is closed for -operation, from 6:00 AM -to 6:00 PM, or suchadditionalhours as may be required from time to time, by the City Manager or Contract Administrator (the "Required Operating Hours"). 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 Concession 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 Food 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 or 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 and supplies actually used. Concessionaire agrees that the City Manager may require the Concessionaire to keep the Cafeteria open for business during a state of emergency and accordingly hereby agrees to use its best efforts to accommodate this request. 2.3 SANITATION. The Concessionaire shall, at its sole cost and expense, maintain and keep fixtures, equipment and personal property, whether owned by the Concessionaire, the City or third parties, and all areas of the Cafeteria 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 Cafeteria upon the close of business of each working day. The Concessionaire shall provide the Food 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 4 to the Contract Administrator 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 shut down for its failure to comply with the requirements of the Health Department of the State of Florida, and said 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 Food Services of the highest quality, which shall include a variety of nutritious foods, vegetarian entrees and special ethnic specialties at reasonable prices. As a condition of this Concession 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 Food Services as hereinabove set forth. It is the intention of the parties that all matters such as prices, portions and quality of food and beverage shall be the same as, or better than that available, in comparable cafeterias 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 Contract Administrator. All items offered for sale must be sold at prices, which are plainly displayed. The established prices shall not be changed without the prior written consent of the Contract Administrator. Concessionaire shall not submit request for price changes more frequently than twice during a Concession Agreement Year. The City reserves the right to review the prior year's income statement before granting any price increase and to compare with other food 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 is duly given by the City to do so, shall be cause for cancellation of this Concession Agreement; provided, however, that no action by the City shall be arbitrary and capricious and the Concessionaire shall be afforded notice by the City in writing, specifying the violations of the standards required under this Concession 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 Concession Agreement by the City without further notification. 2.5 FOOD AND BEVERAGE WARRANTY. Concessionaire warrants that all merchandise dispensed or served hereunder (cafeteria, vending, 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 CONCESSIONAIRE RESPONSIBILITIES. The Concessionaire covenants and agrees that Concessionaire shall, at its sole cost and expense, operate, manage and 5 maintain the Cafeteria, provide the Food Services and catering required under this Concession 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 Food Services. (ii) provide and replace, as necessary, all short life small ware including, but not limited to, all paper products, plastic ware, silverware, dishes, glasses, cups, bowls, cookware, cooking utensils, serving utensils, uniforms, tablecloths, trays, laundry items, and cleaning supplies. (iii) furnish, and remove all decorations and promotional material for merchandising in serving and dining areas. (iv) -provide all pest control services in the Cafeteria.. (v) provide all cleaning and janitorial services for the Cafeteria including but not limited to emptying of trash containers; wiping all tables and chairs, microwave, window sill; cleaning of equipment, walls and floor tiled areas using a safe method for the grease removal without damaging the equipment and building 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 service for its own use. D. The Concessionaire shall be responsible for security at the Cafeteria 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 Cafeteria each day and insure that no cash is left on the premises. E. The Concessionaire shall provide the Contract Administrator 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. 6 G. Concessionaire shall, at its sole cost and expense, be responsible for the provision, installation, repair and preventive maintenance of all food service equipment necessary to operate the Premises that is not part of the Inventory. 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 the proper maintenance and removal of grease from grease traps not less than twice per year. Concessionaire shall further be responsible for providing, at its sole cost and expense, plumbing maintenance and repair caused by its use of the Cafeteria. 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 upon request. 2.7 FURNISHINGS AND EQUIPMENT. The City has title to all items listed in the Inventory. The Concessionaire may use such Inventory, free of any charge, and the Concessionaire hereby accepts theuse. of .such Inventory "as is" and "where . is". _The Concessionaire, at its sole cost and if needed, shall repair, replace, and/or maintain all cafeteria equipment and furnishings according to reasonable standards acceptable to the City. Documentation of said repairs or replacements shall be maintained and provided to the City. The Concessionaire shall not remove or replace any of the items listed in the Inventory from the Premises without the prior written consent of the Contract Administrator. 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. 2.8 GARBAGE REMOVAL AND RECYCLING. The Concessionaire shall, at its sole cost and expense, provide a sufficient number of trash and garbage receptacles within the Cafeteria and other areas designated for its use, and for the use by its customers. The Concessionaire shall, at its sole cost and expense, be responsible for the disposal of such receptacles and the removal of trash and garbage from the Premises utilizing acceptable 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 Contract Administrator. 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 Contract Administrator 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 Contract Administrator. 2.9 UTILITIES. City shall, at its sole cost and expense, furnish air conditioning, heat, hot and cold water, lights, electric current, sewage, and garbage disposal service. 7 The Concessionaire must abide by the rules, regulations, schedules and practices of the City in the administration of these services. The City reserves the right to interrupt, curtail or suspend the provision of any utility service, including but not limited to, heating, ventilating and air conditioning systems and equipment serving the Premises, to which Concessionaire may be entitled hereunder when necessary by reason of accident or emergency, or for repairs, alterations or improvements in the sole judgment of the City. The work of such repairs, alterations or improvements shall be procured and executed with reasonable diligence and within a reasonable time frame. 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 Monthly Use Fee 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 Concession Agreement or any of Concessionaire's obligations hereunder be affected or reduced thereby. 2.10 CITY TO PROVIDE PARKING. City will provide parking on a first come, first serve basis at the police parking garage at no cost to Concessionaire. In the event that parking is not available at the police parking garage, overflow parking is directed to the parking area under I-95 between NW 4 Street and NW 5 Street. For loading and unloading of merchandise, concessionaire may park on the ground floor with close proximity to the elevator. Concessionaire shall provide its management and employees with identification to facilitate their authorized entry into the police parking garage or the overflow parking area during their hours of employment. Concessionaire and its employees shall comply with all established parking rules. 2.11 CITY ACCESS TO FACILITY. City and its authorized representative shall have at all times access to the Premises assigned - to the Concessionaire. City will maintain a complete set of keys to the Cafeteria. Concessionaire shall immediately provide keys to the City for any new equipment or key changes. Key changes must be approved in writing, in advance by the Contract Administrator. 2.12 PERFORMANCE REVIEW MEETINGS. Concessionaire's Manager will schedule formal meetings with Contract Administrator ninety (90) days after the Commencement Date and semi-annually thereafter, to review all aspects of Concessionaire's performance under this Concession Agreement. The Concessionaire shall present to City operational issues, completed programs, ideas for new programs, improvements and financial results. 2.13 CITY RIGHT TO DOWNSIZE CAFETERIA. City reserves the right to downsize the total square footage of the Cafeteria at anytime during the Term in the event the space is needed by one or more City departments. The City shall provide thirty (30) days advance written notice to Concessionaire in the case of any such downsizing. 8 ARTICLE III PERSONNEL 3.1 PERSONNEL. The Concessionaire shall, at its own expense, provide no less than the minimal number of staff as outlined in the organizational chart submitted as part of the Request for Proposals and attached hereto as "Exhibit C" for the provision of the Food Services. Such staff shall be trained in food handling and shall provide courteous, efficient and sanitary service to the customers. Persons handling and vending products under this Concession 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 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 at the food service until the condition of that employee returns to -a -healthful status as indicated in writing and signed by the physician. Food handling and sanitation shall conform to such requirements as may be prescribed by law and 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. No person shall be allowed to cook, handle, sell or dispense food at the Cafeteria 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 Contract Administrator of any employee no longer performing services on behalf of Concessionaire pursuant to this Concession Agreement. Concessionaire shall return any and all identification media of any such personnel to the Contract Administrator within one (1) day following the day that the Contract Administrator is notified as provided in this paragraph. Concessionaire must further immediately return all identification media to Contract Administrator upon the expiration or earlier termination of this Concession Agreement. Concessionaire's employees may be subject to a background investigation by the City. Concessionaire agrees that it shall not employ any person to work in the Premises who cannot satisfy said background investigation. 9 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 Concession Agreement. The Concessionaire Manager shall be on -site during all hours the cafeteria 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 service facilities employed by the Concessionaire. The Concessionaire shall have adequately trained personnel to maintain a high quality of food service as required by the City. Concessionaire shall ensure that critical positions (those that are necessary to open and operate the Cafeteria) 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 Services called for under this Concession Agreement, Concessionaire shall immediately contact the, Contract Administrator by phone or pager and provide a written follow-up notice of the dispute. Concessionaire shall continue to provide services under the Concession Agreement in the event of strikes and other labor disturbances. ARTICLE IV TERM 4.1 TERM. The term of this Concession Agreement shall be for a period of five (5) year from the Commencement Date unless sooner terminated as provided for herein (the "Term"). This Concession Agreement may be extended by mutual consent for one (1) additional five-year period upon the same terms and conditions contained herein (the "Additional Terms"). In order to exercise this extension, Concessionaire must deliver written notice of its intent 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 Concession Agreement and 10 notify Concessionaire within forty-five (45) days from receipt of the request of its intent to grant or deny the request for extension. Before extending the Concession 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 Concession Agreement for the additional terms stated in the Concession Agreement. 4.2 HOLDING OVER. If Concessionaire shall be occupying the Cafeteria after the Termination Date or the termination of Additional Term, with the expressed or implied consent of the City the use granted under this Concession Agreement shall become month -to -month based and shall be 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 Concession Agreement including the payment of all fees and charges. The provisions of this Section 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 effective date of this Agreement ("Commencement Date") and or on before the 10`" day of each calendar month thereafter during the Term or Additional Term, Concessionaire agrees to pay City a Monthly Use Fee ("Monthly Use Fee"), in the amount of Five Hundred Dollars and No Cents ($500.00) and State of Florida Use Tax, if applicable, for each calendar month or a prorated portion of such Monthly Use fee for partial occupancy of the concession along with a Percentage Fee ("Percentage Fee") in an amount equal to the following: (A) Percentage Fee. (i) One percent (1%) of Gross Revenues generated from all Cafeteria and catering services during the preceding month 11 (ii) Commencing on or before the 10th day of the first month of the second Concession Agreement year of the Term thereafter, Percentage Fee shall be as follows: Second Year Third Year Fourth Year Fifth Year Two Percent (2%) of Gross Revenues generated from cafeteria and catering events and promotions during the preceding month. Four Percent (4%) Five Percent (5%) Seven Percent (7%) The Monthly Use Fee, together with the payment of the 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. This report shall be signed by Concessionaire certifying to the accuracy of such Gross Revenues: Gross Revenues, as defined herein, shall mean the entire amount of the revenues generated, collected or accrued, from the sale of all food and beverages, conducted on the Premises, including sales made or performed by means of mechanical or other vending devices on the Premises, whether such revenues shall be credit or cash or otherwise, and whether the foregoing be collected or uncollected and shall include any finance charges or similar payments received by Concessionaire as a result of any of the foregoing. Gross Revenues shall not include any amount of any sales, use or gross sales tax imposed by any federal, state or governmental authority directly on sales and collected from customers, provided that the amount is added to the selling price therein and paid by the Concessionaire to such governmental authority. 5.2 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. 12 5.3 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 Concession Agreement provides otherwise, all Additional Fees shall be paid with the next installment of the Concession Fee. 5.4 LATE FEE. In the event any installment of the monthly fee is not received by the City within five (5) days of the same becoming due, Concessionaire shall pay the City a late charge of ten percent (10%) 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. Any amount not paid to the City within fifteen (15) days after the date on which such amount is due shall bear interest at the rate of 12% per annum from its due date until paid: Payment of such interest shall not excuse or cure any violation by the Licensee. 5.5 OVERPAYMENT AND UNDERPAYMENT. In the event that the Concessionaire can demonstrate, by standard and acceptable accounting practices, that it has made an overpayment in the Concession Fee in remitting the sum due in accordance with Section 5.1 of this Concession 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 ten percent (10%) per annum from the date that it was originally due until it is paid. ARTICLE VI TERMINATION OF CONCESSION AGREEMENT 6.1 TERMINATION BY CITY FOR CAUSE. In the event the Concessionaire defaults or fails to observe the terms and conditions of this Concession Agreement in any material aspect, City shall have the right to do any one, or all, 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 Concession Agreement; B) give Concessionaire thirty (30) days written notice of its intention to terminate this Concession Agreement for cause. Thirty (30) days thereafter, this Concession Agreement and Concessionaire's occupation of the Premises will end regardless of any corrective action by Concessionaire; and/or C) immediately terminate this Concession Agreement, if in the sole discretion of the City, the default or failure to observe terms and conditions is so egregious as to 13 warrant immediate termination. Upon such termination, Concessionaire's rights to occupy the Premises will end forthwith. 6.2 TERMINATION BY CITY FOR CONVENIENCE. The City shall have the right to terminate this Concession 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 Concession Agreement at its sole option, for any reason whatsoever, upon at least one hundred and eighty (180) days written notice to the City. 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. 6.4 TERMINATION BY CONCESSIONAIREWITHCAUSE.--In the event- the City defaults or fails to observe the terms and conditions of this Concession Agreement in any material aspect, Concessionaire shall have the right to terminate the Concession 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 Concession Agreement, Concessionaire shall promptly surrender possession and shall deliver to the City all keys that it has to any part of the Cafeteria 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 Concession Agreement, if the City desires, it may purchase all or any part of the equipment, furnishings and trade fixtures owned and used by the Concessionaire under this Concession 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 Cafeteria and are owned by the City under Section 12.1 hereof. Concessionaire will be responsible for all losses and damages to the Cafeteria and the Premises resulting from its default, failure or negligence during the term of this Concession Agreement. If within thirty (30) days of termination of this Concession Agreement the City determines that any part of the Cafeteria or the Premises are damaged, and that such condition was not readily evident at the time of Concessionaire surrendered possession of the Cafeteria, City reserves the right to have Concessionaire pay for the repairs to said damaged facilities and/or equipment. This clause shall survive the expiration of this Concession Agreement. 14 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 flammable 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 -Dr 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 Concession 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. 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. 15 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 Contract Administrator 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 Concession Agreement. .ARTICLE VIII- SECURITY 8.1 SECURITY. Simultaneously with the execution of this Concession Agreement by Concessionaire, Concessionaire shall have a deposit with City the sum of $1,000.00 as a security deposit (the "Security"). The Security shall be reviewed at the end of the sixth month following the Commencement Date of the Agreement and shall be adjusted to equal three times the average monthly concession fee paid to the City during said six month period. Concessionaire shall deposit with the City the additional Security due, if any, no later than fifteen (15) days from receipt of notice from the City of said increase. In no event shall any adjustment called for in this paragraph result in a Security which is less than $1,000.00. The Security shall be security for the payment and performance by Concessionaire of all of Concessionaire's obligations, covenants, conditions, and Concession Agreements under this Concession Agreement. 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 16 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 Concession Agreement, the Security shall be returned to Concessionaire without interest within ninety (90) days after the following occurs: (i) the expiration of the Concession Agreement term, as may be extended pursuant to the provisions of this Concession 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 Concession 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 Concession 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 Cafeteria during the Term or Additional Term of this Concession Agreement for a period of two (2) consecutive workdays, the City, at its option and without serving notice elsewhere required in this Concession Agreement, may: (i) take immediate possession of the Cafeteria for the remainder of the Term or Additional Term, .and. contract .with another person or corporation for the provision of Food Services at the Cafeteria. In such event the Concessionaire shall remain liable for all obligations under this Concession Agreement. OR; (ii) immediately cancel this Concession 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 17 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 Concession 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, concessionaires and licensees, 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 8:00 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. Concessionaire shall keep and preserve, or cause to be kept and preserved, said records for not less than thirty-six (36) months after the payment of the Concession Fee due under the terms hereof. 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 Concessionairewill 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. 11.2 AUDITS. Commencing within sixty (60) days after the end of each Calendar Year, as hereinafter defined, the Concessionaire shall deliver or cause to be delivered to the City of Miami, Department of Public Facilities, 444 S.W. 2nd Avenue, 3`d Floor, Miami, FL 33130, a Gross Revenue report for the prior Agreement year, certified by an independent certified public accountant ("CPA") employed at the Concessionaire's sole cost and expense. Said CPA shall certify that he made a complete examination of the books, state sales tax returns, and federal income tax returns of Concessionaire and that such report (hereinafter the "Audited Gross Revenue Report") is prepared in accordance with generally accepted accounting principles and practices and represents the Gross Revenue of the Concessionaire for the period indicated therein. The Calendar Year shall mean each twelve-month interval commencing on January 1 and expiring December 31. In the event the Effective Date falls between July 1 sc and December 31 st, the Concessionaire shall not be required to file a certified financial statement for its first calendar year of operation at the Premises until the end of the following Calendar Year. 18 Notwithstanding the above, and during the thirty-six (36) month period described in Section 11.1 of this Agreement entitled "Records of Sales", at its option, the City may cause, at its sole cost and expense, a complete audit to be made of the Concessionaire's business affairs, records, files, sales slips and sales tax records in connection with the Concessionaire's sales on, from or related to the Premises for the period covered by any financial statement furnished by the Concessionaire to the City. 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 Concession -Agreement; any such omission continuing after thirty (30) days notice thus entitling the City, without further notice, to exercise its right to cancel this Concession Agreement and resort to other legal remedies; and/or (ii) To cause an audit and/or accounting, pursuant to the provisions of this Concession 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 audittobe made of Concessionaire's business affairs, records, files, sales slips and sales 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 19 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 food services by a representative of the City. Such audits shall include a review of the following: service quality, attentiveness, courteousness, etc food quality, quantity, presentation, merchandising sanitation practices and conditions personnel appearance training program techniques, schedules and records safety conditions 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 Cafeteria (hereinafter collectively called "Alterations") without the prior written consent of the Contract Administrator. If Contract Administrator 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. (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 Cafeteria) 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 20 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 Concession Agreement as provided in Section 6.1 herein. Notwithstanding the above, this Concession 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 Concession 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 materialman 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 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 theprosecution 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 Fee due and payable under this Concession Agreement and shall be repaid to the City by the Concessionaire immediately upon rendition of an invoice or bill 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. 21 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 Cafeteria 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 Concession 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 Premises 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 Premises by Concessionaire, its agents, contractors, employees or servants. 13.2 INSURANCE. In connection with this Agreement, Concessionaire shall obtain and maintain throughout the term of this Agreement the types and amounts of insurance coverage set forth in Exhibit E, attached hereto and incorporated herein by this reference. 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, patrons occurring in or about the Premises caused by or resulting from anyone or any peril whatsoever which may affect the Premises, including, without limitation, fire, steam, electricity, gas, water, 22 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 Premises, or from hurricane or any act of God or any act of negligence of any user of the facilities or occupants of the Premises or any person whomsoever, whether such damage or injury results from conditions arising upon the Premises or upon other portions of the Premises 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 at the Premises. 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 Contract Administrator 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 AND SUBCONTRACTING. Concessionaire is not permitted to provide a contract or subcontracting services. Except as specifically provided above, Concessionaire shall not: (1) assign or transfer this Concession Agreement, in whole or in part; (2) subcontract the Cafeteria 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 Concession 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 Concession 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 Concession Agreement shall extend to and be binding on all Subcontractors as may be approved by the City Manager. 23 Concessionaire shall be liable for acts and omissions by any Subcontractor affecting this Concession Agreement. City reserves the right to directly terminate any Subcontractor for any cause for which Concessionaire may be terminated. 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 Premises except with prior written approval of the Contract Administrator. 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 Concession Agreement, Concessionaire shall, at its sole cost and expense, remove any sign, decoration, advertising matter or other thing permitted hereunder from 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. ARTICLE XVII NOTICE 17.1 NOTICE. All notices or other communications which shall or may be given pursuant to this Concession Agreement shall be in writing and shall be delivered by personal service or by certified mail addressed to the parties at their respective addresses 24 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. NOTICE TO CITY: City Manager City of Miami 444 S.W. 2nd Avenue Miami, Florida 33130 WITH COPY TO: Director Department of Public Facilities City of Miami 444 S.W. 2nd Avenue, 3rd Floor Miami, FL 33130 City Attorney Office of the City Attorney City of Miami 444 S.W. 2nd Avenue, 9th Floor Miami, FL 33130 Chief of Police Police Department City of Miami 400 NW 2 Avenue Miami, FL 33128 NOTICE TO CONCESSIONAIRE: Hector Lopetegui Lopetigui's Corporation 3034 NW 14th Avenue Miami, FL 33142 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 Concession Agreement. Concessionaire shall additionally comply with the provisions of section 119.0701, Florida Statutes 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. 25 18.3 SUCCESSORS AND ASSIGNS. This Concession Agreement shall be binding upon the parties herein, their heirs, executors, legal representatives, successors and assigns. 18.4 AMENDMENTS. City and Concessionaire by mutual agreement shall have the right but not the obligation to amend this Concession Agreement. The City Manager has the right to execute any amendments to the Concession Agreement and shall be effective only when signed by City Manager and Concessionaire and shall be incorporated as a part of this Concession Agreement. 18.5 AWARD OF CONCESSION AGREEMENT. Concessionaire warrants that it has not employed or retained any person employed by City to solicit or secure this Concession 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 Concession Agreement. 18.6 CONFLICT OF INTEREST. Concessionaire is aware of the conflict of interest - laws as set forth in Section 2-611 of the Code of the City of Miami, Florida, as amended, and agrees that it will comply in all respects with the terms thereof 18.7 CONSTRUCTION OF CONCESSION AGREEMENT. This Concession Agreement shall be construed and enforced according to the laws of the State of Florida. 18.8 COURT COSTS AND ATTORNEYS' FEES. In the event that it becomes necessary for City to institute legal proceedings to enforce the provisions of this Concession 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 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. 18.9 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 anyother 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. 26 18.10 SEVERABILITY. If any provision of the Concession Agreement, or any paragraph, sentence, clause, phrase, or word, or the application thereof, is held invalid, the remainder of the Concession Agreement shall be construed as if such invalid part were never included herein and the Concession Agreement shall be and remain valid and enforceable to the fullest extent permitted by law. 18.11 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 Concession 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. 18.12 CAPTION. The captions contained in this Concession Agreement are inserted only as a matter of convenience and for reference and in no way define, limit or prescribe the scope of this Concession 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. 19.2 NONDISCRIMINATION. Concessionaire agrees that there will be no discrimination against any person based upon race, religion, color, sex, ancestry, age, national origin, mental or physical handicap, in the use of the Premises and improvements thereof. 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 Concession Agreement. ARTICLE XX MINORITY PROCUREMENT 20.1 MINORITY PROCUREMENT. Deleted. 27 ARTICLE XXI ENTIRE CONCESSION AGREEMENT 21.1 ENTIRE AGREEMENT. This Concession Agreement represents the total Concession Agreement between the parties. All other prior Agreements between the parties, either verbal or written, are superseded by this Concession Agreement and therefore no longer valid. IN WITNESS WHEREOF, the parties hereto have individually, through their proper officials, executed this Concession Agreement the day and year first herein above written. ATTEST: The City of Miami, A municipal corporation Of the State of Florida By: By: Todd Hannon Sohnnj -010 rfi'r'z, p. e . City Clerk C. R'16.riacoer APPROVED AS TO FORM AND APPROVED AS TO INSURANCE CORRECTNESS: REQUIREMENTS: By: By: Victoria Mendez Calvin Ellis, Director City Attorney Risk Management WITNESS: Lopetegui's Corporation, (Concessionaire) Signature Print Name Print Name Signature Print Name 28 "EXHIBIT A" PREMISES 400 NW 2 AVENUE MIAMI, FL 33130 FOLIO NO. 01-0107-050-1090 LEGAL DESCRIPTION: MIAMI NORTH PB-41 ALL BLK 75 & BLK 88 LESS S1OFT OF LOTS 11 THRU 20 AND LESS E10FT OF N32FT OF S42FT OF LOT 20 AND LESS EXT AREA OF CURVE IN SW & SE COR FOR R/W PER UNITY OF TITLE 29 "EXHIBIT B" CAFETERIA LOCATION 30 I. ORA. 'Muni 1 4. s'rimizeg V0065- V./.04:50 ig 25, BUB. 'LILO 20 1).41a( 2.0 444At 40.444At 4 IA. 14 20 11 tO 1a. Za Alt r2.117 .517 • "Ti4r4Z T-'eti 4.41 CORZIPOIZ 6ToRAGE 1.5542%eaL41.1 3eo IN.T.Irrr 4 cuTa Brrat:sr.,413. Car2rloZ. . 4TGUet..1 -re.r2.1.4 wW-• "EXHIBIT C" ORGANIZATIONAL CHART Executive Chef— Hector Lopetegui Manager — Yamilet Lopetegui Sous Chef— Hector Lopetegui Jr. 3 line cooks 1 Janitorial Staff 31 "EXHIBIT D" INVENTORY 32 • Cafeteria Inventory Qty. Description 1 1 1 1 1 5 . 2 8 3 59 Refrigerator Bar code # 003673 Refrigerator Double Door Bar Code # 10546 Double Door Freezer Bar Code# 10547 Oven Bar Code # 006895 _. _.. Grill & Fryer Stainless Steel Counter WI Food 'Display Stainless Steel 3 Hole Sink Stainless Steel Shelve. Bar Code # 00033087 Stainless Steel Shelve 5 Level Stainless Steel Shelve 3x6 Table 3x4Table 3x3 Table 4x8 Table Chairs "EXHIBIT E" INSURANCE REQUIREMENTS AND MIAMI POLICE DEPARTMENT CAFETERIA I. Commercial General Liability Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence $1,000,000 General Aggregate Limit $ 2,000,000 Products/Completed Operations $ 1,000,000 Personal and Advertising Injury $1,000,000 Damage to Rented Premises $ 100,000 Endorsements Required City of Miami included as an additional insured Primary Insurance Clause Endorsement Premises & Operations Liability II. Business Automobile Liability Limits of Liability Bodily Injury and Property Damage Liability Combined Single Limit Any Auto/Owned Autos/Scheduled Including Hired, Borrowed or Non -Owned Autos Any One Accident $ 300,000 Endorsements Required City of Miami included as an additional insured 33 III. Worker's Compensation Limits of Liability Statutory -State of Florida Waiver of subrogation A. Employer's Liability Limits of Liability $100,000 for bodily injury caused by an accident, each accident. $100,000 for bodily injury caused by disease, each employee $500,000 for bodily injury caused by disease, policy limit IV. Property Coverage The licensee shall maintain business personal property coverage insuring against all risk of direct physical loss (special form), including coverage for windstorm and hail, and flood if applicable. The coverage should be written on a full replacement cost with maximum deductibles of $1,000 all other perils, and 5% wind and hail. The above policies shall provide the City of Miami with written notice of cancellation or material change from the insurer in accordance to policy provisions. 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 no less than "A" as to management, and no 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. 34