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HomeMy WebLinkAboutExhibit - AgreementCONCESSION AGREEMENT ISSUED BY THE CITY OF MIAMI TO EVENTSTAR STRUCTURES CORP. FOR THE EXCLUSIVE PROVISION OF TENT STRUCTURES AT THE COMMODORE RALPH MIDDLETON MUNROE MIAMI MARINE STADIUM VIRGINIA KEY, MIAMI, FLORIDA 1 CONCESSION AGREEMENT This Concession Agreement ("Agreement"), is made this day of 2015, by and between the City of Miami, a municipal corporation of the State of Florida, (hereinafter referred to as the "City") and Eventstar Structures Corp., (hereinafter referred to as the "Concessionaire") an organization incorporated under the Laws of the State of Florida. WITNESS: WHEREAS, the City desires to have high quality tent structures available for use at the Commodore Ralph Middleton Munroe Miami Marine Stadium ("Marine Stadium") provided through a concessionaire; 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 as the exclusive vendor of tent structures for any event held at the Premises; and WHEREAS, owing to Concessionaire's unique tent structure foundations and connection plates that could not be procured elsewhere, Concessionaire was selected on a sole -source basis for the provision of the concessions; and WHEREAS, Concessionaire has indirectly by way of the National Marine Manufacturers Association furnished the City with a substantial in -kind donation at the Marine Stadium, the value of which is no less than three -hundred fifty thousand dollars ($350,000.00), encompassing approximately 500 units of unique anchors and custom made base plates, engineering, and many hours of design services related thereto; and WHEREAS, in recognition of said in -kind donation, the City has selected Concessionaire for the exclusive provision of the services specified in this Agreement, finding that sealed competitive bidding is not practicable or advantageous to the City; 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. "City" means the City of Miami, Florida, a Florida municipal corporation. In all respects hereunder, the City's performance is pursuant to the City's capacity as Owner. In the event the City exercises its regulatory authority as a governmental body, the exercise of such regulatory authority and the enforcement of any rules, regulations, codes, laws and ordinances shall be deemed to have occurred pursuant to the City's authority as a governmental body and shall not be attributable in any manner to the City as a party to this Contract. For the purposes of this Contract, "City" without modification shall mean the City Manager or the Director, as applicable. 2 2. "City Commission" means the legislative body of the City. 3. "City Manager" means the duly appointed chief administrative officer of the City. The City Manager is the administrative head of the City's government who has been appointed by the City Commission in accordance with the provisions of Section 15 of the Charter of the City, 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 the City to commence on the first day of a calendar month. 5. "Commencement Date" shall mean the date in which this Agreement is signed by the City Manager and attested by the City Clerk, which is the date that the Concession shall be in effect between Concessionaire and the City. 6. "Concessionaire Manager" shall mean the person authorized by Concessionaire to act fully on behalf of Concessionaire in managing the provision of Tent Structure Services as required by this Agreement. 7. "Contract Administrator" shall be the Director of Real Estate & Asset Management authorized by the City to administer the Agreement and coordinate the activities of Concessionaire at the Premises. 8. "Default" shall mean, for purposes of this Agreement, the Concessionaires failure to comply with any one of the following: (i) Concessionaire fails to comply with or to perform satisfactorily any assigned duties, task(s) and responsibilities ; or, (ii) Fails to meet first quality performance standards for Tent Structure Services ; or (iii) Is debarred by any public agency or is placed on the Convicted Vendors List pursuant to Florida Statute 287.133; or (iv) Is convicted of a crime involving moral turpitude including theft, conversion or unfair trade practices ; or (v) Is involuntarily dissolved as a corporate entity or liquidated in bankruptcy in response to a petition by its creditors or has a receiver appointed over for the benefit of its creditors ; or (vi) Fails to comply with any applicable law, rule or regulation applicable to its performance of this Agreement; or (vii) Fails to timely pay the required percentage of Gross Revenues under Sec. 3.2. 9. "Director" shall mean the Director of Real Estate & Asset Management. 3 10. "Event(s)" shall have the same meaning as "temporary event" pursuant to Sec. 62-521(a) of the City Code. Events at the site may be held by the City or by non -city entities. Any event must be licensed or permitted by the City following all applicable requirements and with necessary approvals and/or agreements. 11. "Fiscal Year" means the twelve (12) month tax reporting period chosen by Concessionaire. 12. "Gross Revenues" shall mean all revenues received by the Concessionaire derived directly and limited to Tent Structure Services as defined below located on, consummated, initiated or concluded on or at the Premises, excluding the Miami International Boat Show, whether such sales shall be credit or cash sales or otherwise. Gross Revenues shall be reduced by the amount of any sales or excise tax levied upon any sales, rentals and/or services rendered and payable to the appropriate governmental authority. 13. "Premises" shall mean the approximately twenty-three (23) acres of upland and twenty-six (26) acres of submerged land owned by the City located at Virginia Key, Miami, FL and more particularly described in Exhibit "A" encompassing the areas surrounding the Marine Stadium and the City -owned property located on the east side of the Miami -Dade Water and Sewer Department (WASD) Central Treatment Plant. 14. "Subcontractor shall mean any individual, partnership or corporation who is contractually bound to Concessionaire to perform a specific portion of the Tent Structure Services under this Agreement, only after prior approval by the Director. 15. "Tent Structure Services" shall be limited to all services and materials necessary for constructing, and disassembling after use, all tent structures, covered temporary enclosures, or other similar event or party -type tents for use for any Event at the Premises excluding all ancillary services such as flooring, HVAC, decor, production services, staging, etc. 16. "Term" shall mean the initial ten (10) year period of time granted to Concessionaire for use of the Concession Facility and the Additional Terms once exercised and approved by the City. 17. "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 Premises for the purpose of being the sole provider of Tent Structure Services for any and all Events at the Premises and for no 4 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 but reasonable discretion. 2.2 OPERATION OF CONCESSION PRIVILEGES. Starting on the Commencement Date, Concessionaire shall provide the Tent Structure Services at the Premises, on an on -call basis in connection with any pending or upcoming Event, in a first class and reputable manner continuously during the entire term of this Agreement. Concessionaire's use and operation of the Premises shall be only for the purposes specified in Section 2.1 of this Agreement, and shall be subordinate to any other use of the Premises by any licensee or valid permit holder for all or any part of the Premises. It is the intent of the City to allow Concessionaire to utilize a portion of the Premises for temporary parking, staging, and loading in connection with providing Tent Structure Services; however, the Director shall have the final authority as to the approval of such location determination. The City makes no representations that Events will or will not occur on the Premises, or makes any representations as to the duration, type, or manner of such Events, if any. The City additionally makes no representation that if an Event is to occur on the Premises, that the Event will require any Tent Structure Services at all. Any person or entity that wishes to conduct an Event at the Premises shall contract directly with Concessionaire. If Concessionaire fails or refuses to satisfy any of the foregoing requirements, including failure to timely provide Tent Structure Services to any valid licensee or permit -holder in connection with an Event at the Premises, then in such event once a fifteen (15) curative period were to toll, the City shall have the right to immediate termination of this Agreement in accordance with Section 4.1(3). 2.3 CONCESSIONAIRE RESPONSIBILITIES. Concessionaire covenants and agrees as follows: 1. 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. 2. Concessionaire shall provide the Contract Administrator and the Director with the name, phone number, and cellular phone number of a Concessionaire Manager 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 (7) days a week. 3. Concessionaire shall assume all costs of providing the Tent Structure Services and retain all profits, if any, thereof. 4. Concessionaire shall maintain and keep all materials and systems that are an integral part of its Tent Structure Services in a safe, operable, workmanlike manner so as not to expose any licensee or permit -holder (including any guest or invitee thereof) that contracts with Concessionaire for Tent Structure Services to any risk of bodily harm. 5 2.4 CITY ACCESS TO FACILITY. The City and its authorized representative shall have at all times access to the Premises. 2.5 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). 2.6 CONDITION OF PREMISES. Concessionaire accepts the Premises in their present condition and state of repair and without any representation by or on behalf of the City, and agrees that the 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, potable or surface water, or soil matter or condition and the Premises are accepted in "AS IS"condition. 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 Premises and Concessionaire has concluded that the existing condition of the Premises is acceptable to Concessionaire and suitable for Concessionaire's intended operations. 2.7 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 Tent Structure 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. Failure to do so shall be cause for termination in accordance with Sec. 4.1(3) of this Agreement. 6 ARTICLE III TERM & PAYMENTS 3.1 TERM. The term of this Agreement shall be for a period of ten (10) years from the Commencement Date unless sooner terminated as provided herein (the "Term"). 3.2 CONCESSION FEE. Commencing on effective date of this Agreement ("Commencement Date") and on or before the 10t1i day of each calendar month thereafter during the Term, Concessionaire agrees to provide to the City a certified report by a principal of the Concessionaire which confirms the Gross Revenues and client name with regards all contracts directly related to the Premises entered into for only Tent Structure Services during the preceding month, and pay the City the following fee with the exception of the Miami International Boat Show of which no fee will be paid to the City: 1. For the first five (5) years of the Teini, ten percent (10%) of Gross Revenues generated from the exclusive concession granted to Concessionaire by this Agreement during the preceding month limited to Tent Structure Services; 2. For the last five (5) years of the Term, fifteen percent (15%) of Gross Revenues generated from the exclusive concession granted to Concessionaire by this Agreement during the preceding month limited to Tent Structure Services. ARTICLE IV TERMINATION OF AGREEMENT 4.1 TERMINATION BY CITY FOR CAUSE. In the event Concessionaire defaults or fails to observe the terms and conditions of this Agreement in any material aspect, the City shall have the right to do any one of the following: 1) 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; 2) 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 4.2 TERMINATION BY CITY WITHOUT CAUSE. The City shall have the right to terminate this Agreement at its sole option, for any reason or no reason whatsoever (also known as "termination for convenience"), upon 7 at least Ninety (90) days written notice to Concessionaire. Upon such termination, the exclusive concession will end and Concessionaire agrees to waive any claims for damages, including loss of anticipated fees and profits. Concessionaire shall have no recourse from such termination. Any and all rights afforded to the City for Termination herein shall be limited as to this Concession Agreement and will not preclude Concessionaire from continuing to provide Tent Structure Services on the Premises. 4.3 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, Concessionaire's right to its exclusive concession to provide Tent Structure Services will end and Concessionaire agrees to waive any claims for damages, including loss of anticipated fees and profits. The City will be entitled to pursue payment of any payments due the City from Concessionaire under the Agreement. 4.4 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 the City in writing of the action required to correct the problem and giving the City thirty (30) days from receipt of said notice to correct the problem. 4.5 SURRENDER OF CONCESSION OF PREMISES. At the expiration of the term or earlier termination of this Agreement, Concessionaire shall promptly remove any materials, vehicles, or personnel used in connection with providing the Tent Structure Services. Concessionaire shall return any portion of the Premises it has used to provide the Tent Structure Services in the condition in which received, reasonable wear and tear excepted. Concessionaire will be responsible for all losses and damages to the Premises resulting from its default, failure or negligence during the term of this Agreement. Only if within thirty (30) days of termination of this Agreement, the City determines and notifies Concessionaire in writing, that any part of the Premises are damaged or missing as applicable, and that such condition was not readily evident at the time Concessionaire surrendered its exclusive concession to provide Tent Structure Services, the 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. In no event will Concessionaire be required to remove fixtures, concrete footers, and base plates which have been provided by Concessionaire and installed on the Premises. ARTICLE V HAZARDOUS MATERIALS 5.1 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, regulations, rules, 8 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 or about the Premises in conformity with all applicable Hazardous Materials Laws and prudent industry practices regarding management of such Hazardous Materials. The 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. The City acknowledges that it is not the intent of this Article V 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. Concessionaire will not be responsible for any actions or failure to act on behalf of third parties hosting events on the Premises. Concessionaire's liability regarding this paragraph is limited to Concessionaire's actions. 5.2 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 the City, in writing, of any complaints, notices, warnings, reports or asserted violations of which Concessionaire becomes aware relating to Hazardous Materials on or about the Premises. Concessionaire shall also immediately notify the 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 the Director of all chemical products (soaps, glass cleaners, detergents, degreasers, etc.) it proposes to 9 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 ordeleted and shall provide new or updated Material Safety Data Sheets as conditions warrant. The 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. 5.3 SURVIVAL OF CONCESSIONAIRE'S OBLIGATION. The respective rights and obligations of the City and Concessionaire under this Article V shall survive the expiration or earlier termination of this Agreement. ARTICLE VI ABANDONMENT 6.1 ABANDONMENT. If Concessionaire shall vacate or abandon, or otherwise cease to provide in a reasonable and timely basis its Tent Structure Services during the Term, the City, at its option and without serving notice elsewhere required in this Agreement, may immediately cancel this Agreement. ARTICLE VII ALTERATIONS AND IMPROVEMENTS 7.1 ALTERATIONS AND IMPROVEMENTS. Concessionaire shall not make or permit to be made any construction, repairs, alterations, additions, partitions or changes to the Premises (hereinafter collectively called "Alterations") without the prior written consent of the Director or his/her designee. If the 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. (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. 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 thirty (30) days after receipt of written notice from the City directing the required repairs, the City shall cause the Premises to be repaired at the sole cost and 10 expense of Concessionaire. Concessionaire shall pay the City the full cost of such repairs within thirty (30) days of receipt of an invoice indicating the cost of such required repairs. Failure to pay such invoice shall be sufficient cause to terminate this Agreement as provided in Section 4.1(3) herein. Notwithstanding the above, this Agreement may be terminated due to Concessionaire's failure to repair the Premises as directed without the necessity of the City repairing the Premises. 7.2 LIENS AND ENCUMBRANCES. Concessionaire shall keep the Premises free and clear of any liens and encumbrances. Concessionaire agrees that it has no possessory interest in any portion of the Premises and shall make no representations to the contrary to any other person or entity. 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 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, Concessionaire shall cause it to be discharged of record within ten (10) days after the date Concessionaire has knowledge of its filing. If 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 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 Concessionaire immediately upon rendition of an invoice or bill by the City. Concessionaire shall not be required to pay or discharge any lien so long as Concessionaire shall in good faith proceed to contest the lien by appropriate proceedings and if 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 the City or other security reasonably satisfactory to the 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 the City's reasonable attorneys' fees, to be incurred in connection with it. ARTICLE VIII INDEMNIFICATION AND INSURANCE 8.1 INDEMNIFICATION AND HOLD HARMLESS. 8.1(a) 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 11 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, and defend the City, its officials and/or employees against, any civil actions, statutory or similar claims, injuries or damages arising or resulting from the Agreement work, even if it is alleged that the City, its officials and/or employees were negligent, unless such injuries or damages are ultimately proven to be the result of from alleged grossly negligent or willful acts or omissions on the part of the City, its officials and/or employees, and whether it relates to injury to persons (including death) or damage to property even if it is alleged that the City, its officials and/or employees were negligent, unless such injuries or damages are ultimately proven to be the result of gross negligence or willful acts or omissions on the part of the City, its officials and/or employees. 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 the 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, reasonable 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 the City, its officials and/or employees by reason of any claim, Concessionaire upon notice from the City shall defend the same at Concessionaire's expense by counsel approved in writing by the City. The City reserves the right to defend itself. Concessionaire shall immediately notify the 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 the 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. The obligations under this subsection shall survive the expiration or termination of this Agreement. 8.2 HAZARDOUS MATERIALS INDEMNIFICATION. Concessionaire shall indemnify, protect, defend and hold the City, its officials and employees, 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 12 property of whatever nature to their condition existing prior to the appearance of the Hazardous Materials, even if it is alleged that the City, its officials and/or employees were negligent, unless such injuries or damages are ultimately proven to be the result of gross negligent or willful acts or omissions on the part of the City, its officials and/or employees. The obligations under this subsection shall survive the expiration or termination of this Agreement. 8.3 INSURANCE. In connection herewith, Concessionaire shall obtain and maintain or cause to be obtained and maintained throughout the term of this Agreement, the types and amounts of insurance coverage set forth in Exhibit "B," 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. Concessionaire shall provide any other insurance or security reasonably required by the City. 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 the City. Said notice should be delivered to the City of Miami, Department of Risk Management, 444 S.W. 2nd Avenue, 9t1i floor, Miami, Florida 33130 with copy to City of Miami, Department of Real Estate & 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 Real Estate & Asset Management 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 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 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 4.1(3) hereof. Concessionaire's failure to procure insurance shall in no way release Concessionaire from its obligations and responsibilities as provided herein. 13 ARTICLE IX RECORDS AND AUDITING 9.1 RECORDS OF SALES. During the tetiii of this Agreement and any extension thereto, Concessionaire shall maintain and keep, or cause to be maintained and kept at Concessionaire's offices in Miami -Dade County 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 9:00 AM to 5:00 PM, Monday through Friday with reasonable notice, 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 sixty (60) months after the payment of the fee due under the terms hereof pursuant to Sec. 3.2 of this Agreement. 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. 9.2 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, 31 ` Floor, Miami, FL 33130, a financial statement for the Agreement Year pertaining only to the Tent Structure Services provided herein at the Premises, prepared and certified by a 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, and expenses of the Concessionaire for the period indicated therein. 14 With each financial statement, Concessionaire shall pay to City any unpaid balance of the fee due hereof pursuant to Sec. 3.2 of this Agreement, if any, and City shall refund any overpayments, if any. In the event the Concessionaire fails to prepare or deliver any required financial statement to the City within the time set forth above, the City, upon forty-five (45) days written notice to Concessionaire, may elect to exercise either or both of the following remedies: 1. 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 2. 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, at the City's sole expense, to be 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. 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 Concesionaire's offices. The acceptance by City of payments of the fees due pursuant to Sec. 3.2 of this Agreement 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: Quality of the Tent Structure Services provided Training program techniques, schedules and records Operation performance from a financial perspective 15 City shall prepare a report as a result of the operational audit notifying the Concessionaire of conditions needing correction or improvement. ARTICLE X DAMAGE OR LOSS TO CONCESSIONAIRE'S PROPERTY 10.1. RISK OF LOSS. City shall not be liable for injury or damage to the property or merchandise of Concessionaire or its employees, invitees, or customers occurring in or about the Areas caused by or resulting from Concessionaire, its employees, agents, or perils which may affect the Areas, including, without limitation, fire, steam, electricity, gas, water, 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 above ground 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. 10.2 NOTICE OF DAMAGES OR INJURIES. Concessionaire shall give City prompt written notice of any fire, damage or injury occurring in the Areas. 10.3. 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. 10.4. THEFT AND LOSS LIABILITY. The City will not be responsible for any of Concessionaire's losses or thefts, and any such losses must be borne solely by Concessionaire out of its own funds that may not be used to diminish or be absorbed by payment due the City. ARTICLE XI ASSIGNMENT AND SUBCONTRACTING 11.1 ASSIGNMENT. Concessionaire shall not: (1) assign, sell, give, or otherwise 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 16 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 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 Concessionaire shall relieve Concessionaire of any of its liabilities and obligations. An event in which the present stockholders in the Concessionaire were to transfer or sell a portion or all of their ownership interest would be exempt from restrictions under Article XI. 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. The City reserves the right to directly terminate any Subcontractor for any cause for which Concessionaire may be terminated. 11.2 PROCEDURE FOR SUBCONTRACT. Should Concessionaire desire to make a Subcontract hereunder directly related to Tent Structure Services, 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 (3) years' audited financial statements) the City may require in order to make a determination as to the suitability of the Subcontractor. The 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 X as a condition of Concessionaire's consent is reasonable. ARTICLE XII SIGNAGE AND ADVERTISING 12.1 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 or on the Tent Structure itself. Concessionaire shall, at its sole cost and expense, install, provide, and 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 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 17 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 the City directing the required repairs, the City shall cause the Premises to be repaired at the sole cost and expense of Concessionaire. Concessionaire shall pay the City the full cost of such repairs within ten (10) days of receipt of an invoice indicating the cost of such required repairs. ARTICLE XIII NOTICE 13.1 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. NOTICE TO CITY: City of Miami City Manager 444 S.W. 2nd Avenue 10th Floor Miami, Florida 33130 -1910 WITH COPIES TO: City of Miami City Attorne1's Office 444 S.W. 2n Avenue 9th Floor Miami, FL 33130-1910 City of Miami Department of Real Estate & Asset Management Attn: Director 444 S.W. 2nd Avenue Suite 325 Miami, FL 33130-1910 NOTICE TO CONCESSIONAIRE: Eventstar Structures Corp. Belkys Perez, Secretary 8150-B NW 90 Street Medley, Florida 33166 WITH COPIES TO: Manny Vadillo, Esq. Torres & Vadillo LLP 1200 Brickell Drive Suite 1480 Miami, FL 33131 18 ARTICLE XIV MISCELLANEOUS 14.1 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. 14.2 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. 14.3 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. Concessionaire agrees to the following: (1) To keep and maintain public records that ordinarily and necessarily would be required by the City in order to perform the Tent Structure Services. (2) Provide the public with access to public records on the same terms and conditions that the City would provide the records and at a cost that does not exceedthe cost provided in Chapter 119, Fla. Stat., or as otherwise provided by law. (3) Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law. (4) Meet all requirements for retaining public records and transfer, at no cost, to the City all public records in possession of Concessionaire upon termination of the contract and destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. All records stored electronically must be provided to the City in a format that is compatible with the information technology systems of the City. 14.4 SUCCESSORS AND ASSIGNS. This Agreement shall inure and be binding upon the Parties herein, their heirs, executors, legal representatives, successors and assigns. 14.5 AMENDMENTS. The 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, subject to prior approval by the City Commission after a public hearing and shall be effective only when signed by City Manager and Concessionaire and shall be incorporated as a part of this Agreement. 19 14.6 AWARD OF AGREEMENT. Concessionaire warrants that it has not employed or retained any person employed by the City to solicit or secure this Agreement and that it has not offered to pay, paid, or agreed to pay any person employed by the City any fee, commission, percentage, brokerage fee, or gift of any kind contingent upon or resulting from the award of this Agreement. 14.7 CONFLICT OF INTEREST. Concessionaire is aware of the conflict of interest laws of the City (City Code Chapter 2, Article V), Miami -Dade County, Florida (Miami -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. 14.8 CONSTRUCTION OF AGREEMENT. This Agreement shall be construed and enforced according to the laws of the State of Florida. 14.9 COURT COSTS AND ATTORNEYS' FEES. In the event that it becomes necessary for the City to institute legal proceedings to enforce the provisions of this Agreement, Concessionaire shall pay the City's court costs and reasonable attorney(s)' fees. 14.10 WAIVER OF JURY TRIAL. The Parties hereby knowingly, irrevocably, 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. 14.11 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. 20 14.12 WAIVER. No waiver of any provision hereof shall be deemed to have been made unless such waiver is in writing and signed by the 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. 14.13 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. 14.14 VENUE. Both Parties agree that venue for any lawsuit or legal proceedings arising out of this Agreement shall be within Miami -Dade County, Florida. 14.15 TIME IS OF THE ESSENCE Both parties agree that time is of the essence with respect to this Agreement. Concessionaire shall perform all duties obligations in a reasonably timely manner. 21 ARTICLE XV ENTIRE AGREEMENT 15.1 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. ATTEST: THE CITY OF MIAMI, A municipal corporation of the State of Florida By: By: Todd B. Hannon Daniel J. Alfonso City Clerk City Manager APPROVED AS TO LEGAL FORM AND APPROVED AS TO INSURANCE CORRECTNESS: REQUIREMENTS: By: By: Victoria Mendez Ann -Marie Sharpe, Director City Attorney Risk Management 22 WITNESSES: CONCESSIONAIRE: Signature Eventstar Structures Corp, Print Name [INSERT TITLE AND NAME OF SIGNATORY HERE] Signature CORPORATE SEAL Print Name 23