1
Exhibit 10.24
CONCESSION AGREEMENT FOR OPERATION OF
NONEXCLUSIVE DUTY AND TAX FREE CONCESSION,
TERMINAL BUILDING, MIAMI INTERNATIONAL AIRPORT
Miami Airport Duty Free Joint Venture
-----------------------------------------------------
Tenant
-----------------------------------------------------
Effective Date
PMD No. 000036
Reso. No. __________
Cust. No. __________
Lease No. __________
2
CONCESSION AGREEMENT FOR OPERATION OF
NONEXCLUSIVE DUTY AND TAX FREE CONCESSION,
TERMINAL BUILDING, MIAMI INTERNATIONAL AIRPORT
Page
----
ARTICLE 1
Term and Premises.................................................................................... CA-1
1.01 Term............................................................................... CA-1
1.02 Extensions......................................................................... CA-1
1.03 Premises........................................................................... CA-1
1.04 DBE Subconcession.................................................................. CA-4
1.05 Addition or Deletion of Premises................................................... CA-4
1.06 Nonexclusivity..................................................................... CA-5
1.07 Proposal Incorporated.............................................................. CA-5
ARTICLE 2
Use of Premises...................................................................................... CA-5
ARTICLE 3
Rentals, Payments and Reports........................................................................ CA-6
3.01 Annual Rental...................................................................... CA-6
3.02 Rental Rate Adjustment............................................................. CA-10
3.03 Minimum Annual Guarantee........................................................... CA-10
3.04 Recalculations of Minimum Annual Guarantee......................................... CA-10
3.05 Monthly Opportunity Fee............................................................ CA-11
3.06 No Negotiations.................................................................... CA-11
3.07 Late Payment Charge................................................................ CA-11
3.08 Worthless Check or Draft........................................................... CA-11
3.09 Gross Revenues..................................................................... CA-11
3.10 Address for Payments............................................................... CA-12
3.11 Minimum Annual Guarantee Security.................................................. CA-13
3.12 Records and Reports................................................................ CA-13
3.13 Revenue Control Procedures......................................................... CA-13
3.14 Monthly Statement Required......................................................... CA-13
3.15 Annual Audit....................................................................... CA-14
3.16 Right to Audit..................................................................... CA-14
3.17 Utilities.......................................................................... CA-15
3.18 Purchase of In Place Assets........................................................ CA-15
3.19 Assignable Contracts/Agreements.................................................... CA-15
3.20 Joint Marketing or Advertising Programs............................................ CA-15
ARTICLE 4
Improvements to the Premises......................................................................... CA-16
4.01 Improvements to Premises........................................................... CA-16
4.02 Design of Improvements............................................................. CA-16
-i-
3
Page
----
4.03 Certain Construction Contract Terms................................................ CA-17
4.04 Improvements Free and Clear........................................................ CA-17
4.05 Construction Bonds and Insurance Required.......................................... CA-17
4.06 Other Requirements................................................................. CA-17
4.07 Review of Construction............................................................. CA-18
4.08 Cost Documentation................................................................. CA-18
4.09 Reimbursement of Improvement Costs................................................. CA-18
ARTICLE 5
Standards of Operation............................................................................... CA-19
5.01 Operating Hours.................................................................... CA-19
5.02 Pricing............................................................................ CA-19
5.03 Change Making...................................................................... CA-20
5.05 Prior Approval Required............................................................ CA-20
5.06 Personnel.......................................................................... CA-20
5.07 Monitoring Services................................................................ CA-20
5.08 Delivery of Goods for Off-Airport Duty Free Permittees............................. CA-21
5.09 Security........................................................................... CA-21
5.10 Security Identification Display Areas Access -- Identification Badges.............. CA-21
5.12 Alcohol and Drug Testing........................................................... CA-22
5.13 Special Programs................................................................... CA-22
5.14 Vehicle Permit and Company Identification.......................................... CA-22
5.15 Federal Agencies Right to Consent.................................................. CA-22
5.16 AOA - Right to Search.............................................................. CA-23
5.17 Control of Employees............................................................... CA-23
ARTICLE 6
Services to be Provided by the County................................................................ CA-23
ARTICLE 7
Equipment Furnishings and Fixtures................................................................... CA-24
7.01 Tenant Responsibilities............................................................ CA-24
7.02 Equipment, Furnishings and Fixtures:............................................... CA-24
7.03 Disposal of Equipment, Furnishings and Fixtures.................................... CA-24
ARTICLE 8
Maintenance and Utilities............................................................................ CA-25
8.01 Cleaning........................................................................... CA-25
8.02 Removal of Trash................................................................... CA-25
8.03 Maintenance and Repair............................................................. CA-25
8.04 Failure to Maintain................................................................ CA-25
-ii-
4
Page
----
ARTICLE 9
Assignment, Subletting and Ownership................................................................. CA-25
9.01 No Assignment or Subletting........................................................ CA-25
9.02 Ownership of the Tenant............................................................ CA-25
9.03 Subcontracting..................................................................... CA-26
ARTICLE 10
Indemnification...................................................................................... CA-26
ARTICLE 11
Insurance............................................................................................ CA-26
11.01 Insurance Required................................................................. CA-26
11.02 Insurance Certificates Required.................................................... CA-27
11.03 Tenant Liable...................................................................... CA-28
11.04 Right to Examine................................................................... CA-28
11.05 Personal Property.................................................................. CA-28
ARTICLE 12
Termination by County................................................................................ CA-28
12.01 Termination for Abandonment........................................................ CA-28
12.02 Payment Default.................................................................... CA-28
12.03 Other Defaults..................................................................... CA-28
12.04 Habitual Default................................................................... CA-29
12.05 Drug-Free Workplace Default........................................................ CA-29
12.06 Family Leave Program Default....................................................... CA-30
ARTICLE 13
Claims and Termination by Tenant..................................................................... CA-30
13.01 Claims Procedures.................................................................. CA-30
13.02 Penalty............................................................................ CA-30
13.03 Abatement.......................................................................... CA-30
13.04 Termination........................................................................ CA-31
ARTICLE 14
Nondiscrimination.................................................................................... CA-31
14.01 Employment Discrimination:......................................................... CA-31
14.02 Nondiscriminatory Access to Services............................................... CA-31
14.03 Breach of Nondiscrimination Covenants.............................................. CA-32
14.04 Affirmative Action and Disadvantaged Business Enterprise Programs.................. CA-32
14.05 Disadvantaged Business Enterprise Participation Plan............................... CA-32
ARTICLE 15
Rules, Regulations and Permits....................................................................... CA-33
15.01 Rules and Regulations.............................................................. CA-33
-iii-
5
Page
----
15.02 Violations of Rules and Regulations................................................ CA-33
15.03 Permits and Licenses............................................................... CA-33
15.04 U.S. Customs Penalties............................................................. CA-34
ARTICLE 16
Civil Actions........................................................................................ CA-34
16.01 Governing Law; Venue............................................................... CA-34
16.02 Notice of Commencement of Civil Action............................................. CA-34
16.03 Registered Office/Agent; Jurisdiction:............................................. CA-34
ARTICLE 17
Actions at Termination............................................................................... CA-35
17.01 Surrender of Premises.............................................................. CA-35
17.02 Removal of Personal Property....................................................... CA-35
17.03 Failure to Vacate.................................................................. CA-35
17.04 Right to Show Premises............................................................. CA-35
ARTICLE 18
Trust Agreement...................................................................................... CA-35
18.01 Incorporation of Trust Agreement by Reference...................................... CA-35
18.02 Adjustment of Terms and Conditions:................................................ CA-36
18.03 Tenant Right to Terminate:......................................................... CA-36
ARTICLE 19
Other Provisions..................................................................................... CA-36
19.01 Payment of Taxes................................................................... CA-36
19.02 Alterations by Tenant.............................................................. CA-36
19.04 Security........................................................................... CA-37
19.05 Rights of County at Airport........................................................ CA-37
19.06 Federal Subordination.............................................................. CA-37
19.07 Notices............................................................................ CA-37
19.08 Severability....................................................................... CA-38
19.09 Rights Reserved to County.......................................................... CA-38
19.10 Lien............................................................................... CA-38
19.11 Authorized Uses Only............................................................... CA-38
19.12 No Waiver.......................................................................... CA-38
19.13 Right to Regulate.................................................................. CA-38
19.14 Inspections........................................................................ CA-38
19.15 Radon Disclosure................................................................... CA-38
19.16 Trademarks and Licenses............................................................ CA-39
19.17 Destruction of Premises............................................................ CA-39
19.18 Headings........................................................................... CA-40
19.19 Binding Effect..................................................................... CA-40
-iv-
6
Page
----
19.20 Entirety of Agreement.............................................................. CA-40
19.21 Addendum to Agreement.............................................................. CA-40
-v-
7
CONCESSION AGREEMENT FOR OPERATION OF
NONEXCLUSIVE DUTY AND TAX FREE CONCESSION,
TERMINAL BUILDING, MIAMI INTERNATIONAL AIRPORT,
BETWEEN DADE COUNTY, FLORIDA AND
MIAMI AIRPORT DUTY FREE JOINT VENTURE
THIS AGREEMENT ("Agreement") is made and entered into as of the ______
day of ____________, 1995, by and between the BOARD OF COUNTY COMMISSIONERS OF
DADE COUNTY, FLORIDA ("County") and MIAMI AIRPORT DUTY FREE JOINT VENTURE, a
joint venture corporation, authorized to do business in the State of Florida
("Tenant").
W I T N E S S E T H:
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants herein contained, the parties agree as follows:
ARTICLE 1
Term and Premises
1.01 Term: The County hereby leases to the Tenant for a term of five
years, commencing on December 1, 1995 and ending on November 30, 2000, unless
otherwise terminated as provided for herein, certain premises described below
and do hereby grant to the Tenant a nonexclusive Duty Free Concession
("Concession") in the Terminal Building at Miami International Airport
("Airport"), as more fully described in Article 2 hereof.
1.02 Extensions: The County reserves the right, in its sole discretion,
to extend this Agreement for five separate terms of one year each, upon the
terms and conditions contained herein. Such right may be exercised by the
Aviation Department of the County ("Department") on behalf of the County. In the
event the Department elects to extend this Agreement, the Tenant shall be
notified, in writing, at least 300 days prior to the then scheduled termination
date of this Agreement. In the event the Department does not give such notice,
this Agreement shall terminate accordingly. The Tenant shall, within 30 days
following receipt of notice from the Department, have the right to reject any
such extension by written notice to the Department and, if so rejected, this
Agreement shall terminate as provided in Article 1.01 (Term) above or upon the
termination of any extension thereof, as appropriate. Failure of the Tenant to
respond to the Department within the 30-day period shall automatically
constitute acceptance of the extension.
1.03 Premises: The County hereby leases to the Tenant the premises
("Premises") on the first, second and third floors of the Terminal Building, all
as shown on Exhibit A, and
CA-1
8
further identified by Dade County Aviation Department identification number(s)
("ID#") as follows:
2,037 square feet of air-conditioned
Class I space
Exhibit A, Store #1, ID# 6E2180
4,583 square feet of air-conditioned
Class I space
Exhibit A, Store #2/9, ID# 6F2636
3,905 square feet of air-conditioned
Class I space
Exhibit A, Store #3/4, ID# 6B2464
2,075 square feet of air-conditioned
Class II space
Exhibit A, Store #5, ID# 6S3847
367 square feet of air-conditioned
Class II space
Exhibit A, Store #6, ID# 6S2545
1,821 square feet of air-conditioned
Class II space
Exhibit A, Store #7, ID# 6B2848
1,430 square feet of air-conditioned
Class II space
Exhibit A, Store #8, ID# 6D2875
947 square feet of air-conditioned
Class II space
Exhibit A, Store #10, ID# 6E2778
621 square feet of air-conditioned
Class II space
Exhibit A, Store #11, ID# 6F2852
60 square feet of air-conditioned
Class II space
Exhibit A, Cart #12, no ID#
CA-2
9
536 square feet of air-conditioned
Class II space
Exhibit A, Store #14, ID# 6C2769
153 square feet of air-conditioned
Class II space
Exhibit A, Store #15, ID# 6D3601
614 square feet of air-conditioned
Class II space
Exhibit A, Store #16, ID# 6B3872
1,178 square feet of air-conditioned
Class II space
Exhibit A, Store #17, ID# 6C2001
48 square feet of air-conditioned
Class II space
Exhibit A, Store #18, no ID#
227 square feet of air-conditioned
Class II space
Exhibit A, Store #19, ID# 6D2957
176 square feet of air-conditioned
Class II space
Exhibit A, Store #20, ID# 6F3898
4,116 square feet of air-conditioned
Class II space
Exhibit A, Store #21, ID# 6A2141
711 square feet of air-conditioned
Class II space
Exhibit A, Store #22, ID# 6A3154
3,414 square feet of air-conditioned
Class II space
Exhibit A, Store #27, ID# 6G2190
256 square feet of air-conditioned
Class II space
Exhibit A, Store #30 Kiosk
CA-3
10
48 square feet of air-conditioned
Class II space
Exhibit A, Booth #32
48 square feet of air-conditioned
Class II space
Exhibit A, Booth #33
5,795 square feet of air-conditioned
Class III space
Exhibit A, Office, ID# 3E3870
10,327 square feet of air-conditioned
Class III space
Exhibit A, Warehouse, ID# 3E1839
1,930 square feet of air-conditioned
Class III space
Exhibit A, Bulk Warehouse, ID# 3E1775
4,547 square feet of air-conditioned
Class III space
Exhibit A, Warehouse, ID# 6A1157
2,555 square feet of air-conditioned
Class III space
Exhibit A, Storage, ID# 3C1759
TOTAL SQUARE FOOTAGE: 54,269
1.04 DBE Subconcession: One or more stores may be designated by the
Tenant as a disadvantaged business enterprise store and the Tenant may enter
into a sublease agreement with a certified Disadvantaged Business Enterprise
("DBE"), approved by the County, from which such DBE shall operate a duty and
tax free concession. Such sublease arrangement shall be in accordance with the
Proposal submitted by the Tenant, under which this Concession was awarded,
pursuant to Article 1.07 hereof.
1.05 Addition or Deletion of Premises: The Department reserves the
right to delete, relocate or modify any of the Premises at its sole discretion
due to Airport Terminal construction or operational necessity. Relocated space
may not be similar in size or configuration to the Premises leased herein. In
the event of any such Department required deletion, relocation or modification,
the Department shall pay any unamortized construction costs of the Tenant of the
existing premises, pursuant to Article 4.09 (amortized on a 60-month
CA-4
11
straight line basis from the effective date of this Agreement) and the Tenant
shall pay the construction costs for the new or modified premises.
The Department and the Tenant may, by mutual agreement, add other
premises hereunder for such rental rates as set forth in Articles 3.01 and 3.02,
and subject to the Monthly Opportunity Fee payments in accordance with Article
3.05 hereof, and all costs associated therewith shall be paid by the Tenant. The
Department and the Tenant shall agree to the length of the amortization
schedule, but not to exceed 60 months calculated from the date of beneficial
occupancy, of any added premises based on the investment and profitability of
the facility.
This Agreement shall be administratively revised to reflect any
deletions, modifications, relocations, or additions, upon 30 days' written
notice to the Tenant by the Department. Such notification will include a revised
Exhibit A and appropriate changes to premises in Article 1.03 and rentals due in
Articles 3.01 and 3.02. The Department and the Tenant may, by mutual agreement,
adjust the Minimum Annual Guarantee for any deleted premises. Such deletion
shall not affect the Monthly Opportunity Fee payments due hereunder.
1.06 Nonexclusivity: This Agreement is nonexclusive in character and in
no way prevents the County from authorizing the sale or offering of competitive
services, products or items by other tenants or others in other premises at the
Airport. The Tenant shall have no rights to any other concession or concession
space that may be made available by the County.
1.07 Proposal Incorporated: The Tenant acknowledges that it has
submitted to the County a proposal ("Proposal") that was the basis for the award
of this Agreement and upon which the County has relied. IN THE EVENT THERE ARE
ANY CONFLICTS BETWEEN PROVISIONS OF THE PROPOSAL AND THE CONCESSION AGREEMENT,
THE TERMS OF THE CONCESSION AGREEMENT SHALL GOVERN. The Proposal of the Tenant
is hereby incorporated into this Agreement by reference and shall include
incorporation of the DBE participation requirements. The Tenant shall disclose
under oath, and provide executed copies of, all agreements between the Proposer
and any DBE listed by the Proposer as participating in this Agreement prior to
the execution of this Agreement. Any failure, during the term of this Agreement,
of the Tenant to maintain the DBE participation percentage as stated in its
Proposal shall constitute a default in accordance with Articles 12.03 and 14.05
hereof.
ARTICLE 2
Use of Premises
The Tenant shall use the Premises provided herein solely for the
purpose of operating a nonexclusive duty and tax free concession providing the
following services:
CA-5
12
The Tenant shall operate and maintain the stores in a first-class
manner and condition and provide in-bond duty and tax free merchandise
sales as are needed or desirable for departing international
passengers, including intransit. Such merchandise shall include, but is
not necessarily limited to, liquor, perfumes, cosmetics, tobacco
products, photo/electronics, leather goods, fine china, collectibles,
imported gift and fashion items, candies and food products and other
types of merchandise sold typically in world-class international duty
free stores, both in the U.S. and the rest of the world. It is the
intent of this Agreement to provide first class duty free stores
offering at all times the highest level of service for the traveling
public at competitive prices with other stores locally, and duty free
stores domestically and internationally.
The Tenant shall deliver to departing passengers at the passenger
loading bridges, or other location as may be approved by the Department,
merchandise sold by off-airport duty free sales operators in the Off-Airport
Duty Free Sales Permit Program at Miami International Airport, in accordance
with Article 5.08.
The Tenant may offer additional duty free related goods and services in
the manner provided above, with the prior written approval of the Department.
Said Departmental approval may be withheld without stated cause.
ARTICLE 3
Rentals, Payments and Reports
3.01 Annual Rental: As annual rental for the lease of the Premises, the
Tenant shall pay to the County, commencing on December 1, 1995, the sum of
$2,867,152.75* prorated and payable in equal monthly installments of
$238,929.40, in U.S. funds, on the first day of each and every month, in advance
and without billing or demand, at the offices of the Department as set forth in
Article 3.09 (Address for Payments). Said rental is computed as follows:
DESCRIPTION ANNUAL MONTHLY
----------- ----------- ----------
2,037 square feet of air-conditioned $156,849.00 $13,070.75
Class I space @ $77.00 per sq. ft.
per year - Exhibit A, Store #1,
ID# 6E2180
4,583 square feet of air-conditioned 352,891.00 29,407.58
Class I space @ $77.00 per sq. ft.
per year - Exhibit A, Store #2/9,
ID# 6F2636
CA-6
13
DESCRIPTION ANNUAL MONTHLY
----------- ----------- ----------
3,905 square feet of air-conditioned 300,685.00 25,057.08
Class I space @ $77.00 per sq. ft.
per year - Exhibit A, Store #3/4,
ID# 6B2464
2,075 square feet of air-conditioned 119,831.25 9,985.94
Class II space @ $57.75 per sq. ft.
per year - Exhibit A, Store #5,
ID# 6S3847
367 square feet of air-conditioned 21,194.25 1,766.19
Class II space @ $57.75 per sq. ft.
per year - Exhibit A, Store #6,
ID# 6S2545
1,821 square feet of air-conditioned 105,162.75 8,763.56
Class II space @ $57.75 per sq. ft.
per year - Exhibit A, Store #7,
ID# 6B2848
1,430 square feet of air-conditioned 82,582.50 6,881.88
Class II space @ $57.75 per sq. ft.
per year - Exhibit A, Store #8,
ID# 6D2875
947 square feet of air-conditioned 54,689.25 4,557.44
Class II space @ $57.75 per sq. ft.
per year - Exhibit A, Store #10,
ID# 6E2778
621 square feet of air-conditioned 35,862.75 2,988.56
Class II space @ $57.75 per sq. ft.
per year - Exhibit A, Store #11,
ID# 6F2852
60 square feet of air-conditioned 3,465.00 288.75
Class II space @ $57.75 per sq. ft.
per year - Exhibit A, Cart #12, no ID#
CA-7
14
DESCRIPTION ANNUAL MONTHLY
----------- ----------- ----------
536 square feet of air-conditioned 30,954.00 2,579.50
Class II space @ $57.75 per sq. ft.
per year - Exhibit A, Store #14,
ID# 6C2769
153 square feet of air-conditioned 8,835.75 736.31
Class II space @ $57.75 per sq. ft.
per year - Exhibit A, Store #15,
ID# 6D3601
614 square feet of air-conditioned 35,458.50 2,954.88
Class II space @ $57.75 per sq. ft.
per year - Exhibit A, Store #16,
ID# 6B3872
1,178 square feet of air-conditioned 68,029.50 5,669.13
Class II space @ $57.75 per sq. ft.
per year - Exhibit A, Store #17,
ID# 6C2001
48 square feet of air-conditioned 2,772.00 231.00
Class II space @ $57.75 per sq. ft.
per year - Exhibit A, Store #18, no ID#
227 square feet of air-conditioned 13,109.25 1,092.44
Class II space @ $57.75 per sq. ft.
per year - Exhibit A, Store #19,
ID# 6D2957
176 square feet of air-conditioned 10,164.00 847.00
Class II space @ $57.75 per sq. ft.
per year - Exhibit A, Store #20,
ID# 6F3898
4,116 square feet of air-conditioned 237,641.25 19,803.44
Class II space @ $57.75 per sq. ft.
per year - Exhibit A, Store #21,
ID# 6A2141
CA-8
15
DESCRIPTION ANNUAL MONTHLY
----------- ----------- ----------
711 square feet of air-conditioned 41,060.25 3,421.69
Class II space @ $57.75 per sq. ft.
per year - Exhibit A, Store #22,
ID# 6A3154
3,414 square feet of air-conditioned 197,158.50 16,429.88
Class II space @ $57.75 per sq. ft.
per year - Exhibit A, Store #27,
ID# 6G2190
256 square feet of air-conditioned 14,784.00 1,232.00
Class II space @ $57.75 per sq. ft.
per year - Exhibit A, Store #30, no ID#
48 square feet of air-conditioned 2,772.00 231.00
Class II space @ $57.75 per sq. ft.
per year - Exhibit A, Booth #32, no ID#
48 square feet of air-conditioned 2,772.00 231.00
Class II space @ $57.75 per sq. ft.
per year - Exhibit A, Booth #33, no ID#
5,795 square feet of air-conditioned 223,107.50 18,592.29
Class III space @ $38.50 per sq. ft.
per year - Exhibit A, Office,
ID# 3E3870
10,327 square feet of air-conditioned 397,589.50 33,132.46
Class III space @ $38.50 per sq. ft.
per year - Exhibit A, Warehouse,
ID# 3E1839
1,930 square feet of air-conditioned 74,305.00 6,192.08
Class III space @ $38.50 per sq. ft.
per year - Exhibit A, Bulk Warehouse,
ID# 3E1775
4,547 square feet of air-conditioned 175,059.50 14,588.29
Class III space @ $38.50 per sq. ft.
per year - Exhibit A, Warehouse,
ID# 6A1157
CA-9
16
DESCRIPTION ANNUAL MONTHLY
----------- ----------- ----------
2,555 square feet of air-conditioned 98,367.50 8,197.29
Class III space @ $38.50 per sq. ft.
per year - Exhibit A, Storage,
ID# 3C1759
(Total: 54,525 sq. ft.) $2,867,152.75 $238,929.40
plus applicable State sales taxes, as required by law.
*NOTE: The rental rates contained in this Article 3.01 are based on
rates in effect as of October 1, 1994. If rates change on October 1,
1995, pursuant to Article 3.02, the rental rates will be adjusted to
the new rates by letter amendment.
3.02 Rental Rate Adjustment: Annually as of October 1 of each year of
the term of this Agreement, the cost-based rental rates, pursuant to Article
3.01 (Annual Rental) above, applicable to the Premises leased hereunder, shall
be subject to recalculation and adjustment in accordance with the policies and
formulae approved in Board of County Commissioners Resolution No. R-1054-90,
adopted on September 27, 1990, as such rates may be amended from time to time.
When such adjusted rental rates are established, this Agreement shall be
considered and deemed to have been administratively amended to incorporate such
adjusted rental rates, effective as of such October 1 date. Such adjusted rental
rates shall be reflected by letter amendment. Payments for any retroactive
rental adjustments shall be due upon billing by the Department and payable
within ten calendar days of same.
3.03 Minimum Annual Guarantee: As consideration for the privilege
granted the Tenant herein to engage in business at Miami International Airport
and not as payment for the use and occupancy of any property or for any lease or
license to use or occupy any property, during the first year of this Agreement,
the Tenant shall pay to the County a Minimum Annual Guarantee of $9.6 million,
in U.S. funds, prorated and payable in equal monthly payments of $800,000.00
("Minimum Monthly Guarantee"), on or before the first day of each month of the
first year, in advance, without billing or demand, plus applicable State taxes
as may be required by law.
3.04 Recalculations of Minimum Annual Guarantee: Prior to the second
year of this Agreement and every subsequent year thereafter, the Minimum Annual
Guarantee shall be recalculated based on a blended average (arithmetic
calculation) of percentage changes in the number of international enplaning
passengers at the Airport and the Consumer Price Index (CPI) for all urban
consumers in the U.S. (an average of these categories: alcoholic beverages,
apparel and upkeep, and other goods and services) for the preceding County
fiscal year. The recalculated Minimum Annual Guarantee shall be paid by the
Tenant as provided in Article 3.03 above.
CA-10
17
3.05 Monthly Opportunity Fee: As additional consideration for the
privilege granted the Tenant herein to engage in business at Miami International
Airport and not as payment for the use and occupancy of any property or for any
lease or license to use or occupy any property, the Tenant shall, for the term
of this Agreement, pay to the County a Monthly Opportunity Fee of 35.1% of the
Monthly Gross Revenues, as defined in Article 3.09, that exceeds the sum of the
monthly rental and the Minimum Monthly Guarantee, in U.S. funds, by the tenth
day of the month following the month during which the Gross Revenues were
received or accrued, plus applicable State taxes, if any, as may be required by
law. The Opportunity Fee payable on any unreported Gross Revenues, determined by
the annual audit required pursuant to Article 3.14 are considered for the
purpose of Article 3.05, as having been due on the tenth day of the month
following the month during which the unreported Gross Revenues were received or
accrued.
3.06 No Negotiations: The Tenant understands and agrees, as a condition
precedent to the County's consideration of the Tenant's Proposal, that the terms
and conditions of Articles 3.01 through 3.05 above are not subject to
negotiation or adjustment for any reason, including, but not necessarily limited
to, Airport construction, airline relocations, airline bankruptcies, change in
airline service, and the like, nor shall the County be liable for any reduction
in sales or disruptions or delays caused in whole or in part by any of the
foregoing, except in the event of an Act of God, at any time during the initial
term of this Agreement.
3.07 Late Payment Charge: In the event the Tenant fails to make any
payments as required to be paid under the provisions of this Agreement within
ten calendar days of the due date, interest at the rates established from time
to time by the Board of County Commissioners of Dade County, Florida (currently
set at 1 1/2% per month) shall accrue against all such delinquent payment(s)
from the original due date until the Department actually receives payment. The
right of the County to require payment of such interest and the obligation of
the Tenant to pay same shall be in addition to and not in lieu of the County's
rights to enforce other provisions herein, including termination of this
Agreement, or to pursue other remedies provided by law.
3.08 Worthless Check or Draft: In the event the Tenant delivers a
worthless check or draft to the County in payment of any obligation arising
under this Agreement, the Tenant shall incur and pay a service charge of $20.00,
or five percent of the face amount of such check(s), whichever is greater
(Florida Statute 68.065), plus a service fee of $20.00 or five percent of the
face value of such check, whichever is greater (Florida Statute 125.0105).
Further, in such event, the Department may require that future payments required
pursuant to this Agreement be made by cashier's checks or other means acceptable
to the Department.
3.09 Gross Revenues: The term "Gross Revenues", as used in this
Agreement, means all monies paid or payable to or consideration of determinable
value received by the Tenant, or its approved DBE Subtenant, in the operation of
the duty and tax free concession, including, but not limited to, all off-airport
sales by the Tenant or any related party of the
CA-11
18
Tenant, advertising revenues less actual media production costs, and retail
display allowances, regardless of when or where the order therefore is received,
or the goods delivered, or services rendered, whether paid or unpaid, whether on
a cash or credit basis or in consideration of any other thing of value;
provided, however, that the term "Gross Revenues" shall not include the
following:
(A) Any refund given to the customer for returning the item or
because of a customer satisfaction issue which must be
documented and auditable.
(B) Any payments by Off-Airport Permittees for delivery charges.
(C) Any promotional rebates received and commission and expense
reimbursements at actual cost.
(D) One-half of the Gross Revenues received from the sale of
"photo/electronics" merchandise, as defined below.
The merchandise category "photo/electronics" includes all photographic,
electronic, and electrically operated equipment and supplies such as, but not
necessarily limited to, cameras; lenses; batteries; film; tapes and cassettes;
mobile phones; cassette, tape, records and compact disk ("CD") recorders and
players; calculators; computers; video recorders and players; and carrying cases
for all of the above. As new products and lines of merchandise are introduced in
the photo and electronics industries, the Department may, in its discretion,
authorize in writing, the inclusion of such products or lines of merchandise in
this "photo/electronics" category.
Any sales made by the Tenant, or any related party of the Tenant, to
international passengers departing from Miami International Airport, regardless
of where the delivery is made, whether such sale is made on Airport,
off-Airport, by catalog or by any other means, shall be considered "Gross
Revenues" hereunder.
3.10 Address for Payments: The Tenant shall pay all monies payable, as
required by this Agreement, to the following:
Dade County Aviation Department
Accounting Division
Xxxx Xxxxxx Xxx 000000
Xxxxx, Xxxxxxx 00000
Payments may be made by hand delivery to the offices of the Department
at Miami International Airport, Building 5A, during normal working hours.
CA-12
19
3.11 Minimum Annual Guarantee Security: The Tenant shall provide the
County, and shall keep in full force and effect during the term of this
Agreement and continues until all debts, reports, or other requirements of this
Agreement are satisfied, a surety bond or an irrevocable letter of credit or
other form of security acceptable to the Department and so endorsed as to be
readily negotiable by the County, for the payments required hereunder, in the
amount of $9,000,000 for the first year of operation, and in subsequent years in
an amount equivalent to the sum of nine times the Minimum Monthly Guarantee and
nine times the monthly rental payment, but not less than $9,000,000. The
Department may draw upon such payment security instrument, if the Tenant fails
to pay the fees and charges required within the time limits specified herein.
Such payment security instrument shall be in a form acceptable to the
Department.
3.12 Records and Reports: The Tenant shall keep in Dade County, during
the term of this Agreement, all books of account, records and reports
customarily used in this type of operation necessary to report Gross Revenues
and to calculate the Opportunity Fee payable hereunder and as may, from time to
time, be required by the Department to document its activities pursuant to this
Agreement. All monies collected hereunder shall be accounted for in accordance
with generally accepted accounting principles. The form of all such books of
account records and reports shall be subject to the approval of the Department
and/or the auditors of the County (one or more of the following: the designated
external auditing firm or other certified public accounting firm selected by the
Department, the Audit and Management Services Department of the County of
auditors of the State of Florida), prior to commencement of operations
hereunder. Subsequent recommendations for changes, additions or deletions to
such books of account, records and reports by the auditors of the County shall
be complied with by the Tenant when requested by the Department. The auditors of
the County shall be permitted, during normal business hours, to audit and
examine all books of account, records and reports relating to the operations of
the Tenant hereunder, including, but not limited to, balance sheets, profit and
loss statements, deposit receipts, Florida state sales tax reports and such
other documents as may be determined by the Department to be necessary and
appropriate, provided that the Tenant shall not be required to retain such
records in Dade County, Florida for more than five years after the end of each
annual period of this Agreement but not more than three years following
termination of this Agreement.
3.13 Revenue Control Procedures: Notwithstanding anything to the
contrary contained herein, the Tenant shall comply with such revenue control
procedures as may be established from time to time by the Department.
3.14 Monthly Statement Required: On or before the 10th day following
the end of each calendar month throughout the term of this Agreement, the Tenant
shall furnish to the Department (along with any Monthly Opportunity Fee payments
due pursuant to Article 3.05), a statement of monthly Gross Revenues for each
store and in total for the operation of the duty and tax free concession, for
the preceding calendar month and certify as to the accuracy of such Gross
Revenues in such form as shall be prescribed by the Department.
CA-13
20
Such monthly report shall contain a breakdown of sales by store by
major merchandise categories (such as the top ten categories -- liquor,
cigarettes, perfumes, cosmetics, leather goods, jewelry, etc.), as well as the
number of transactions and sales per transaction by store and merchandise
category. The Department reserves the right to receive reports on penetration of
sales transactions and other reports produced by the Tenant in the normal course
of its operations. Such reports will not include the Tenant's cost of goods,
operating costs or related data.
Such monthly report shall also contain a breakdown of the Gross
Revenues for any services subcontracted to a Disadvantaged Business Enterprise,
for each such subcontractor, stated separately and included in the reported
total.
3.15 Annual Audit: Within sixty days of each anniversary of the
commencement date of this Agreement and within sixty days following termination
of this Agreement, the Tenant shall, at its sole cost and expense, provide to
the Department an annual (or portion thereof) audit report of monthly Gross
Revenues, containing an unqualified opinion, prepared and attested to by an
independent certified public accounting firm, licensed in the State of Florida.
The audit report shall include a schedule of Gross Revenues, and Monthly
Opportunity Fee payable to the County under this Agreement, prepared in
accordance with generally accepted accounting principles, reported in such
format as shall be prescribed by the Department. The Audit shall be conducted in
accordance with generally accepted auditing standards and shall include the
issuance of a management letter, which will contain the findings discovered
during the course of the examination, such as recommendations to improve
accounting procedures and internal, including specifically revenue controls, and
other significant matters under this Agreement. In addition, the audit shall
also include comprehensive compliance procedures to determine whether the books
of account, records and reports were kept in accordance with the terms of the
Agreement for the period of examination. The auditor shall report such
procedures and findings in a separate letter report to the Department.
Each such audit and examination shall cover a period congruent with the
term(s) of this Agreement. The last such report shall include the last day(s) of
operations. All reports and letters required shall be submitted by the auditor
to and discussed with the Department in draft form, before being issued in final
form. There shall be no changes in the scope of the reports and letters required
hereunder without the specific prior written approval of the Department.
3.16 Right to Audit: The Department and the auditors of the County
shall have the right, without limitation, at any time during normal working
hours, to enter into any premises, on or off the Airport, which the Tenant may
use as administrative, warehouse and operational facilities, in connection with
its operations pursuant to this Agreement, to: (1) verify, check and record data
used in connection with operation of the Concession Agreement; (2) inspect,
review, verify and check all or any portion(s) of the procedures of the Tenant
for recording or compiling Gross Revenues information and (3) audit, check,
inspect and review all books of
CA-14
21
account, records, financial reports, financial statements, operating statements,
inventory records, and State sales tax returns, and work papers relating to
operation of the Concession Agreement, and other pertinent information as may be
determined to be needed or desirable by the Department.
3.17 Utilities: Water, sewer, air conditioning and electrical
utilities, to the extent that they exist in the Terminal, are included in the
rental rates in Article 3.01. In the event that the Department determines, based
on a periodic survey of consumption, that the Tenant is using an excessive
amount of electricity, due to heavy equipment, computer systems or the like, the
Department reserves the right to xxxx the Tenant for the estimated monthly cost
of the additional incremental electrical usage. The Tenant shall pay for all
other utilities used by it. The County shall have no obligation to provide
additional utilities to the Premises other than those existing as of the
effective date of this Agreement.
3.18 Purchase of In Place Assets: On or before the effective date of
this Agreement, the Tenant shall pay to the County the sum of $3 million for the
in place value of assets of the existing premises and the value of assets of the
new premises (including the store, intransit premises and warehouse at Concourse
A; the Modular at Concourse D and the Boutique at Concourse F). Title to the
personal property contained in the Premises, as well as the Point of Sale
computer system, will transfer to the Tenant by County Xxxx of Sale on the first
day of operation.
3.19 Assignable Contracts/Agreements: Any and all contracts or
agreements which were in effect as of the commencement date of this Agreement
entered into by the previous operator solely to support operations hereunder
shall be assigned to the Tenant upon review by the Department and shall be
assumed by the Tenant as part of this Agreement. (See Exhibit B for a list of
existing Agreements.)
3.20 Joint Marketing or Advertising Programs: In the event the
Department, or any assignee of the County pursuant to Article 9.01, establishes
a marketing and/or advertising program solely for the purpose of promoting the
retail and/or food and beverage operations in the Terminal Building, the
Department or such assignee shall establish an Advisory Committee of
representatives of Terminal merchants to review and advise on such a program.
Further, once such a program is established, the Department or its assignee
shall have the right to require the Tenant to pay pro rata share of the costs of
the program based on the percentage of retail space leased to the total square
footage involved.
CA-15
22
ARTICLE 4
Improvements to the Premises
4.01 Improvements to Premises:
(A) As authorized pursuant to Section 125.012(24), Florida
Statutes, the Tenant shall design, construct and pay for the
construction of the remodeling of some or all of the existing
retail store Premises ("Improvements"), within the first
eighteen months of this Agreement at a minimum cost of $5.8
million. In addition, the Tenant shall design, construct and
pay for the construction of any new premises added to this
Agreement and any premises which are relocated in accordance
with Article 1.05 hereof. It is the intent of the parties that
such Improvements may include but are not limited to the
decor, remodeling of the wall and floor coverings, ceiling,
lighting, and millwork, or such other Improvements as are
approved by the Department in accordance with Article 4.02
hereof. Such Improvements, which shall be as shown in design
detail in the "Final Plans", defined in Article 4.02, shall
not include the personal property of the Tenant, which shall
be all fixtures owned by the Tenant which are not attached or
connected to the Premises, except by means of electrical
plugs, or which would not require modification of the Premises
for their installation or removal.
(B) In the event the term of this Agreement is extended by the
Department pursuant to Article 1.02 (Extensions) hereof, the
Department, in its sole discretion, shall have the right to
require the Tenant, as a condition precedent to such
extension, to remodel some or all of the then existing
Premises at a mutually agreed upon cost comparable to that
spent in 4.01(a) above, plus inflation. Costs expended by the
Tenant pursuant to this provision will be treated in the
manner specified in Article 4.09(B) (Reimbursement of
Improvements Costs).
(C) On or before the effective date of this Agreement, the Tenant
shall provide to the County an irrevocable Letter of Credit,
in a form acceptable to the Department, in an amount equal to
75% of the projected remodeling costs. The Tenant may reduce
the amount of the Letter of Credit, upon the written approval
of the Department, proportionate to expenditures that are made
during the eighteen-month period, upon presentation of
acceptable proof of such expenditures to the Department.
4.02 Design of Improvements: Plans for the design of Improvements will
be in accordance with "Dade County Aviation Department Terminal Building Design
Guidelines" and Design Standards as may be established for the Terminal Building
Retail Program. As plans for the remodeling of facilities are completed, the
Tenant shall submit to the Department for its review and approval or
modification, detailed final plans ("Final Plans"), specifications
CA-16
23
(including materials, colors, textures and equipment), construction cost
estimates and schedules for the construction of the Improvements. The Department
shall expeditiously review and approve these plans so as not to delay this
process. The Final Plans shall be prepared by an architectural, interior design
and/or engineering firm registered in the State of Florida.
4.03 Certain Construction Contract Terms: All contracts entered into by
the Tenant for the construction of the Improvements shall require completion of
the Improvements within the schedules submitted pursuant to Article 4.02 and
shall contain reasonable and lawful provisions for the payment of actual or
liquidated damages in the event the contractor(s) fails to complete the
construction on time. The Tenant agrees that it will use its best efforts to
take all necessary action available under such construction contract to enforce
the timely completion of the work covered thereby.
4.04 Improvements Free and Clear: The Improvements, upon completion,
shall immediately become the property of the County, free and clear of any liens
or encumbrances whatsoever. The Tenant agrees that any contract for
construction, alteration or repairing of the Improvements or Premises, or for
the purpose of material to be used, or for work and labor to be performed, shall
be in writing and shall contain provisions to protect the County from the claims
of any laborers, subcontractors or materialmen against the Premises or
Improvements.
4.05 Construction Bonds and Insurance Required: All contracts for the
construction of Improvements shall require that the Tenant obtain from
construction contractors certain bonds and evidence of insurance, as follows:
(A) A policy of owner's protective liability insurance issued in
the name of the County and the Tenant, with limits not less
than those as shown in Article 11 of this Agreement. This
policy must be endorsed to indicate that any premium, whether
deposit or final, shall be the sole obligation of the
contractor(s).
(B) Separate performance and payment bonds in the full amount of
the Improvements, to assure completion of the contract work
and payment of the costs thereof, free and clear of all
claims, liens and encumbrances of subcontractors, laborers,
mechanics, suppliers and materialmen, with the County and the
Tenant named as dual obligee thereunder.
4.06 Other Requirements: The Tenant shall apply for and obtain a
Building Permit from Dade County's Building and Zoning Department, all
appropriate inspections and a Certificate of Occupancy upon completion. Within
30 days following the completion of construction of the Improvements, the Tenant
shall furnish to the Department one complete set each of legible prints (black
line), photo mylars and 35 mm aperture card microfilm of construction drawings,
and auto cad files revised to "as built", including all pertinent shop and
working drawings, copies of all releases of contractor liens and a copy of the
Certificate of Occupancy.
CA-17
24
4.07 Review of Construction: The Department or its designee shall have
the right, but not obligation, to periodically inspect the construction to
ensure conformity with the Final Plans, and any changes thereof requested by the
Tenant and approved by the Department.
4.08 Cost Documentation: Within ninety days of completion of
construction of the Improvements, the Tenant shall submit to the Department, a
certified audit of the monies actually expended in the design and construction
of the Improvements by premises in accordance with the Final Plans, prepared by
an independent certified public accounting firm, approved in advance by the
Department ("Auditor"). The Tenant shall be responsible for documenting for the
Auditor that the monies that were expended are true and correct. The costs of
design and construction, in accordance with the Final Plans and any changes
thereto requested by the Tenant and approved by the Department, including the
costs of required bonds, construction insurance and the construction audit,
shall not include the cost of any other consultant or accountant fees, financing
or legal fees, and personal property of the Tenant, as defined in Article 4.01.
In the event of any disputes between the Department and the Tenant as to whether
certain costs are to be included in the audit, said dispute(s) shall be
submitted to the Consulting Engineer named pursuant to the Trust Agreement, as
defined in Article 18.01 hereof. The decision of said Consulting Engineer shall
be final and binding upon the parties hereto.
4.09 Reimbursement of Improvement Costs: The County shall reimburse the
Tenant for the unamortized balance of its Improvements only in the following
circumstances:
(A) For the unamortized cost (amortized on a 60-month straight
line basis from the effective date of this Agreement) of the
initial remodeling of an individual facility pursuant to that
approved by the Department, in the event the Department
requires its deletion or relocation pursuant to Article 1.04.
(B) For the unamortized portion of Department approved design and
construction costs for any new or relocated facilities (length
of amortization schedule, not to exceed 60 months, based on
the investment and profitability of the facility as agreed to
by the Department and the Tenant pursuant to Article 1.05).
This reimbursement of cost applies only to the Improvements as approved
by the Department, or to construction of new stores as defined in Article 4.01,
and does not apply, except as otherwise provided in Article 4.01B (Improvements
to Premises), to any other remodeling or improvements made to the Premises
during the term of this Agreement.
CA-18
25
ARTICLE 5
Standards of Operation
5.01 Operating Hours: The Tenant shall operate Store #1 at Concourse E
(or such substitute store as may be approved by the Department) a minimum of
eighteen hours daily, seven days per week, and from other stores at least one
and one-half hours prior to departing international flights nearest the store
and close not earlier than 20 minutes after the last flight, including any
delayed flights, or at such times as may be approved by the Department, with
sufficient personnel to render a high quality of sales service giving
consideration to periods of peak activity in the Terminal Building (the periods
of time when the greatest number of international flights are operating). The
Department may increase or decrease the required operating hours if, in the
discretion of the Department, such a change is desirable in providing the most
efficient sales service to the traveling public.
5.02 Pricing: The Tenant shall maintain a schedule of prices at least
15% below pricing (including sales tax) at comparable Miami area stores and in
no event shall the schedule of prices be higher than at other duty free stores
operated by the Tenant. The Department reserves the right to grant exceptions to
the "15% below Miami area prices" when the Tenant's purchase price does not
allow a sufficient margin to cover costs. The Department will require the Tenant
to furnish quarterly reports of its schedule of current prices and an analysis
of "comparable" ("Comparable" shall mean not in excess of prices charged by
others, not including sale pricing) prices of the five top sellers in liquor,
tobacco, perfume, chocolates and cosmetics as compared to prices at Houston
Intercontinental Airport, the International Terminal at Chicago X'Xxxx
International Airport, Terminal 1 of Frankfurt Airport, Terminals 3 and 4 of
Heathrow Airport, and Sao Paulo Guarulhos Airport. If the Tenant's pricing at
the Airport materially exceeds the pricing standards established herein, due to
currency fluctuations at the foreign airports, such fluctuations shall be
explained in the quarterly reports. In addition, the quarterly reports will
include comparable prices of the five top sellers in perfume, cosmetics, and
chocolates as compared to the following Miami area stores: Burdines at Dadeland,
Bloomingdale's at the Falls, Macy's at Adventura and Neiman Marcus at Bal
Harbour. The five top sellers for liquor will be compared to prices at local
Crown Liquors and Xxxxxxxx'x Liquor stores and the top five sellers for tobacco
will be compared to tobacco prices at Walgreen's and Publix Supermarkets
locally. These quarterly reports shall show actual prices and the average price
for each item, and shall be submitted to the Department within five business
days after the end of each quarter. The Department, in consultation with the
Tenant, shall have the right to approve the best seller lists and to revise,
from time to time, the stores and airports used for comparison purposes.
The Department reserves the right to conduct its own comparative price
analysis using a shopping service or by survey.
CA-19
26
5.03 Change Making: The Tenant shall be required at all times to make
change for any xxxx in denomination of $20.00 U.S. or less when requested by any
Airport user without charge.
The Tenant shall accept at least a dozen foreign currencies,
representative of the major international destinations served by airlines at the
Airport, in all of its stores and shall prominently post such rates in all of
its stores. The Tenant shall change the rates daily, using the same buy rates as
posted at the Money Exchange at Concourse "E" in the Terminal Building.
5.04 Manager: Throughout the term of this Agreement, the Tenant shall
employ a qualified, full-time locally resident Manager having experience in the
management and merchandising of this type of duty and tax free concession, who
shall be available within the Terminal Building during normal business hours and
available for emergencies at all other times by carrying a pager or cellular
phone. The Manager shall, at all times, be subject to approval by the
Department, and shall be delegated sufficient authority to ensure the competent
performance and fulfillment of the responsibilities of the Tenant under this
Agreement and to accept service of all notices provided for herein.
5.05 Prior Approval Required: The Tenant agrees that it shall obtain
prior written approval from the Department in all of the following matters
pursuant to this Article:
(A) Methods and hours of daily operation.
(B) Uniforms to be used by employees, which shall be consistent
with or better than those normally used by other Airport
tenants.
(C) The decor of the premises and all signs to be installed,
erected or displayed therein, and any changes thereto at
anytime during the term of this Agreement.
5.06 Personnel: The Tenant shall ensure that all its personnel are
knowledgeable of all products sold and are courteous and cooperative and present
a neat, clean and professional appearance at all times. The Tenant shall require
all personnel to wear visibly on their person, at all times while on duty, a
distinctive name tag, identifying the individual by name, title, if appropriate,
foreign languages spoken and as an employee of Tenant. The Tenant shall ensure
that all employees are able to understand and communicate in spoken English, and
as a minimum both English and Spanish must be spoken by at least one employee on
duty at each store.
5.07 Monitoring Services: The Department shall have the right, without
limitation, to monitor and test the quality of services of the Tenant, but shall
not be required to do so. This monitoring shall include, but not be limited to,
personnel and the effectiveness of its cash-
CA-20
27
handling procedures, through the use of a shopping services, closed circuit
T.V., and other reasonable means.
5.08 Delivery of Goods for Off-Airport Duty Free Permittees: As a
specific consideration of the issuance of this Agreement, and in recognition of
the security and congestion problems of the Airport, the Tenant hereby
specifically agrees to:
(A) Deliver the goods of Off-Airport duty free Permittees for a
per parcel fee. Subject to periodic recalculation and the
prior approval of the Department, the Tenant shall establish a
per parcel fee to be paid by the Permittee for each parcel
turned over to the Tenant for delivery. Such fees shall be
based on the actual costs incurred for manifesting,
dispatching and delivering of the Tenant's own duty free
goods, plus an allocation for overhead. The Tenant shall xxxx
each Permittee at the end of each calendar month for parcel
delivery fees payable hereunder. The Department, the Tenant,
and the Permittees shall meet prior to the commencement date
of this Agreement and periodically thereafter, to discuss and
establish operating standards and procedures, and forms to be
used related to the delivery of parcels hereunder. The
Department and the Tenant shall, from time to time, publish
operating standards and procedures which shall be complied
with by Permittees in the Off-Airport Duty Free Program.
(B) The Department reserves the right to authorize another bonded
cartsman for the delivery of goods of the Off-Airport Duty
Free Program Permittees and, in such event, Article 5.08(A)
shall be cancelled.
5.09 Security: The Tenant acknowledges and accepts full responsibility
for the security and protection of the Premises, any improvements thereon, its
equipment and property on the Airport, and control of access to the Air
Operations Area ("AOA") through the Premises by persons and vehicles. The tenant
fully understands and acknowledges that any security measures deemed necessary
by the Tenant for the protection of said Premises, equipment and property and
access to the AOA through the Premises shall be the sole responsibility of the
Tenant and shall involve no cost to the County.
5.10 Security Identification Display Areas Access -- Identification
Badges: The Tenant shall be responsible for requesting the Department to issue
identification ("ID") badges to all employees who are authorized access to
Security Identification Display Areas ("SIDA") on the Airport, designated in the
Airport's security program and shall be further responsible for the immediate
reporting of all lost or stolen ID badges and the immediate return of the ID
badges of all personnel transferred from Airport assignment or terminated from
the employ of the Tenant or upon termination of this Agreement. Each employee
must complete the SIDA training program conducted by the Department, before an
ID badge is issued. The Tenant shall pay, or cause to be paid, to the Department
such nondiscriminatory charges, as may be established from time to time, for
lost or stolen ID badges and those not returned to the
CA-21
28
Department in accordance with this Article. The Department shall have the right
to require the Tenant to conduct background investigations and to furnish
certain data on such employees before the issuance of such ID badges, which data
may include the fingerprinting of employee applicants for such badges.
5.11 AOA - Driver Training: Before the Tenant shall permit any employee
to operate a motor vehicle of any kind or type on the AOA, the Tenant shall
require such employee to attend and successfully complete the AOA Driver
Training Course conducted from time to time by the Department. The privilege of
a person to operate a motor vehicle on the AOA may be withdrawn by the
Department for any violation of AOA driving rules. Notwithstanding the above,
the Tenant shall be responsible for ensuring that all such vehicle operators
possess current, valid, appropriate Florida driver's licenses.
5.12 Alcohol and Drug Testing: The Tenant acknowledges that the County,
as a public agency sponsor under the provisions of the Airport and Airway
Improvement Act of 1982, as amended (the "Act"), has the obligation to establish
a drug free workplace and to establish policies and programs to ensure airport
safety and security. The Tenant acknowledges that the Department, on behalf of
the County, has the right to require users of the Airport (Tenants, Permittees,
Licensees, etc.) to establish reasonable programs to further the achievement of
the objectives described herein. Accordingly, the Tenant shall establish
programs for pre-employment alcohol and drug screening for all candidates for
employment at the Airport who will as a part of their duties (a) be present on
the AOA; (b) operate a motor vehicle of any type on the AOA; or (c) operate any
equipment, motorized or not, on the AOA and for the same or similar screening
based upon a reasonable suspicion that an employee, while on duty on the AOA,
may be under the influence of alcohol or drugs. Notwithstanding the above, the
Tenant specifically acknowledges that the County, acting through the Department,
has the right and obligation to deny access to the AOA and to withdraw AOA
driving privileges from any person who it has a reasonable suspicion to believe
is under the influence of alcohol or drugs.
5.13 Special Programs: The Tenant shall ensure that all employees so
required participate in such safety, security and other training and
instructional programs, as the Department or appropriate Federal agencies may
from time to time require.
5.14 Vehicle Permit and Company Identification: Motor vehicles and
equipment of the Tenant operating on the AOA must have an official motor vehicle
identification permit issued pursuant to Operational Directives of the
Department. in addition, company identification must be conspicuously displayed
on such motor vehicles and equipment.
5.15 Federal Agencies Right to Consent: The Tenant understands and
agrees that all persons entering and working in or around arriving international
aircraft and facilities used by the various Federal Inspection Services agencies
may be subject to the consent and approval of such agencies. Persons not
approved or consented to by the Federal Inspection Services
CA-22
29
agencies shall not be employed by the Tenant in areas under the jurisdiction or
control of such federal inspection agencies.
5.16 AOA - Right to Search: The Tenant agrees that its vehicles, cargo,
goods and other personal property are subject to being searched when attempting
to enter or leave and while on the AOA. The Tenant further agrees that it shall
not authorize any employee or agent to enter the AOA unless and until such
employee or agent has executed a written consent-to-search form acceptable to
the Department. Persons not executing such consent-to-search form shall not be
employed by the Tenant at the Airport, in any job requiring access to the AOA.
It is further agreed that the Department has the right to prohibit an
individual, agent or employee of the Tenant from entering the AOA based upon
facts which would lead a person of reasonable prudence to believe that such
individual might be inclined to engage in theft, cargo tampering, aircraft
sabotage or other unlawful activities. Any person denied access to the AOA or
whose prior authorization has been revoked or suspended on such grounds shall be
entitled to a hearing before the Director of the Department or his authorized
designee within a reasonable time. prior to such hearing, the person denied
access to the AOA shall be advised, in writing, of the reasons for such denial.
The Tenant acknowledges and understands that these provisions are for
the protection of all users of the AOA and are intended to reduce the incidence
of thefts, cargo tampering, aircraft sabotage and other unlawful activities at
the Airport.
5.17 Control of Employees: The Tenant shall properly control the
actions of its employees at all times that said employees are working on the
Airport, ensuring that they present a neat appearance and discharge their duties
in a courteous and efficient manner and that they maintain a high standard of
service to the public.
ARTICLE 6
Services to be Provided by the County
The County shall provide:
(A) System repair to utilities.
(B) Exterior repairs, except those caused by negligence on the
part of the Tenant or its employees.
(C) Air conditioning and utilities and hook-up as presently
existing.
CA-23
30
ARTICLE 7
Equipment Furnishings and Fixtures
7.01 Tenant Responsibilities: The Tenant shall provide, at its sole
cost and expense:
(A) All equipment, furnishings and fixtures necessary for the
operation of the Concession.
(B) Janitorial service within the premises.
(C) Connection of utilities to operating equipment and any
additional utility service necessary pursuant to Article 4.
(D) All interior maintenance and repair, including replacement of
light bulbs, ballasts and tubes.
7.02 Equipment, Furnishings and Fixtures: Any equipment, furnishings,
fixtures and signs installed in the Premises by the Tenant, shall be in keeping
with the standards of decor which prevail in the Terminal Building and must be
approved in advance by the Department. Any such equipment, furnishings, fixtures
and signs so installed by the Tenant as personal property of the Tenant, as
defined in Article 4.01, shall, except as provided in Article 7.03(B), be
removed from the Premises upon the termination of this Agreement, in accordance
with Articles 7.03 and 17.02 hereof.
7.03 Disposal of Equipment, Furnishings and Fixtures: At least thirty
days prior to the expiration of this Agreement, or upon termination or
cancellation by mutual agreement or pursuant to Article 12 or 13 hereof, the
County shall exercise, at its sole discretion, one of the following options as
to any equipment, furnishings, fixtures, signs, or carts installed in the
Premises by the Tenant:
(A) Require the Tenant to remove such equipment, furnishings,
fixtures, signs, or carts from the Premises; or
(B) Retain any portion of the equipment, furnishings, fixtures,
signs, or carts of the Tenant (personal property of the Tenant
as referred to in Article 4.01) and shall pay the Tenant the
unamortized balance of the cost of such personal property,
calculated in accordance with Article 1.05. The Tenant shall
provide such documentation satisfactory to the Department of
the cost of such personal property, together with proof of
payment thereof.
CA-24
31
ARTICLE 8
Maintenance and Utilities
8.01 Cleaning: The Tenant shall, at its cost and expense, keep the
premises, clean at all times. If the premises are not kept clean in the opinion
of the Department, the Tenant will be so advised and shall take immediate
corrective action.
8.02 Removal of Trash: The Tenant shall, at its cost and expense,
remove from the premises all trash and refuse of any nature whatsoever which
might accumulate and arise from the operations of the Concession hereunder. Such
trash and refuse shall temporarily be stored and disposed of in a manner
approved by the Department.
8.03 Maintenance and Repair: The Tenant shall maintain and repair the
interiors and exteriors of the stores, carts, or modules. Such maintenance and
repairs shall include, but not be limited to, painting, laminating doors,
windows, equipment, furnishings, fixtures, appurtenances, replacement of light
bulbs, ballasts and tubes and the replacement of all broken glass, which repairs
shall be in quality and class equal to or better than the original work to
preserve the same in good order and condition. The Tenant shall repair, at or
before the end of the term of this Agreement, all injury done by the
installation or removal of furniture and personal property so as to restore the
premises to the state they were at the commencement of this Agreement.
8.04 Failure to Maintain: Upon failure of the Tenant to maintain the
premises as provided in this Article 8, the Department may enter upon the
premises and perform all cleaning, maintenance and repairs which may be
necessary and the cost thereof, plus 25% for administrative costs, shall
constitute additional rental(s), and shall be billed to and paid by the Tenant.
ARTICLE 9
Assignment, Subletting and Ownership
9.01 No Assignment or Subletting: The Tenant shall not assign,
transfer, pledge or otherwise encumber this Agreement nor, except as
specifically authorized in Article 1.04 (DBE Subconcession), sublet all or any
portion of the premises. The County reserves the right to assign this Agreement.
9.02 Ownership of the Tenant: Since the ownership, control, and
experience of the Tenant were material considerations to the County in the award
of this Concession and the entering into of this Agreement, the Tenant shall
take no actions which shall serve to transfer or change the management, majority
ownership, or control of the business entity of the Tenant without the prior
written consent of the Department.
CA-25
32
9.03 Subcontracting: The Tenant may, with the advance written approval
of the Department, subcontract some of the services required herein only to
Disadvantaged Business Enterprises ("DBEs"), as defined in Title 49, Part 23,
Code of Federal Regulations. The Tenant shall remain fully liable for the
actions and performance of such subcontractor(s) as if such were employees of
the Tenant. Prompt payments will be made to the subcontractor(s) by the Tenant
in accordance with Ordinance No. 94-40. Any subcontract must be in accordance
with the terms and conditions of this Agreement.
ARTICLE 10
Indemnification
The Tenant shall protect, defend, and hold the County and its officers,
agents and employees completely harmless from and against any and all
liabilities, losses, suits, claims, judgments, fines or demands arising by
reason of injury or death of any person or damage to any property, including all
reasonable costs for investigation and defense thereof (including but not
limited to attorney fees, court costs, and expert fees), of any nature
whatsoever arising out of or incident to this Agreement and/or the use or
occupancy of the premises or the acts or omissions of officers, agents,
employees, contractors, subcontractors, licensees, or invitees of the Tenant
regardless of where the injury, death, or damage may occur, unless such injury,
death or damage is caused by the sole active negligence of the County. The
County shall give the Tenant reasonable notice of any such claims or actions.
The provisions of this section shall survive the expiration or early termination
of this Agreement.
ARTICLE 11
Insurance
11.01 Insurance Required: In addition to such insurance as may be
required by law, the Tenant shall maintain, without lapse or material change,
for so long as it occupies the Premises, the following insurance:
(A) Public Liability Insurance on a comprehensive basis, including
Contractual Liability, to cover the Tenant's Premises and
operations, in any amount not less than $5,000,000 combined
single limit per occurrence for bodily injury and property
damage. The County must be shown as an additional insured with
respect to this coverage.
Coverages shall be for each occurrence, with either no
aggregate or an annual policy aggregate of no less than twice
the amount of coverage required for each occurrence. In the
event that the Tenant's available coverage falls below the per
occurrence amount shown above, the Tenant shall secure a new
certificate of insurance evidencing the required coverage. The
County reserves the right to not accept policies with
aggregate limits or substantial deductibles.
CA-26
33
(B) Automobile Liability Insurance covering all owned, non-owned
and hired vehicles (including ground or mobile equipment) used
by the Tenant in connection with its operations under this
Agreement in an amount not less than:
(1) $5,000,000 combined single limit per occurrence for
bodily injury and property damage covering all
vehicles and ground and mobile equipment used by the
Tenant on the Air Operations Area of the Airport
("AOA");
(2) $300,000 combined single limit per occurrence for
bodily injury and property damage covering such
vehicles and ground and mobile equipment when being
used by the Tenant off of the AOA.
(C) Plate glass, if applicable.
(D) Workers' Compensation Insurance in compliance with Chapter
440, Florida Statutes.
The insurance coverages required shall include those classifications,
as listed in standard liability insurance manuals, which most nearly reflect the
operations of the Tenant under this Agreement. All insurance policies required
pursuant to the terms of this Agreement shall be issued in companies approved to
do business under the laws of the State of Florida. Such companies must be rated
no less than "B" as to management, and no less than "VIII" as to strength in
accordance with the latest edition of "Best's Insurance Guide", published by
A.M. Best Company, Inc., or its equivalent, subject to approval of the County
Risk Management Division.
11.02 Insurance Certificates Required: Prior to the commencement of
operations hereunder and annually thereafter, the Tenant shall furnish or cause
to be furnished certificates of insurance to the Department which certificates
shall clearly indicate that:
(A) The Tenant has obtained insurance in the types, amounts and
classifications as required for strict compliance with this
Article;
(B) The policy cancellation notification provisions specify at
least 30 days advance written notice of cancellation to the
County; and
(C) The County is named as an additional insured with respect to
the Tenant's public liability policies.
On said insurance certificates, unless specifically shown to be
excluded thereon, comprehensive public liability coverage shall include
contractual liability, and notification of cancellation shall include
notification of material changes in the policies.
CA-27
34
The County reserves the right to require the Tenant to provide such
reasonably amended insurance coverage as it deems necessary or desirable, upon
issuance of notice in writing to the Tenant, which notice shall automatically
amend this Agreement effective 30 days after such notice.
11.03 Tenant Liable: Compliance with the requirements of this Article
11 shall not relieve the Tenant of its liability under any other portion of this
Agreement.
11.04 Right to Examine: The Department reserves the right, upon
reasonable notice, to examine the original policies of insurance (including but
not limited to: binders, amendments, exclusions, riders and applications) to
determine the true extent of coverage. The Tenant agrees to permit such
inspection at the offices of the Department.
11.05 Personal Property: Any personal property of the Tenant, or of
others, placed in the premises shall be at the sole risk of the Tenant or the
owners thereof, and the County shall not be liable for any loss or damage
thereto, irrespective of the cause of such loss or damage.
ARTICLE 12
Termination by County
12.01 Termination for Abandonment: This Agreement shall be
automatically terminated upon the abandonment by the Tenant of the Premises or
the voluntary discontinuance of operations at the Airport for any period of time
exceeding 24 hours, unless such abandonment or discontinuance has been caused by
strike, labor disturbance, Act of God, civil disturbance or governmental order
that prevents the Tenant's use of the Premises for the purposes authorized in
Article 2.
12.02 Payment Default: Failure of the Tenant to make all payments of
rentals, fees and charges required to be paid herein when due shall constitute a
default, and the County may, at its option, terminate this Agreement after five
calendar days notice in writing to the Tenant unless the default be cured within
the notice period.
12.03 Other Defaults: The County shall have the right, upon thirty
calendar days written notice to the Tenant, to terminate this Agreement upon the
occurrence of any one or more of the following, unless the same shall have been
corrected within such period:
(A) Failure of the Tenant to comply with covenants of this
Agreement other than those which constitute a default pursuant
to Article 12.02.
(B) The conduct of any business, the performance of any service,
or the merchandising of any product or service not
specifically authorized herein.
CA-28
35
12.04 Habitual Default: Notwithstanding the foregoing, in the event
that the Tenant has frequently, regularly or repetitively defaulted in the
performance of or breached any of the terms, covenants and conditions required
herein to be kept and performed by the Tenant, regardless of whether the Tenant
has cured each individual condition of breach or default as provided in Articles
12.02 and 12.03 hereinabove, the Tenant shall be determined by the Director of
the Department to be an "habitual violator". At the time that such determination
is made the Department shall issue to the Tenant a written notice, advising of
such determination and citing the circumstances therefor. Such notice shall also
advise the Tenant that there shall be no further notice or grace periods to
correct any subsequent breach(s) or default(s) and that any subsequent breach or
default, of whatever nature, taken with all previous breaches and defaults,
shall be considered cumulative and, collectively, shall constitute a condition
of noncurable default and grounds for immediate termination of this Agreement.
In the event of any such subsequent breach or default, the County may terminate
this Agreement upon the giving of written notice of termination to the Tenant,
such termination to be effective upon the seventh day following the date of
receipt thereof and all payments due hereunder shall be payable to said date,
and the Tenant shall have no further rights hereunder. Immediately upon receipt
of said notice of termination, the Tenant shall discontinue its operations at
the Airport, and proceed to remove all its personal property in accordance with
Article 17 hereof.
12.05 Drug-Free Workplace Default: The Tenant acknowledges, that as
part of its Proposal, it provided to the County a Drug-Free Workplace Affidavit
certifying that it is providing a drug-free workplace for its employees, as
required by County Ordinance No. 92- 15, adopted on March 17, 1992, as such may
be amended from time to time ("Ordinance"). Based on the provisions of said
Ordinance, the County shall have the right, upon 30 days written notice to the
Tenant, to terminate this Agreement in the event the Tenant fails to provide, as
of each anniversary of the effective date of this Agreement, the annual
re-certification affidavit as required by the Ordinance; provided, however, that
such termination shall not be effective if the Tenant submits the required
Affidavit within the notice period.
Further, this Agreement shall be terminated upon not less than fifteen
calendar days written notice to the Tenant, and without liability to the County,
if the Department or the County Manager determines any of the following:
(A) That the Tenant has made a false certification in its
execution of the Affidavit submitted with its Proposal or in
its annual re-certification as required by the Ordinance;
(B) That the Tenant has violated its original or renewal
certification by failing to carry out any of the specific
requirements of the Ordinance, other than the annual
re-certification; or
(C) That such a number of employees of the Tenant have been
convicted of violations occurring in its workplace(s) as to
indicate that the Tenant has failed
CA-29
36
to make a good faith effort to provide a drug-free workplace
as required by the Ordinance.
12.06 Family Leave Program Default: The Tenant acknowledges that, as a
part of its Proposal, it provided an Affidavit certifying that it would provide
its employees with a family leave program, providing, as a minimum, the benefits
specified by the Dade County Family Leave Ordinance (Ordinance No. 93-118, as
such may be amended from time to time). The County shall have the right to
terminate this Agreement, upon 30 days advance written notice to the Tenant, in
the event the Tenant fails to provide, the affidavit that it is providing and
will continue to provide such family leave program; provided, however, that such
termination shall not be effective if the Tenant submits the required affidavit
within the notice period. Further, this Agreement shall be terminated, upon not
less than 15 calendar days advance written notice to the Tenant, if it is
determined, following an administrative hearing to be held by the Department,
that the Tenant has failed to provide such program to its employees, contrary to
its sworn affidavit.
ARTICLE 13
Claims and Termination by Tenant
13.01 Claims Procedures: If the Tenant has any claim against the County
arising under this Agreement, it will be made in writing within ten (10) days of
the occurrence of the event to the Aviation Director. The exact nature of the
claim, including sufficient detail to identify the basis for the claim shall be
clearly stated. The dispute will be decided by the Aviation Director (or his
designee), who will mail or otherwise furnish a written copy of the decision to
the Tenant at the address furnished in Article 19.07. The decision of the
Aviation Director will be final and conclusive unless, within thirty (30) days
from the date of receipt of such copy, the Tenant mails or otherwise furnishes
to the County a written appeal addressed to the County Manager. The decision of
the County Manager, or his duly authorized representative for the determination
of such appeals, will be final and conclusive unless within thirty (30) days of
the Tenant's receipt of such decision, the Tenant files an action in a court of
competent jurisdiction. In connection with any appeal proceeding under this
provision, the Tenant shall be afforded an opportunity to be heard and to offer
other evidence in support of the appeal. Pending final decision of a dispute
hereunder, the Tenant shall proceed diligently with the performance of the
Concession Agreement and in accordance with the County's decision. Failure to
perform in accordance with the decision of the Aviation Director or the County
Manager shall be cause for termination of this Agreement in accordance with
Article 12.03.
13.02 Penalty: Failure by the Tenant to comply with this Disputes
Procedure shall be cause for a waiver and an abandonment of any claim arising
out of the event.
13.03 Abatement: The Tenant shall have the right to request the
Department to consider the abatement of all or a portion of the payments due
under Articles 3.01, 3.03 and
CA-30
37
3.05, upon thirty calendar days written notice to the County, without liability
to the County, at any time after the occurrence of one or more of the following
events:
(A) Issuance by any court of competent jurisdiction of any
injunction substantially restricting the use of the Airport
for airport purposes.
(B) The assumption by the United States Government or any
authorized agency thereof, or any other governmental agency,
of the operation, control or use of the Airport premises or
any substantial part, or parts thereof, in such a manner as to
substantially restrict the Tenant's operations at the Airport.
13.04 Termination: In the event of a breach by the County of any of the
material terms, covenants or conditions contained in this Agreement required to
be kept by the County, and the failure of the County to remedy such breach for a
period of ninety calendar days after receipt by the County of written notice
from the Tenant of the existence of such a breach, the Tenant shall have the
right to terminate this Agreement, without liability to the County, upon thirty
calendar days written notice to the Department.
ARTICLE 14
Nondiscrimination
14.01 Employment Discrimination: The Tenant shall not discriminate
against any employee or applicant for employment to be employed in the
performance of this Agreement with respect to hire, tenure, terms, conditions,
or privileges of employment, or any matter directly or indirectly related to
employment because of age, sex, race, color, religion, national origin, ancestry
or disability. The Tenant shall comply with applicable provisions of the
Americans with Disabilities Act, including but not limited to provisions
pertaining to employment (42 U.S.C. 12101).
14.02 Nondiscriminatory Access to Services: The Tenant, for itself, its
personal representatives, successors in interest, and assigns, as a part of the
consideration hereof, does hereby covenant and agree as a covenant of this
Agreement: (1) that no person on the grounds of race, color, age, sex, religion,
national origin, ancestry or disability shall be excluded from participation in,
denied the benefits of, or be otherwise subjected to discrimination in the use
of the Concession; (2) that in the furnishing of services hereunder, no person
on the grounds of race, color, age, sex, religion, national origin, ancestry or
disability shall be excluded from participation in, denied the benefits of, or
otherwise be subjected to discrimination; and (3) that the Tenant shall operate
hereunder in compliance with the Americans with Disabilities Act (42 U.S.C.
12101) and all other requirements imposed by or pursuant to Title 49, Code of
Federal Regulations, Department of Transportation, Subtitle A, Office of the
Secretary, Part 21, Nondiscrimination in Federally-assisted programs of the
Department of Transportation-Effectuation of Title VI of the Civil Rights Act of
1964, and as said Regulations may be amended.
CA-31
38
14.03 Breach of Nondiscrimination Covenants: In the event it has been
determined that the Tenant has breached the nondiscrimination covenants
contained in Articles 14.01 and 14.02 above, pursuant to the complaint
procedures contained in the applicable Federal Regulations, and the Tenant fails
to comply with the sanctions and/or remedies which have been prescribed, the
County shall have the right to terminate this Agreement pursuant to Article
12.03 hereof.
14.04 Affirmative Action and Disadvantaged Business Enterprise
Programs: The Tenant acknowledges that the provisions of 14 CFR Part 152,
Affirmative Action Employment Programs, and 49 CFR Part 23, Disadvantaged
Business Enterprise Programs, are applicable to the activities of the Tenant
under the terms of this Agreement, unless exempted by said regulations, and
hereby agrees to comply with all requirements of the Department, the Federal
Aviation Administration and the U.S. Department of Transportation. These
requirements may include, but not be limited to, the compliance with
Disadvantaged Business Enterprise and/or Employment Affirmative Action
participation goals, the keeping of certain records of good faith compliance
efforts, which would be subject to review by the various agencies, the
submission of various reports, and if directed by the Department, the
contracting of specified percentages of goods and services contracts to
Disadvantaged Business Enterprises. In the event it has been determined, in
accordance with applicable regulations, that the Tenant has defaulted in the
requirement to comply with this section, and the Tenant thereafter fails to
comply with the sanctions and/or remedies then prescribed, the County shall have
the right, upon written notice to Tenant, to terminate this Agreement pursuant
to Article 12.03.
This Agreement is subject to the requirements of the U.S. Department of
Transportation's regulations, 49 CFR Part 23, Subpart F. The Tenant agrees that
it will not discriminate against any business owner because of the owner's race,
color, national origin, or sex in connection with the award or performance of
any concession agreement covered by 49 CFR Part 23, Subpart F.
The Tenant agrees to include the above statements in any subsequent
agreements that it enters and cause those businesses to similarly include the
statements in further agreements.
14.05 Disadvantaged Business Enterprise Participation Plan: The Tenant
shall contract with those firm(s) as are listed on the Tenant's DBE
Participation Plan as presented in its Proposal documents and approved by the
Department of Business and Economic Development (DBED), and shall thereafter
neither terminate such DBE firm(s) nor: (1) reduce the scope of the work to be
performed by; (2) decrease the percentage of participation by; or (3) decrease
the dollar amount of participation by the DBE firm(s) without the prior written
authorization of the Department.
The County shall monitor the compliance of the Tenant with the
requirements of this provision (Article 14.05) during the term of this
Agreement. The County shall have access to
CA-32
39
the necessary records to examine such information as may be appropriate for the
purpose of investigating and determining compliance with this provision,
including, but not limited to records of expenditures, contracts between the
Tenant and the DBE Participant, and other records pertaining to the DBE
Participation Plan.
If at any time the County has reason to believe that the Tenant is in
violation of this provision, the County may, in addition to pursuing any other
available legal remedy, impose sanctions which may include but are not limited
to: (1) the termination or cancellation of the Agreement in whole or in part,
unless the Tenant demonstrates within a reasonable time its compliance with the
terms of this provision; and (2) the denial to the Tenant of the right to
participate in any other contracts awarded by the County for a period of not
longer than three years. No such sanction shall be imposed by the County upon
the Tenant except pursuant to a hearing conducted by the DBED Directors.
ARTICLE 15
Rules, Regulations and Permits
15.01 Rules and Regulations: The Tenant shall comply with the
Ordinances of the County, including the Rules and Regulations of the Department,
Chapter 25, Code of Metropolitan Dade County, Florida, as the same may be
amended from time to time, Operational Directives issued thereunder, all
additional laws, ordinances, regulations and rules of the Federal, State and
County Governments, and any and all plans and programs developed in compliance
therewith, which may be applicable to its operations or activities under this
Agreement.
15.02 Violations of Rules and Regulations: The Tenant agrees to pay on
behalf of the County any penalty, assessment or fine, issued in the name of the
County, or to defend in the name of the County any claim, assessment or civil
action, which may be presented or initiated by any agency or officer of the
Federal, State or County governments, based in whole or substantial part upon a
claim or allegation that the Tenant, its agents, employees or invitees, have
violated any law, ordinance, regulation or rule described in Article 15.01 above
or any plan or program developed in compliance therewith. The Tenant further
agrees that the substance of this Article 15.02 and Article 15.01 above shall be
included in every contract and other agreement, which the Tenant may enter into
related to its operations and activities under this Agreement and that any such
contract and other agreement shall specifically provide that "Dade County,
Florida is a third party beneficiary of this and related provisions." This
provision shall not constitute a waiver of any other conditions of this
Agreement prohibiting or limiting assignments, subletting or subcontracting.
15.03 Permits and Licenses
The Tenant shall obtain, pay for, and maintain on a current basis all
permits and licenses as required for its operation hereunder.
CA-33
40
15.04 U.S. Customs Penalties
The Tenant shall obtain and maintain all necessary licenses from the
U.S. Customs Service, and any other Federal agencies, for the operation of its
business under this Agreement. The Tenant shall be liable for payment of any
penalties levied by any Federal agency provided that the penalties resulted from
actions, errors or failure to act or perform by the Tenant and not by the County
or the Department.
ARTICLE 16
Civil Actions
16.01 Governing Law; Venue: This Agreement shall be governed and
construed in accordance with the laws of the State of Florida. The venue of any
action on this Agreement shall be laid in Dade County, Florida, and any action
to determine the rights or obligations of the parties hereto shall be brought in
the courts of the State of Florida.
16.02 Notice of Commencement of Civil Action: In the event that the
County or the Tenant commence a civil action in the State or Federal courts,
where such action is based in whole or in part on an alleged breach of this
Agreement, the County and the Tenant agree to waive the procedure for initial
service of process mandated by Chapters 48 and 83, Florida Statues, Rule 1.070,
Florida Rules of Civil Procedure and Rule 4(c), Federal Rules of Civil
Procedure. In such event the County and the Tenant agree to submit themselves to
the jurisdiction of the court in which the action has been filed when initial
service has been made in the following manner:
(A) Upon the County: by Certified Mail, Return Receipt Requested,
sent to (i) the party indicated in Article 19.07 on behalf of
the County; and (ii) with a copy of the County Attorney,
Aviation Division, P.O. 592075, Xxxxx, Xxxxxxx 00000.
(B) Upon the Tenant: by personal service or by Certified Mail,
Return Receipt Requested, upon the party indicated in Article
19.07 on behalf of the Tenant, with a copy to whatever
attorney the Tenant has designed in writing, if any.
In the event that the County and/or the Tenant raise an objection to service of
initial pleadings as provided for herein, and the trial court overrules such
objection, the objecting party shall pay liquidated damages (attorney's fees) in
the amount of $250.00 to plaintiff in such action, prior to answering the
complaint.
16.03 Registered Office/Agent; Jurisdiction: Notwithstanding the
provisions of Article 16.02 above, and in addition thereto: the Tenant, if a
corporation, shall designate a registered office and a registered agent, as
required by Section 48.091, Florida Statutes, such designations to be filed with
the Florida Department of State in accordance with Section 607.034, Florida
Statutes. If the Tenant is a natural person, he and his personal representative
CA-34
41
hereby submit themselves to the jurisdiction of the Courts of this State for any
cause of action based in whole or in part on the alleged breach of this
Agreement.
ARTICLE 17
Actions at Termination
17.01 Surrender of Premises: On or before the termination date of this
Agreement, whether by lapse of time or otherwise, the Tenant shall vacate, quit
and surrender the premises in as good order and condition as the premises were
upon occupancy, reasonable and normal wear and tear excepted.
17.02 Removal of Personal Property: On or before the termination date
of this Agreement, except in instances of termination pursuant to Article 12.01
hereof, in which event the Tenant shall be allowed up to five calendar days, and
provided that the Tenant is current in all the payments required pursuant to
this Agreement, the Tenant shall remove all of its personal property from the
premises hereunder unless the County has exercised its option to acquire same in
accordance with Article 7.03. Any personal property of the Tenant not removed in
accordance with this Article may be removed by the Department for storage at the
cost of the Tenant. Failure on the part of the Tenant to reclaim its personal
property within thirty days from the date of termination shall constitute a
gratuitous transfer of title thereof to the County for whatever use and
disposition is deemed to be in the best interests in the County.
17.03 Failure to Vacate: In the event the Tenant shall refuse or fail
to give up, vacate, quit and surrender possession of the premises hereunder, as
provided for herein, it shall be liable for double rental as provided for in
Section 83.06, Florida Statutes.
17.04 Right to Show Premises: At any time after the Tenant has been
given notice of termination or default, pursuant to Article 12 hereof, or within
six months of the scheduled termination date of this Agreement, the County shall
have the right to enter the premises for the purpose of showing the premises to
prospective tenants, tenants or users.
ARTICLE 18
Trust Agreement
18.01 Incorporation of Trust Agreement by Reference: Notwithstanding
any of the terms, provisions and conditions of this Agreement, it is understood
and agreed by the parties hereto that the provisions of the Trust Agreement,
dated as of the 1st day of October, 1954, as amended, by and between the County
and the Chase Manhattan Bank (now the Chase Manhattan Bank, National
Association), as Trustee, and the First National Bank of Miami (now Southeast
Bank, N.A.), as Co-Trustee of (the "Trust Agreement") which Trust Agreement is
incorporated herein by reference thereto, shall prevail and govern in the event
of any inconsistency with or ambiguity relating to the terms and conditions of
this Agreement, including the rents, fees or charges required herein, and their
modification or adjustment.
CA-35
42
Copies of the Trust Agreement may be examined by the Tenant at the offices of
the Department during normal working hours.
18.02 Adjustment of Terms and Conditions: If at any time during the
term of this Agreement, a court of competent jurisdiction shall determine that
any of the terms and conditions of this Agreement, including the rentals, fees
and charges required to be paid hereunder to the County by the Tenant or by
other Tenants under other agreements of the County for the lease or use of
premises used for similar purposes, are unjustly discriminatory, the County
shall have the right to modify such terms and conditions and to increase or
otherwise adjust the rentals, fees and charges required to be paid under this
Agreement in such a manner as the County shall determine is necessary and
reasonable so that the terms and conditions and the rentals, fees and charges
payable by the Tenant and others shall not thereafter be unjustly discriminatory
to any user of like premises and shall not result in any violation of the Trust
agreement or in any deficiency in revenues necessary to comply with the
covenants of the Trust Agreement. In the event the County has modified the terms
and conditions of this Agreement, including any adjustment of the rentals, fees
and charges required to be paid to the County, pursuant to this provision, this
Agreement shall be amended to incorporate such modification of the terms and
conditions, upon the issuance of written notice from the Department to the
Tenant.
18.03 Tenant Right to Terminate: In the event the terms and conditions
of this Agreement, including the rentals, fees and charges payable hereunder,
have been substantially modified pursuant to Article 18.02 above, the Tenant, at
any time within one year following the effective date of such modification, may
terminate this Agreement by giving not less than 270 days written notice to the
County, without liability by either party to the other.
ARTICLE 19
Other Provisions
19.01 Payment of Taxes: The Tenant shall pay all taxes lawfully
assessed against its interests in the premises and its operations hereunder;
provided, however, that the Tenant shall not be deemed to be in default of its
obligations under this Agreement for failure to pay such taxes pending the
outcome of any legal proceedings instituted in courts of competent jurisdiction
to determine the validity of such taxes. Failure to pay same after the ultimate
adverse conclusion of such contest shall constitute a default, pursuant to
Article 12.03 hereof.
19.02 Alterations by Tenant: The Tenant shall not alter or modify the
premises, except in accordance with Article 4 herein, without first obtaining
written approval from the Department.
19.03 Rights to be Exercised by Department: Wherever in this Agreement
rights are reserved to the County, such rights may be exercised by the
Department.
CA-36
43
19.04 Security: The Tenant acknowledges and accepts full responsibility
for the security and protection of the premises leased herein. The Tenant fully
understands and acknowledges that any security measures deemed necessary by the
Tenant for protection of said premises shall be the sole responsibility of the
Tenant and shall involve no cost to the County.
19.05 Rights of County at Airport: The County shall have the absolute
right, without limitation, to make any repairs, alterations and additions to any
structures and facilities at the Airport. The County shall, in the exercise of
such right, be free from any and all liability to the Tenant for business
damages occasioned during the making of such repairs, alterations and additions,
except those occasioned by the sole active negligence of the County, its
employees, or agents.
19.06 Federal Subordination: This Agreement shall be subordinate to the
provisions of any existing or future agreements between the County and the
United States of America relative to the operation and maintenance of the
Airport, the execution of which has been or may be required as a condition
precedent to the expenditure of Federal funds for the development of the
Airport. All provisions of this Agreement shall be subordinate to the right of
the United States of America to lease or otherwise assume control over the
Airport, or any part thereof, during time of war or national emergency for
military or naval use and any provisions of this Agreement inconsistent with the
provisions of such lease to the United States of America shall be suspended.
19.07 Notices: Any notices given under the provisions of this Agreement
shall be in writing and shall be hand delivered or sent by Registered or
Certified Mail, Return Receipt Requested, to:
To the County:
Director
Dade County Aviation Department
Post Office Box 592075
Xxxxx, Xxxxxxx 00000
To the Tenant:
Miami Airport Duty Free Joint Venture
0000 X.X. 00xx Xxxxxx
Xxxxx, Xxxxxxx 00000
or to such other respective addressees as the parties may designate to each
other in writing from time to time. Notices by Registered or Certified Mail
shall be deemed given on the delivery date indicated on the Return Receipt from
the U.S. Postal Service. Hand delivered
CA-37
44
notices shall be deemed received by the Tenant when presented to the local
management representative of the Tenant.
19.08 Severability: If any provision of this Agreement or the
application thereof to either party to this Agreement is held invalid by a court
of competent jurisdiction, such invalidity shall not affect other provisions of
the Agreement which can be given effect without the invalid provision, and to
this end, the provisions of this Agreement shall be severable.
19.09 Rights Reserved to County: All rights not specifically granted
the Tenant by this Agreement are reserved to the County.
19.10 Lien: The County shall have a lien upon all personal property of
the Tenant in the premises to secure the payment to the County of any unpaid
monies accruing to the County under the terms of this Agreement.
19.11 Authorized Uses Only: The Tenant shall not use or permit the use
of the premises or the Airport for any illegal or unauthorized purpose or for
any purpose which would increase the premium rates paid by the County on or
invalidate any insurance policies of the County or any policies of insurance
written on behalf of the Tenant under this Agreement.
19.12 No Waiver: There shall be no waiver of the right of either party
to demand strict performance of any of the provisions, terms and covenants of
this Agreement nor shall there by any waiver of any breach, default or
non-performance hereof by either party unless such waiver is explicitly made in
writing by the non-breaching party. Any previous waiver or course of dealing
shall not affect the right of either party to demand strict performance of the
provisions, terms and covenants of this Agreement with respect to any subsequent
event or occurrence or of any subsequent breach, default or non-performance
hereof by the other party.
19.13 Right to Regulate: Nothing in this Agreement shall be construed
to waive or limit the governmental authority of the County, as a political
subdivision of the State of Florida, to regulate the Tenant or its operations.
19.14 Inspections: The authorized employees and representatives of the
County and of any applicable Federal or State agency having jurisdiction hereof
shall have the right of access to the premises at all reasonable times for the
purposes of inspection to determine compliance with the provisions of this
Agreement. The right of inspection shall impose no duty on the county to inspect
and shall impart no liability on the County should it not make such inspections.
19.15 Radon Disclosure: In accordance with Section 404.056, Florida
Statutes, the following disclosure is hereby made:
CA-38
45
"Radon Gas: Radon is a naturally occurring radioactive gas that, when
it has accumulated in a building in sufficient quantities, may present
health risks to persons who are exposed to it over time. Levels of
radon that exceed federal and state guidelines have been found in
buildings in Florida. Additional information regarding radon and radon
testing may be obtained from your county public health unit."
19.16 Trademarks and Licenses: The County may, from time to time,
require the Tenant as part of its advertising and marketing program, to utilize
certain patents, copyrights, trademarks, trade names, logos, computer software
and other intellectual property owned by the County in the performance of this
Agreement, which patents, copyrights, trademarks, trade names, logos, computer
software and intellectual property may have been created pursuant to the terms
of this Agreement. Such permission, when granted, shall be evidenced by a
nonexclusive license executed by the Tenant and the Department, on behalf of the
County, granting the Tenant the right, license, and privilege to use a specific
patent, copyright, trademark, trade name, logo, computer software or other
intellectual property without requiring payment of fees therefor. Failure of the
parties to execute a formal license agreement shall not vest title or interest
in such patent, copyright, trademark, trade name, logo, computer software or
intellectual property in the using party.
19.17 Destruction of Premises: In the event the Premises shall be
destroyed or so damaged or injured by fire, windstorm, flood or other casualty
during the life of this Agreement that the Premises or any portion thereof are
rendered untenantable, the County shall have the right, but not the obligation,
to render said Premises or damaged portion thereof tenantable by repairs
completed within a reasonable period of time.
(A) Total Destruction: In the event the County elects not to
render the Premises tenantable, if destroyed or damaged in
their entirety, the Tenant shall be so notified in writing by
the Department, and this Agreement shall be deemed terminated
as of the date of the casualty.
(B) If the damaged portion of the Premises is not rendered
tenantable by the County within a reasonable period of time,
and the Tenant shall determine that: 1) the loss of the
damaged portion of the Premises shall have a materially
adverse impact on the ability of the Tenant to utilize the
Premises for the purposes described in Article 2; or 2) would
require the Tenant to obtain other space off the Premises in
order to substantially conduct the operations of the Tenant
originally conducted within the Premises, then, in either such
event, upon written notice to the County, the Tenant may
cancel this Agreement as of a date which shall be not later
than one year from the giving of such notice, if the repairs
are not completed within 90 days following such written notice
of intent to cancel, or if the repairs cannot be reasonably
completed within such 90-day period the County has not
commenced repairs within such time. In the event of
cancellation, the rent for the untenantable portion of the
Premises shall be paid
CA-39
46
only to the date of such fire, windstorm, flood, or other
casualty. If the Agreement is not cancelled following any such
casualty, the rent shall be abated as to the portion of the
Premises rendered untenantable.
The remedies provided to Tenant in this Article 19.17 are exclusive,
and Tenant shall be entitled to no other remedies in the event of a complete or
partial destruction of or damage to the Premises.
19.18 Headings: The headings of the various Articles and Sections of
this Agreement, and its Table of Contents, are for convenience and ease of
reference only, and shall not be construed to define, limit, augment or describe
the scope, context or intent of this Agreement or any part or parts of this
Agreement.
19.19 Binding Effect: The terms, conditions and covenants of this
Agreement shall inure to the benefit of and be binding upon the parties hereto
and their successors and assigns. This provision shall not constitute a waiver
of any conditions prohibiting assignment or subletting.
19.20 Entirety of Agreement: The parties hereto agree that this
Agreement sets forth the entire agreement between the parties, and there are no
promises or understandings other than those stated herein. None of the
provisions, terms and conditions contained in this Agreement may be added to,
modified, superseded or otherwise altered, except as may be specifically
authorized herein or by written instrument executed by the parties hereto.
19.21 Addendum to Agreement: The parties agree that the Addendum to
this Agreement attached hereto, is made a part hereof as if set out in full
herein.
[The next page is the signature page on CA-42]
CA-40
47
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their appropriate officials as of the date first above written.
CONCESSIONAIRE: (IF JOINT VENTURE) BOARD OF COUNTY COMMISSIONERS
OF DADE COUNTY FLORIDA
A. CORPORATE NAME OF JOINT By:____________________________________
VENTURER: County Manager
_______________________________________ Attest: Xxxxxx Xxxxx, Clerk
By:____________________________________ By:____________________________________
President Deputy Clerk
ATTEST:________________________________ (COUNTY SEAL)
Secretary
(CORP. SEAL) CONCESSIONAIRE: (If Corporation)
B. CORPORATE NAME OF JOINT _______________________________________
VENTURER:
____________________________________ By:____________________________________
President
By:____________________________________ _______________________________________
President Print Name
ATTEST:________________________________ ATTEST:________________________________
Secretary Secretary
________________________________
Print Name
(CORP. SEAL) (CORP. SEAL)
C. MANAGING JOINT VENTURER: CONCESSIONAIRE:
(If Partnership/Individual)
__________________________________ By:_____________________________
Name of Joint Venture Signature
__________________________________ ________________________________
Signature of Individual Authorized Print Name
to Bind Joint Venture
__________________________________ By:_____________________________
Witness As to Above Signature Title
__________________________________ Witnesses to above signature:
Witness As to Above Signature
________________________________
________________________________
CA-41
48
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their appropriate officials as of the date first above written.
CONCESSIONAIRE: (IF JOINT VENTURE) BOARD OF COUNTY COMMISSIONERS
OF DADE COUNTY FLORIDA
By:____________________________________
County Manager
Attest: Xxxxxx Xxxxx, Clerk
_______________________________________
By:____________________________________
Deputy Clerk
NAME OF JOINT VENTURE:
Miami Airport Duty Free Joint Venture
________________________________________________________________________________
0000 X.X. 00xx Xxxxxx
________________________________________________________________________________
Xxxxx, Xxxxxxx 00000
________________________________________________________________________________
A. CORPORATE NAME OF JOINT D. CORPORATE NAME OF JOINT
VENTURER: VENTURER:
Century Duty Free. Inc. Greyhound Leisure Services, Inc.
_______________________________ _______________________________
By: _______________________________
President By: _______________________________
President
ATTEST: ___________________________
Secretary ATTEST: ___________________________
Asst. Secretary
(CORP. SEAL)
B. CORPORATE NAME OF JOINT E. NAME OF JOINT VENTURER:
VENTURER:
Media Consultants, Inc. Xxxxx X. Xxxxxxx
_______________________________ _______________________________
By: _______________________________
President
ATTEST: ___________________________
Asst. Secretary
(CORP. SEAL)
C. CORPORATE NAME OF JOINT Witnesses as to Signature:
VENTURER:
_______________________________
Bayside Company Store, Inc.
d/b/a Bayside To Go, Inc. _______________________________
_______________________________
MANAGING JOINT VENTURER:
By: _______________________________
President Greyhound Leisure Services, Inc.
____________________________________
ATTEST: ___________________________ Print Name
Asst. Secretary
CA-42
49
President
____________________________________
Signature and Title
(Signature and Title of Individual
Authorized to Bind Joint Venture
MUST BE SHOWN ABOVE)
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their appropriate officials as of the date first above written.
CONCESSIONAIRE: (IF CORPORATE BOARD OF COUNTY COMMISSIONERS
PARTNERSHIP) OF DADE COUNTY FLORIDA
By:_________________________________
County Manager
Attest: Xxxxxx Xxxxx, Clerk
By:_________________________________
Deputy Clerk
(COUNTY SEAL)
NAME OF CORPORATE PARTNERSHIP:
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
A. NAME OF CORPORATE PARTNER:
_______________________________
By: _______________________________
President
ATTEST: __________________________
Secretary
(CORP. SEAL)
B. NAME OF CORPORATE PARTNER:
_______________________________
By: _______________________________
President
ATTEST: __________________________
Secretary
(CORP. SEAL)
CA-43
50
C. MANAGING CORPORATE PARTNER:
_______________________________
By: _______________________________
Signature & Title
(Signature and Title of Individual Authorized
to Bind Partnership MUST BE SHOWN ABOVE)
(CORP. SEAL)
CA-44
51
EXHIBIT A
SUMMARY OF STORES IN EXHIBIT A
STORE NUMBER SQUARE FOOTAGE
------------ --------------
1 2,037
2/9 4,583
3/4 3,905
5 2,075
6 367
7 1,821
8 1,430
10 947
11 621
12 60
14 536
15 153
16 614
17 1,178
18 48
19 227
20 176
21 4,116
22 711
27 3,414
30 256
32 48
33 48
Office 5,795
Warehouse 10,327
Bulk Warehouse 1,930
Warehouse (Con "A") 4,547
Display Workshop 2,555
TOTAL 54,525
CA-45
