2012-28036 Reso i
RESOLUTION NO j 2012 -28036 I`
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI
BEACH, FLORIDA, APPROVING, IN SUBSTANTIAL FORM (AS ATTACHED
HERETO), A CONCESSION AGREEMENT WITH MIAMI BEACH FILM SOCIETY, INC.
D /B /A MIAMI BEACH CINEMATHEQUE ( "CINEMATHEQUE ") TO OPERATE AN
OUTDOOR CAFE IN THE OUTDOOR COURTYARD AREA ADJACENT TO THE
PREMISES THAT CINEMATHEQUE LEASES FROM THE CITY PURSUANT TO
THAT CERTAIN LEASE AGREEMENT BETWEEN CINEMATHEQUE AND THE CITY,
DATED DECEMBER 9, 2009 ( "LEASE "), FOR A TERM TO RUN CONCURRENT
WITH THE LEASE, COMMENCING ON DECEMBER 1, 2012; AND FURTHER
AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE THE AGREEMENT
SUBJECT TO FINAL REVIEW BY THE CITY MANAGER AND FORM APPROVAL BY
THE CITY ATTORNEY
WHEREAS, on December 9, 2009, the Mayor and the City Commission adopted Resolution No.
2009- 27282, approving that certain Lease Agreement (the "Lease ") between the City and
Cinematheque for approximately 2,523 square feet of ground floor space in the City -owned building
known as Historic City.Hall, located at 1130 Washington Avenue, Miami Beach, Florida (the "Leased
Premises "); and
WHEREAS, the Lease is for an initial term of three (3) years, which commenced on March 1, 2010,
and terminates on February 28, 2013, with two (2) additional three (3) year renewal terms; and
WHEREAS, the Leased Premises include two large doors that open out on to steps and an outdoor
courtyard immediately to the south of Historic City Hall, but the Leased Premises do not include the
outdoor space; and
WHEREAS, Cinemateque has requested use of the outdoor courtyard space, which is adjacent to
the Leased Premises, to place eight (8) tables and sixteen (16) chairs for the purpose of operating and
maintaining a cafe, which will serve Cinematheque's patron's, and the general public, light fare
including, without limitation, baked goods, specialty chocolates, coffee, tea, and non - alcoholic
beverages; and
WHEREAS, at the September 26, 2011 Finance and Citywide Projects Committee meeting; the
Committee recommended entering into a concession agreement with Cinemateque for use of the
outdoor courtyard space.
NOW, THEREFORE, BE IT DULY RESOLVED THAT THE MAYOR AND CITY COMMISSION OF
THE CITY OF MIAMI BEACH, FLORIDA that the Mayor and City Commission hereby approves, in
substantial form (as attached hereto), a Concession Agreement with Miami Beach Film Society, Inc.
d /b /a Miami Beach Cinematheque ( "Cinematheque ") to operate an outdoor cafe in the outdoor
courtyard area adjacent to the premises that Cinematheque leases from the City pursuant to that
certain Lease Agreement between Cinematheque and the City, dated December 9, 2009 ( "Lease ") for a
term to run concurrent with the Lease, commencing on December 1, 2012; further authorizing the
Mayor and the City Clerk to execute the Agreement, subject to final review by the City Manager and
form approval by the City Attorney.
PASSED and ADOPTED thi Oda Qr 2012.
ATTEST:
INCORP ORATE APPROVED AS TO
FG RM & LANGUAGE
Rafael Gr nado, LER s� , o _ e R. Exposito
— & F.1 XECUTION
' y e -Mayor
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COMMISSION ITEM SUMMARY
Condensed Title:
Resolution Approving And Authorizing.The Mayor And City Clerk To Execute A Concession Agreement
Between The City And The Miami Beach Film Society, Inc. d /b /a Miami Beach Cinematheque
( "Cinematheque "), A Not - For - Profit 501(c)3 Organization, For Use Of The City -Owned Outdoor Space Directly
Adjacent And South Of The Cinematheque Theatre For An Outdoor Cafe.
Key Intended Outcome Supported:
Not Applicable
Supporting Data (Surveys, Environmental Scan, etc.):
Not Applicable
Issue:
Shall the City enter into a Concession Agreement with Cinematheque for its use of outdoor cafe space
adjacent to the Leased Premises at 1130 Washin ton Avenue?
Item Summary /Recommendation:
On December 9, 2009, the Mayor and City Commission adopted Resolution 2009 - 27282, approving a Lease
Agreement between the City -and Cinematheque for approximately 2,523 square feet of ground floor space in
the building known as Historic City Hall, the City -owned property located at 1130 Washington Avenue, 1st
Floor South, and Miami Beach, Florida.
The Lease Agreement's term is for three (3) years, commencing on March 1, 2010, and terminating on
February 28, 2013, with two (2) additional three (3) year renewal terms, at the City's sole discretion.
Adjacent and immediately south. of the Leased Premises is outdoor courtyard space and such space is not
included as part of the Leased Premises.
Cinematheque desires to use the adjacent outdoor courtyard space for a cafe with eight (8) tables and sixteen
(16) chairs that would operate during the hours Cinematheque operates the cinema.
Cinematheque's projected annual gross revenues from the cafe are approximately $55,560.. Based upon this
assumption, at 15% of gross, the annual concession fee would $8,348.. It is recommended - that the annual
minimum guarantee fee be set at $7,000.00 payable in 12 equal installments of $583.33. After the
submission of an annual end -of- the -year report by. Cinematheque, Cinematheque will be responsible to pay
the.difference between the minimum guaranteed fee and 15% of its reported gross revenues.
At its. September 26, 2011 meeting, the Finance & Citywide Projects Committee discussed the request and
recommended approving a concession agreement to run coterminous with the Lease Agreement.
Advisory Board Recommendation:
Finance & Cit Wide Projects Committee: Se tember 26, 2011
Financial Information:
Source of Amount Account
Funds: 1 n/a
Financial Impact Summary:
City. Clerk's Office Legislative Tracking:
Anna Parekh, ext. 6471
Sign-Offs:
De artm irector 7 Assis C' ManaAer I Interim City, Ma er
API MAS.I KGB
KGB /MAS /AP /MM
TAAGENDA \2012 \10 - 24 - 12 \Cinematheque Concession SUM (10 9 12).docx
AGENDA ITEM � r'
M IAMIBEACH
DATE
MIA/\A,1DE:/-,\CH
City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33139, www.miamibeachfl.gov
COMMISSION MEMORANDUM
TO: Mayor Matti H. Bower and Members of the City Commission
~ FROM: Kathie Brooks, Interim City Manager
DATE: October 24, 2012
SUBJECT: A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF MIAMI BEACH, FLORIDA, APPROVING, IN SUBSTANTIAL
FORM (AS ATTACHED HERETO), A CONCESSION AGREEMENT
WITH MIAMI BEACH FILM SOCIETY, INC. D /B /A MIAMI BEACH
CINEMATHEQUE ( "CINEMATHEQUE ") TO OPERATE AN OUT -DOOR
CAFE IN THE AREA ADJACENT TO THE PREMISES THAT
CINEMATHEQUE. LEASES FROM THE CITY PURSUANT TO THAT
CERTAIN LEASE AGREEMENT BETWEEN CINEMATHEQUE AND
THE CITY DATED DECEMBER 9, 2009 ( "LEASE ") FOR A TERM TO
RUN CONCURRENT WITH THE LEASE, COMMENCING ON
DECEMBER 1, 2012; AND FURTHER AUTHORIZING THE MAYOR
AND CITY CLERK TO EXECUTE THE . AGREEMENT SUBJECT TO
FINAL REVIEW BY THE CITY MANAGER AND FORM APPROVAL BY
THE CITY ATTORNEY
ADMINISTRATION RECOMMENDATION
Adopt the Resolution.
KEY INTENDED OUTCOMES SUPPORTED
To ensure well- maintained facilities.
BACKGROUND
At the October 21, 2008 and March 10, 2009 meetings of the Finance & Citywide Projects
Committee ( "F &CPC "), and following a comprehensive review of the City's office space use, it
was determined that Historic City Hall would not be fully re- occupied by City offices, resulting in
leasable space available for non -City uses. The Committee directed the Administration to
advertise and market the available leasable space, a total of approximately 14,194 square feet,
including the ground floor, .but exclusive of the second floor space utilized by the Clerk of the
Court.
At the meeting, the F &CPC also approved the Administration's recommendation that the
process of developing lease agreements based on supply and demand be utilized for the
leasing and occupancy of these available spaces at Historic City Hall, and that any future
commercial leases (including renewals and /or extensions) for use of space at Historic City Hall
be handled as it is in the private sector and not through a competitive bid process, with the
Administration ensuring that market rates are negotiated and operating expenses included. All
leases would continue to require City Commission approval per City Code.
Commission Memorandum — Cinemateque Outdoor Cafe
October 24, 2012
Page 2 of 3
On December 9, 2009, the Mayor and City Commission adopted Resolution No. 2009 - 27282,
approving the Lease Agreement between the City and Cinematheque for the approximately
2,523 square feet of ground floor space in the building known as Historic City Hall, the City -
owned property located at 1130 Washington Avenue, 1 St Floor South, Miami Beach, Florida (the
"Leased Premises ") and waiving the competitive bidding and approval requirements by 5 /7
vote of the Mayor and City Commission, upon a finding by the Mayor and City Commission that
the public interest would be served by waiving such conditions.
The Lease Agreement is for an initial term of three (3) years, commencing on March 1, 2010,
and terminating on February 28, 2013, with two (2) additional three (3) year renewal terms. The
Tenant is a not - for - profit 501(c)3 organization.
The Leased Premises include two large doors that open out onto steps and an outdoor
courtyard to the south of the Historic City Hall Building. The Leased Premises do - not include
the outdoor space. Cinematheque has requested use of the outdoor courtyard space, adjacent
to the Leased Premises, to place eight tables and 16 chairs immediately outside of the south
door for the purpose of serving the public and Cinematheque's patron's light fare, including
without limitation, baked goods, specialty chocolates, coffee, tea and non - alcoholic beverages.
A proposed site plan for the tables and chairs is attached and labeled Attachment 1 .
ANALYSIS
In order to facilitate use of the outdoor area by Cinematheque and be consisent with other
similar arrangements, a separate Concession Agreement is the recommended method for
governing the use of the space. Said Concession Agreement is not subject to the restrictions of
the March 14, 2012 Exclusive Non - Alcoholic Beverage Agreement between the City of Miami
Beach and Coca -Cola North America, a division of the Coca -Cola Company. Staff's proposed
terms are outined below, including the proposed concession fee of the greater of $7,000 per
year (the "Minimum Guarantee ", or "MG "), or 15 percent (15 %) of Cinematheque's gross
revenues ( "Percentage of Gross" or "PG "). Fifteen percent (15 %) of gross is comparable to
what other food and beverage concessioners pay for comparable, limited food concessions in
the City.
For purposes of determining the Minimum Guarantee, Staff reviewed Cinematheque's Projected
Outdoor Cafe Revenue. Cinematheque's' Projected Outdoor Cafe Revenues, Use Assumption,
Financial Assumtions, and Sample Menu items are outlined in the Miami Beach Cinematheque
Projected Outdoor Cafe Revenue Sheet, labelled Attachment 2 . Because it is reasonable to
expect that there could be up to 100 bad weather days, Staff believes that Cinematheque's
gross revenues will be closer to $55,650, or $210 x 265 days.
Based upon this assumption, at 15 percent of gross, the annual concession fee would be
$8,348. It is therefore recommended that the annual minimum guarantee fee be set at $7,000,
payable, in 12 equal monthly installments of $583.33. After the submission of an annual end of
the year report by the Cinematheque, the Cinematheque will be responsible to pay the
difference between the minimum guaranteed fee and 15% of its reported gross revenues.
Concession Terms
At the September 26, 2011 F &CPC meeting, Staff proposed the Concession Agreement terms
as set forth below. The Cinemateque requested a waiver of the security deposit requirement in
light of the fact that it posted a security deposit in the amount of $8,410.00 for the Leased
Premises under the Lease Agreement.
Commission Memorandum - Cinemateque Outdoor Cafe
October 24, 2012
Page 3 of 3
The F &CPC recommended the terms set forth below which include the approval of the waiver of
the security deposit requirement. Cinematheque subsequently requested the right to terminate
the Concession Agreement upon thirty (30) days written notice. Staff agreed subject to either
party having the right to terminate upon thirty (30) days written notice to the other party.
CONCESSIONAIRE: Miami Beach Film Society, Inc. d /b /a Miami Beach Cinematheque
LANDLORD: City of Miami Beach
CONCESSION AREA:
Courtyard Space adjacent to Tenant's Demised Premises on the South
side of the Historic City Hall Building, as depicted on Attachment 1
TERM: Effective on December 1, 2012 and concurrent with terms of Lease
Agreement, the initial term will end on February 28, 2013. Provided
Concessionaire is is in good standing and the Lease Agreement for the
adjacent space is in full force and effect, the Concession Agreement may
be extended for two (2) additional three (3) year renewal terms. The
Concession Agreement may be terminated by either party upon thirty (30)
days written notice to the other party.
FEE: The greater of Minimum Guaranteed fee _in the - amount of $7,000
annually, payable monthly in twelve equal monthly installments of
$583.33 per month, or Fifteen Percent (15 %) of.the Outdoor Cafe's'Gross
Profits
HOURS OF OPERATION:
The outdoor cafe shall be open only during Cinematheque's regular
business hours
USES:. Only coffee, tea, soft drinks, baked goods and specialty chocolates shall
be served. No alcoholic beverages will be served
SEATING: Maximum of seating for sixteen (16) people, maximum of eight (8) tables
PRICING: All drinks and food items shall be priced between Three Dollars ($3.00)
and Five Dollars ($5.00) with an average sale assumed to be Seven
Dollars ($7.00)
CONCLUSION
The Administration recommends in favor of finalizing a Concession Agreement with
Cinematheque for use of the City -owned outdoor space directly adjacent to the South of the
Cinematheque's Leased Premises, said Concession Agreement to run concurrent with the
Lease, incorporating the previously referenced financial terms and operational conditions.
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TA 4GENDAl2012110- 24- 121Cinematheque Concession MEMO (10- 9- 12).docx
ATTACHMENT
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ATTACHMENT 2
Miami Beach Cinematheque Projected Outdoor Cafe Revenue
Use assumptions:
• The cafe will be open during MBC's regular business hours
• No alcoholic beverages will be served in the cafe
• The cafe would serve coffee, tea, soft drinks, baked goods and specialty
chocolates
The cafe would have eight small tables with seating for 16 people
• All drinks and food items would be priced at between $3 and $5 with an
average sale assumed to be $7
• The cafe will primarily function as an amenity for MBC patrons providing
light snacks pre and post films and. during gallery visits but will be
available to street traffic as well
Financial assumptions:
• 15 patrons per day between noon and 6pm @$7 per sale = $105
15 patrons per day between 6 and 10 pm @ $7 per sale = $105
Total dally Income c $210
• $210 per day X 365 days = $76,650 yearly income
• (not including bad weather consideration)
Sample menu- items:
• Nespresso expresso $3
• Nespesso cappuccino, or caf6 au lait $4
• Nespesso teas $3
• Various soft drinks $3
• Plain croissants $4
• Chocolate or almond croissants $5 -
• Brownies $4
• Pound cake $4
• Large cookies $3
• Chocolate truffles $5
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Miami Beach
Film Society , Inc .
Concession
� Agreement
INDEX
SECTION TITLE PAGE
1. TERM ..................................................................................................................................5
2. CONCESSION AREA..........................................................................................................5
2.1 I Concession Area ...................................................................................................5
3. USE(S) ................................................................................................................................6
3.1 Food and Beverage Service...................................................................................6
3.3 City Business Tax Receipts....................................................................................7
4. CONCESSION FEES..........................................................................................................7
4.1 Minimum Guarantee (MG)......................................................................................7
4.2 Percentage of Gross (PG)vs. MG .........................................................................7
4.3 Interest for Late Payment.......................................................................................7
4.4 Sales and Use Tax.................................................................................................8
5. MAINTENANCE AND EXAMINATION OF RECORDS.......................................................8
6. INSPECTION AND AUDIT..................................................................................................8
7. TAXES, ASSESSMENTS, AND UTILITIES........................................................................9
8. EMP LIOYEES AND INDEPENDENT CONTRACTORS......................................................9
9. HOURS OF OPERATION .................................................................................................10
10. IMPROVEMENT, MAINTENANCE, REPAIR and OPERATION.......................................10
10.1 Improvements.......................................................................................................10
10.2 Garbage Receptacles...........................................................................................11
10.3 Maintenance/Repair .............................................................................................11
10.4 No Dangerous Materials.......................................................................................12
10.5 Security.................................................................................................................13
10.6 Inspection .............................................................................................................13
11. INSURANCE .....................................................................................................................13
12. INDEMNITY.......................................................................................................................14
12.4 Subrogation..........................................................................................................14
12.5 Force Majeure......................................................................................................14
12.6 Waiver of Loss from Hazards...............................................................................15
13. DEFAULT AND TERMINATION........................................................................................15
13.1 Bankruptcy............................................................................................................15
13.2 Default in Payment...............................................................................................15
13.3 Non-Monetary Default ..........................................................................................16
13.4 City's Remedies for Concessionaire's Default .....................................................16
13.5 Concessionaire's Remedies for City's Default .....................................................16
13.6 Termination for Convenience...............................................................................17
13.7 Surrender of Concession Area.............................................................................17
2
SECTION TITLE PAGE
14. PERFORMANCE BOND OR ALTERNATE SECURITY...................................................17
15. ASSIGNMENT...................................................................................................................17
16. SPECIAL EVENTS/SPONSORSHIPS............................................................................18
16.2 City Special Events...............................................................................................18
16.3 Sponsorships........................................................................................................18
17. NO IMPROPER USE.........................................................................................................19
18. PRICE SCHEDULES.........................................................................................................19
19. NOTICES...........................................................................................................................19
20. LAWS ................................................................................................................................20
20.1 Compliance...........................................................................................................20
20.2 Equal Employment Opportunity............................................................................20
20.3 No Discrimination .................................................................................................20
21. MISCELLANEOUS............................................................................................................21
21.1 No Partnership......................................................................................................21
21.2 Modifications.........................................................................................................21
21.3 Complete Agreement ...........................................................................................21
21.4 Headings ..............................................................................................................21
21.5 Binding Effect .......................................................................................................21
21.6 Clauses.................................................................................................................21
21.7 Severability...........................................................................................................21
21.8 Right of Entry........................................................................................................22
21.9 Not a Lease..........................................................................................................22
21.10 Signage ................................................................................................................22
21.11 Conflict of Interest.................................................................................................22
21.12 No Waiver.............................................................................................................22
21.13 No Third Party Beneficiary....................................................................................23
22. LIMITATION OF LIABILITY...............................................................................................23
23. VENUE ..............................................................................................................................24
EXHIBITS
Exhibit2.1 .............................................................................................................25
Exhibit3.1.1 ..........................................................................................................26
3
CONCESSION AGREEMENT BETWEEN
CITY OF MIAMI BEACH AND
MIAMI BEACH FILM SOCIETY, INC.
FOR MANAGEMENT AND OPERATION OF A FOOD & BEVERAGE CONCESSION
IN THE COURTYARD SPACE ADJACENT TO TENANT'S DEMISED PREMISES
THIS AGREEMENT made the 7AA day of J410e- 2013, between the
CITY OF MIAMI BEACH, a municipal corporation of the State of Florida (hereinafter called
"City"), having its principal address at 1700 Convention Center Drive, Miami Beach,
Florida, 33139, and MIAMI BEACH FILM SOCIETY, INC. (d/b/a Miami Beach
Cinematheque), a Florida not-for-profit corporation, having its principal place of business at
1130 Washington Avenue, 1 st Floor South, Miami Beach, Florida, 33139(hereinafter called
"Concessionaire").
WITNESSETH
WHEREAS, on December 9, 2009, the Mayor and the City Commission adopted
Resolution No. 2009-27282, approving that certain Lease Agreement (the "Lease")
between the City and Cinematheque for approximately 2,523 square feet of ground floor
space in the City-owned building known as Historic City Hall, located at 1130 Washington
Avenue, Miami Beach, Florida (the "Leased Premises"); and
WHEREAS, the Lease is for an initial term of three (3) years, which commenced on
March 1, 2010, and terminates on February 28, 2013, with two (2)additional three (3)year
renewal terms; and
WHEREAS,the Leased Premises include two large doors that open out on to steps and
an outdoor courtya elld immediately to the south of Historic City Hall, but the Leased
Premises do not include the outdoor space; and
WHEREAS, Cinemateque has requested use of the outdoor courtyard space, which is
adjacent to the Leased Premises, to place eight (8) tables and sixteen (16) chairs for the
purpose of operating and maintaining a cafe, which will serve Cinematheque's patron's,
and the general public, light fare including, without limitation, baked goods, specialty
chocolates, coffee, tea, and non-alcoholic beverages; and
WHEREAS, at the September 26, 2011 Finance and Citywide Projects Committee
meeting, the Committee recommended entering into a concession agreement with
Cinemateque for use of the outdoor courtyard space.
WHEREAS, accordingly, the City and Concessionaire have negotiated the following
Concession Agreement.
NOW THEREFORE, in consideration of the premises and the mutual covenants and
conditions herein contained and other good and valuable consideration, the receipt and
4
adequacy of which are hereby conclusively acknowledged, it is agreed by the parties
hereto as follows:
The City hereby grants to the Concessionaire, and the Concessionaire hereby accepts
from the City, the riight to maintain, manage and operate a food and beverage concession
within the Concession Area (as hereinafter defined), in accordance with the purpose(s)and
for the term(s) stated herein, and subject to all the terms and conditions herein contained.
SECTION 1. TERM.
1.1 This Agreement shall commence on the 1St day of December, 2012 (the
"Commencement Date"), and terminate on the 28th day of February, 2013
(the Term).
For purposes of this Agreement, the first "contract year" shall be defined as
that certain period commencing on the 1St day of December 2012, and
endi',g on the 28th day of February, 2013. Thereafter, a "contract year" shall
be defined as the one (1) year period commencing on the 1 st day of March,
and ending on the 28th day of February.
It is the intent of the parties hereto that, unless otherwise terminated
pursuant to the provisions of this Agreement, the Term of this Agreement is
intended to run concurrent with the term, including any extensions thereof, of
that certain Lease Agreement by and between the City of Miami Beach and
Mianj i Beach Film Society, Inc., dated December 9, 2009 (hereinafter, the
"Lease Agreement").
If, at any time during the Term of this Concession Agreement, the Lease
Agreement is terminated or otherwise ceases to be of any legal force and
effect, for whatever reason whatsoever, then this Concession Agreement
shall automatically terminate, and shall be null and void and of no further
force and effect.
The City and Concessionaire shall each have the right to terminate this
Agreement for any reason whatsoever upon providing thirty(30)days written
notice to the other party. Notwithstanding anything to the contrary contained
herein, in the event the Lease Agreement is terminated for any reason
whatsoever, this Agreement shall also be terminated effective immediately.
SECTION 2. CONCESSION AREA.
The City hereby grants to Concessionaire the right, during the Term herein, to maintain,
manage and operate a food and beverage concession in the following Concession Area:
2.1 Concession Area:
Outdoor courtyard space adjacent to and south of the Cinematheque
Theatre, located at 1130 Washington Avenue, 1 st Floor South, Miami Beach,
Florida; which outdoor courtyard space is further delineated in Exhibit 2.1
hereto and hereinafter referred to as the "Concession Area".
5
Concessionaire shall have the right to place a maximum of eight(8) tables
with seating for sixteen (16) people within the Concession Area, subject to
approval of a site plan by the City, and compliance with applicable ADA
requirements. The approved site plan is also delineated in Exhibit 2.1 hereto.
No material change in the approved site plan (or in Exhibit 2.1) shall be
permitted without prior written consent of the City Manager or her designee,
whic, consent (if given at all) shall be at the Manager's (or her designee's)
sole and reasonable judgment and discretion.
2.2 Concessionaire hereby agrees and acknowledges that the Concession Area
shall be open and available to all members of the general public choosing to
enjoy Concessionaire's food and beverage services as well as patrons of
Cinernatheque Theatre.
SECTION 3. USE(S).
Concessionaire is hereby authorized to conduct the following kind of businesses and
provide the following kind of services within the Concession Area, all at its sole expense
and responsibility:
3.1 Food and Beverage Service.
3.1.1 Concessionaire shall prepare, or cause to be prepared, for sale within
the Concession Area, such pre-cooked, prepared, and/or
prepackaged foods, and such non-alcoholic beverages as those set
forth in Exhibit 3.1.1. The City Manager hereby approves the types of
food and beverages, and prices for same as those set forth in Exhibit
3.1.1. Any amendments to Exhibit 3.1.1, whether as to type of food
and beverages to be sold, or as to changes in prices for same, must
be approved in writing by the City Manager or her designee prior to
such changes being implemented within the Concession Area, and a
new updated Exhibit 3.1.1 will be incorporated into this Agreement.
3.1.2 All food and beverages sold within the Concession Area will be
properly prepared and served in compliance with all applicable health
and sanitary standards, laws and regulations.
3.1.3 The quality of food, beverages, and service offered will be first-rate
and comparable to that available at other public concession facilities
in the City of Miami Beach.
3.1.4 In addition to Concessionaire's general maintenance obligations for
the Concession Area, as set forth in Section 10 herein, the
Concession Area, and the immediately surrounding ten (10) foot
adjacent areas, shall at all times be maintained by Concessionaire in
a clean and sanitary manner.
3.1.5 At least one (1) supervisory employee must possess a Food Service
Management Certification issued by a County Public Health
6
Department in Florida. In addition, the Concession Area must be
licensed by the Florida Department of Business Regulation, Division
of Hotels and Restaurants, and/or the Department of Agriculture,
and/or as may further be required by State law and/or by
corresponding agencies.
3.1.6 Concessionaire agrees not to place any speakers, or any other device
used to amplify sound, in, on or around the Concession Area.
3.3 City Business Tax Receipts.
Concessionaire shall obtain, at its sole expense and responsibility, any
business tax receipts required by the City for the proposed use(s)
contemplated herein.
SECTION 4. CONCESSION FEES.
4.1 Minimum Guarantee (MG):
In consideration of the City's granting of the rights provided in this
Agreement, the Concessionaire shall pay to the City a Minimum Guaranteed
Annual Concession Fee (MG) of Seven Thousand Dollars ($7,000.00),
payable in monthly installments of Five Hundred Eighty Three and 33/100
Dollars ($583.33); payable on the 1St day of every month of each contract
year during the Term. The first MG payment shall be due on December 1,
2012.
4.2 Percentage of Gross (PG) vs. MG:
For each contract year during the Term, in the event that the amount equal to
fifteen (15%) percent of Concessionaire's gross receipts (PG) exceeds the
MG amount, then Concessionaire shall also pay to the City the difference
between the PG amount and the MG amount; which payment shall be
received no later than sixty (60) days after the end of each contract year.
The term "gross receipts" is understood to mean all income, whether
collected or accrued, derived by Concessionaire under this Agreement, or
any licensee, sub-concessionaire, or sub-tenant, as Concessionaire,from all
business conducted upon or from the Concession Area, including but not
limited to receipts from sale of food and beverages.The term "gross receipts"
shall exclude amounts of any Federal, State, or City sales tax, or other tax,
governmental imposition, assessment, charge or expense of any kind,
collected by the Concessionaire from customers and required by law to be
remitted to the taxing or other governmental authority.
4.3 Interest for Late Payment.
Any payment which Concessionaire is required to make to the City which is
not paid on or before the respective date provided for in this Agreement shall.
be s i bject to interest at the rate of twelve (12%) percent per annum, or the
maximum amount allowable under Florida law,whichever is greater,from the
due date of payment until such time as payment is actually received by the
City.
7
4.4 Sales and Use Tax.
It is also understood that the required Florida State Sales and Use Tax shall
be added to Concessionaire's payments and forwarded to the City as part of
said payments. It is the City's intent that it is to receive all payments due from
Concessionaire as net of such Florida State Sales and Use Tax.
SECTION 5. MAINTENANCE AND EXAMINATION OF RECORDS.
Concessionaire shall maintain current, accurate, and complete financial records, on an
accrual basis, related to its operations pursuant to this Agreement. Systems and
procedures used to maintain these records shall include a system of internal controls; all
accounting records shall be maintained in accordance with generally accepted accounting
principles; and shall be open to inspection, copying, and audit by the City Manager or her
designee upon reasonable verbal or written notice, during normal hours of operation.
Concessionaire shall maintain all such records at its principal office, currently located at
1130 Washington Avenue, Miami Beach, Florida, 33139 or, if moved to another location, all
such records shall b relocated, at Concessionaire's sole expense, to a location in Miami
Beach, within ten (10) days from notice of request for inspection from the City. Such
records and accounts shall include, at a minimum, a breakdown of gross receipts,
expenses, and profit and loss statements. Concessionaire shall maintain accurate receipt-
printing cash registers (or a like alternative) in the Concession Area which will record and
show the payment for every sale made or service provided in such Area. Such other
records shall be maintained as would be required by an independent CPA in order to audit
a statement of annual gross receipts and profit and loss statement pursuant to generally
accepted accounting principles. Concessionaire records shall also be maintained for a
period of three (3) years following expiration (or other termination) of this Agreement
(regardless of whether such termination results from the expiration of the Term or for any
other reason).
Concessionaire shall submit to the City Finance Department's Revenue Manager, within
sixty(60)days of the end of each contract year, an annual statement of gross receipts, in a
form consistent with generally accepted accounting principles. Additionally, such statement
shall be audited by an independent CPA.
SECTION 6. INSPECTION AND AUDIT.
The City Manager or her designee shall be entitled to audit Concessionaire's records as
often as deemed necessary by the City throughout the Term, and three(3)times within the
three(3)year period following expiration (or other termination)of this Agreement. The City
shall be responsible for paying all costs associated with such audit(s), unless the audit(s)
reveals a deficiency of five (5%) percent or more in Concessionaire's statement of gross
receipts for any year or years audited, in which case Concessionaire shall pay to the City,
within thirty (30) days of the City deeming the audit final, the cost of the audit and a sum
equal to the amount of the deficiency revealed by the audit, plus interest. These audits are
in addition to periodic City audits of Resort Tax collections and payments (which are
performed separately). Nothing contained within this Section shall preclude the City's audit
rights for Resort Tax collection purposes.
It is Concessionaire's intent to stay informed of comments and suggestions by the City
regarding Concessionaire's performance underthe Agreement. Within thirty(30)days after
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the end of each contract year, Concessionaire and the City may meet to review
Concessionaire's performance under the Agreement for the previous contract year. At the
meeting, Concessionaire and the City may discuss quality, operational, maintenance and
any other issues regarding Concessionaire's performance under the Agreement.
SECTION 7. TAXES, ASSESSMENTS, AND UTILITIES.
Concessionaire agrees and shall pay, before delinquency, all taxes and assessments of
any kind (including!, without limitation, ad valorem taxes, if assessed, and/or Resort Taxes)
levied or assesse upon Concessionaire and/or the Concession Area including, without
limitation, any such taxes and/or assessments that may be levied and/or assessed against
Concessionaire and/or the Concession Area by reason of this Agreement, or by reason of
the business or other operations and/or activities of Concessionaire upon or in connection
with the Concession Area.
Concessionaire will have the right, at its own expense, to contest the amount or validity, in
whole or in part, of any tax and/or assessment by appropriate proceedings, which
Concessionaire shall conduct diligently and continuously, in good faith. Concessionaire
may refrain from paying a tax to the extent it is contesting the imposition of same in a
manner that is in accordance with law; provided, however, if, as a result of such contest,
additional delinquency charges become due, Concessionaire shall be responsible for such
delinquency charges, in addition to payment of the contested tax (if so ordered).
Concessionaire shall be solely responsible for and shall promptly pay when due all charges
for utility service(s) provided to the Concession Area (including all hook-up fees and impact
fees)for gas, electricity, water, sewer, cable, telephone, trash collection, etc., if applicable.
In addition to other rights and remedies hereinafter reserved to the City, upon the failure of
Concessionaire to,pay for such utility services when due, the City may elect to pay same
and Concessionaire shall promptly reimburse the City upon demand. In no event shall the
City be liable, whether to Concessionaire or to third parties, for an interruption or failure in
the supply of any utilities services to the Concession Area.
SECTION 8. EMPLOYEES AND INDEPENDENT CONTRACTORS.
8.1 Concessionaire shall select, train, employ (or otherwise hire or retain) such
number of employees and/or independent contractors as is necessary and
appropriate for Concessionaire to satisfy its responsibilities hereunder, and
as necessary to maintain the same levels of service as exist in similar first
classI concession facilities and operations. Concessionaire's employees
and/or independent contractors shall be employees and/or independent
contractors of Concessionaire and not of the City, and Concessionaire shall
be solely responsible for their supervision and daily direction and control.
Concessionaire shall be solely responsible for, and have the sole authority to
hire, terminate and discipline any and all personnel and/or contractors
employed or retained by Concessionaire.
8.2 All employees and/or independent contractors shall observe all the graces of
personal grooming. Concessionaire shall hire people to work in its operation
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who are neat, clean, well groomed, and comport themselves in a
professional and courteous manner. Concessionaire and any persons hired
and/or retained by Concessionaire shall never have been convicted of a
felony.
Concessionaire shall have an experienced manager or managers overseeing
the concession operations at all times.
SECTION 9. HOURS OF OPERATION.
The Concession Area shall be open for business only during Cinematheque Theatre's
regular business hours which, as of the Commencement Date, are as follows:
Wednesday - Sunday: 11:00 AM to 10:30 PM
Any change in the hours of operation including, without limitation, any request by
Concessionaire for an increase or decrease in same, shall be subject to the prior written
approval of the City Manager or her designee, which approval, if granted at all, shall be at
the City Manager's (or her designee's) sole option and discretion.
SECTION 10. IMPROVEMENTS MAINTENANCE, REPAIR and OPERATION.
Concessionaire accepts the use of the Concession Area in its "AS IS" "WHERE IS"
condition. Concessionaire assumes sole responsibility and expense for maintenance of the
Concession Area (including all furniture, fixtures, equipment and any other improvements
thereon). This shall include, without limitation, daily (i.e. 365 days) removal of litter,
garbage and debris. Concessionaire shall also be responsible for all garbage disposal
generated by its operations.
10.1 Improvements.
10.1.1 Any improvements to the Concession Area shall be at
Concessionaire's sole expense and responsibility; provided, however,
that any plans for such improvements shall be submitted to the City
Manager or her designee for prior written approval. Upon termination
and/or expiration of this Agreement, all personal property and non-
' permanent trade fixtures may be removed by Concessionaire without
causing damage to the Concession Area.
All permanent (fixed) improvements to the Concession Area shall
remain the property of the City upon termination and/or expiration of
this Agreement, except as provided in Subsection 10.1.2.
Concessionaire will permit no liens to attach to the Concession Area
arising from, connected with, or related to, the design, construction,
and installation of any improvements.
Construction of any approved improvements shall be diligently
prosecuted to completion and accomplished through the use of
licensed, reputable contractors who are acceptable to the City
Manager or her designee. In addition to obtaining the prior approval of
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the City Manager or her designee (acting on behalf of the City, in a
proprietary capacity), Concessionaire shall also be solely responsible
for obtaining, at its sole cost and expense, any and all permits,
licenses, and/or regulatory approvals; such regulatory approvals
which may include, without limitation, land use board and/or the
approvals of other required regulatory agencies having jurisdiction)
required for the construction of improvements.
10.1.2 Notwithstanding Subsection 10.1.1 hereof, upon termination and/or
expiration of this Agreement, Concessionaire shall immediately
remove any permanent improvements made to the Concession Area
during the Term, at Concessionaire's sole expense and responsibility.
In such event, Concessionaire shall also restore the Concession Area
to its original condition prior to the improvements being made,
reasonable wear and tear excepted.
10.1.3 The above requirements for submission of plans and the use of
specific contractors shall not apply to improvements (which term, for
purposes of this subsection 10.1.3 only, shall also include
improvements necessary for Concessionaire's ongoing maintenance
and repair of the Concession Area) which do not exceed Five
Hundred ($500.00) Dollars; provided that the work is not structural,
and provided further that it is permitted by applicable law.
10.2 Garbage Receptacles.
With respect to litter, garbage and debris removal, Concessionaire shall
provide, at its sole expense, a sufficient number of trash receptacles for its
own ruse and for the use of its patrons. Determination of the "number" of
receptacles shall at all times be within the City Manager or her designee's
sole discretion. Disposal of the contents of said receptacles(and removal of
litter, garbage and debris within the Concession Area), shall be done on a
daily(i.e. 365 days) basis. Any costs for removal of the contents of said trash
receptacles by the City, because of the Concessionaire's failure to do so, will
be assessed to, and become the responsibility of, the Concessionaire.
The dumping or disposal of any refuse, discards, trash or garbage,
generated by, or as a result of Concessionaire's operations, into any of the
Historic City Hall trash dumpster shall be the sole responsibility of
Concessionaire.
10.3 Maintenance/Repair.
Concessionaire shall maintain, at its sole expense and responsibility, all
furniture, fixtures, and equipment (FFE) and any other improvements
(whether permanent or not) required to operate the concession. In the event
any FFE and/or other improvement(s) is lost, stolen, or damaged, it shall be
replaced or repaired promptly, at the sole expense of Concessionaire.
10.3.1 All damage or injury of any kind to the Concession Area, and/orto any
improvements and/or FFE thereon, except damage caused by the
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willful misconduct or gross negligence of the City, shall be the sole
obligation of Concessionaire, and shall be repaired, restored and/or
replaced promptly by Concessionaire, at its sole expense, to the
satisfaction of the City Manager or his designee.
10.3.2 All of the aforesaid repairs, restoration and replacement shall be in
quality and class equal to or better than the original work (or FFE, as
the case may be) and shall be done in good and workmanlike
manner.
10.3.3 If Concessionaire fails to make any repairs, restoration and/or
replacement, the same may be made by the City, at the expense of
Concessionaire, and all sums spent and expenses incurred by the
City shall be collectable by the City and shall be paid by
Concessionaire within ten (10)days after receipt of a bill or statement
thereof. Notwithstanding that the City may elect to make such repairs,
restoration, and/or replacement, the City shall have no obligation
and/or affirmative duty to do so.
10.3.4 It shall be Concessionaire's sole obligation to ensure that any
renovations, repairs and/or improvements made by Concessionaire to
the Concession Area comply with all applicable permitting, building
codes and life safety codes of governmental authorities having
jurisdiction.
10.4 No Dangerous Materials.
Concessionaire agrees not to use or permit in the Concession Area the
storage and/or use of gasoline, fuel oils, diesel, illuminating oils, oil lamps,
combustible powered electricity producing generators, turpentine, benzene,
naphtha, propane, natural gas, or other similar substances, combustible
materials, or explosives of any kind, or any substance or thing prohibited in
the standard policies of fire insurance companies in the State of Florida.Any
such substances or materials found within the Concession Area shall be
immediately removed.
In consideration of a separate and specific consideration of Ten ($10.00)
Dollars and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Concessionaire shall
inde I nify and hold the City harmless from any loss, damage, cost, or
expense of the City, including, without limitation, reasonable attorney's fees,
incurred as a result of, arising from, or connected with the placement by
Concessionaire of any "hazardous substance" or "petroleum products" on,
under, in or upon the Concession Area as those terms are defined by
applicable Federal and State statutes, or any environmental rules and
environmental regulations promulgated thereunder. The provisions of this
subsection 10.4 shall survive the termination or earlier expiration of this
Agreement.
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10.5 Security.
Concessionaire shall be responsible for and provide such reasonable
security measures as may be required to protect the Concession Area and
any improvements and FFE thereon. Under no circumstances shall the City
be responsible for any stolen or damaged FFE; damage to or loss of any
improvements; or any stolen, lost, or damaged personal property of
Concessionaire's employees, contractors, patrons, guests, invitees, and/or
any other third parties.
10.6 Inspection.
Concessionaire agrees that the Concession Area (and operations thereon)
may be inspected at any time during hours of operation by the City Manager
or his designee, or by any other municipal, County or State officer, or other
agency having responsibility and/or jurisdiction for inspection of such
operations. Concessionaire hereby waives all claims against the City for
compensation for loss or damage sustained by reason of any interference
with the concession operations, whether by the City or by any public agency
or official, in enforcing their respective duties, or enforcing compliance with
any applicable laws, or ordinances, or regulations.
SECTION 11. INSURANCE.
Concessionaire shall maintain, at all times throughout the Term, at its sole expense and
responsibility, the following types of insurance coverage:
a. Comprehensive General Liability, in the minimum amount of One Million
($1,000,000.00) Dollars (subject to adjustment for inflation) per occurrence
for bodily injury and property damage. This policy must also contain
coverage for premises operations, products and contractual liability.
b. Workers Compensation Insurance shall be required in accordance with the
laws of the State of Florida.
C. Automobile Insurance shall be provided covering all owned, leased, and
hired vehicles and non-ownership liability for not less than the following limits
(subject to adjustment for inflation):
Bodily Injury $1,000,000.00 per person
Bodily Injury $1,000,000.00 per accident
Property Damage $1,000,000.00 per accident
The policies of insurance referred to above shall not be subject to cancellation or
changing coverage except upon at least thirty (30) days prior written notice to the
City, and then only subject to the prior written approval of the City Manager or his
designee. Prior to the Commencement Date of this Agreement, Concessionaire
shall provide the City with a Certificate of Insurance for each such policy. ALL
POLICIES SHALL NAME THE CITY OF MIAMI BEACH FLORIDA AS AN
ADDITIONAL NAMED INSURED. All such policies shall be obtained from
companies lauthorized to do business in the State of Florida with an A.M. Best's
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Insurance Guide (latest edition) rating acceptable to the City's Risk Manager, and
any replacement or substitute company shall also be subject to the approval of the
City's Risk Manager.
Should Concessionaire fail to obtain, maintain or renew the policies of insurance
referred to above, in the required amounts, the City may, at its sole discretion,
obtain suck insurance, and any sums expended by the City in obtaining said
insurance, shall be repaid by Concessionaire to the City, plus ten (10%) percent of
the amount of premiums paid to compensate the City for its administrative costs. If
Concessionaire fails to repay the City's expenditures following written demand from
the City(and within the time specified in the City's demand notice), such failure shall
be deemed an event of default hereunder and the total sum owed shall accrue
interest at the rate of twelve (12%) percent until paid.
SECTION 12. INDEMNITY.
12.1 In consideration of a separate and specific consideration of Ten ($10.00)
Dollars and other good and valuable consideration the receipt and sufficiency
of which are hereby acknowledged, Concessionaire shall indemnify, hold
harmless and defend the City, its officers, employees, contractors, agents or
servants from and against any claim, demand or cause of action of
whatsoever kind or nature arising out of error, omission, or negligent act of
Concessionaire, its officers, employees, contractors, agents or servants in
the performance of services under this Agreement.
12.2 In addition, and in consideration of a separate and specific consideration of
Ten ($10.00) Dollars and other good and valuable consideration the receipt
and sufficiency of which are hereby acknowledged, Concessionaire shall
indemnify, hold harmless and defend the City, its officers, employees,
contractors, agents or servants from and against any claim, demand or
cause of action of whatever kind or nature arising out of any misconduct of
Concessionaire, its officers, employees, contractors, subconcessionaire(s),
agents or servants not included in Subsection 12.1 herein and for which the
City, its officers, employees, contractors, subconcessionaire(s), agents or
servants are alleged to be liable.
12.3 Subsections 12.1 and 12.2 shall survive the termination or expiration of this
Agreement. Subsections 12.1 and 12.2 shall not apply, however, to any such
liability, that arises as a result of the willful misconduct or gross negligence of
the City, its officers, employees, contractors, agents or servants.
12.4 Subrogation.
The terms of insurance policies referred to in Section 11 shall preclude
subrogation claims against Concessionaire, the City and their respective
officers, employees, contractors, agents or servants.
12.5 Force Maieure.
Whenever a period of time is herein prescribed for the taking of any action by
the City or Concessionaire (as applicable), the City or Concessionaire (as
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applicable), shall not be liable or responsible for, and there shall be excluded
from the computation of such period of time, any delays due to strikes, riots,
acts of God, shortages of labor or materials, war, or governmental laws,
regulations, or restrictions in the nature of a prohibition or moratorium, or any
bona fide delay beyond the reasonable control of City or Concessionaire(as
applicable). The foregoing shall not apply to any payments of money due
under this Agreement.
12.6 Waiver of Loss from Hazards.
Concessionaire hereby expressly waives all claims against the City for loss
or damage sustained by the Concessionaire resulting from an event of Force
Majeure (as defined herein), and the Concessionaire hereby expressly
waives all rights, claims, and demands against the City and forever releases
and discharges the City from all demands, claims, actions and causes of
action arising from any of the aforesaid causes.
SECTION 13. DEFAULT AND TERMINATION.
Subsections 13.1 through 13.3 shall constitute events of default under this Agreement. An
event of default bye Concessionaire shall entitle the City to exercise any and all remedies
described as the City's remedies under this Agreement, including but not limited to those
set forth in Subsection 13.4 and Section 14. An event of default by the City shall entitle
Concessionaire to exercise any and all remedies described as Concessionaire's remedies
under this Agreement, including but not limited to those set forth in Subsection 13.5.
13.1 Bankruptcy.
If either the City or Concessionaire shall be adjudged bankrupt or insolvent,
or if any receiver or trustee of all or any part of the business property of
either party shall be appointed, or if any receiver of all or any part of the
business property shall be appointed and shalt not be discharged within sixty
(60)days after appointment, or if either party shall make an assignment of its
property for the benefit of creditors, or shall file a voluntary petition in
bankruptcy, or insolvency, or shall apply for reorganization or arrangement
with its creditors under the bankruptcy or insolvency laws now in force or
hereinafter enacted, Federal, State, or otherwise, or if such petitions shall be
filed against either party and shall not be dismissed within sixty (60) days
after such filing, then the other party may immediately, or at any time
thereafter, and without further demand or notice, terminate this Agreement
without being prejudiced as to any remedies which may be available to it for
breach of contract.
13.2 Default in Payment.
In the event Concessionaire fails to submit any payment within five (5)days
of its due date, there shall be a late charge of Fifty ($50.00) Dollars per day
for such late payment, in addition to interest at the highest rate allowable by
law. If any payment and accumulated penalties are not received within fifteen
(15) days after the payment due date, and such failure continues three (3)
days after written notice thereof, then the City may, without further demand
or notice, terminate this Agreement without being prejudiced as to any
remedies which may be available to it for breach of contract, and may begin
15
procedures to collect the Performance Bond required in Section 14 herein.
13.3 Non-Monetary Default.
In the event that Concessionaire or the City fails to perform or observe any of
the covenants, terms or provisions under this Agreement, and such failure
conti i ues thirty (30) days after written notice thereof from the other party
hereto, such non-defaulting party may immediately or at any time thereafter,
and without further demand or notice, terminate this Agreement. In the event
that a default is not reasonably susceptible to being cured within such period,
the defaulting party shall not be considered in default if it shall, within such
period, commence with due diligence and dispatch to cure such default and
thereafter completes with dispatch and due diligence the curing of such
default, but in no event shall such extended cure period exceed ninety (90)
days from the date of written notice thereof. In the event Concessionaire
cures any default pursuant to this subsection, it shall promptly provide the
City with written notice of same.
13.4 City's Remedies for Concessionaire's Default.
If any of the events of default, as set forth in this Section, shall occur, the
City may, after notice (if required) and the expiration of cure periods, as
provided above, at its sole option and discretion, institute such proceedings
as in its opinion are necessary to cure such default(s)and to compensate the
City for damages resulting from such default(s), including but not limited to
the right to give to Concessionaire a notice of termination of this Agreement.
If such notice is given, the Term of this Agreement shall terminate upon the
date specified in such notice from the City to Concessionaire. On the date so
specified, Concessionaire shall then quit and surrender the Concession Area
to the City pursuant to the provisions of Subsection 13.7. Upon the
termination of this Agreement by the City, all rights and interest of
Concessionaire in and to the Concession Area and to this Agreement, and
every part thereof, shall cease and terminate and the City may, in addition to
any other rights and remedies it may have, retain all sums paid to it by
Concessionaire under this Agreement, including but not limited to, beginning
procedures to collect the Performance Bond in Section 14 herein.
In addition to the rights set forth above, the City shall have the rights to
purs a any and all of the following:
a. the right to injunction or other similar relief available to it under Florida
law against Concessionaire; and/or
b. the right to maintain any and all actions at law or suits in equity or
other proper proceedings to obtain damages resulting from
Concessionaire's default.
13.5 Concessionaire's Remedies for City's Default.
If an event of default, as set forth in this Section, by the City shall occur,
Concessionaire may, after the expiration of the cure period, terminate this
Agreement upon written notice to the City. Said termination shall become
16
effective upon receipt of the written notice of termination by the City. On the
date specified in the notice, Concessionaire shall quit and surrender the
Concession Area to the City pursuant to the provisions of Subsection 13.7.
13.6 Termination for Convenience.
13.6.1 Notwithstanding any other provision of this Section 13,this Agreement
may be terminated, in whole or in part, by the City, for convenience
and without cause, upon the furnishing of thirty(30)days prior written
notice to Concessionaire.
13.6.2 In the event of termination by the City pursuant to this subsection,
Concessionaire herein acknowledges and agrees that it shall not have
any claim, demand, or cause of action of whatsoever kind or nature,
against the City, its agents, servants and employees (including, but
not limited to, claims for any start-up costs, interference in business or
damages for interruption of services, or interference in its concession
operations). In no event shall the City be liable to Concessionaire for
any indirect, incidental, special, lost profits or consequential damages.
13.7 Surrender of Concession Area.
At the expiration of this Agreement, or earlier termination in accordance with
the terms of this Agreement, Concessionaire shall surrender the Concession
Area in the same condition as the Concession Area was prior to the
Commencement Date of this Agreement, reasonable wear and tear
excepted. Concessionaire shall remove all its personal property, upon forty-
eight(48) hours written notice from the City Manager or his designee unless
a longer time period is agreed to by the City. Concessionaire's obligation to
observe or perform this covenant shall survive the expiration or other
termination of this Agreement. Continued occupancy of the Concession Area
after termination of the Agreement shall constitute trespass by the
Concessionaire, and may be prosecuted as such. In addition, the
Concessionaire shall pay to the City One Thousand ($1,000.00) Dollars per
day as liquidated damages for such trespass and holding over.
SECTION 14. Intentionally Omitted.
SECTION 15. ASSIGNMENT.
Concessionaire shall not assign, sublease, grant any sub-concession or license, permit the
use of by any other person other than Concessionaire, or otherwise transfer all or any
portion of this Agreement and/or of the Concession Area (all of the forgoing are herein after
referred to collectively as"transfers"), without the prior written consent of the City Manager,
which consent shall not be unreasonably withheld.
Concessionaire shall notify the City Manager of any proposed transfer prior to
consummation of same. In the event that any such transfer is approved, the transferee
shall agree to be bound by all the covenants of this Agreement required of the transferor
hereunder. Any transfer made without complying with this section shall be null, void, and of
no effect and shall constitute an act of default under this Agreement. Notwithstanding any
17
such consent, or any permitted transfer under any provision of this section, unless
expressly released by the City Manager, Concessionaire shall remain jointly and severally
liable (along with each approved transferee, who shall automatically become liable for all
obligations of the transferor hereunder with respect to that portion of the Agreement so
transferred), and the City shall be permitted to enforce the provisions of this Agreement
directly against Concessionaire or any transferee of Concessionaire without proceeding in
any way against any other person.
SECTION 16. SPECIAL EVENTS / SPONSORSHIPS.
16.1 The parties agree and acknowledge that Concessionaire's proposed use(s),
as defined in Section 3 hereof, do not contemplate nor allow the production,
promotion or sponsorship by the Concessionaire of special events in or
arou o d the Concession Area, unless otherwise allowed by a special events
permit from the City.
16.2 City Special Events.
Notwithstanding Subsection 16.1 herein, and in the event that the City, at its
sole discretion, deems that it would be in the best interest of the City,the City
ieseilves the right to displace the Concessionaire for City produced and/or
sponsored special events and/or City produced and/or sponsored
productions. Additionally, the aforestated events may also require additional
time for load-in and load-out of the event. In such cases, the City may
request that Concessionaire cease and desist operations'during the term of,
and inn the area of, the special event and/or production, and Concessionaire
shall cease and desist during such time. To the extent that Concessionaire is
displaced, and/or required to cease and desist operations, City shall provide,
calculated on a per diem basis for the period of time the Concession Area is
non-operational, a credit against Concessionaire's PG amount, as delineated
in Section 4.2 herein. If the Concessionaire is not required to close, or the
City Manager or his designee determines that Concessionaire may remain
open in such a manner as prescribed by the City, that will not interfere with
the special event and/or production, Concessionaire shall use its best efforts,
in either case, in cooperating with the City. If Concessionaire is allowed to
remain open during special events and/or productions, Concessionaire may
be allowed to have in operation its normal daily complement of equipment
and staff. "Normal" shall be defined as equipment and staff that the
Concessionaire customarily has available to service its patrons within the
Concession Area on a normal business day (during its hours of operation).
16.3 Sponsorships.
The City reserves unto itself all present and future rights to negotiate all
forms of endorsement and/or sponsorship agreements based on the
marketing value of any City trademark, property, brand, logo and/or
reputation. Any and all benefits derived from an endorsement and/or
sponsorship agreement based on the marketing value of a City trademark,
property, brand, logo and/or reputation, shall belong exclusively to the City.
Concessionaire shall be specifically prohibited from entering into, or
otherwise creating any, sponsorships and/or endorsements with third parties
18
which are based solely or in any part on the marketing value of a City
trademark, property, brand, logo and/or reputation.
SECTION 17. NO IMPROPER USE.
Concessionaire will not use, nor suffer or permit any person to use in any manner
whatsoever, the Concession Area for any improper, immoral or offensive purpose, or for
any purpose in violation of any Federal, State, County, or municipal ordinance, rule, order
or regulation, or of any governmental rule or regulation now in effect or hereafter enacted
or adopted. Concessionaire will protect, indemnify, and forever save and keep harmless
the City, its officers, employees, contractors, agents or servants, from and against damage,
penalty, fine,judgment, expense or charge suffered, imposed, assessed or incurred for any
violation, or breach of any law, ordinance, rule, order or regulation occasioned by any act,
neglect or omission of Concessionaire, or any of its officers, employees, contractors,
agents or servants. In the event of any violation by Concessionaire, or if the City shall
deem any conduct on the part of Concessionaire to be objectionable or improper, the City
Manager or his designee shall have the right to suspend the concession operations should
the Concessionaire fail to correct any such violation, conduct, or practice to the satisfaction
of the City Manager or his designee within twenty-four(24) hours after receiving written or
verbal notice of the nature and extent of such violation, conduct, or practice; such
suspension to continue until the violation is cured. Concessionaire further agrees not to
commence operations during the suspension until the violation has been corrected to the
satisfaction of the City Manager or his designee.
SECTION 18. PRICE SCHEDULES.
18.1 Concessionaire agrees that prices charged for the sale of food and beverage
service will be consistent with the price schedule(s) herein submitted by the
Concessionaire and approved by the City and incorporated herein as exhibits
to this Agreement. All subsequent price approvals and changes must be
approved in writing by the City Manager or his designee. Prices shall be
reasonably consistent with those charged for similar items in other similar
public concessions in the City. The City shall have the final right of approval
for all such prices and changes. Concessionaire agrees to refrain from the
sale of any item identified as prohibited by the City and to sell only those
items approved by the City. Concessionaire agrees to maintain an adequate
supply necessary to accommodate park patrons.
18.2 Notwithstanding Subsection 18.1, Concessionaire acknowledges that the
City has existing agreements, which entitle the vendors to the placement of
vending machines within Historic City Hall. Concessionaire shall at all times
price products of similar type and/or volume in a manner equal or greater to
the pricing of the vending machine item(s). At no time shall Concessionaire's
item(s) be sold at a lower price than similar items sold in the vending
machines.
SECTION 19. NOTICES.
All notices from the City to Concessionaire shall be deemed duly served upon receipt, if
mailed by registered or certified mail with a return receipt to Concessionaire at the following
addresses:
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Dana Keith Weekly, President
Miami Beach Film Society, Inc.
P.O. Box 19-1876
Miami Beach, Florida 33139
All notices from Concessionaire to the City shall be deemed duly served upon receipt, if
mailed by registered or certified mail return receipt requested to the City of Miami Beach at
the following addresses:
City Manager
City of Miami Beach
1700 Convention Center Drive
Miami Beach, FL 33139
With copy to:
Director of Real Estate, Housing & Community Development
City of Miami Beach
1700 Convention Center Drive
Miami Beach, FL 33139
Concessionaire and the City may change the above mailing addresses at any time upon
giving the other party written notification. All notices under this Agreement must be-in
writing.
SECTION 20. LAWS.
20.1 Compliance.
Concessionaire shall comply with all applicable City, County, State, and
Federal ordinances, statutes, rules and regulations(including but not limited
to all applicable environmental City, County, State, and Federal ordinances,
statutes, rules and regulations, as same may be amended from time to time.
20.2 Equal Employment Opportunity.
Neither Concessionaire nor any affiliate of Concessionaire performing
services hereunder, or pursuant hereto, will discriminate against any
employee or applicant for employment because of race, sex, sexual
orientation, color, creed, national origin, familial status, religion or handicap.
Concessionaire will take affirmative steps to utilize minorities and females in
the work force and in correlative business enterprises.
20.3 No Discrimination.
Concessionaire agrees that there shall be no discrimination as to race, sex,
sexual orientation, color, creed, national origin, familial status, religion or
handicap, in its employment practice or in the operations referred to by this
Agreement; and further, there shall be no discrimination regarding any use,
service, maintenance, or operation within the Concession Area. All facilities
and services offered shall be made available to the public.
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SECTION 21. MISCELLANEOUS.
21.1 No Partnership.
Nothing contained in this Agreement shall constitute or be construed to be or
create a partnership or joint venture between the City and Concessionaire.
21.2 Modifications.
This Agreement cannot be changed or modified except by agreement in
writing executed by all parties hereto. Concessionaire acknowledges that no
modification to this Agreement may be agreed to by the City unless approved
by the Mayor and City Commission except where such authority has been
expressly provided herein to the City Manager.
21.3 Complete Agreement.
This Agreement, together with all exhibits incorporated hereto, constitutes all
the understandings and agreements of whatsoever nature or kind existing
between the parties with respect to Concessionaire's operations, as
contemplated herein.
21.4 Headings.
The section, subsection and paragraph headings contained herein are for
convenience of reference only and are not intended to define, limit, or
describe the scope or intent of any provision of this Agreement.
21.5 Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns.
21.6 Clauses.
The illegality or invalidity of any term or any clause of this Agreement shall
not affect the validity of the remainder of the Agreement, and the Agreement
shall remain in full force and effect as if such illegal or invalid term or clause
were not contained herein unless the elimination of such provision
detrimentally reduces the consideration that either party is to receive under
this Agreement or materially affects the continuing operation of this
Agreement.
21.7 Severability.
If any provision of this Agreement or any portion of such provision or the
application thereof to any person or circumstance shall be held to be invalid
or unenforceable, or shall become a violation of any local, State, or Federal
laws, then the same as so applied shall no longer be a part of this
Agreement but the remainder of the Agreement, such provisions and the
application thereof to other persons or circumstances, shall not be affected
thereby and this Agreement shall be so modified.
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21.8 Right of Entry.
The City, at the direction of the City Manager, shall at all times during hours
of operation, have the right to enter into and upon any and all parts of the
Concession Area for the purpose of examining the same for any reason
relating to the obligations of parties to this Agreement.
21.9 Not a Lease.
It is expressly understood and agreed that no part, parcel, building, structure,
equipment or space is leased to Concessionaire; that this Agreement is a
concession agreement and not a lease, and that Concessionaire's right to
operate, manage, and maintain the concession shall continue only so long as
Concessionaire complies with the undertakings, provisions, agreements,
stipulations and conditions of this Agreement.
Accordingly, Concessionaire hereby agrees and acknowledges that in the
event of termination of this Agreement, whether due to a default by
Concessionaire or otherwise, Concessionaire shall surrender and yield unto
the City the Concession Area, in accordance with Subsection 13.7 hereof,
and the City shall in no way be required to evict and/or otherwise remove
Concessionaire from the Concession Area as if this were a tenancy under
Chapter 83, Florida Statutes, nor shall Concessionaire be afforded any other
rights afforded to nonresidential tenants pursuant to said Chapter(the parties
having herein expressly acknowledged that this Agreement is intended to be
a concession agreement and is in no way intended to be a lease).
21.10 Signage.
Concessionaire shall provide, at its sole expense and responsibility, any
required signs at its concession. All advertising, signage and postings shall
be approved by the City, and shall be in accordance with all applicable
Municipal, County, State and Federal laws and regulations. Any signage
posted by Concessionaire shall be subject to the prior approval of the City as
to size, shape and placement of same.
21.11 Conflict of Interest.
Concessionaire shall perform its services under this Agreement and conduct
the concession operation(s)contemplated herein, in a manner so as to show
no preference for other concession operations/facilities owned, operated,
managed, or otherwise controlled by Concessionaire.
21.12 No Waiver.
21.12.1 It is mutually covenanted and agreed by and between the parties
hereto that the failure of the City to insist upon the strict performance
of any of the conditions, covenants, terms or provisions of this
Agreement, or to exercise any option herein conferred, will not be
considered or construed as a waiver or relinquishment for the future
of any such conditions, covenants, terms, provisions or options but
the same shall continue and remain in full force and effect.
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21.12.2 A waiver of any term expressed herein shall not be implied by any
neglect of the City to declare a forfeiture on account of the violation of
such term if such violation by continued or repeated subsequently and
any express waiver shall not affect any term other than the one
specified in such waiver and that one only for the time and in the
manner specifically stated.
21.12.3 The receipt of any sum paid by Concessionaire to the City after
breach of any condition, covenant, term or provision herein contained
shall not be deemed a waiver of such breach, but shall be taken,
considered and construed as payment for use and occupation (and
not as rent), unless such breach be expressly waived in writing by the
City.
21.13 No Third Party Beneficiary.
Nothing in this Agreement shall confer upon any person or entity, other than
the parties hereto and their respective successors and permitted assigns,
any rights or remedies by reason of this Agreement.
SECTION 22. LIMITATION OF LIABILITY.
The City desires to enter into this Agreement placing the management and operation of the
Concession Area in the hands of a private management entity only if so doing the City can
-place a limit on its liability for any cause of action for breach of this Agreement, so that its
liability for any such breach never exceeds the sum of Ten Thousand ($10,000.00) Dollars.
Concessionaire hereby expresses its willingness to enter into this Agreement with a Ten
Thousand ($10,000.00) Dollar limitation on recovery for any action for breach of contract.
Accordingly, and in consideration of the separate consideration of Ten Thousand
($10,000.00) Dollars, the receipt of which is hereby acknowledged, the City shall not be
liable to Concessionaire for damages to Concessionaire in an amount in excess of Ten
Thousand ($10,000.00) Dollars, for any action for breach of contract arising out of the
performance or non-performance of any obligations imposed upon the City by this
Agreement. Nothing contained in this paragraph or elsewhere in this Agreement is in any
way intended to be a waiver of limitation placed upon the City's liability as set forth in
Florida Statutes, Section 768.28.
[Intentionally Left Blank]
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i-
SECTION 23. VENUE.
This Agreement shall be deemed to have been made and shall be construed and
interpreted in accordance with the laws of the State of Florida. This Agreement shall be
enforceable in Miami-Dade County, Florida, and if legal action is necessary by either party
with respect to the enforcement of any and all the terms or conditions herein, exclusive
venue for the enforcement of same shall lie in Miami-Dade County, Florida. THE CITY
AND CONCESSIONAIRE HEREBY KNOWINGLY AND INTENTIONALLY WAIVE THE
RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING THAT THE CITY AND
CONCESSIONAIRE MAY HEREIN AFTER INSTITUTE AGAINST EACH OTHER WITH
RESPECT TO ANY MATTER ARISING OUT OF OR RELATED TO THIS AGREEMENT
OR THE CONCESSION AREA.
IN WITNESS WHEREOF, the parties hereto have caused their names to be signed
and their seals to be affixed, all as of the day and year first above written, indicating their
agreement.
Attest: CITY OF MIAMI BEACH, FLORIDA
Raf el Granado, I Matti Her era Bower, MAYOR
.INCORP ORATED' �
Attest: MIAMI BEACH FI SOCIETY, INC.
Cb
r
Edward Christin, CORPORATE SECRETARY Dana eith Weekly, P ESIDENT
CORPORATE SEAL
(affix seal here)
F:\RHCD\$ALL\ECON\$ALL\ASSET\OLDCITIIMB Film Society\Cinematheque Cafe Concession Agreement(11-28-12).doc
APPROVED AS TO
FORM & LANGUAGE
&FOR EXECUTION
i om , Date
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EXHIBIT 2.1
Concession Area
SIDEWAU(
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EXHIBIT 3.'1.1
Menu & Prices
Sample menu items:
• Nespresso expresso $3
• Nespesso cappuccino, or caf6 au lait $4
• Nespesso teas $3
• Various soft drinks $3
• Plain croissants $4
• Chocolate or almond croissants $5
• Brownies $4
• Pound cake $4 °
• Large cookies $3
• Chocolate truffles $5
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