Concession Agreement with JCC Senior Meals Program0?~09-~7/3~
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CONCESSION AGREEMENT BETWEEN THE
CITY OF MIAMI BEACH, FLORIDA
AND
JEWISH COMMUNITY SERVICES OF SOUTH FLORIDA, INC.
FOR THE OPERATION OF A "SENIOR MEALS PROGRAM"
THIS AGREEMENT made the 15th day of July, 2009, 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
JEWISH COMMUNITY SERVICES OF SOUTH FLORIDA, INC., a Florida not-for-profit
corporation, with offices at 800 NE 125th Street, North Miami, Florida, 33161 (hereinafter
called "Concessionaire").
WITNESSETH
WHEREAS, for over a decade, the City has provided use of the auditorium in the City
owned building (known as the South Shore Community Center), located at 833 Sixth
Street, Miami Beach, Florida, to Jewish Community Services of South Florida, Inc. for the
sole purpose of operating a "Senior Meals Program" which provides recreational activities
and amid-day meal to residents that are 60 years and older; and
WHEREAS, commencing in August 2005, the City undertook an extensive renovation
project of the South Shore Community Center which was completed in October 2008; and
WHEREAS, in lieu of completion of the renovations, the City is desirous of formalizing its
relationship with the Concessionaire by entering into a Concession Agreement for its part-
time use of the auditorium space; and
WHEREAS, accordingly, the City and Concessionaire have negotiated the following
Concession Agreement; and
WHEREAS, said Concession Agreement is for an initial term of four (4) years and three
hundred sixty four (364) days, commencing on October 2, 2009, and ending on September
30, 2014, with one (1) additional five (5) year renewal term, at the City's sole discretion.
NOW THEREFORE, in consideration of the premises and the mutual covenants and
conditions herein contained and other good and valuable consideration, the receipt and
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 right to operate the following described concession within the Concession
Area, as defined below, in conformance with the purposes and for the period stated herein
and subject to all the terms and conditions herein contained and fairly implied by the terms
hereinafter set forth.
SECTION 1. TERM.
1.1 It is the intent of the parties hereto that the term of this Agreement, including
any renewal terms, is to run concurrent with the term of that certain Lease
Agreement between the City of Miami Beach and Jewish Community
Services of South Florida, Inc., dated September 9, 2009 (hereinafter, the
"Lease Agreement"). Accordingly, this Concession Agreement shall be for an
initial term of four (4) years and three hundred sixty four (364) days,
commencing on the 2"d day of October, 2009 (the "Commencement Date"),
and ending on the 30th day of September, 2014. For purposes of this
Agreement, and including, without limitation, Subsection 1.2 below, a
"contract year" shall be defined as that certain period commencing on the 1St
day of October, and ending on the 30th day of September.
1.2 At the expiration of the initial term herein, and provided that (i)
Concessionaire is in good standing and free from default(s) under Section 13
hereof, and (ii) Concessionaire continues to utilize the Concession Area in
accordance with the stated purpose(s)/use(s) herein, this Agreement shall be
renewed for one (1) additional five (5) year renewal term, which renewal shall
be memorialized in writing and executed by the parties hereto (with the City
hereby authorizing the City Manager to execute on behalf of the City).
Notwithstanding the preceding, within ninety (90) days prior to the expiration
of the initial term, the City Manager may elect to re-negotiate a reasonable
increase in the Rent, and shall provide Concessionaire with written notice of
such election. If, following good-faith negotiations between the City and
Concessionaire, the parties are unable to agree, then the City Manager may
further elect to not renew the Agreement, in which case the Agreement will
terminate and the City shall have no further liability or obligation to
Concessionaire.
1.3 Additionally, in the event that the renewal option for the Lease Agreement is
not exercised, then this Concession Agreement shall automatically terminate,
and shall be null and void and of no further force and effect. Additionally, 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.
SECTION 2. CONCESSION AREA.
The City hereby grants to the Concessionaire the right, during the Term herein, to utilize
the following facility and space (hereinafter referred to as the "Concession Area"):
The Concession Area is limited to the area comprised of 2,792
square feet in the public auditorium room within the South
Shore Community Center (a.k.a. 6th Street Community Center
or the "Building"), located at 833 Sixth Street, Miami Beach,
Florida, 33139; and as further delineated in "Exhibit 2" hereto.
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SECTION 3. USE(SZ
3.1 Concessionaire is hereby authorized to use the Concession Area, at its sole
expense and responsibility, solely for the purpose of operating a "Senior
Meals Program" which provides recreational activities and amid-day meal to
residents that are 60 years and older.
Additionally, Concessionaire shall also maintain its not-for-profit status in full
force and effect, and in good standing, throughout the Term herein.
3.2 Storage of Concession Equipment.
The City Manager and/or his designee, at their sole discretion, may allow
Concessionaire's equipment to remain overnight within the Concession Area.
However, at the request of the City Manager and/or his designee,
Concessionaire agrees to immediately remove all its equipment from the
Concession Area and store same in an approved location.
3.3 City Business Tax Receipts.
Concessionaire shall obtain, at its sole expense and responsibility, any
business tax receipts required by the City, as amended from time to time, for
the proposed use(s) contemplated in this Section 3. To the extent required
by City law, as same may be amended from time to time, business tax
receipts shall be obtained for each proposed use within a particular
Concession Area.
SECTION 4. CONCESSION FEES.
4.1 Base Fee.
Base Fee for the Concession Area shall begin to accrue on October 2, 2009
(the Commencement Date).
4.1.1 Throughout the Term herein, the Base Fee for use of the Concession
Area shall be One Dollar and Twenty Cents ($1.20) per year, payable
by Concessionaire monthly, commencing on the Commencement
Date and, thereafter, on each first day of subsequent months.
4.1.2 Concurrent with the payment of the Base Fee, Concessionaire (if
applicable) shall also include any and all additional sums for all
applicable sales and use tax, now or hereafter prescribed by Federal,
State or local law.
4.2 Additional Fee.
In addition to the Base Fee, as set forth in Section 4.1, Concessionaire shall
also pay the following Additional Fee as provided below:
4.2.1 Operating Expenses.
Concessionaire shall pay Four Hundred Forty Six Dollars and 49/100
($446.49) per month, for its proportionate share of "Operating
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Expenses" which are defined as follows:
"Operating Expenses" shall mean the following costs and expenses
incurred in operating, repairing, and maintaining the Common
Facilities (as hereinafter defined) and shall include electrical service,
water service, sewer service, stormwater costs and janitorial service
to the Building (including the Concession Area).
"Common Facilities" shall mean all Building areas, spaces,
equipment, as well as certain services, available for use by or for the
benefit of Concessionaire and/or its employees, agents, servants,
volunteers, customers, guests and/or invitees.
Irrespective of the items listed above, amounts due by
Concessionaire, associated with Common Facilities Operating
Expenses, will be determined based on Concessionaire's pro-rata
share of the items more specifically described in "Exhibit 4.2.1 ", which
is hereby made a part of this Concession Agreement. Pro-rata share
shall mean the percent which the Concession Area bears to the total
square footage of leasable space within the Building, which share is
hereby agreed to be six (6%) percent. Concessionaire agrees and
understands that the costs incurred for Operating Expenses may
increase or decrease and, as such, Concessionaire's pro-rata share
of Operating Expenses shall increase or decrease accordingly.
4.2.2 Property Taxes.
The Property Tax Payment shall be payable by Concessionaire, in
accordance with Subsection 7.3 herein.
4.2.3 Insurance.
Intentionally Omitted.
4.3 Interest for Late Payment.
Any payment which Concessionaire is required to make to City which is not
paid on or before the respective date provided for in this Agreement shall be
subject to interest at the rate of twelve (12%) percent per annum, from the
due date of payment until such time as payment is actually received by the
City.
4.4 Sales and UseTax.
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.
4.5 Location for Payments.
All rents or other payments due hereunder shall be paid to the City at the
following address:
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City of Miami Beach
Revenue Manager
1700 Convention Center Drive, 3~d Floor
Miami Beach, Florida 33139
or at such other address as the City may, from time to time, designate in
writing.
SECTION 5. MAINTENANCE AND EXAMINATION OF RECORDS.
Concessionaire shall maintain current, accurate, and complete financial records, on an
accrual basis, of accounting related to its operations pursuant to this Agreement. Systems
and procedures used to maintain these records shall include a system of internal controls
and all accounting records shall be maintained in accordance with generally accepted
accounting principles and shall be open to inspection and audit, by the City Manager or his
designee, upon reasonable prior request and during normal business hours. Such records
and accounts shall include a breakdown of gross receipts, expenses, and profit and loss
statements. Such 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.
SECTION 6. INSPECTION AND AUDIT.
Concessionaire shall maintain its financial records pertaining to its operations for a period
of three (3) years after the conclusion of any contract year and such records shall be open
and available to the City Manager or his designee, as deemed necessary by them.
Concessionaire shall maintain all such records at its principal office, currently located at
800 NE 125th Street, North Miami, Florida, 33161, or, if moved to another location, all such
records shall be relocated, at Concessionaire's expense, to a location in Miami Beach,
within ten (10) days' written notice from the City.
The City Manager or his designee shall be entitled to audit Concessionaire's records
pertaining to its operations as often as they deem reasonably necessary throughout the
term of this Agreement, and three (3) times within the three (3) year period following
termination of the Agreement, regardless of whether such termination results from the
natural expiration of the term or for any other reason. The City shall be responsible for
paying all costs associated with such audits.
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
the end of each contract year, Concessionaire and City may meet to review
Concessionaire's performance under the Agreement for the previous contract year. At the
meeting, Concessionaire and City may discuss quality, operational, maintenance and any
other issues regarding Concessionaire's performance under the Agreement.
SECTION 7. TAXES, ASSESSMENTS, AND UTILITIES.
7.1 Concessionaire agrees to and shall pay before delinquency all taxes and
assessments of any kind assessed or levied upon Concessionaire by reason
of this Agreement or by reason of the business or other 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 diligently conducted in good faith. Concessionaire may refrain
from paying a tax or assessment to the extent it is contesting the assessment
or 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 and/or assessment if so
ordered.
Concessionaire shall also pay for any fees imposed by law for licenses or
permits for any business or activities of Concessionaire upon the Concession
Area under this Agreement.
7.2 Concessionaire's Responsibilities for Utilities (not included within Operating
Expenses).
Concessionaire is solely responsible for, and shall promptly pay when due,
all charges and impact fees for any and all utilities for the Concession Area
NOT included as an Operating Expense (pursuant to Subsection 4.2.1).
In addition to other rights and remedies hereinafter reserved to the City, upon
the failure of Concessionaire to pay for such utility services (as contemplated
in this Subsection 7.2) when due, the City may elect, at its sole discretion, to
pay same, whereby Concessionaire agrees to promptly reimburse the City
upon demand.
In no event, however, shall the City be liable, whether to Concessionaire or
to third parties, for an interruption or failure in the supply of any utilities or
services to the Concession Area.
7.3 Procedure If Ad Valorem Taxes Assessed.
Notwithstanding Subsection 7.1 above, the parties agree that the operations
contemplated herein are for public purposes and, therefore, no ad valorem
taxes should be assessed by the Miami-Dade County Tax Appraiser.
However, if said taxes are assessed, Concessionaire shall be solely
responsible for prompt and timely payment of same.
SECTION 8. EMPLOYEES AND INDEPENDENT CONTRACTORS.
In connection with the performance of its responsibilities hereunder, Concessionaire may
hire its own employees and/or independent contractors, who will be employees and/or
independent contractors of Concessionaire and not of the City. Concessionaire shall select
the number, function, qualifications, compensation, including benefits (if any), and may, at
its discretion and at any time, adjust or revise the terms and conditions relating to such
employees and/or independent contractors.
SECTION 9. HOURS OF OPERATION.
The Concession Area shall be open for operation a minimum of five (5) days a week
(including Thanksgiving Day), with normal hours of operation being as follows:
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Monday -Friday: 8:00 AM to 2:00 PM
Nothing herein contained shall be construed to authorize hours contrary to the laws
governing such operations.
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 equipment and improvements thereon). Maintenance shall
include daily removal of litter, garbage and debris. Concessionaire shall also be
responsible for all garbage disposal generated by its operation.
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 his designee for their prior written approval. All permanent
(fixed) improvements to the Concession Area shall remain the
property of the City upon termination and/or expiration of this
Agreement. Upon termination and/or expiration of this Agreement, all
personal property and non-permanent trade fixtures maybe removed
by Concessionaire without damage to the Concession Area or the
Pavilion Building. Concessionaire will permit no liens to attach to the
Concession Area orthe Pavilion Building arising from, connected with,
or related to the design and construction of any improvements.
Moreover, any permitted construction shall be accomplished through
the use of licensed, reputable contractors who are acceptable to the
City Manager or his designee. Any and all permits and or licenses
required for the installation of improvements shall be the sole expense
and responsibility of Concessionaire.
10.1.2 Notwithstanding Subsection 10.1.1 herein, upon termination and/or
expiration of this Agreement, and at the City's sole option and
discretion, any and all alterations or additions made by
Concessionaire to or in the Concession Area shall, upon demand by
the City Manager or his designee, be promptly removed by
Concessionaire at its sole expense and responsibility, and
Concessionaire further hereby agrees, in such event, to restore the
Concession Area or the Pavilion Building to its original condition prior
to the Commencement Date of this Agreement.
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.
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10.2 Garbage Receptacles.
With respect to litter, garbage and debris removal, the Concessionaire shall
provide, at its sole cost and expense, receptacles within the confines of the
Concession Area and shall provide a sufficient number of these receptacles
for its own use and for the use of the public. Disposal of the contents of said
receptacles and removal of litter, garbage and debris within the Concession
Area, shall be done on a daily basis, and shall be the sole responsibility of
the Concessionaire.
10.3 Maintenance/Repair.
Concessionaire shall maintain, at its sole expense and responsibility, all
equipment, fixtures, and furnishings (EFF) required to operate the
concession. In the event any EFF is lost, stolen, or damaged, it shall be
replaced or repaired at the sole expense of Concessionaire.
10.3.1 Concessionaire shall be responsible for all interior walls and the
interior and exterior of all windows and doors, as well as immediate
replacement of any and all plate glass or other glass in the
Concession Area which may become broken, using glass of the same
or better quality.
The City shall be responsible for the maintenance of the roof, the
structural exterior of the Building, and the exterior structural electrical
and plumbing (not interior electrical and/or plumbing surrounding any
sink within the Concession Area).
10.3.2 All damage or injury of any kind to the Concession Area, and/or to its
respective fixtures, glass, appurtenances, and EFF, except damage
caused by the willful misconduct or gross negligence of the City, shall
be the sole obligation of Concessionaire, and shall be repaired,
restored or replaced promptly by Concessionaire, at its sole expense
and to the satisfaction of the City Manager or his designee.
10.3.3 All of the aforesaid repairs, restorations and replacements shall be in
quality and class equal to or better than the original work or
installations and shall be done in good and workmanlike manner.
10.3.4 If Concessionaire fails to make any repairs, restorations and/or
replacements, 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 rendition of a bill or
statement thereof.
10.3.5 It shall be Concessionaire's obligation to insure 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.
Concessionaire shall indemnify 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;
provided, however, Concessionaire shall have no liability in the event of the
willful misconduct or gross negligence of the City, its agents, servants or
employees. The provisions of this subsection 10.4 shall survive the
termination or earlier expiration of this Agreement.
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 EFF thereon. Under no circumstances shall the City be responsible for
any stolen or damaged EFE, nor shall the City be responsible for any stolen
or damaged personal property of Concessionaire's employees, contractors,
patrons, guests, invitees, and/or other third parties.
10.6 Inspection.
Concessionaire agrees that the Concession Area and operation 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 inspections 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 operation by any public agency or official in enforcing their duties
or any laws or ordinances. Any such interference shall not relieve
Concessionaire from any obligation hereunder.
SECTION 11. INSURANCE.
Concessionaire shall maintain, at its sole expense and responsibility, the following types of
insurance coverage at all times throughout the Term:
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.
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b. Workers Compensation Insurance shall be required in accordance with the
laws of the State of Florida.
c. All-Risk property and casualty insurance, written at a minimum of eighty
(80%) percent of replacement cost value and with replacement cost
endorsement, covering all improvements installed in the Concession Area by
or on behalf of Concessionaire and including without limitation all of
Concessionaire's personal property in the Concession Area (including,
without limitation, inventory, trade fixtures, floor coverings, furniture, and
other property removable by Concessionaire under the provisions of this
Agreement).
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 authorized to do business in the State of Florida with an A.M. Best's
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 such 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 within
fifteen (15) days of demand, the total sum owed shall accrue interest at the rate of
twelve (12%) percent until paid, and such failure shall be deemed an event of
default hereunder.
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 agents, servants and employees 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
subconcessionaire(s), agents, servants or employees 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 agents, servants and
employees from and against any claim, demand or cause of action of
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whatever kind or nature arising out of any misconduct of Concessionaire not
included in Subsection 12.1 herein and for which the City, its agents,
servants or employees 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 agents, servants or employees.
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 and agents.
12.5 Force Majeure.
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
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 Landlord or Tenant, 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, and the Concessionaire hereby expressly waives all rights, claims,
and demands against the City and forever releases and discharges the City
of Miami Beach, Florida, 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 by 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 shall 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
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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 (currently 12% per annum). If any payment and accumulated penalties
are not received within fifteen (15) days after the payment due date, and
such failure continues thirty (30) 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 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
continues 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 without
being prejudiced as to any remedies which may be available to it for breach
of contract. 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 defaults and to compensate the
City for damages resulting from such defaults, 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, all rights and interest of Concessionaire in and
to the Concession Area and to this Agreement, and every part thereof, shall
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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 pursue 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 If an event of default, as set forth in this Section, by the City shall occur,
Concessionaire may, after notice (if required) and the expiration of the cure
periods, as provided above, at its sole option and discretion, terminate this
Agreement upon written notice to the City and/or sue for damages. Said
termination shall become effective upon receipt of a written notice of
termination by the City, but in no event shall Concessionaire specify a
termination date that is less than sixty (60) days from the date of the written
termination notice. 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 the provisions of this Section 13, this
Agreement may be terminated by either party, without cause and
for convenience at any time during the Term (including any
renewal term), upon the furnishing thirty (30) days written notice
to the other party.
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 interference in business or damages for
interruption of services or interference in its concession operations).
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
13
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. PERFORMANCE BOND OR ALTERNATE SECURITY.
Intentionally Omitted.
SECTION 15. ASSIGNMENT.
Intentionally Omitted.
SECTION 16. SPECIAL EVENTS /CITY USE(S) OF CONCESSION AREA.
16.1 Concessionaire's proposed use(s), as defined in Section 3 herein, do not
contemplate the production, promotion or sponsorship by Concessionaire of
special events in any portion of the Concession Area. If Concessionaire
desires to use all and/or part of the Concession Area for any purpose not
contemplated in Section 3, or in addition to the days and hours delineated in
Section 9 herein, Concessionaire agrees it shall abide by the City's rules and
regulations for the rental of City owned facilities, as same may be amended
from time to time. For any use, other than those provided for in this
Agreement, a facilities rental agreement may be required and shall be
obtained through the City's Department of Parks & Recreation.
16.2 City Use(s) of Concession Area.
Notwithstanding Subsection 16.1 above, 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
reserves the right to displace the Concessionaire for City and/or Miami-Dade
County events and/or activities (any such City use of the Concession Area is
hereinafter referred to as a City Use or City Uses). Additionally, a City Use
and/or City Uses may also require additional time for load-in and load-out of
the event. In such cases, the City may require that the Concessionaire cease
operations during the term of, and/or in the area of, the City Use(s). 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 City Use(s).
16.3 Notwithstanding anything to the contrary, if City Use(s) occur in all or any
portion of any Concession Area, Concessionaire shall not be liable for any
charge, fee or other expense, governmental or otherwise, in connection with
such City Use(s).
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
14
the City, its agents, employees and contractors 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, Subconcessionaire, or any employee or agent regarding the
Concession. In the event of any violation by Concessionaire or if the City or its authorized
representative shall deem any conduct on the part of Concessionaire to be objectionable or
improper, the City shall have the right to suspend the operation of the concession should
the Concessionaire fail to correct any such violation, conduct, or practice to the satisfaction
of the City within twenty-four (24) hours after receiving written 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 operation during the suspension
until the violation has been corrected to the satisfaction of the City.
SECTION 18. PRICE SCHEDULES.
Intentionally Omitted.
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
address:
Chief Executive Officer
Jewish Community Services of South Florida, Inc.
800 NE 125th Street
North Miami, Florida 33161
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:
Asset Manager
City of Miami Beach
1700 Convention Center Drive
Miami Beach, FL 33139
15
Concessionaire and the City may change the above mailing address 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 subject to the provisions of Subsection 10.4
herein).
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, creed, sex, color,
national origin, sexual orientation, and disability, as defined in Title I of ADA.
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 services
offered shall be made available to the public.
20.3.1 Pursuant to Sections 62-90 and 62-91, of Chapter 62, of the Miami
Beach City Code entitled "Human Relations", Concessionaire, by
executing this Agreement, certifies that it does not discriminate in its
membership or policies based on race, color, national origin, religion,
sex, sexual orientation, familial status or handicap.
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 maybe 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 or his designee.
16
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 as so modified shall.
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 purposes 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, facility,
equipment or space is leased to the Concessionaire, that it is a
concessionaire and not a lessee; that Concessionaire's right to operate the
concession shall continue only so long as this Agreement remains in effect.
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
17
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 contemplated herein, in a manner so as to show no
preference for other concession operations/facilities owned, operated,
managed, or otherwise controlled by Concessionaire with regard to its
responsibilities pursuant to this Agreement.
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.
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, including,
but not limited to subconcessionaires, 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
18
($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.
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:
Robert Parcher, CITY CLERK
CITY OF MIAMI BEACH, FLORIDA
atti Herrera Bower, MAYOR
Attest:
Signature/Secretary
new ~ ~[~s~ .y
Print Name
APPROVED AS TO
FORM & LANGUAGE
8~ FOR EXECUTION
JEWISH COMMUNITY SERVICES
OF SOUTH FLORIDA, INC.
Fred Stock, CEO
CORPORATE SEAL
(affix seal here)
F:\R $ALL ECON LLIASSET\6S RE T.CTR\LEASESUCS1Senior Meals South Shore Concession Agreement.FINAL2.doc
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19
EXHIBIT 2
Concession Area
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MEGNANICAI STORAGE
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STORAGE
133 SF
MECHANICAL
776 SF
SENIOR RIDE
446 SF
HRCHEN
3P6 Sf
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1C5 ~ 2.076 Sf
STORAGE , ~
789 Si
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SOUTH SHORE CCMIMUNITY CENTER
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m MIAMIBEACH
20
EXHIBIT 4.2.1
Operating Expenses
2009 Estimated Annual Ci O eratin Ex enses
Department incurring Operating Expense Activity Comments Annual Cost Totals
Parks & Recreation Electricity See note below $53,885.72
Parks & Recreation Water See note below $2,430.69
Parks & Recreation Sewer See note below $2,322.69
Parks & Recreation Stormwater See note below $2,411.64 $61,050.74
Property Management Janitorial Svcs. Contract ~R&D) See note below X36,250 00 $36,250.00
Estimated Annual Operating Expenses $87,300,74
Annual Cost Per Square Foot (PSF) $7.68
Notes:
Based on actual amounts paid from 10/07 - 09/08 + 5°k increase
Cost updated to include 2nd floor. Previously, janitorial services consisted of maintenance of common areas and 1st floor
office cleaning (e.g. trash removal, vacuuming, mopping). Only first floor was contracted for maintenance /cleaning, since
2nd floor was under rehabilitation. One Diamond staff is assigned to Center.
Buildin S ace Distribution
1st FL (Sq. Ft.) 2nd FL (Sq. Ft.) Totals Sq. Ft.)
TENANTS
Leasable Space 8,850 3,826 12,676
Common Area 3,388 635 4,023
subtotal 12,238 4,461 16,699
CITY
Mechanical 810 355 1,165
subtotal 810 355 1,165
Total Building Square Footage 13,048 4,816 17,864
21