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Damian J . Gallo &
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Concession
Agreement
CONCESSION AGREEMENT BETWEEN
CITY OF MIAMI BEACH AND
DAMIAN J. GALLO & ASSOCIATES, INC.
FOR MANAGEMENT AND OPERATION OF A FOOD & BEVERAGE CONCESSION
IN THE OUTDOOR SPACE ADJACENT TO 1701 MERIDIAN AVENUE, UNIT 4
THIS AGREEMENT made the S 4"", day of D Q4 rX� , 201 , 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 DAMIAN J. GALLO & ASSOCIATES, INC., a Florida corporation,
having its principal place of business at 1701 Meridian Avenue, Unit 4, Miami Beach,
Florida, 33139 (hereinafter called "Concessionaire").
WITNESSETH
WHEREAS, on September 11, 2013, the Mayor and the City Commission adopted
Resolution No. 2013-28344, approving that certain Lease Agreement dated
, 2013 (the"Lease Agreement") between the City and Damian J. Gallo&
Associates, Inc. for approximately 1,269 square feet of ground floor retail space in the City-
owned building located at 1701 Meridian Avenue, Unit 4, Miami Beach, Florida (the
"Leased Premises"); and
WHEREAS, the Lease Agreement is for an initial term of three (3) years, commencing
retroactively on December 1, 2013, and ending on November 30, 2016, with two (2)
additional renewal terms for two (2) years each; and
WHEREAS, the Leased Premises are used as an office and as a cafe and include a
side door that opens out to an outdoor area immediately to the east of the Leased
Premises, but the Leased Premises do not include the outdoor space; and
WHEREAS, Damian J. Gallo & Associates, Inc. has requested use of the outdoor
space, which is adjacent to the Leased Premises, to place twenty six (26) chairs (with
associated tables) and five (5) umbrellas, for the purpose of providing an outdoor seating
area for patrons of the cafe; and
WHEREAS, at the July 25, 2013 Finance and Citywide Projects Committee meeting,
the Committee recommended entering into a concession agreement with Damian J. Gallo
& Associates, Inc. for use of the outdoor 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
adequacy of which are hereby conclusively acknowledged, it is agreed by the parties
hereto as follows:
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The City hereby grants to the Concessionaire, and the Concessionaire hereby accepts
from the City, the right 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 retroactively on the 1st day of December,
2013 (the "Commencement Date"), and terminate on the 30th day of
November, 2016 (the "Term").
For purposes of this Agreement, a "contract year" shall be defined as that
certain period commencing on the 1St day of December, and ending on the
30th day of November.
Provided Concessionaire is in good standing and free from default(s) under
Section 13 hereof, and upon written notice from Concessionaire, which
notice shall be submitted to the City Manager no earlier than one hundred
twenty (120) days, but in any case no later than sixty (60) days prior to the
expiration of the initial Term, this Agreement may be extended for two (2)
additional two (2) year renewal terms. Any extension, if approved, shall be
memorialized in writing and signed by the parties hereto(with the City hereby
designating the City Manager as the individual authorized to execute such
extensions on its behalf).
In the event that the City Manager determines, in his sole discretion, not to
extend or renew this Agreement (upon expiration of the initial term or of the
first renewal term), the City Manager shall notify Concessionaire of same in
writing, which notice shall be provided to Concessionaire within fifteen (15)
business days of the City Manager's receipt of Concessionaire's written
notice.
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 the Lease Agreement,as referenced on Page 1 of
this Agreement.
The City shall have the right to terminate this Agreement for any reason
whatsoever, without cause and- for convenience, and without any
liability to the City, upon providing thirty (30) days written notice to
Concessionaire.
If, at any time during the Term of this Agreement,the Lease Agreement
is terminated or otherwise ceases to be of any legal force and effect,for
whatever reason whatsoever, then this Agreement shall automatically
terminate, and shall be null and void and of no further force and effect,
and the City shall have no further liability with respect to same.
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SECTION 2. CONCESSION AREA.
The City hereby grants to Concessionaire the right, during the Term herein, to maintain,
manage and operate an outdoor seating area in the following Concession Area:
2.1 Concession Area:
507 square feet of outdoor space adjacent to and east of 1701 Meridian
Avenue, Unit 4, Miami Beach, Florida (a/k/a 775 17th Street); which outdoor
space is further delineated in "Exhibit 2.1" (the Concession Area"), attached
hereto and incorporated herein.
Concessionaire shall have the right to place up to twenty six(26) chairs (with
associated tables)and five (5) umbrellas within the Concession Area, subject
to approval of a site plan by the City, and compliance with applicable ADA
requirements. The proposed site plan is also delineated in Exhibit 2.1. No
material change in the proposed site plan (or in Exhibit 2.1) shall be
permitted without prior written consent of the City Manager or her designee,
which consent (if given at all) shall be at the City Manager's (or his
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.
SECTION 3. USE(S).
3.1 The Concession Area shall be used by the Concessionaire solely as an
outdoor seating area for the patrons and guests of the Leased Premises.
The Concession Area shall have minimum days and hours of operation from
Monday through Friday, commencing at 7:00 AM, and ending at 5:00 PM.
Nothing herein contained shall be construed to authorize hours contrary to
the laws governing such operations. Any change in the minimum days or
hours of operation shall require the prior written consent of the City Manager.
In no event shall the hours of operation extend earlier than 7:00 AM, or later
than 11:00 PM. Notwithstanding the preceding hours of operation, the
Concession Area shall only be open when the Leased Premises are
open for business (and, conversely, shall be closed when the Leased
Premises is closed).
3.2 Concessionaire and the tenant of the Leased Premises shall at all times
throughout the Term of this Agreement be one and the same and
cannot exist independently of each other. Concessionaire
acknowledges and agrees that its use of the Concession Area shall be,
and remain at all times throughout the Term, an ancillary use to the
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Leased Premises.
The number of seating in the Concession Area shall be included in the
overall seating count of the Leased Premises. There shall be no bar counter
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of any kind as part of the Concession Area and all food served shall be
prepared within the interior kitchen of the Leased Premises. There shall be
no alcoholic beverages permitted on the Concession Area. All tables, chairs,
and umbrellas will be removed and stored each night at close of business.
Any exception to this requirement shall be at the sole and absolute discretion
of the City Manager or his designee. Concessionaire shall further maintain
the Concession Area and abide by the conditions set forth in "Exhibit 3.2"
(the "Additional Requirements"), attached hereto and incorporated herein.
3.3 Concessionaire hereby warrants and represents to City that
Concessionaire is the owner of the restaurant at the Leased Premises
and shall, throughout the Term of the Lease Agreement, remain as the
owner of said restaurant, unless any change in ownership is approved
by the City Manager, in writing, prior to such change taking place.
Change of ownership for purposes hereof shall include, without
limitation, a sale, exchange, assignment, transfer or other disposition
by tenant of all or a portion of tenant's interest in the restaurant,
whether by operation of law or otherwise.
3.4 Concessionaire agrees not to place any speakers, or any other device used
to amplify sound, in or around the Concession Area. Concessionaire further
agrees to not attach any televisions, speakers, or any other device used to
amplify sound, to the exterior of the Leased Premises. Furthermore,
Concessionaire shall in no manner use the Concession Area, or
Concessionaire's restaurant at the Leased Premises, as an outdoor
entertainment or open air entertainment establishment, and hereby
acknowledges that such uses are prohibited (whether as main or accessory
uses).
3.5 Concessionaire shall be permitted to apply to the City of Miami Beach for
one (1) special event permit for the sole and express purpose of hosting an
opening event for the restaurant. At no time thereafter, throughout the
remaining term of the Lease, shall the Concessionaire be permitted to submit
an application for a special event to be held on the Concession Area.
3.6 It is understood and agreed that the Concession Area shall be used by the
Concessionaire during the term of this Agreement only for the uses
contemplated herein, and for no other purpose or use whatsoever.
Concessionaire will not make or permit any use of the Concession Area that,
directly or indirectly, is forbidden by public law, ordinance or government
regulation, or that may be dangerous to life, limb or property. Concessionaire
may not commit waste on the Concession Area, use the Concession Area for
any illegal purpose, or commit a nuisance on the Concession Area. In the
event that the Concessionaire uses the Concession Area for any purpose not
expressly permitted herein, then the City may declare this Agreement in
default pursuant to Section 13, or without notice to Concessionaire, restrain
such improper use by injunction or other legal action.
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3.7 Notwithstanding anything to the contrary contained herein, in the event
of a breach by Concessionaire of any conditions in this Section 3, the
City Manager, in his sole determination and judgment, shall have the
right to automatically terminate this Agreement,without any liability to
the City; said termination effective upon three(3)days written notice to
Concessionaire. By executing this Agreement, Concessionaire hereby
agrees to this condition, and further voluntarily and knowingly waives
and releases any and all rights now or hereinafter conferred upon
Concessionaire pursuant to Florida Statutes including, without
limitation, the procedures set forth in Chapter 83, Florida Statutes' for
removal in nonresidential tenancies; the Miami-Dade; and the Miami
Beach Code (respectively); to the extent this and applicable law(s)
would have the effect of limiting or modifying the City's rights to
terminate this Agreement pursuant to this Subsection.
3.8 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 Concession Fee.
In consideration of the City's granting of the rights provided in this
Agreement, the Concessionaire shall pay to the City a Concession Fee of
Ten Thousand One Hundred Forty and 00/100 Dollars($10,140.00), payable
in monthly installments of Eight Hundred Forty Five and 00/100 Dollars
($845.00); payable on the 1st day of every month of each contract year
during the Term. The first payment shall be due on the first day of the month
following the date which a Certificate of Occupancy, or temporary Certificate
of Occupancy as the case may be, is obtained for the Leased Premises (as
referenced in Page 1 of this Agreement).
The Concession Fee amount pursuant to this Section 4.1 shall be increased
annually throughout the Term, including any renewal terms, commencing on
the anniversary of the Commencement Date of this Agreement, and each
anniversary Commencement Date thereafter, in increments of three (3%)
percent per year.
4.2 Intentionally Omitted
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 subject to a late charge of Fifty and 00/100 ($50.00), plus interest at the
rate of eighteen (18%) percent per annum, or the maximum amount
allowable under Florida law, whichever is lesser, from the due date of
payment until such time as payment is actually received by the City.
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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. Intentionally Omitted
SECTION 6. Intentionally Omitted
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 assessed 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
class 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
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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
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. Intentionally Omitted
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 Concessionaire, at Concessionaire's sole expense and responsibility,
shall be required to demolish and remove the existing concrete ramp
from within the Concession Area. Concessionaire shall install new
concrete in a manner and fashion as to be level with the surrounding
area and to match the existing concrete.
10.1.2 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 10.1.3.
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
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licensed, reputable contractors who are acceptable to the City
Manager or her designee. In addition to obtaining the prior approval of
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.
10.1.3 Notwithstanding Subsection 10.1.2 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.
10.1.4 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 10.1.4 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 use 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
City's trash dumpster shall be prohibited.
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.
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10.3.1 All damage or injury of any kind to the Concession Area, and/or to any
improvements and/or FFE thereon, 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 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
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. 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. Only if Concessionaire will be utilizing automobiles in connection with the use
of the Concession Area, Concessionaire shall purchse 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
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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 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
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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.
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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 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 13.4 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 13.5. 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 13.6.
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
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.
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
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notice, terminate this Agreement without being prejudiced as to any
remedies which may be available to it for breach of contract.
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. 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 Default Under Lease Agreement.
In the event that Concessionaire is in default under the Lease Agreement(as
referenced in Page 1 of this Agreement) 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.
13.5 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 13.8. 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
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
14
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.
13.6 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
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 13.8.
13.7 Termination for Convenience.
13.7.1 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.
13.7.2 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.
13.8 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. Intentionally Omitted
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SECTION 16. SPECIAL EVENTS / SPONSORSHIPS.
16.1 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
reserves 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 in 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 Concession Fee, prorated
on a per diem basis, to be calculated by dividing the monthly Concession
Fee by 30 and multiplying said figure by the number of days the
Concessionaire was displaced.. 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).
16.2 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
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
16
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. (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
addresses:
Damian J. Gallo, President
Damian J. Gallo & Associates, Inc.
1701 Meridian Avenue, Unit 4
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
Office of Real Estate
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
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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.
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 Comple�greement.
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.
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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.
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 Signag
Concessionaire shall provide, at its sole expense and responsibility, any
required signs at its concession. All advertising, signage and postings shall
19
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.
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
20
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.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
21
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 BEAC IDA
1/7 /f _
Ralael Granado, CITY CLERk Phili L e, MAYOR
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Attest: -- D N J.GALLO& v0 TES, INC..
INCORP ORATED,
Corporate Secretary mlian J. Gallo, PRESI NT
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22
EXHIBIT 2.1
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23
EXHIBIT 3.2
Additional Requirements
The Concession Area shall be maintained in a clean, neat and orderly appearance at all
times by the Concessionaire. The area of the sidewalk, curb and gutter immediately
adjacent to the Concession Area shall be cleared of all debris during hours of operation,
and again at the close of each business day, or as may otherwise be determined by the
City Manager.
The Concessionaire shall be responsible for cleaning the floor surface on which the
outdoor seating is located at the close of each business day. In addition, the following
conditions shall apply:
a. Tables, chairs, umbrellas and any other outdoor cafe furniture shall be
maintained in a clean, attractive, and orderly appearance, and shall be
maintained and kept in good repair at all times;
b. All outdoor furniture shall be of high quality, design, materials, and workmanship
so as to ensure the safety and convenience of the public;
c. Only the outdoor cafe furniture specifically shown on the approved site plan shall
be allowed on the Concession Area;
d. All tables, chairs, umbrellas, and any other outdoor furniture shall be readily
removable, and shall not be physically attached, chained, or in any other manner
affixed to any public structure, street furniture, signage, and/or other public
fixture, or to a curb and/or public right-of-way;
e. The stacking or piling up of chairs shall be prohibited on the Concession Area;
f. At close of business, all tables, chairs and any other outdoor furniture shall be
removed from the Concession Area and stored in a non-visible location from the
public right-of-way. Any exception to this requirement shall be at the sole and
absolute discretion of the City Manager and/or his/her designee.
g. No storage of dishes, silverware or other similar restaurant equipment shall be
allowed on the Concession Area, or on any other portion of the public right-of-
way, or outside the structural confines of the building in which the restaurant is
located, during non-business hours;
h. There shall be no live entertainment or speakers placed on the Concession
Area;
i. No menu board(s) shall be permitted to be displayed on the Concession Area;
j. No food preparation, food storage, refrigeration apparatus or equipment, or fire
apparatus or equipment, shall be allowed on the Concession Area;
k. No food displays shall be permitted on the Concession Area. No advertising
signs or business identification signs shall be permitted, except that the
restaurant name and/or its logo may be permitted on umbrellas but such logos
and/or lettering may not exceed six inches in height;
24
I. Plants shall be properly maintained. Distressed plants shall be promptly
replaced. Plant fertilizers which contain material that can stain the sidewalks
shall not be allowed;
m. The City Manager or his/her designee may cause the immediate removal,
relocation and/or storage of all or part of any furniture located on the Concession
Area in emergency situations or for public safety considerations. Upon written
and/or verbal notification by the City Manager of a hurricane or other major
weather event, or the issuance of a hurricane warning by Miami-Dade County,
whichever occurs first, the Concessionaire shall, within no more than four hours
of same, remove and place indoors all tables, chairs and any other outdoor
furniture located on the Concession Area. The notification by the City Manager
of a hurricane or other major weather event, or the issuance of a hurricane
warning, shall constitute a public emergency situation as referenced in this
division. The City Manager may remove, relocate, and/or store any outdoor
furniture found on the Concession Area that has otherwise not been removed by
the Concessionaire pursuant to this subsection. Any and all costs incurred by
the City for removal, relocation and/or storage of Concessionaire's furniture shall
be the responsibility of the Concessionaire.
25