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Assignment and Assumption of Concession Agreement and Consent to Assignment and Assumption of Concession Agreement a 0 is-- aloof ASSIGNMENT AND ASSUMPTION OF CONCESSION AGREEMENT AND CONSENT TO ASSIGNMENT AND ASSUMPTION OF CONCESSION AGREEMENT THIS ASSIGNMENT AND ASSUMPTION OF CONCESSION AGREEMENT (the "Assignment), is being entered into on this A-- day of -p-m--4--+8v-'i . , 2016, by and between BLISSBERRY, LLC, a Florida limited liability company (the "Concessionaire/Assignor" or "BLISSBERRY") and SOUTH POINTE CAFE LLC, a Florida limited liability company, (the "Concessionaire/Assignee" or "SOUTH POINTE CAFE"), whose principal address is 3 Washington Avenue, Pavilion Building, Miami Beach, Florida 33139. WITNESSETH, that for valuable consideration in hand paid by SOUTH POINTE CAFE to BLISSBERRY, receipt of which is hereby acknowledged, BLISSBERRY and SOUTH POINTE CAFE hereby agree, as follows: 1. BLISSBERRY hereby assigns to SOUTH POINTE CAFE all right, title, and interest and obligations in and to that certain Concession Agreement by and between BLISSBERRY and the CITY OF MIAMI BEACH (the "City") dated July 1st, 2015, for approximately 240 square feet of City-owned property located at 3 Washington Avenue, Miami Beach, Florida 33139 (the "Concession Agreement"), which Concession Agreement is incorporated herein by reference and attached as Exhibit "A" hereto. 2. SOUTH POINTE CAFE hereby accepts the assignment of the Concession Agreement, and further assumes and agrees to perform all of the duties and obligations of BLISSBERRY under the Concession Agreement, and further agrees to be personally liable and subject to all conditions and restrictions to which BLISSBERRY is subject to under said Concession Agreement. 3. Notwithstanding the assignment to and assumption by SOUTH POINTE CAFE of the Concession Agreement, BLISSBERRY shall remain personally liable for the full and faithful performance of the obligation, duties, and liabilities of the Concessionaire under the Concession Agreement, and further waives notice of any default or events of default under the Concession Agreement. 4. BLISSBERRY and SOUTH POINTE CAFE further agree to remain jointly and severally liable with respect to the Concession Agreement for the entire term of the Concession Agreement inclusive of any renewal terms. 5. Upon execution of this Assignment and the below Consent to Assignment and Assumption of Agreement (the "Consent"), and for purposes of interpreting the Concession Agreement, all references to BLISSBERRY or Concessionaire under the Concession Agreement shall hereinafter be deemed to refer to SOUTH POINTE CAFE. 1 6. Any future required notices by the City to the Concessionaire shall be deemed duly served upon receipt if mailed to: Stefano Cavinato SOUTH POINTE CAFE LLC 3 Washington Avenue, Pavilion Building Miami Beach, Florida 33139 7. The undersigned parties agree that no warranties of any kind whatsoever are made incident to this Assignment. IN WITNESS WHEREOF, the Concessionaire/Assignor and Concessionaire/Assignee have executed this Assignment on the day and year first above written. BLISSBERRY, i C (Concessionaire/Assignor) / By: K . Pham, •er � l g)/2.74 Attes : A/41 i Date: Print Name: (j - " i1 / . SOUTH POINTE CAFE LLC (Concessionaire/Assignee) By: / � Stefa p , Ca . ato Attest: , Al..., G(a/ Date: f 2 / Tint Name: % irb. 1 CONSENT TO ASSIGNMENT AND ASSUMPTION OF CONCESSION AGREEMENT The undersigned hereby consents to the above Assignment without warranties of any kind whatsoever being made incident to this Consent or the Assignment. Attest: �� CITY ••F MIAMI EACH, FLORIDA Immo, FI/I \� *'• 0\r fey Rafael E. Granado, City Cle.. . 'a - L. Mor_'es, City Manager :INCORF ORATED: oil ��q '`., ; APPROVED AS TO Date: I % e°'J FORM & LANGUAGE '�°. .", '. ,\ & FOR EXECUTION 2 2 di4i.a.r. ‘A A/4 City Attorne $ , r Dote r r. -. EXHIBIT A -- . '' _ _` n _ _ . Blissberry, LLC. .•• Concession = • • Agreement • f . . . • • • :: l • • .... .,,...., .. ...-.:,:..... .. • • INDEX -. r. SECTION t?..,--,-,1,1 TITLE PAGE 1. . . .TERM .- 5 2. CONCESSION AREA 5 :,2.1',1,,i.t;„,,, , . Concession Area within the Pavilion Building 5 3. . USE(S) 6 3.1 Food and Beverage Service 6 3.3 City Business Tax Receipts 6 3.4 Parking 6 4. CONCESSION FEES 7 4.1 Minimum Guarantee (MG) 7 4.2 Percentage of Gross (PG)vs. MG 7 4.3 Interest for Late Payment 8 4.4 Sales and Use Tax 8 5. MAINTENANCE AND EXAMINATION OF RECORDS 8 6. INSPECTION AND AUDIT 9 7. TAXES, ASSESSMENTS, AND UTILITIES 9 8. EMPLOYEES AND INDEPENDENT CONTRACTORS 10 9. HOURS OF OPERATION 10 10. IMPROVEMENT, MAINTENANCE, REPAIR and OPERATION 10 10.1 Improvements 11 10.2 Garbage Receptacles 12 10.3 Maintenance/Repair 12 10.4 No Dangerous Materials 13 10.5 Security 13 10.6 Inspection 13 11. INSURANCE 14 12. INDEMNITY 14 12.4 Subrogation 15 12.5 Force Majeure 15 12.6 Waiver of Loss from Hazards 15 13. DEFAULT AND TERMINATION 15 13.1 Bankruptcy 16 13.2 Default in Payment 16 13.3 Non-Monetary Default 16 13.4 City's Remedies for Concessionaire's Default 17 13.5 Concessionaire's Remedies for City's Default 17 13.6 Termination for Convenience 17 13.7 Surrender of Concession Area 18 2 SECTION -1'2;ri'l'- TITLE PAGE ,,,_„___„., . I."- - CONCESSION AGREEMENT BETWEEN CITY OF MIAMI BEACH, FLORIDA AND , BLISSBERRY, LLC F-t=-= `;FOR tVIANAGEMENT AND OPERATION OF A FOOD& BEVERAGE CONCESSION rPp-J-:14. t.,',fr.t114 A PORTION OF THE SOUTH POINTE PARK PAVILION BUILDING THIS AGREEMENT made-the' day of J U I 1 , 2015, between the CITY OF oMIAMI BEACH, amunicipal-corporation of the State of Florida (hereinafter called "City"), 'having its principal address at 1700 Convention Center Drive, Miami Beach, Florida, 33139, and BLISSBERRY, LLC, a Florida limited liability company, having its principal place of business at 1340 Monad Terrace, #4, Miami Beach, Florida, 33139, (d/b/a Blissberry and hereinafter called "Concessionaire"). WITNESSETH WHEREAS,on May 12, 2010, the Mayor and City Commission approved the issuance of Request for Proposals (RFP) No. 34-09/10, for the management and operation of a food and beverage concession located in a portion of the South Pointe Park Pavilion Building; and WHEREAS, Concessionaire was the top-ranked firm and on September 15, 2010, the Mayor and City Commission adopted Resolution No. 2010-27485, authorizing the Administration to enter into negotiations with Concessionaire; and further authorizing the Mayor and City Clerk to execute a Concession Agreement, upon conclusion of successful negotiations; and WHEREAS, the City and Concessionaire executed a Concession Agreement, dated November 24, 2010,for an initial term of two(2)years commencing on December 1,2010 and ending on November 30, 2012, with three (3) renewal options for one (1)year each; and WHEREAS, Concessionaire exercised all three (3) of its renewal options and the Concession Agreement is scheduled to end on November 30, 2015; and WHEREAS, Concessionaire submitted a letter to the City requesting to extend the Concession Agreement for a period of five (5) years; and WHEREAS,the Administration submitted Concessionaire's renewal request to the Finance and Citywide Projects Committee (FCPC) at its March 2, 2015 meeting, and the FCPC recommended: 1) to extend the Term for a period of five (5)years and 2)to increase the Minimum Guarantee to$25,000 annually, payable in equal quarterly installments of$6,250 each; and WHEREAS, subsequent to the March 2, 2015 recommendation of the FCWPC, Concessionaire requested that the Concession Fee be reduced from fifteen percent(15%) gross sales to ten percent (10%) of gross sales; and 4 : h:::_ IVHEREAS; the Administration submitted Concessionaire's request to reduce the r,:'Cohcession'F€e'to the Finance and Citywide Projects Committee (FCWPC) at its April 8, :. ';.., ;s-2015 meeting,and the'F.CWPC-recommended to reduce the Concession Fee from fifteen - - : :percent(15%)-of gross sales to ten percent (10%) of gross sales; and r,. ':u-WHEREAS;_:condUlay 6;=2105,"the Mayor and City Commission adopted Resolution No. accepting the recommendation of the Finance and -.=:��s_�r °,,.:::.• �:.,-,. ,�;,2015-e, ��,,,.,:.,,.,w,;.,:::-.--:.-,:��._.�: --� :: p g • , ''-Citywide-Projects Corrimittee-and approving and authorizing the Mayor and City Clerk to - r:-r execute the following Concession Agreement; and 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: 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 on the 1st day of December, 2015 (the "Commencement Date"), and terminate on the 30th day of November, 2020 (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. SECTION 2. CONCESSION AREA. The City hereby grants to Concessionaire the right, during the Term herein, to maintain, manage and operate a food and beverage concession in the following Concession Area: 2.1 Concession Area within the Pavilion Building: An area comprised of 240 square feet within the Pavilion Building, located at 3 South Washington Avenue and as further delineated in Exhibit 2.1 hereto. 2.2 Notwithstanding the Concession Area granted to Concessionaire in Section 2.1, Concessionaire hereby understands,agrees,and acknowledges that the Concession Area,along with any and all other public facilities in South Pointe Park not specifically identified herein is intended to be open and available to the public and, as such, must remain available for the use and enjoyment of the general public. Notwithstanding the preceding, Concessionaire may 5 :#lesignate=areas within the Concession Area which shall not be open to ,_k,and/or_accessible to the general public(e.g. "kitchen areas, pantries,and/or storage closets, etc.). SECTION 3. USE(S). Concessionaire.)s-hereby.authorized to conduct the following kind(s) of businesses and c provide#he.following kind(s);of•services within the Concession Area, all at its sole expense and responsibility: 3.1 Food and Beverage Service. 3.1.1 Concessionaire shall prepare,or cause to be prepared,for sale within and from the Concession Area, such pre-cooked, prepared, and/or prepackaged foods and such non-alcoholic beverages as those set forth in Exhibit 3.1.1. The City Manager hereby approves the types of food and beverages, and prices for same(as those set forth in Exhibit 3.1.1). Any amendments to Exhibit 3.1.1, whether as to type of food and beverages to be sold, or as to changes in prices for same, must be approved in writing by the City Manager or his designee, such approval not to be unreasonably withheld, delayed or conditioned, prior to such changes being implemented within the Concession Area, and a new updated Exhibit 3.1.1 will be incorporated into this Agreement. 3.1.2 All food and beverages sold within the Concession Area will be roved prepared using only the equipment and/or methodology approved by the City and as set forth in Exhibit 3.1.2, as well as properly prepared and served in compliance with all applicable health and sanitary standards, laws and regulations. 3.1.3 The quality of food, beverages, and service offered will be first-rate and comparable to that available at other public concession facilities at world class resorts on par with the City of Miami Beach. 3.1.4 In addition to Concessionaire's general maintenance obligations for the Concession Area, as set forth in Section 10 herein, the Concession Area and the immediately surrounding ten (10) foot adjacent areas, shall at all times be maintained in a clean and sanitary manner. 3.1.5 At least one supervisory employee must possess a Food Service Management Certification issued by a County Public Health Department in Florida. In addition, the Concession Area must be licensed by the Florida Department of Business Regulation, Division of Hotels and Restaurants, and/or the Department of Agriculture, and/or as may further be required by State law and/or by corresponding agencies. 6 ._ __ ,- , _„� <<.�-:rt.,;;�x,3:-1:6:=;�� '-ri•��'I�Concessionaire agrees not to place any speakers,or any other device ,. . -= :, '`, L.. -to amplify sound, in, on or around the Concession Area. • 3.3 City Business Tax Receipts. s ' oriaessionaire shall obtain, at its sole expense and responsibility, any ``'business tax ':receipts required by the City for the proposed use(s) ontemplated herein. To the extent required by City law (as same may be r=:- > ` ': " amended.frotnitime•to time), business tax receipts shall be obtained for each '" proposed use within a particular Concession Area. • 3.4 Parking. Concessionaire may request from the City's Parking Department,the use of one (1) designated parking space at the Municipal Parking Lot P1 (South Pointe Park parking lot) for delivery vehicle use only. The rate for said parking space is subject to change,and is currently Seventy Dollars($70.00) per month, plus applicable sales and use tax per space. SECTION 4. CONCESSION FEES. 4.1 Minimum Guarantee (MG): In consideration of the City's granting of the rights provided in this Agreement,for each contract year during the Term,the Concessionaire shall pay to the City a Minimum Guaranteed Annual Concession Fee (MG) of Twenty Five Thousand ($25,000.00) Dollars, payable in equal quarterly installments of Six Thousand Two Hundred and Fifty Dollars ($6,250.00) each, payable on the 1st day of each quarter during the Term. Commencing with the second contract year,and every subsequent contract year during the Term hereof, Concessionaire agrees that the MG shall be adjusted upward on the first day of each contract year during the Term hereof by the percentage change of the "Base Number" and the "Current Number"in the Consumer Price Index—All Urban Consumers—U.S.Food and Beverages - CUUR0000SAf, as published by the Bureau of Labor Statistics of the U.S. Department of Labor, or of any revised or successor index hereafter published by the Bureau of Labor Statistics or other agency of the United States Government succeeding to its functions ("CPI"). The Base Number shall be the index for that month(i.e.July)and year which is four (4) months prior to the Commencement Date of this Agreement (the "Base Month"). The Current Number shall be the latest CPI published for the Base Month of each calendar year during the term of the Term of this Agreement. 4.2 Percentage of Gross (PG) vs. MG: For each contract year during the Term, in the event that the amount equal to ten (10%) percent of Concessionaire's gross receipts(PG)exceeds the MG amount, then Concessionaire shall also pay to the City the difference between the PG amount and the MG amount, which payment shall be received no later than sixty (60) days after the end of each contract year. 7 -=The =term "gross receipts" is understood to mean all income, whether .t•A‘collected or accrued, derived by Concessionaire under this Agreement, or rte;="=ilanylicensee;sub-concessionaire,or sub-tenant,as Concessionaire,from all Li:,:: ,'business-conducted upon or from the Concession Area, including but not , -- , ` ;_=s1"';lei:-�:• ri-`r}i:;�+- ! to`receipts from sale of food and beverages.The term"gross receipts" •--b=shall exclude amounts of any Federal, State, or City sales tax, or other tax, ( ': : ii, s t-governmental .imposition, assessment, charge or expense of any kind, .,<. ,r., ,.,.:,.t ,.,1�_°-°,yz-'collected bythe:Concessionaire from customers and required by law to be remitted to the taxing or other governmental authority. "" 4.3 Interest for Late Payment. Any payment which Concessionaire is required to make to the City which is not paid on or before the respective date provided for in this Agreement shall be subject to interest at the rate of twelve (12%) percent per annum, or the maximum amount allowable under Florida law,whichever is greater,from the due date of payment until such time as payment is actually received by the City. 4.4 Sales and Use Tax. It is also understood that the required Florida State Sales and Use Tax shall be added to Concessionaire's payments and forwarded to the City as part of said payments. It is the City's intent that it is to receive all payments due from Concessionaire as net of such Florida State Sales and Use Tax. SECTION 5. MAINTENANCE AND EXAMINATION OF RECORDS. Concessionaire shall maintain current, accurate, and complete financial records, on an accrual basis, related to its operations pursuant to this Agreement. Systems and procedures used to maintain these records shall include a system of internal controls; all accounting records shall be maintained in accordance with generally accepted accounting principles; and shall be open to inspection, copying, and audit by the City Manager or his designee upon reasonable verbal or written notice, during normal hours of operation. Concessionaire shall maintain all such records at its principal office, currently located at 332 Lincoln Road, Miami Beach, Florida, 33139, or, if moved to another location, all such records shall be relocated,at Concessionaire's sole expense,to a location in Miami Beach, within ten (10) days from notice of request for inspection from the City. Such records and accounts shall include,at a minimum, a breakdown of gross receipts,expenses,and profit and loss statements. Concessionaire shall maintain accurate receipt-printing cash registers (or a like alternative) in the Concession Area which will record and show the payment for every sale made or service provided in such Area. Such other records shall be maintained as would be required by an independent CPA in order to audit a statement of annual gross receipts and profit and loss statement pursuant to generally accepted accounting principles. Concessionaire records shall also be maintained for a period of three(3)years following expiration (or other termination) of this Agreement (regardless of whether such termination results from the expiration of the Term or for any other reason). Concessionaire shall submit to the City Finance Department's Revenue Manager, within sixty(60)days of the end of each contract year,an annual statement of gross receipts, in a form consistent with generally accepted accounting principles. 8 SECTION 6. INSPECTION AND AUDIT. The City Wanageror'°hisdesignee shall be entitled to audit Concessionaire's records as •i:;,..4s-1 often as he/she deems necessary throughout the Term,and three(3)times within the three -(3)year period following 0tpiration (or other termination)of this Agreement.The City shall be responsible for paying all costs associated with such audit(s),unless the audit(s)reveals .. a-deficiency of:five (5%)percent or more in Concessionaire's statement of gross receipts ..7 �:. �: •c '?: 3 for-any-year,pr-years=audited;'in'which case Concessionaire shall pay to the City, within T. -:thirty.(30)days of the City deeming the audit final,the cost of the audit and a sum equal to }. �'')('c` the amount of the-deficiency revealed by the audit, plus 'interest. These'audits are in • F addition to =periodic'-City audits of Resort Tax collections and payments (which are performed separately). It is Concessionaire's intent to stay informed of comments and suggestions by the City regarding Concessionaire's performance under the Agreement.Within thirty(30)days after the end of each contract year, Concessionaire and the City may meet to review Concessionaire's performance under the Agreement for the previous contract year.At the meeting, Concessionaire and the City may discuss quality, operational,maintenance and any other issues regarding Concessionaire's performance under the Agreement. Nothing contained within this Section shall preclude the City's audit rights for Resort Tax collection purposes. 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. Notwithstanding the preceding paragraph, the City shall charge Concessionaire a flat fee for 1) electricity, in the amount of One Hundred Twenty($120.00) Dollars per month; and 2) water usage, in the amount of Forty($40.00) Dollars per month. The City reserves the right, at its sole discretion, to adjust the flat monthly fees charged to Concessionaire for electric and water use at any time during the Term, upon thirty(30)days prior written notice to Concessionaire. 9 ,tn,addition to:itherrights and remedies hereinafter reserved to the City, upon the failure of i GonCessibnaire 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 ,�, :' <• _g•h•:City be Iiable;.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., .BA :Concessionaire shall select, train, employ(or otherwise hire or retain) such numberof 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 hire, terminate and discipline any and all personnel and/or contractors employed or retained by Concessionaire. 8.2 Concessionaire and its employees and/or independent contractors shall wear identification badges and uniforms approved by the City, such approval not to be unreasonably withheld, delayed or conditioned, during all hours of operation. 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 (excluding traffic offenses). Concessionaire shall have an experienced manager or managers overseeing the concession operations at all times. SECTION 9. HOURS OF OPERATION. The Concession Area shall be open for business every day of the year,weather or events of force majeure permitting. Concessionaire's minimum hours of operation shall be: 9:00 AM to 7:00 PM or Sunset (whichever occurs earlier) Any change in the hours of operation including, without limitation, any request by Concessionaire for an increase or decrease in same, shall be subject to the prior written approval of the City Manager or his designee,which approval, if granted at all, shall be at the City Manager's (or his designee's) sole option and discretion. SECTION 10. IMPROVEMENTS, MAINTENANCE, REPAIR and OPERATION... Concessionaire accepts the use of the Concession Area in its "AS IS" "WHERE IS" condition.Concessionaire assumes sole responsibility and expense for maintenance of the 10 ,-- [ :Al 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, ,,:tgarbage and clebris.iZoncessionaire shall also be responsible for all garbage disposal generated by its operations. 10.1 Improvements. .. ((if' 0:1.1 Any , improvements to the Concession Area shall be at . ,, •lConcessionaire's sole expense and responsibility;provided,however, .:.-,.,E ,:_ _ ,, :-:::-:that any plans for such improvements shall be submitted to the City • - _ -__ . -_ 1 Manager or his designee for prior written approval,such approval not to be unreasonably withheld, delayed or conditioned, and a list of the approved improvements shall be attached hereto as Exhibit 10.1.1. Upon termination and/or expiration of this Agreement, all personal property and non-permanent trade fixtures may be removed by Concessionaire without causing damage to the Concession Area. All permanent (fixed) improvements to the Concession Area shall remain the property of the City upon termination and/or expiration of this Agreement, except as provided in Subsection 10.1.2. Concessionaire will permit no liens to attach to the Concession Area arising from, connected with, or related to, the design, construction, and installation of any improvements. Construction of any approved improvements shall be diligently prosecuted to completion and accomplished through the use of licensed, reputable contractors who are acceptable to the City Manager or his designee. In addition to obtaining the prior approval of the City Manager or his designee (acting on behalf of the City, in a proprietary capacity), Concessionaire shall also be solely responsible for obtaining, at its sole cost and expense, any and all permits, licenses, and/or regulatory approvals; such regulatory approvals which may include, without limitation, land use board and/or the approvals of other required regulatory agencies having jurisdiction) required for the construction of improvements. 10.1.2 Notwithstanding Subsection 10.1.1 hereof, upon termination and/or expiration of this Agreement, Concessionaire shall immediately remove any permanent improvements made to the Concession Area during the Term,at Concessionaire's sole expense and responsibility. In such event,Concessionaire shall also restore the Concession Area to its original condition prior to the improvements being made, reasonable wear and tear excepted. 10.1.3 The above requirements for submission of plans and the use of specific contractors shall not apply to improvements (which term, for purposes of this subsection 10.1.3 only, shall also include improvements necessary for Concessionaire's ongoing maintenance 11 -4epair,;of the Concession Area) which do not exceed Five .:- -`.!:::-Hundred;($500.00) Dollars; provided that the work is not structural, F. .,_ 1:Vn:_fi-;. d provided further that it is permitted by applicable law. 10.2 Garbage Receptacles. rY T," i-With.3espeot.Zo.litter, garbage and debris removal, Concessionaire shall (, i- ;;provide,-=at its•sble expense, a sufficient number of trash receptacles for its use'and_for the use of its patrons. Determination of the "number" of shall at all times be within the City Manager"Or'NS 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 South Pointe Park trash receptacles shall be strictly 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. 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 12 Ihe concession Area comply with all applicable permitting, building .rt : f-7 iccodes: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 r,,,,, i•r,i4rfostorage end/or-use-of gasoline, fuel oils, diesel, illuminating oils, oil lamps, c:8fdi_.z,;r:1.% combustible powered electricity producing generators,turpentine,benzene, f-4 f:, faphtha,.'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. 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, except if caused by the willful misconduct or gross negligence of the City, its officers, employees, contractors, agents or servants. 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. 13 SECTION 11. INSURANCE. k),,!,7-i Concessionaire shall maintain;:at all times throughout the Term, at its sole expense and : -,.i. :;responsibility, the following types of insurance coverage: •,;: YComprehensiveGeneral Liability, in the minimum amount of One Million r r�� F r �_ t i($1,D00,000 00)--Dollars (subject to adjustment for inflation) per occurrence ;And property damage. This policy must also contain . ,._:..:.4 r1.:1:1,:6 [5., .'+.,;-5:,i?+PCovera§eifor.premises operations, products and contractual liability. ,- _ey,_b:_,^ Workers.Compensation Insurance shall be required in with the .• laws of the State of Florida. c. Automobile Insurance shall be provided covering all owned, leased, and hired vehicles and non-ownership liability for not less than the following limits (subject to adjustment for inflation): Bodily Injury $1,000,000.00 per person Bodily Injury $1,000,000.00 per accident Property Damage $1,000,000.00 per accident The policies of insurance referred to above shall not be subject to cancellation or changing coverage except upon at least thirty(30) days prior written notice to the City, and then only subject to the prior written approval of the City Manager or his designee, such approval not to be unreasonably withheld, delayed or conditioned. 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, such approval not to be unreasonably withheld, delayed or conditioned. 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 14 and.defend the City,its officers,employees,contractors,agents or ;; r,, . t _,,i, servants'from .and against any claim, demand or cause of action of °or-nature arising out of error, omission, or negligent act of . ',.. ,.�_-'T> ,��;± = ., concessionaire, its officers, employees, contractors, agents or servants in the performance of services under this Agreement. ' .;and in'consideration of a separate and specific consideration of and other good and valuable consideration the receipt 'and •sdfficienc •of:which are hereby acknowledged,'Concessionaire shall ''?c- Indemnify;''hold harmless and defend the City, its officers, employees, '"'contractors; agent or servants from and against any claim, demand or 'Cause of action of whatever kind or nature arising out of any misconduct of Concessionaire, its officers, employees, contractors, subconcessionaire(s), agents or servants not included in Subsection 12.1 herein and for which the City, its officers, employees, contractors, subconcessionaire(s), agents or servants are alleged to be liable. 12.3 Subsections 12.1 and 12.2 shall survive the termination or expiration of this Agreement. Subsections 12.1 and 12.2 shall not apply,however,to any such liability,that arises as a result of the willful misconduct or gross negligence of the City, its officers, employees, contractors, agents or servants. 12.4 Subrogation. The terms of insurance policies referred to in Section 11 shall preclude subrogation claims against Concessionaire, the City and their respective officers, employees, contractors, agents or servants. 12.5 Force 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 r Concessionaire money due applicable). The foregoing shall not apply to an payments Y under this Agreement. 12.6 Waiver of Loss from Hazards. Concessionaire hereby expressly waives all claims against the City for loss or damage sustained by the Concessionaire resulting from an event of Force Majeure (as defined herein), and the Concessionaire hereby expressly waives all rights,claims, and demands against the City and forever releases and discharges the City from all demands, claims, actions and causes of action arising from any of the aforesaid causes. SECTION 13. DEFAULT AND TERMINATION. Subsections 13.1 through 13.3 shall constitute events of default under this Agreement. An event of default by Concessionaire shall entitle the City to exercise any and all remedies 15 :, sr, i„.;described as the'City's remedies-under this Agreement, including but not limited to those ,r setforth.in'Subsection-1"3.4and Section 14. An event of default by the City shall entitle ,:•lf:� iCnncessionaireto exercise any and all remedies described as Concessionaire's remedies • Arid&this Agreement,-including but not limited to those set forth in Subsection 13.5. 13.1 Bankruptcy. ;; ? it% iic(- 7F(�!i5i?4 =.-i tIfeitherthe:City orConcessionaire shall be adjudged bankrupt or insolvent, . ic" k,,Iorgif 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 :•:‘, •• c'business property shall be appointed and shall not be discharged within sixty 3 >. (60)bays afterappointment,or if either party shall make an assignment of its property for'the benefit of creditors, or shall file a voluntary petition in bankruptcy, or insolvency, or shall apply for reorganization or arrangement with its creditors under the bankruptcy or insolvency laws now in force or hereinafter enacted, Federal, State,or otherwise,or if such petitions shall be filed against either party and shall not be dismissed within sixty (60) days after such filing, then the other party may immediately, or at any time thereafter, and without further demand or notice, terminate this Agreement without being prejudiced as to any remedies which may be available to it for breach of contract. 13.2 Default in Payment. In the event Concessionaire fails to submit any payment within five (5)days of its due date, there shall be a late charge of Fifty($50.00) Dollars for such late payment, in addition to interest at the rate of eighteen percent(18%)per annum or the highest rate allowable by law,whichever is less. If any payment and accumulated penalties are not received within fifteen(15)days after the payment due date, and such failure continues three (3) days after written notice thereof,then the City may,without further demand or notice,terminate this Agreement without being prejudiced as to any remedies which may be available to it for breach of contract, and may begin 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. 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. 16 4134 City's Remedies for Concessionaire's Default. "Oil',li..'-!1'.;!: (1f any-of the`events of default, as set forth in this Section, shall occur, the :.: , �._c;—.4i'r (if required) and the expiration of cure periods, as •. . _ tc o _ _ ,: �fter'� q ) . .: - :ma City ed in s institute such proceedings - instit ��� ���-•� ,�. provided•above,=at its sole option and discretion, P 4 r r rt: ,,•_; -:-as in itstopinion'are necessary to cure such default(s)and to compensate the • . , i � ..... _pity for damages-resulting from such default(s), including but not limited to -, -i�r '.-s:-,V the rig ht tdtiveto'Concessionaire a notice of termination of this Agreement. If such Notice is.given,the Term of this Agreement shall terminate upon the iii'such notice from the City to Concessionaire.On the date so • • • _ pecified;concessionaire shall then quit and surrender the Concession Area • .'to the 'City' pursuant to the provisions of Subsection 13.7. Upon the termination of this Agreement by the City, all rights and interest of Concessionaire in and to the Concession Area and to this Agreement, and every part thereof,shall cease and terminate and the City may, in addition to any other rights and remedies it may have, retain all sums paid to it by Concessionaire under this Agreement, including but not limited to,beginning procedures to collect the Performance Bond in Section 14 herein. In addition to the rights set forth above, the City shall have the rights to 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 Concessionaire's Remedies for City's Default. shall occur, If an event of default, as set forth in this Section, by the City 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 13.7. 13.6 Termination for Convenience. 13.6.1 Notwithstanding any other provision of this Section 13,this Agreement may be terminated, in whole or in part, by the City, for convenience and without cause, upon the furnishing of sixty(60)days prior written notice to Concessionaire. 13.6.2 In the event of termination by the City pursuant to this subsection, Concessionaire herein acknowledges and agrees that it shall not have any claim, demand, or cause of action of whatsoever kind or nature, against the City, its agents, servants and employees (including, but not limited to,claims for any start-up costs, interference in business or 17 a> - = ttamages:for interruption of services,or interference in its concession r- . ` ;operatians) to no event shall the City be liable to Concessionaire for , , ;.i4; •eny indirect,incidental,special, lost profits or consequential damages. 13.7 Surrender of Concession Area. = : _ =r rt : F Af the expiration of this Agreement,or earlier termination in accordance with '.':i�4he'terms of this Agreement, Concessionaire shall surrender the Concession • - n .. ` AreaAn the,same.:Condition as the Concession Area was prior to the _ *Comrrtiencement Date of this Agreement,--reasonable wear and tear ., excepted:'Concessionaire shall remove all its personal property, upon forty- - (-Jeight(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. PERFORMANCE BOND OR ALTERNATE SECURITY. Concessionaire shall, on or before the Commencement Date of this Agreement,furnish to the City Manager or his designee a Performance Bond in the penal sum as stated below for the payment of which Concessionaire shall bind itself for the faithful performance of the terms and conditions of this Agreement. A Performance Bond, in the amount of Two Thousand Two Hundred Fifty ($2,250.00) Dollars, shall be required and be in faithful observance of this Agreement. A cash deposit, irrevocable letter of credit, or certificate of deposit may also suffice, as determined by the City Manager or his designee in his reasonable discretion. The form of the Performance Bond or letter of credit shall be as required by the City Manager or his designee. In the event that a Certificate of Deposit is approved, it shall be a Two Thousand Two Hundred Fifty ($2,250.00) Dollar one-year Certificate of Deposit in favor of the City,which shall be automatically renewed,the original of which shall be held by the City's Chief Financial Officer. Concessionaire shall be so required to maintain said Performance Bond or alternate security, as accepted by the City Manager or his designee, in full force and effect throughout the Term of this Agreement. Concessionaire shall have an affirmative duty to notify the City, in writing, in the event said Performance Bond or alternate security lapses or otherwise expires. All interest that accrues in connection with any financial instrument or sum of money referenced above shall be the property of Concessionaire, except in an event of default, in which case the City shall be entitled to all interest that accrues after the date of default. 'SECTION 15. ASSIGNMENT. Concessionaire shall not assign, sublease,grant any sub-concession or license,permit the use of by any other person other than Concessionaire, or otherwise transfer all or any portion of this Agreement and/or of the Concession Area(all of the forgoing are herein after referred to collectively as"transfers"),without the prior written consent of the City Manager, which consent shall not be unreasonably withheld. Concessionaire shall notify the City Manager of any proposed transfer prior to consummation of same. In the event that any such transfer is approved, the transferee 18 .. _ shall agree to`be bound by.allthe covenants of this Agreement required of the transferor _`.•J ;':Thereunder:Anytransferrnade without complying with this section shall be null,void,and of nno'effect•and shall constitute an act of default under this Agreement. Notwithstanding any : ?,such :consent,,nor any permitted-transfer under any provision of this section, unless q.9,1 lexpressly-released bythe City Manager,Concessionaire shall remain jointly and severally liable (along with each approved transferee, who shall automatically become liable for all ')obligations oof,theEtransferoPhereunder with respect to that portion of the Agreement so i.ftransferred),and the'City-shall be permitted to enforce the provisions of this Agreement f.? ' Airectly againsfConcessionaire or any transferee of Concessionaire without proceeding in any way against any other person. ` SECTION 16. SPECIAL EVENTS /SPONSORSHIPS., 16.1 The parties agree and acknowledge that Concessionaire's proposed use(s), as defined in Section 3 hereof, do not contemplate nor allow the production, promotion or sponsorship by the Concessionaire of special events in or around the Concession Area. 16.2 City Special Events. Notwithstanding Subsection 16.1 herein,and in the event that the City,at its sole discretion,deems that it would be in the best interest of the City,the City reserves the right to displace the Concessionaire for City produced and/or sponsored special events and/or City produced and/or sponsored productions, upon five (5) days prior written notice to Concessionaire. 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 PG amount, as delineated in Section 4.2 herein. If the Concessionaire is not required to close, or the City Manager or his designee determines that Concessionaire may remain open in such a manner as prescribed by the City, that will not interfere with the special event and/or production, Concessionaire shall use its best efforts, in either case, in cooperating with the City. If Concessionaire is allowed to remain open during special events and/or productions, Concessionaire may be allowed to have in operation its normal daily complement of equipment and staff. "Normal" shall be defined as equipment and staff that the Concessionaire customarily has available to service its patrons within the Concession Area on a normal business day (during its hours of operation). 16.3 Sponsorships. The City reserves unto itself all present and future rights to negotiate all forms of endorsement and/or sponsorship agreements based on the marketing value of any City trademark, property, brand, logo and/or reputation. Any and all benefits derived from an endorsement and/or sponsorship agreement based on the marketing value of a City trademark 19 • brand; logo and/or reputation, shall belong exclusively to the City. "wCon'cessionaire shall be specifically prohibited from entering into, or l': 1"totherwise,creating any,sponsorships and/or endorsements with third parties •based solely or in any part on the marketing value of a City {; s trademark, property, brand, logo and/or reputation. SECTION 17. NO IMPROPER USE. -i=Concessiorraire-mill not-use;,tor suffer or permit any person to use in any manner IliWhatsoever;the`ConcessiOn Area for any improper, immoral or offensive purpose, or for any purpose iri violation`of any;Federal, State, County, or municipal ordinance, rule,order " ° or Iregulation;'or'of any governmental rule or regulation now in effect or hereafter enacted • or adopted. Concessionaire will protect, indemnify, and forever save and keep harmless the City, its officers,employees,contractors,agents or servants,from and against damage, penalty,fine,judgment,expense or charge suffered,imposed,assessed or incurred for any violation, or breach of any law, ordinance, rule, order or regulation occasioned by any act, neglect or omission of Concessionaire, or any.of its officers, employees, contractors, agents or servants. In the event of any violation by Concessionaire, or if the City shall • deem any conduct on the part of Concessionaire to be objectionable or improper,the City Manager or his designee shall have the right to suspend the concession operations should the Concessionaire fail to correct any such violation,conduct,or practice to the satisfaction of the City Manager or his designee within twenty-four(24)hours after receiving written or verbal notice of the nature and extent of such violation, conduct, or practice; such suspension to continue until the violation is cured. Concessionaire further agrees not to commence operations during the suspension until the violation has been corrected to the satisfaction of the City Manager or his designee. SECTION 18. PRICE SCHEDULES. 18.1 Concessionaire agrees that prices charged for the sale of food and beverage service will be consistent with the price schedule(s) herein submitted by the Concessionaire and approved by the City and incorporated herein as exhibits to this Agreement. All subsequent price approvals and changes must be approved in writing by the City Manager or his designee, such approval not to be unreasonably withheld, delayed or conditioned. Prices shall be reasonably consistent with those charged for similar items in other similar public concessions in the City. The City shall have the final right of approval for all such prices and changes, such approval not td be unreasonably withheld, delayed or conditioned. Concessionaire agrees to refrain from the sale of any item identified as prohibited by the City and to sell only those items approved by the City. Concessionaire agrees to maintain an adequate supply necessary to accommodate park patrons. 18.2 Notwithstanding Subsection 18.1, Concessionaire acknowledges that the City has an existing "Concession Agreement for Operation of Vending Machines", dated October 19, 2005, which entitles the vendor to the placement of up to six (6) vending machines within South Pointe Park. Concessionaire shall at all times price products of similar type and/or volume in a manner equal or greater to the pricing of the vending machine item(s).At 20 :Y:r;w,;_: bt: 'r�_F-e: 9r-!6ano time- hall Concessionaire's item(s) be sold at a lower price than similar items sold in the vending machines. SECTION 19. NOTICES. :.-->_: -6411 notice s.fromte_ rtytoZoncessionaire shall be deemed duly served upon receipt, if r ; mailed-by,registered r certified,mail with a return receipt to Concessionaire at the following addresses: Kim E. Pham, Manager .. r. Blissberry, LLC ,.,;!-r..` _; - :_ 1340 Monad Terrace#4 Miami Beach, Florida 33139 With copies to: Frank Bernardo, P.A. 1860 N.W. Boca Raton Blvd. Boca Raton, FL 33342 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: City of Miami Beach Attention: Office of Real Estate 1700 Convention Center Drive Miami Beach, FL 33139 Concessionaire and the City may change the above mailing addresses at any time upon giving the other party written notification. All notices under this Agreement must be in writing. SECTION 20. LAWS. 20.1 Compliance. Concessionaire shall comply with all applicable City, County, State, and Federal ordinances,statutes, rules and regulations(including but not limited to all applicable environmental City, County, State, and Federal ordinances, statutes, rules and regulations,as same may be amended from time to time. 20.2 Equal Employment Opportunity. Neither Concessionaire nor any affiliate of Concessionaire performing services hereunder, or pursuant hereto, will discriminate against any 21 mployee-nor=applicant for employment because of race, sex, sexual _: r:;i:;-=orientation;°•color; reed, national origin,familial status, religion or handicap. i:,wConcessiofiaire will take affirmative steps to utilize minorities and females in :•-. r K;,:,�{=.rt.. : _;: ,-.r. < the work force and in correlative business enterprises. 20.3 No Discrimination. f. 1,i4t. rir s-t: .1 i-ri.1= Concessionaire agrees that there shall be no discrimination as to race,sex, ; =s-sexual orientation; color, creed, national origin, familial status, religion or « (handicap;lin.its:employment practice or in the operations referred to by this .. - _. . . . . !.inAgreement; 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 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. 22 21.7 Severability. `r,,.. ,.. ,,1-1; ea-:,!ri r-Af.any provision of:this Agreement or any portion of such provision or the . ;:-. : ;;; Frr.: rrtt'=: nta,.. _ .?aaapplication thereof to any person or circumstance shall be held to be invalid ,,?!Tor unenforceable;Forshall become a violation of any local, State, or Federal - _-L . :laws; ;hen-=the same as so applied shall no longer be a part of this tIZO=Agreementbut.the remainder of the Agreement, such provisions and the "' .. 5. .^_'",,'• r'r:.psi;(,ICf33il-l: :1'�_',�r���-;- 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 Signage. Concessionaire shall provide, at its sole expense and responsibility, any required signs at its concession.All advertising, signage and postings shall be approved by the City, and shall be in accordance with all applicable Municipal, County, State and Federal laws and regulations. Any signage posted by Concessionaire shall be subject to the prior approval of the City as to size,shape and placement of same,such approval not to be unreasonably withheld, delayed or conditioned. 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, 23 managed, or otherwise controlled by Concessionaire. 21.12 No Waiver. .iS°mutually covenanted and agreed by and between the parties - #�ereto that the failure of the City to insist upon the strict performance ianyAbf"the conditions, covenants, terms or provisions of this :►ItTge! 's.� :7-01Agreemeht,,`or to exercise any option herein conferred, will not be e -,v y_-=+ considered or construed as a waiver or relinquishment for the future , ,: .+;=- f (1; cofkahy-,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 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. 24 SECTION 23. VENUE. (;This:.Agreement hall =be ,deemed to have been made and shall be construed and ,,cihterpreted-in-accordance With the laws of the State of Florida. This Agreement shall be ii)enforceable in,Miami-Dade County, Florida,and if legal action is necessary by either party ;.. ;i_:withrespectto-the-enforcement of any and all the terms or conditions herein, exclusive for the:enforcement of same shall lie in Miami-Dade County, Florida. r'.tt'1:T-HE:CITY.AND CONCESSIONAIRE HEREBY KNOWINGLY AND INTENTIONALLY ':WAIVE THE RIGHT TO TRIAL•BYJURY 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. SECTION 24. PROHIBITIONS REGARDING SALE OR USE OF EXPANDED POLYSTYRENE FOOD SERVICE ARTICLES. Pursuant to Section 82-7 of the City Code, as may be amended from time totime,effedive August 2, 2014, the City has prohibited the use of expanded polystyrene food service articles by City Contractors, in connection with any City contract, lease, concession agreement or Special event permit. Additionally, pursuant to Section 82-385 of the City Code, as may be amended from time to time, no polystyrene food service articles will be allowed in the right-of-way, and no polystyrene food service articles can be provided to sidewalk café patrons. Expanded polystyrene is a petroleum byproduct commonly known as Styrofoam. Expanded polystyrene is more particularly defined as blown polystyrene and expanded and extruded foams that are thermoplastic petrochemical materials utilizing a styrene monomer and processed by any number of techniques including, but not limited to,fusion of polymer spheres (expandable bead foam), injection molding, foam molding, and extrusion-blown molding (extruded foam polystyrene). Expanded polystyrene food service articles means plates, bowls, cups, containers, lids, trays, coolers, ice chests, and all similar articles that consist of expanded polystyrene. Concessionaire agrees not to sell, use, provide food in, or offer the use of expanded polystyrene food service articles at the Concession Area or in connection with this Agreement. Concessionaire shall ensure that all vendors operating in the Concession Area abide by the restrictions contained in this Section 24. A violation of this section shall be deemed a default under the terms of this Agreement. This subsection shall not apply to expanded polystyrene food service articles used for prepackaged food that have been filled and sealed prior to receipt by the Concessionaire or its vendors. Additionally, Concessionaire agrees to comply(and ensure compliance by its vendors)with Section 46-92 (c) of the City Code, which states that it is unlawful for any person to carry Ely expanded polystyrene product onto any beach or into any park within the City or for any business to provide plastic straws with the service or delivery of any beverage to patrons on the beach. 25 -; .Fe:: . ==;-:,:Ai IN WITNESS.:WHEREOF, the parties hereto have caused their names to be signed [_,,. 44>3:-yf:w end their•seals_to be affixed, all as of the day and year first above written, indicating their agreement. d 9n- f' it l°,' 'h ' CITY OF MIAMI BEACH, F e i Ap ,-- ,,f ,- . . . . . , .j ,." / , `1 J _. ����o�.g1111�11 Ra -el Granado, City le : .AI .4;hilip Levine, Ma • `, • .''y X904 Attest: - ;`INCORP ORATED: B Ph.SBERRY, LL r,,. V% Vin/ I se'j C — . y `, - I-.. .`lam ����'In.,H? .►e Ki E. Pham, Manager e bri.OG -11eon5ln i Print Name jar" APPROVED AS TO i � , FORM&LANGUAGE Signature . -&FOR EXECUTION ail, -1 R/ 1-14"/TS A-- b 2(15. .Print Name City Attorney 1.1- Date i CORPORATE SEAL (affix seal here) F:IRHCDI$ALLIECONI$ALLIASSETISOPTPARK1BIIssberry Concession Agreement.FINAL.doc i 1 1 26 4 T; s\ 6 II N�Ol, # �If JI ry, pFl 1....... 11 IG I I t Sr MIN o vrP ■ CENTER PO 'x BENCH 01T-171LF.F.PP' l 1 / OF BUILD! G FIXED TO WALL,ON • GER DIMENSION / E•84103S. FASTENERS COMPLI7 0 w FBC 11-4. BY B'�' 1VI•1..-' R8' lye e N$21480.• '■•:NEON STEEL CO.Ofl.APPR. 0: DUAL Ilim( 4 Lr Lr 111111, 1 S MEETING ROOM 8 n bT�' \'` ��^\I E OCCUPANT LOAD; h , - \�\�. � MAXIMUM C) RECESSED I .. ENTRANCE MAT i 2 • v I 4 V. 00 O :.-1 jaw jaw 'e r�1ln.: (... 0 w I \ N 1 \ ' , j @. I • 1 m ( ►fim m , \�� �--- tm s• arr T N11 a 1. X if©' 2 �I : , 210 TN RAIN.TW. \ / k E2%SLOPE RECESSED MOM VIM:1LLEEIG 4b. A Ali ENTRANCE MAT :,- EXHIBIT 3.1.1 Menu & Prices 9 oduct of -l- ;eL1SSISE-9-t Frozen Yogurt Power drinks$3.00 S$5.00 Fresh Fruit$1.00 M$6.50 Fruit Cups$5.50 L$B.60 Solar Phone Charger Rent$10.00 Frozen Pops Solar Charger$150.00 $4.50 Sunblock/Lotion$9.50 Beach bag$20.00 Slushy Tank top$25.00 M$5.00 L$7,00 Fruit Trays S$25 Fresh Juice M$45 M$7.50 L$65 L$9.50 Sandwich trays Smoothies ,S$35 M$6.50 M$55 L$8.50 L$75 Pizza$5.00 w/pepperoni+$1.25 Quesadilla$6.50 wlchicken+$3.00 Chicken sandwich$9.50 Kosher Hot Dog$5.00 Fruit Salad$11.50 Chips$1.50 Protein Bar $2.50 Water/canned drinks$2.00 Bliss Snacks$3.00 Coffee$4.25 28 EXHIBIT 3.1.2 Concessionaire's Equipment List Bread Rack Freezer !z- • Fridge (3) Toaster Grill . Blender Juicer Cash Register !pad Yogurt Machine 29 EXHIBIT 10.1.1 Concessionaire's Improvements ,1oncessionaire does,.not'anticipate the need to make any improvements at this time. 30 n • EXHIBIT 21.10 ... 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