Collins 1560, LLC Concession AgreementDocusign Envelope ID:B50A4 133-802C-465B-87FA-14B6372 6DA8F
COLLINS 1560,LLC
Concession
Agreement
ANCHOR SHOPS AT SOUTH BEACH
CONCESSION AGREEMENT
Docusign Envelope ID:B50A4133-802C-465B8-87FA-14B63726DA8F
CONCESSION AGREEMENT
BETWEEN
MIAMI BEACH REDEVELOPMENT AGENCY
AND
COLLINS 1560,LLC
FOR MANAGEMENT AND OPERATION OF A FOOD &BEVERAGE CONCESSION
IN THE OUTDOOR SPACE ADJACENT TO 1560 COLLINS AVENUE SUITES 1 &2
THIS CONCESSION AGREEMENT ("Agreement")made the day of October,
2024,between the MIAMI BEACH REDEVELOPMENT AGENCY,a public body
corporate and politic,having its principal place of business at 1700 Convention Center
Drive,Miami Beach,Florida 33139 (RDA)and COLLINS 1560,LLC,a Florida limited
liability company,having its principal place of business at 1560 Collins Avenue,Suites
1&2,Miami Beach,Florida,33139 (hereinafter called "Concessionaire").
The RDA hereby grants to the Concessionaire,and the Concessionaire hereby accepts
from the RDA,the rights 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 The term of the Agreement shall be coterminous with the Lease Agreement
(as defined in Section 2.1),for use of the adjacent Leased Premises (as
defined in Section 2.1)for the operation of a restaurant,which Lease
Agreement has a current expiration date of January 3,2033.("Term").
For purposes of this Agreement,a "Contract Year"shall be defined as that
certain period commencing on the 1°'day of January,and ending on the
31°day of December.Any reconciliations of payments which fall outside
of the Contract Year period shall be prorated.
It is the intent of the parties hereto that,unless otherw ise term inated
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.
SECTION 2.CONCESSION AREA.
2.1
The RDA hereby grants to Concessionaire the right,during the Term herein,
to maintain,manage and operate an outdoor seating area in the following
Concession Area:
Concession Area:
The RDA and Concessionaire are parties to a Lease Agreement,dated
March 23,2023 (the "Lease Agreement")relating to 2,697 square feet of
restaurant space located at 1560 Collins Avenue Suites 1&2,Miami Beach,
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Florida 33139 (the "Leased Premises").The concession area shall consist
of approximately 776 square feet of outdoor space,adjacent to and east of
the Leased Premises (the "Concession Area");which outdoor space is
further delineated in Ex hib it 2.1,attached hereto and incorporated herein.
Concessionaire has the right to reduce the footprint of the outdoor space,
with prior written approval of the RDA,but under no circumstances may the
Concessionaire expand the square foot of the outdoor space.The use and
size of the Concession Area space shall be subject to Concessionaire
securing the appropriate regulatory approvals from the City of Miami Beach
("City"),which may include,without limitation,the City's Planning
Department.
Concessionaire shall have the right to place up to thirty (30)chairs and
twelve (12)tables and four (4)umbrellas (or awning,subject to approval by
the RDA)within the Concession Area,subject to approval of the site plan
and the outdoor furniture by the City's Planning Department,and
compliance with applicable ADA requirements.The proposed site plan is
also delineated in E xhib it 2.1.No material change in the proposed site plan
(or in Exhibit 2.1)shall be permitted without the prior written consent of the
Executive Director or his/her designee,which consent (if given at all)shall
be at the Executive Director's (or his/her designee's)sole 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 Sunday,commencing at 6:00 AM and ending at 1:00 AM.
Nothing herein contained shall be construed to authorize hours contrary to
the laws governing such operations,as may be amended from time to time.
Any change in the minimum days or hours of operation shall require the
prior written consent of the Executive Director.In no event shall the hours
of operation extend earlier than 6:00 AM or later than 1 :00 AM.
N o tw ithsta nding the preced ing ho u rs of operation,the Co ncessio n
A rea shall o n ly be open w hen the Leased Prem ises are open fo r
business (a nd ,co nvers ely ,shall be closed w hen the Leased P re m ises
is closed).
3.2 C o ncessio na ire and the Tenant of the Leased Prem ises shall at all
tim es througho ut the Term of this Ag reem ent be one and the sam e
and can no t ex ist ind epe ndently of each other.Co ncessio naire
ackno w led ge s and ag rees that its use of the C o ncession Area shall
be ,and rem ain at all tim es thro ugh o ut the Term ,an ancill ary use to
the Leased P re m is es.
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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
of any kind as part of the Concession Area and all food served shall be
prepared within the interior kitchen of the Leased Premises.All tables and
chairs will be removed and stored each night at close of business.Any
Umbrellas,as approved by the RDA and the required City of Miami Beach
regulatory board,will be closed and secured each night at closing.
Notwithstanding any such approvals,The RDA,in its proprietary capacity
and in its sole discretion,reserves the right to revoke any approval,
permitting the umbrellas to remain on the Concession Area after close of
business.Any exception to this requirement shall be at the sole and
absolute discretion of the Executive Director or his/her 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.
3.2.1.Removal of Concessionaire's Property during Emergency
Situations.The Executive Director or his/her designee may direct or
require the Concessionaire to immediately remove,relocate and/or store
all or part of the Concession Area improvements or any of
Concessionaire's outdoor furniture and equipment ("Concessionaire's
Property")for public safety considerations in emergency situations,
including,without limitation,a threatened tropical storm or
hurricane.Upon written and/or verbal notification by the Executive
Director of a tropical storm/hurricane warning or alert,or other major
weather event that may adversely impact the City,or upon the
designation by the United States National Weather Service or National
Hurricane Center of a tropical storm/hurricane warning or alert,
whichever occurs first,the Concessionaire shall,within no more than
two hours of same,remove and store all of Concessionaire's Property
to secure Concessionaire's Property in response to the threatened
storm or other emergency,and shall take all other measures which may
be necessary for the protection of the public with respect thereto.The
notification by the Executive Director of a hurricane or other major
weather event,or the issuance of a hurricane warning,shall constitute a
public emergency situation.The failure of the RDA to direct the
Concessionaire to remove or safety store Concessionaire's Property
shall not relieve the Concessionaire of its obligation to remove and store
Concessionaire's Property in response to a threatened storm event as
outlined herein.
Should Concessionaire fail to remove Concessionaire's Property within
said two (2)hour period,or in the event the Executive Director or his/her
designee determines,at his/her sole discretion,that Concessionaire's
removal,storage and other efforts are otherwise not satisfactory,
Concessionaire shall thereafter be assessed a fee of $50.00 per hour,
until such time as all of Concessionaire's Property have been removed
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to the Executive Director's satisfaction.In addition,the Executive
Director,without any obligation to do so,may immediately proceed to
remove,relocate,and/or store the Concessionaire's Property that has
otherwise not been removed by the Concessionaire,at the
Concessionaire's sole cost and expense,with payment to the RDA for
all such costs due within thirty (30)days of RDA's invoice to
Concessionaire.
Concessionaire shall be solely responsible for any damage to RDA
property or other property resulting from Concessionaire's failure to
remove and store Concessionaire's property,or otherwise implement
appropriate measures in response to a threatened storm or hurricane.
Concessionaire's failure to comply with this section shall constitute a
default under this Agreement.The remedies identified herein for
Concessionaire's failure to comply with this section are cumulative,and
in addition to,all remedies that may be available to the RDA at law and
in equity.
3.3 Concessionaire hereby warrants and represents to the RDA 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 Executive Director,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 that speakers or any other device used to amplify
sound,in or around the Concession Area shall require the approval of the
RDA and of the appropriate City of Miami Beach regulatory board.
Notwithstanding any such approvals,the RDA,in its proprietary capacity
and in its sole discretion,reserves the right to revoke any approval for use
of speakers in or around the Concession Area.In such case,following thirty
(30)days written notice to Concessionaire,Concessionaire shall remove
any installations relating to such use and restore the affected portions of the
Concession Area to its original condition.Concessionaire further agrees to
not attach any televisions 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 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.
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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
RDA 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.
3.6 Notwithstanding anything to the contrary contained herein,in the
event of a breach by Concessionaire of any conditions in this Section
3,the Executive Director,in his/her sole determination and judgment,
shall have the right to automatically terminate this Agreement,without
any liability to the RDA;said termination effective upon thirty (30)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 RDA's rights to terminate this Agreement pursuant to
this subsection.
3.7 Concessionaire shall obtain,at its sole expense and responsibility,any
business tax receipts required by the City of Miami Beach for the proposed
use(s)contemplated herein.
SECTION 4.CONCESSION FEES.
4.1 The Concession Fee shall have the same meaning as in Section 2.2 (8)of
the Lease Agreement.
4.2 Intentionally Omitted
4.3 Interest for Late Payment.
Any payment which Concessionaire is required to make to the RDA 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 RDA.
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 RDA as part
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of said payments.It is the RDA's intent that it is to receive all paym ents due
from Concessionaire as net of such Florida State Sales and Use Tax.
SECTIO N 5.Intentionally Om itted
SECTION 6.Intentionally Omitted
SECTIO N 7.TAX ES,ASSESSM ENTS,AND UTILITIES.
Concessionaire agrees and shall pay,befo re delinquency,all taxes and
assessments of any kind (including,without lim itation,ad valorem taxes,if
assessed,and/or Resort Taxes)levied or assessed upon Concessionaire
and/or the Concession Area including,without lim itation,any such taxes
and/or assessments that m ay 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 w ill have the right,at its own expense,to co ntest 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.Co ncessionaire m ay refrain fro m paying a tax to
the extent it is contesting the imposition of sam e in a m anner that is in
accordance w ith law ;provided,however,if,as a result of such contest,
additional delinquency charges beco me due,Concessionaire shall be
responsible for such delinquency charges,in addition to paym ent of the
co ntested tax (if so ordered).
Concessionaire shall be solely responsible for and shall pro mptly pay when
due all charges fo r utility service(s)provided to the Concession Area
(including all hook-up fees and im pact fees)for gas,electricity,water,
sew er,cable,telephone,trash collection,etc.,if applicable.
In addition to other rights and rem edies hereinafter reserved to the RDA,
upon the failure of Concessionaire to pay for such utility services when due,
the RDA may elect to pay same and Concessionaire shall promptly
reimburse the RDA upon dem and.In no event shall the RDA be liable,
whether to Concessionaire or to third parties,for an interruption or failure in
the supply of any utilities serv ices to the Concession Area.
SECTION 8.EMPLOYEES AND INDEPENDENT CO NTRA CTORS.
8.1 Concessionaire shall select,tra in,em ploy (or otherw ise 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 sam e levels of serv ice as exist in sim ilar 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 RDA,and Concessionaire
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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,term inate and discipline any and all personnel and/or
contract ors em ployed or retained by Conce ssionaire.
8.2 All employees and/or independent contractors shall observe all the graces
of pers onal grooming.Concessionaire shall hire people to work in its
operation who are neat,clean,well groom ed ,and co mport themselves in a
professional and co urteous manner.Concessionaire and any persons hired
and/or retained by Concessionaire shall never have been co nvicted of a
felony.
Concessionaire shall have an experienced manager or managers
overseeing the concession operations at all times.
SECTIO N 9.Intentionally Om itted
SECTIO N 10.IMPROVEM ENTS,MAINTENANCE,REPAIR AND OPERA TION.
Concessionaire acce pts the use of the Concession Area in its "AS IS"
"W HERE IS"condition.Concessionaire assumes sole responsibility and
expense fo r m aintenance of the Concession Area (including all furniture,
fixtures,equipm ent and any other im provem ents 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 Impro vements.
10.1.1.Any improvements to the Concession Area shall be at Concessionaire's
sole expense and responsibility;provided,however,that any plans for
such impro vem ents shall be subm itted to the Executive Director or
his/her designee for prior written approval.Upon termination and/or
expiration of this Agreement.all personal pro perty and non-perm anent
trade fixtures may be removed by Concessionaire without ca using
damage to the Concession Area.
All permanent (fixed)im provem ents to the Concession Area shall
remain the property of the RDA upon term ination and/or expiration of
this Agreem ent,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 im provements.
Construction of any approved im provements shall be diligently
prosecuted to completion and accomplished thro ugh the use of licensed,
reputable contractors who are acceptable to the Executive Director or
his/her designee.In addition to obtaining the prior approval of the
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Executive Director or his/her designee (acting on behalf of the RDA,in
a proprietary capacity},Concessionaire shall also be solely responsible
fo r obtaining,at its sole cost and expense,any and all permits,licenses,
and/or regulatory approvals;such reg ulatory approvals which may
include,without limita tion,land use board and/or the approvals of other
required regulatory agencies having jurisdiction)required for the
construction of im provements.
10.1.2.Notwithstanding Subsection 10.1.1 hereof,upon term ination and/or
expiration of this Agreement,Conce ssionaire shall immediately remove
any permanent improvements made to the Concession Area during the
Term ,at Concessionaire's sole expense and respo nsibility.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 purpo ses
of this Subsection 10.1.3 only,shall also include improvements
necessa ry fo r Conce ssionaire's ongoing maintenance and repair of the
Conce ssion Area)which do not exceed Five Hundred ($500.00)Dollars;
provided that the work is not structural,and provided further that it is
perm itted by applica ble law.
10.2 Garbage Receptacles.
W ith respect to litter,garb age 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.Determ ination of the "number''of
receptacles shall at all times be within the Executive Director or his/her
designee's sole discretion.Disposa l 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 RDA,because of the Concessionaire's
failure to do so,will be assessed to,and beco me the responsibility of,the
Concessionaire.
The dum ping or disposal of any refuse,disca rds,trash or garbage,
generated by,or as a result of Concessionaire's operations,shall be placed
in the trash dumpster utilized by the Leased Premises,the cost of which
shall be paid by Concessionaire,as tenant,pursuant to the term s of the
Lease Agreem ent.
10.3 Maintenance/Repair.
Concessionaire shall maintain,at its sole expense and responsibility,all
furniture,fixtures,and equipment (FFE)and any other improvements
(whether perm anent 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 RDA,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 Executive Director or his/her designee.
10.3.2.AII 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 RDA,at the expense of
Concessionaire,and all sums spent and expenses incurred by the RDA
shall be collectable by the RDA and shall be paid by Concessionaire
within ten (10)days after receipt of a bill or statement thereof.
Notwithstanding that the RDA may elect to make such repairs,
restoration,and/or replacement,the RDA 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 approved
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.Notwithstanding the foregoing,subject to
securing any required regulatory approvals as set forth in Subsection 2.1,
and provided not prohibited in the standard policies of fire insurance
companies in the State of Florida or applicable law,the RDA,in its
proprietary capacity,authorizes Concessionaire to utilize portable propane
heating lamps during the hours of operation;however,said portable
propane heating lamps would need to be removed from the Concession
Area after close of operations.Additionally,the RDA,in its sole discretion
and without liability,reserves the right to revoke the approval to use propane
heating lamps on the Concession Area,upon written notice to
Concessionaire.
In consideration of a separate and specific consideration of Ten ($10.00)
Dollars and other good and valuable consideration,the receipt and
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sufficiency of which are hereby acknowledged,Concessionaire shall
indemnify and hold the RDA and the City of Miami Beach harmless from
any loss,damage,cost,or expense of the RDA,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 RDA
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 Executive
Director or his/her 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 RDA for compensation for loss or damage sustained by reason
of any interference with the concession operations,whether by the RDA 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.CONCESSIONAIRE'S INSURA NCE REQUIREMENTS.
11.1.Concessionaire shall maintain throughout the term,at its sole cost and expense,
the following insurance requirements:
11.1.1 Worker's Compensation Insurance for all employees of the Concessionaire as
required by Florida Statute 440,and Employer Liability Insurance for bodily injury
or disease.Should Concessionaire be exempt from this Statute,the
Concessionaire and each employee shall hold the RDA and the City of Miami
Beach harmless from any injury incurred during performance of the Agreement.
The exempt Concessionaire shall also submit (i)a written statement detailing the
number of employees and that they are not required to carry Workers'
Compensation insurance and do not anticipate hiring any additional employees
during the term of this Agreement or (ii)a copy of a Certificate of Exemption.
11.1.2 Commercial General Liability Insurance on an occurrence basis,including
products and completed operations,property damage,bodily injury and personal
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&advertising injury with limits no less than $1,000,000 per occurrence,and
$2,000,000 general aggregate.
11.1.3AII-Risk property and casualty insurance,written at a minimum of eighty (80%)
percent of replacement cost value and with replacement cost endorsement,
covering all improvements installed in the Concession Area by or on behalf of
Concessionaire and including without limitation all of Concessionaire's personal
property in the Demised Premises (including,without limitation,inventory,trade
fixtures,furniture,and other property removable by Concessionaire under the
provisions of this Agreement).
11.1.4 Business interruption insurance,sufficient to insure Concessionaire for no less
than one (1)full year of loss of business,with the RDA and the City of Miami Beach
named thereon as loss payee to the extent permitted by applicable law.
11.1.5 Additional Insured -The RDA and the City of Miami Beach must be included by
endorsement as an additional insured with respect to all liability policies (except
Professional Liability and Workers'Compensation)arising out of work or
operations performed on behalf of the Concessionaire including materials,parts,
or equipment furnished in connection with such work or operations and
automobiles owned,leased,hired or borrowed in the form of an endorsement to
the Concessionaire's insurance.
11.1.6 Notice of Cancellation -Each insurance policy required above shall provide that
coverage shall not be cancelled,except with notice to the RDA Executive Director
c/o EXIGIS Insurance Compliance Services.
11.1.7 Waiver of Subrogation -Concessionaire agrees to obtain any endorsement that
may be necessary to affect the waiver of subrogation on the coverages required.
However,this provision applies regardless of whether the RDA has received a
waiver of subrogation endorsement from the insurer.
11.1.8 Acceptability of Insurers -Insurance must be placed with insurers with a current
AM.Best rating of A:VII or higher.If not rated,exceptions may be made for
members of the Florida Insurance Funds (i.e.FW CIGA,FAJUA).Carriers may
also be considered if they are licensed and authorized to do insurance business in
the State of Florida.
11.1.9 Verification of Coverage -Contractor shall furnish the RDA with original certificates
and amendatory endorsements,or copies of the applicable insurance language,
effecting coverage required by this contract.All certificates and endorsements are
to be received and approved by the RDA before work commences.However,
failure to obtain the required documents prior to the work beginning shall not waive
the Contractor's obligation to provide them.The RDA reserves the right to require
complete,certified copies of all required insurance policies,including
endorsements,required by these specifications,at any time.
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CERTIFICATE HO LDER M UST READ:
MIAMI BEACH RED EVELOPMENT AGENCY
c/o EXIG IS Insura nce Compliance Serv ices
P.O .Box 4668-ECM #35050
New York,NY 10163-4668
Kindly subm it all certificates of insurance,endors ements,exemption letters to our
servicing agent,EXIGIS,at:
Certifica tes-m iamibeach@ riskworks.com
Special Risks or Circumstances -The RDA reserv es the right to modify these
requirem ents,including lim its,based on the nature of the risk,prior experience,
insurer,coverage,or other special circumstances.
Com pliance with the fo regoing requirem ents shall not relieve the Co ncessionaire
of its liability and obligation under this section or under any other sect ion of this
Agreement.
SECTION 12.INDEM NITY .
12.1 In considera tion of a separate and specific co nsideration of Ten ($10.00)
Dollars and other good and valuable co nsideration the receipt and
suffi ciency of w hich are hereby acknowledged ,Concessionaire shall
indemnify,hold harm less and defend the RDA and the City of Miami Beach,
and their respective office rs,employees,co ntractors,agents or servants
from and against any claim ,demand or cause of action of whatsoever kind
or nature arising out of erro r,om ission,or negligent act of Concessionaire,
its officers ,employees,contractors,agents or servants in the perform ance
of serv ices under this Agreem ent.
12.2 In addition,and in co nsideration of a separate and specific considera tion of
Ten ($10.00)Dollars and other good and valuable consideration the receipt
and sufficiency of which are hereby acknowledged,Conce ssionaire shall
indem nify,hold harm less and defend the RDA and the City of Miami Beach,
and their respective offi cers,em ployees,contract ors,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,
em ployees,co ntra ctors,sub concessionaire(s),agents or servants not
included in Subsection 12.1 herein and fo r which the RDA,its
members/officers ,em ployees,contractors ,sub concessionaire(s),agents
or serv ants are alleged to be liable.
12.3 Subsections 12.1 and 12.2 shall survive the term ination or expira tion 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 RDA,its officers,em ployees,co ntractors,agents or
servants.
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12.4 Intentionally Omitted
12.5 Force Majeure.
Whenever a period of time is herein prescribed for the taking of any action
by the RDA or Concessionaire (as applicable),the RDA 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,pandemics,epidemics,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 the RDA 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 RDA 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 RDA and the
City of Miami Beach and forever releases and discharges the RDA and the
City of Miami Beach 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 RDA to
exercise any and all remedies described as the RDA's remedies under this
Agreement,including but not limited to those set forth in Subsection 13.5.
An event of default by the RDA 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 RDA 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.
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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 RDA 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.
13.3 Non-Monetary Default.
In the event that Concessionaire or the RDA 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 RDA with written notice of same.
13.4 Default Under Lease Agreement.
In the event that Concessionaire is in default under the Lease Agreement,
then the RDA 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 RDA's Remedies for Concessionaire's Default.
If any of the events of default,as set forth in this Section,shall occur,the
RDA 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 RDA 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 RDA to
Concessionaire.On the date so specified,Concessionaire shall then quit
and surrender the Concession Area to the RDA pursuant to the provisions
of Subsection 13.8.Upon the termination of this Agreement by the RDA,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
RDA may,in addition to any other rights and remedies it may have,retain
all sums paid to it by Concessionaire under this Agreement.
In addition to the rights set forth above,the RDA shall have the rights to
pursue any and all of the following:
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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.
13.6 Concessionaire's Remedies for RDA's Default.
If an event of default,as set forth in this Section,by the RDA shall occur,
Concessionaire may,after the expiration of the cure period,terminate this
Agreement upon written notice to the RDA.Said termination shall become
effective upon receipt of the written notice of termination by the R D A.On
the date specified in the notice,Concessionaire shall quit and surrender the
Concession Area to the RDA pursuant to the provisions of Subsection 13.8.
13.7 Termination for Convenience.
13.7.1.Notw ithstanding any other provision of this Section 13,this Agreement
may be term inated,in whole or in part,by the RDA,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 RDA 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 RDA,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 RDA 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 of Concessionaire's Property
and other improvements,upon forty-eight (48)hours written notice from the
Executive Director or his/her designee unless a longer time period is agreed
to by the RDA.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 RDA
One Thousand ($1,000.00)Dollars per day as liquidated damages for such
trespass and holding over.
SECTION 14.Intentionally Omitted
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SECTION 15.Intentionally Omitted
SECTION 16.SPECIAL EVENTS /SPONSORSHIPS.
16.1 City of Miami Beach Special Events.
In the event that the RDA,at its sole discretion,deems that it would be in
the best interest of the RDA the RDA reserves the right to displace the
Concessionaire for RDA or City of Miami Beach produced and/or sponsored
special events and/or RDA or City of Miami Beach 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 RDA 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,the RDA 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 Executive Director or his/her
designee determines that Concessionaire may remain open in such a
manner as prescribed by the RDA or the City of Miami Beach,that will not
interfere with the special event and/or production,Concessionaire shall use
its best efforts,in either case,in cooperating with the RDA.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 RDA reserve 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 of Miami Beach 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 Miami
Beach City trademark,property,brand,logo and/or reputation,shall belong
exclusively to the RDA or the City of Miami Beach.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 of Miami Beach 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
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offensive purpose,or for any purpose in violation of any Federal,State,
County,or municipal ordinance,rule,order or regulation,or of any
governm ental rule or regulation now in effect or hereafter enacted or
adopted.Concessionaire will protect,indemnify,and forever save and keep
harm less the RDA and the City of Miami Beach,and their respective
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 Conce ssionaire,or if the RDA shall
deem any co nduct on the part of Concessionaire to be objectionable or
im proper,the Executive Director or his/her designee shall have the right to
suspend the concession opera tions should the Concessionaire fail to
correct any such violation,co nduct,or practice to the satisfaction of the
Executive Director or his designee within tw enty-four (24)hours after
receiving written or verbal notice of the nature and extent of such violation,
conduct,or practice ;such suspension to co ntinue until the violation is cured.
Concessionaire further agrees not to commence operations during the
suspension until the violation has been co rrected to the satisfaction of the
Executive Director or his/her designee.
SECTION 18.Intentionally Om itted.
SECTION 19.NO TICES.
All notices from the RDA to Concessionaire shall be deemed duly served
upon receipt,if mailed by registered or certified mail with a return rece ipt to
Concessionaire at the following addresses:
Miroslav Banjac
Collins 1560,LLC
1131 Collins Avenue
Miam i Beach,Florida 33139
All notices from Conce ssionaire to the RDA shall be deemed duly served
upon receipt,if mailed by registered or certified mail return receipt
requested to the MIAMI BEACH REDEVELOPMENT AGENCY at the
fo llowing addresses:
Executive Director
Miami Beach Redevelopment Agency
1700 Convention Center Drive
Miam i Beach,FL 33139
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With copy to:
Asset Manager
Facilities and Fleet Management Department
City of Miami Beach
1833 Bay Road,Second Floor
Miami Beach,FL 33139
Concessionaire and the RDA 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
20.2
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.
No Discrimination.
Concessionaire hereby agrees hereby agrees to comply with City of Miami
Beach Human Rights Ordinance,as codified in Chapter 62 of the City Code,
as may be amended from time to time,prohibiting discrimination in
employment,including independent contractors,housing,public
accommodations,public services,and in connection with its membership or
policies because of actual or perceived race,color,national origin,religion,
sex,intersexuality,sexual orientation,gender identity,familial and marital
status,age,ancestry,height,weight,hair texture and/or hair style,domestic
partner status,labor organization membership,familial situation,political
affiliation,or disability.
SECTION 21.PROHIBITIONS REGARDING SALE OR USE OF EXPANDED
POLYSTYRENE FOOD SERVICE ARTICLES OR PLASTIC STRAWS.
21.1 Pursuant to Section 82-7 of the City Code,as may be amended from time to time,
effective 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 cafe patrons.
21.2 "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).
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"Expanded polystyrene food service articles"means plates,bowls,cups,
containers,lids,trays,coolers,ice chests,and all similar articles that consist of
expanded polystyrene.
21.3 Concessionaire agrees not to sell,use,provide food in,or offer the use of
expanded polystyrene food service articles at the Demised Premises or in
connection with this Lease.Concessionaire shall ensure that all vendors operating
in the Demised Premises abide by the restrictions contained in this Section 39.A
violation of this section shall be deemed a default under the terms of this Lease.
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.
21.4 Additionally,Concessionaire agrees to comply (and ensure compliance by its
vendors)with Section 46-92 (c)of the City Cod e,which states that it is unlawful for
any person to carry any 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.
SECTION 22.Intentionally Omitted.
SECTION 23.INSPECTOR GENERA L AUDIT RIGHTS.
23.1 Pursuant to Section 2-256 of the Code of the City of Miami Beach,the City has
established the Office of the Inspector General which may,on a random basis,
perform reviews,audits,inspections and investigations on all City contracts,
throughout the duration of said contracts.This random audit is separate and
distinct from any other audit performed by or on behalf of the RDA.
23.2 The Office of the Inspector General is authorized to investigate the RDA and City
of Miami Beach affairs and empowered to review past,present and proposed City
programs,accounts,records,contracts and transactions.In addition,the Inspector
General has the power to subpoena witnesses,administer oaths,require the
production of witnesses and monitor RDA and City of Miami Beach projects and
programs.Monitoring of an existing RDA or City of Miami Beach project or program
may include a report concerning whether the project is on time,within budget and
in conformance with the contract documents and applicable law.The Inspector
General shall have the power to audit,investigate,monitor,oversee,inspect and
review operations,activities,performance and procurement process including but
not limited to project design,bid specifications,(bid/proposal)submittals,activities
of the Concessionaire,its officers,agents and employees,lobbyists,City staff and
elected officials to ensure compliance with the contract documents and to detect
fraud and corruption.Pursuant to Section 2-378 of the City Code,the City is
allocating a perce ntage of its overall annual contract expenditures to fund the
activities and operations of the Office of Inspector General.
23.3 Upon ten (10)days written notice to the Concessionaire,the Concessionaire shall
make all requested records and documents available to the Inspector General for
inspection and copying.The Inspector General is empowered to retain the services
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of independent private sector auditors to audit,investigate,monitor,oversee,
inspect and review operations activities,performance and procurement proce ss
including but not lim ited to project design,bid specifications,(bid/proposal)
subm ittals,activities of the Concessionaire its officers,agents and employees,
lobbyists,City staff and elected officials to ensure compliance with the contract
docum ents and to detect fraud and co rruption.
23.4 The Inspector General shall have the right to inspect and copy all documents and
reco rds in the Concessionaire's po ssession,custody or co ntrol which in the
Inspector Genera l's sole judgment,pertain to perform ance of the contract,
including,but not limited to original estimate files,change order estimate files,
worksheets,proposals and agreements from and with succe ssful subco ntractors
and suppliers,all project-related co rrespondence,memoranda,instructions,
financial docum ents,construction documents,(bid/proposal)and co ntract
docum ents,back-change documents,all documents and records which involve
cash,trade or volume disco unts,insurance proceeds,rebates,or dividends
received,payroll and personnel records and supporting documentation for the
afo resaid documents and records.
23.5 The Concessionaire shall make available at its office at all reasonable times the
records,materials,and other evidence regarding the acquisition (bid preparation)
and perform ance of this Agreement,for examination,audit,or reproduction,until
three (3)years after final payment under this Agreement or for any longer period
required by statute or by other clauses of this Agreement.In addition:
i.If this Agreement is co mpletely or partially term inated,the Conce ssionaire
shall make available reco rds relating to the work terminated until three (3)
years after any resulting final term ination settlement;and
ii.The Conce ssionaire shall make available reco rds relating to appeals or to
litigation or the settlement of claims arising under or relating to this
Agreem ent until such appeals,litigation,or claims are finally resolved.
23.6 The pro visions in this section shall apply to the Concessionaire,its officers,agents,
em ployees,subcontractors and suppliers.The Concessionaire shall incorporate
the pro visions in this section in all subco ntracts and all other agreements executed
by the Conce ssionaire in co nnection with the perform ance of this Agreement.
23.7 Nothing in this section shall im pair any independent right to the RDA to conduct
audits or investigative activities.The provisions of this section are neither intended
nor shall they be co nstrued to impose any liability on the RDA by the
Concessionaire or third parties.
SECTION 24.CONCESSIONAIRE'S COMPLIANCE WITH FLORIDA'S PUBLIC
REC O RDS LA W .
24.1 Co ncessionaire shall co mply with Florida Public Records law under Chapter 119,
Florida Statutes,as may be amended from time to time.
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24.2 The term "public records"shall have the meaning set forth in Section 119.011 (12),
which means all documents,papers,letters,maps,books,tapes,photographs,
films,sound recordings,data processing software,or other material,regardless of
the physical form,characteristics,or means of transmission,made or received
pursuant to law or ordinance or in connection with the transaction of official
business of the RDA.
24.3 Pursuant to Section 119.0701 of the Florida Statutes,if the Concessionaire meets
the definition of "Contractor"as defined in Section 119.0701(1)a),the
Co ncessionaire shall:
A Keep and m aintain public records required by the RDA to perform the
service;
B.Upon request from the RDA's custodian of public records,provide the RDA
with a copy of the requested records or allow the records to be inspected or
copied within a reasonable time at a cost that does not exceed the cost
provided in Chapter 119,Florida Statutes or as otherwise provided by law;
C.Ensure that public records that are exem pt or co nfidential and exem pt from
public records disclosure requirements are not disclosed,except as
authorized by law,for the duration of the contract term and following
completion of the Agreement if the Concessionaire does not transfer the
records to the RDA;
D.Upon completion of the Agreement,transfer,at no cost to the RDA,all
public reco rd s in possession of the Concessionaire or keep and maintain
public reco rds required by the RDA to perform the service.If the
Concessionaire transfers all public records to the RDA upon co m pletion of
the Agreement,the Concessionaire shall destroy any duplica te public
records that are exem pt or confidential and exem pt fro m public records
disclosure requirem ents.If the Conce ssionaire keeps and maintains public
reco rds upon com pletion of the Agreem ent,the Conce ssionaire shall m eet
all applica ble requirem ents for retaining public reco rds.All record s stored
electronically m ust be pro vided to the RDA,upon request from the RDA's
custodian of public reco rds,in a form at that is com patible w ith the
information technology system s of the RDA
24.4 Request fo r Reco rds;Nonco m pliance .
A.A request to inspect or copy public records relating to the RDA's contract
for serv ices must be made directly to the RDA If the RDA does not possess
the requested records,the RDA shall immediately notify the Concessionaire
of the request,and the Concessionaire must provide the records to the RDA
or allow the records to be inspected or copied within a reasonable time.
B.Concessionaire's failure to comply with the RDA's request for records shall
constitute a breach of this Agreement,and the RDA,at its sole discretion,
may:(1)unilaterally terminate the Agreement;(2)avail itself of the remedies
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set forth under the Agreement;and/or (3)avail itself of any available
remedies at law or in equity.
C.A Concessionaire who fails to provide the public records to the RDA within
a reasonable tim e may be subject to penalties under s.119.10.
24.5 Civil Action.
A If a civil action is filed against a Co nce ssionaire to co mpel production of
public reco rd s relating to the RDA's contract for service s,the co urt shall
assess and award against the Concessionaire the reasonable costs of
enforcement,including reasonable attorneys'fees,if:
i.The co urt determines that the Concessionaire unlawfully refused to
com ply with the public reco rds request within a reasonable time;and
ii.At least 8 business days before filing the action,the plaintiff provided
written notice of the public reco rds request,including a statement
that the Concessionaire has not co mplied with the request,to the
RDA and to the Co ncessionaire.
B.A notice co mplies with subparagraph (ii)if it is sent to the RDA's custodian
of public records and to the Concessionaire at the Concessionaire's
address listed on its contract with the RDA or to the Concessionaire's
reg istered agent.Such notice s must be sent by co mmon carrier delivery
serv ice or by registered ,Global Express Guaranteed,or certified mail,with
postage or shipping paid by the sender and with evidence of delivery,which
m ay be in an electronic format.
C.A Concessionaire who co mplies with a public records request within 8
business days after the notice is sent is not liable for the reasonable costs
of enforcement.
24.6 If the Concess ionaire has questions regarding the application of Chapter 119,
Florida Statutes,to the Concessionaire's duty to provide public reco rds relating to
this Agreem ent,contact the custodian of public reco rds at:
MIAMI BEACH REDEVELOPMENT AGENCY
c/o CITY OF MIAMI BEACH
ATTENTION:RAFAEL E.GRANADO,CITY CLERK
1700 CONVENTION CENTER DRIVE
MIAMI BEACH,FLORIDA 33139
E-MAIL:RAFAELGRANADO@MIAMIBEACHFL.GOV
PHONE:305-673-7411
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SECTION 25.MISCELLANEOUS.
25.1 No Partnership.
Nothing contained in this Agreement shall constitute or be construed to be
or create a partnership or joint venture between the RDA and
Concessionaire.
25.2 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 RDA unless
appro ved by the Members of Miami Beach Redevelopment Agency except
where such authority has been expressly provided herein to the Executive
Director.
25.3 Com plete Agreem ent.
This Agreem ent,together w ith all exhibits inco rporated hereto,constitutes
all the understandings and agreem ents of w hatso ever nature or kind
existing betw een th e parties w ith respect to Conce ss ionaire's operations,
as co ntem plated herein.
25.4 Headings.
The section,subsection and paragraph headings contained herein are for
co nvenience of reference only and are not intended to define,limit,or
describe the scope or intent of any provision of this Agreement.
25.5 Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns.
25.6 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
detrim entally reduces the consideration that either party is to receive under
this Agreem ent or materially affects the continuing operation of this
Agreement.
25.7 Severability.
If any provision of this Agreement or any portion of such provision or the
applica tion thereof to any person or circumstance shall be held to be invalid
or unenfo rceable,or shall become a violation of any local,State,or Federal
law s,then the sam e as so applied shall no longer be a part of this
Agreem ent but the rem ainder of the Agreement,such pro visions and the
application thereo f to other pers ons or circumstances,shall not be affected
thereby and this Agreement shall be so modified.
24
D ocusign Envelope ID :B50A4 133-802C -465B-87FA-14B63726D A8F
25.8 Right of Entry.
The RDA,at the direction of the Executive Director,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 purpo se of examining the same for any
reason relating to the obligations of parties to this Agreement.
25.9 Not a Lease.
It is expressly unders tood and agreed th at 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 underta kings,provisions,agre ements,stipulations and
conditions of this Agreem ent.
Accordingly,Concessionaire hereby agrees and acknowledges that in
the event of term ination of this Agreement,whether due to a default
by Concessionaire or otherw ise,Concessionaire shall surrender and
yield unto the RDA the Concession Area,in accordance with
Subsection 13.8 hereof,and the RDA shall in no way be required to
evict and/or otherw ise remove Concessionaire from the Concession
Area as if this were a tenancy under Chapter 83,Florida Statutes,nor
shall Concessionaire be affo rded any other rights afforded to
nonresidential tenants pursuant to said Chapter (the parties having
herein expre ssly acknowledged that this Agreement is intended to be
a concession agreement and Is in no way intended to be a lease).
25.10
25.11
25.12
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 RDA.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 RDA
as to size,shape and placement of same.
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.
No Waiver.
25.12.1 It is mutually covenanted and agreed by and between the parties hereto
that the failure of the RDA 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
25
Docusign Envelope ID:B50A4133-802C-465B8-87FA-14B63726DA8F
25.13
remain in full force and effect.
25.12.2 A waiver of any term expressed herein shall not be implied by any
neglect of the RDA 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.
25.12.3 The receipt of any sum paid by Concessionaire to the RDA 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 RDA.
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 rem ed ies by reason of this Agreem ent.
SECTION 26.LIM ITATIO N OF LI ABILITY .
The RDA desires to enter into this Agreem ent placing the m anagem ent and
operation of the Concession Area in the hands of a private m anagem ent
entity only if so doing the RDA can place a lim it on its liability for any ca use
of action for breach of this Agreement,so that its liability for any such breach
never ex ce eds the sum of Ten Thousand ($10,000.00)Dollars .
Concessionaire hereby expresses its w illingness to enter into this
Agreem ent w ith a Ten Thousand ($10,000.00)Dollar lim itation on reco very
fo r any action fo r breach of contract.Acco rdingly,and in co nsideration of
the separate considera tion of Ten Thousand ($10,000.00)Dollars,the
receipt of which is hereby acknow ledged,the RDA shall not be liable to
Concessionaire for dam ages to Concessionaire in an amount in exce ss of
Ten Thousand ($10,000.00)Dollars,fo r any action for breach of co ntract
arising out of the perform ance or non-perform ance of any obligations
im po sed upo n the RDA by this Agre em ent.Nothing co ntained in this
paragraph or elsew here in this Agreem ent is in any way intended to be a
w aiver of lim itation placed upo n the RDA's or City of Miam i Beach's liability
as set forth in Florida Statutes,Section 768.28.
SECTION 27.VENUE.
This Agreem ent shall be deemed to have been made and shall be
construed and interp reted in acco rdance w ith the law s 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
RDA AND CONCESSIONAIRE HEREBY KNOWINGLY AND
26
Docusign Envelope ID:B50A4 133-802C-465B-87FA-14B6372 6DA8F
INTENTIONALLY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY
ACTION OR PROCEEDING THAT THE RDA 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 28.CONCESSIONAIRE'S COMPLIANCE WITH ANTI-HUMAN
TRAFFICKING LAWS.
Concessionaire agrees to comply with Section 787.06,Florida Statutes,as may be
amended from time to time,and has executed the Certification of Compliance with Anti-
Human Trafficking Laws,as required by Section 787.06(13),Florida Statutes,a copy of
which is attached hereto as Exhibit 28.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
27
Docusign Envelope ID:B50A4133-802C-465-87FA-14B63726DA8F
IN W ITNESS W HEREOF,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.
FOR RDA;
ATTEST:
MIAMI BEACH REDEVELOPMENT AGENCY,
a public body corporate politic
By:
G DocuSigned by:
Kafl,Gravalo
FOBBBOOBFB5E4CERafaelE.Granado,City Clerk
Date
Eric T.Carpenter/P.E.,Executlve Director
FOR CONCESSIONAIRE:
ATTEST:.e-
ling ieL
Print Name
/1/71/&04.
Date
28
COLLINS 1560,LLC,a Florida limited liability
company
APPROVED AS TO
FORM &LANGUAGE
8 FOR EXECUTION
9u@a-harr}T7
By:
aEnvelope ID:B50A4133-8020-4658-87FA-14B863728"
EXHIBIT 2.1
concession Area
COL NS AVENUE
29
jjf
D o cusig n E nvelo pe ID :B5 0A4 13 3-802C -465B -87F A -14 B6372 6D A 8F
EX H IB IT 3.2
Additional Requirements
The Concession Area shall be m aintained in a clean,neat and orderly appearance at all
times by the Conce ssionaire.The area of the sidewalk,curb and gutter im m ediately
adjace nt to the Conce ssion Area shall be cleared of all debris during hours of operation,
and again at the close of each business day,or as may otherw ise be determ ined by the
Executive Director.
The Concessionaire shall be respo nsible for cleaning the floor surface on which the
outdoor seating is loca ted at the close of each business day.In addition,the following
conditions shall apply:
a.Tables,chairs,um brellas and any other outdoor ca fe furniture shall be
m aintained in a clean,attract ive,and orderly appearance ,and shall be
m aintained and kept in good repair at all tim es;
b.All outdoor furniture shall be of high quality,design,materials,and
w orkmanship so as to ensure the safety and co nvenience of the public;
c.Only the outdoor cafe furn iture spe cifica lly shown on the approved site plan
shall be allow ed on the Concession Area;
d.All tables,chairs,umbrellas,and any other outdoor furniture shall be readily
rem ovable,and shall not be physica lly attached,chained,or in any other
manner affixed to any public struct ure,stree t furniture,signage,and/or other
public fixture,or to a curb and/or public right-o f-way;
e.The stacking or piling up of chairs shall be prohibited on the Co ncession Area;
f.At close of business,all tables,chairs and any other outdoor fu rn iture shall be
removed fro m the Co ncession Area and stored in a non-visible loca tion fro m
the public right-o f-w ay.Any exception to this requirement shall be at the sole
and absolute discretion of the Executive Director and/or his/her designee;
g.No storage of dishes,silverw are or other sim ilar restaurant equipm ent shall be
allow ed on the Conce ss ion Are a,or on any other portion of the public right-of-
w ay,or outside the stru ctural co nfines of the building in which the restaurant is
loca ted,during non-business hours ;
h.There shall be no live entertainment placed on the Concession Area;
i.No m enu board(s)shall be perm itted to be displayed on the Concession Area;
j.No food preparation,food storage,refrigeration appara tus or equipment,or fire
apparatus or equipm ent,shall be allowed on the Concession Area;
k.No food displays shall be perm itted on the Concession Area.No advertising
signs or business identification signs shall be perm itted,except that the
restaura nt name and/or its logo may be perm itted on um brellas but such logos
and/or lettering may not exce ed six inches in height;
I.Plants shall be prope rly m aintained.Distressed plants shall be promptly
replaced.Plant fertilizers w hich co ntain material that ca n stain the sidewalks
shall not be allow ed;and
30
D o cusign Envelope ID:B50A4 133-802C-465B-87FA-14B6372 6DA8F
m.The Executive Director 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 Executive Director 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
Executive Director 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 Executive Director 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 RDA for removal,relocation
and/or storage of Concessionaire's furniture shall be the responsibility of the
Concessionaire.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
31
Docusign Envelope ID:B50A4 133-802C-465B-87FA-14B6372 6DA8F
EXHIBIT 28
HUMAN TRAFFICKING AFFIDAVIT
In accordance with Section 787.06 (13),Florida Statutes,the undersigned,on behalt of
Concessionaire hereby attests under penalty of perjury that Concessionaire does not use
coercion for labor or services as defined in Section 787.06,Florida Statutes,entitled "HumanTrafficking'.
I understand that I am swearing or affirming under oath to the truthfulness of the claims made in
this affidavit and that the punishment for knowingly making a false statement includes fines and/orimprisonment.
The undersigned is authorized to execute this affidavit on behalf of Concessionaire.
CONCESSIONAIRE:
COLL INS 1560,LLC,a Florida limited liability company
/5if0 (lino he on±.1.2
@aress)llio]ea,PL,3 -/39
State of
County of
hlcoipo±
HiAi Dn
The foregoing instrument was acknowledged before me by means of physical presence or D
online notarization,this l_day ot poveNbr_,2024 by Banjac,Mrostav,as
President of Collins 1560,LLC,a Florida limited liability company,known to me to be the person
described herein,or who produced as identification,and
who did/did not take an oath.
NOTARY PUBLIC:
~die F.peg
(Signature)7
MARiE FE 'PAuk
(Print Name)
My commission opes:Jo y-7.202 &
jg},ME FLUOROELUI Pa
I rg'f.~Y:\llolllY Pllbllc.Slllt of ,ionc.•
i:'Ji/Commis sion t HM 410%t
d "?#f wcm.ties we 1,24 P
4 ended tNrugh National Moury Ans.
32
D ocusign Envelope ID:B50A4 133-802C-465B-87FA-14B6372 6DA8F
RESOLUTION NO 680-2022
A RESOLUTION OF THE CHAIRPERSON AND MEMBERS OF THE MIAMI
BEACH REDEVELOPMENT AGENCY (RDA),ACCEPTING THE
RECOMMENDATION OF THE CITY'S FINANCE AND ECONOMIC
RESILIENCY COMMITTEE,AND APPROVING,IN SUBSTANTIAL FORM,A
LEASE AGREEMENT BETWEEN THE RDA (LANDLORD)AND COLLINS
1560,LLC D/BIA LIME TREE CAFE (TENANT),FOR USE OF
APPROXIMATELY 2,697 SQUARE FEET OF GROUND FLOOR RETAIL
SPACE AT THE ANCHOR SHOPS AND GARAGE,AS AN UPSCALE
FRENCH-ITALIAN FUSION CAFE,LOCATED AT 1560 COLLINS AVE,
SUITE NOS.1-2 (PREMISES),FOR A PERIOD OF NINE (9)YEARS AND
TWO-HUNDRED AND SEVENTY-TWO (272)DAYS;AND FURTHER
AUTHORIZING THE EXECUTIVE DIRECTOR TO FINALIZE AND EXECUTE
THE LEASE AGREEMENT.
WHEREAS,the Miami Beach Redevelopment Agency (the "RDA")is a public body
corporate and politic,which owns that certain project commonly known as the "Anchor
Shops",containing a garage and ground floor retail spaces located in the area bounded by
Washington Avenue and Collins Avenue,in the proximity of 16 Street;and
WHEREAS,pursuant to a Professional Service Agreement with the City of Miami
Beach (the "City"),CBRE,Inc.is authorized to provide real estate brokerage services for the
City,and served as the listing agent for the ground floor retail space at the Anchor Shops,
located at 1560 Collins Avenue,Suites 1-2 (Premises);and
WHEREAS,as a prospective tenant for the Premises,CBRE has identified Collins
1560,LLC,a Florida limited liability company (Tenant);and
WHEREAS,as part of lease negotiations,the Tenant provided a sample menu,and
Letter of Intent (LOI),which are set forth as exhibits to the Redevelopment Agency
Memorandum accompanying this Resolution;and
WHEREAS,the Tenant executed a Letter of Intent containing the essential business
terms and conditions outlined below:
Premises:1560 Collins Avenue,Suite 1-2,Miami Beach,Florida 33139;
Size:Approximately 2,967 rentable square feet;
Term:Nine (9)years and Two-Hundred Seventy-Two (272)days;
Renewal Options:None;
Lease Commencement Date,Rent Commencement Date,and Rent/Operating
Expense Abatement Period:
Lease Commencement Date will be the date.Landlord delivers the Premises to
D o cusig n Envelope ID :B50A4 133-802C -465B-87FA -14B6372 6D A8F
Tenant;
Rent Commencement Date will be the Lease Commencement Date;
Rent and Operating Expense Abatement period:Months 2-7 of the Lease Term;
Rent Abatement period:Months 8-18 of the Lease Term.Tenant shall be required
to pay all Operating Expenses during the Rent Abatement period;
M in im u m B ase R ent:$75.00 per rentable square foot,plus applicable sales tax;
$202,275.00 per year;$16,856.25 per month;
Percentag e Rent:Six percent (6%)over the natural breakpoint of $3,371,250.00 for
first Lease Year,and resets again each subsequent Lease Year,based upon the Base
Rent for each subsequent Lease Year;
A n n ual R ent In c reases:The Minimum Base Rental rate shall be increased by three
percent (3%)annually;
Lease B asis :Tenant shall pay its pro rata share of Real Property Taxes,Property
Insurance and Common Area Maintenance for the Project.Tenant's pro rata share
shall be determined based upon the ratio of Premises'floor area to the total floor area
of all the retail space in the project;current estimate for NNN costs are $14.00 per
square foot;
P rep aid R ent:First month's rent,including sales tax,in the amount of $21,302.93;
Sec urity D e p o sit:The amount of $40,005.50 shall be due upon execution of the
Lease documents,in addition to first month's rent;
G u aranto r:Full personal guaranty shall be required by all owners and spouses;
U tlll ties:Tenant shall be responsible for the cost of its utilities (electricity,trash
removal,and water and sewer expense);
Construction Allowance:Tenant shall accept the premises in "AS-IS"condition
and shall perform any necessary work at its sole cost and expense,including the
installation of DERM-approved grease traps;and
U se :Tenant shall use the Leased Premises solely for the purpose of operating an
upscale French Italian fusion cafe;and will be permitted to sell liquor for on-premises
consumption so long as Tenant obtains all the necessary licenses and approvals from
the governing municipalities;provided that the primary use of the Premises cannot
be a lounge bar or primarily serve Cuban or Latin cuisine;and
W H E R EA S ,in the event,the Tenant desires to use the exterior area,adjacent to a
portion of the Premises,Tenant shall be required to execute a Concession Agreement and
the square footage allowable shall be subject to approval by the Executive Director,as well
Docusign Envelope ID:B50A4 133-802C-465B-87FA-14B63726DA8F
as all other governmental City approvals;with the additional square footage being subject
to payment of a Concession Fee,in the amount of $30.00 per square foot,with 3%annual
increases during the Term,plus applicable sales tax;and
WHEREAS,the Letter of Intent was submitted at the October 31,2022 Finance and
Economic Resiliency Committee (FERC)meeting and the FERC recommended in favor of
approving a new lease with Collins 1560,LLC based upon the terms and conditions outlined
herein;and
WHEREAS,per the Agreement with CBRE,the City will be obligated to pay a leasing
commission equal to four percent (4%)of the gross aggregate base rent over the initial five
years of the lease;therefore,based on the initial five-year gross aggregate base rent of
$1,073,905.45,the total commission owed CBRE will be $42,956.22;and
WHEREAS,the City will be paying 50%of the commission ($21,478.11)upon lease
execution and 50%($21,478.11)upon occupancy of the Premise and payment of first
month's rent;and
WHEREAS,based upon the competitive rental rate and the favorable lease terms,
the Executive Director recommends.accepting the recommendation of the FERC and
approving,in substantial form,the proposed new lease agreement,incorporated herein by
reference and attached to the Redevelopment Agency Memorandum accompanying this
Resolution as Composite Exhibit "E".
NOW,THEREFORE,BE IT DULY RESOLVED BY THE CHAIRPERSON AND
MEMBERS OF THE MIAMI BEACH REDEVELOPMENT AGENCY,that the Chairperson
and Members of the Miami Beach Redevelopment Agency hereby accept the
recommendation of the City's Finance and Economic Resiliency Committee,and approve,
in substantial form,a Lease agreement between the Miami Beach Redevelopment Agency
(RDA)(Landlord)and Collins 1560,LLC (Tenant),for use of approximately 2,697 square
feet of ground floor retail space at the Anchor Shops and Garage,as a un upscale French-
Italian fusion cafe,located at 1560 Collins Ave,Suites Nos.1-2 (Premises),for a term of
nine (9)years and two-hundred and seventy-two (272)days;and further authorize the
Executive Director to finalize and execute the lease agreement.
PASSED and ADOPTED this /8 day or Deepuber 2022.
Dan Gelber,Chairperson
A PPRO V ED A S TOFORM&LANGUAGE+'h (]-2
Re de ve lo pme n t Age8g},,-Dat e
Ge ne ra l cou,D[]