C7H-Approve Concession Agreement w- Miami Beach Film Society Inc -Cinematheque-COMMISSION ITEM SUMMARY
Condensed Title:
Resolution Approving And Authorizing The Clerk To Execute A Concession Agreement
Between The And The Miami Beach Inc, d/b/a Miami Beach Cinematheque
Not-For-Profit 501 (c)3 For Of The Outdoor
South Of The e Theatre For An Outdoor Cafe,
Issue:
On December 9, 2009, the Mayor and City Commission adopted Resolution 2009-27282, approving a Lease
Agreement between the City and Cinematheque for approximately square feet of ground floor space in
the building known as Historic City Hall, the City-owned property located at 1130 Washington Avenue, 1st
Floor South, and Miami Beach, Florida,
The lease Agreement's term is for three years, commencing on March 1, 2010, and terminating on
2013, with two additional three (3) year renewal at the sole discretion,
and immediately south of the Leased Premises is outdoor space and such space is not
as of the leased Premises.
desires to use the adjacent outdoor courtyard space for a cafe with eight (8) tables and sixteen
chairs that would during the hours Cinematheque operates the cinema.
Cinematheque's annual gross revenues from the cafe are approximately $55,560. Based upon this
assumption, at 1 of gross, the annual concession fee would be $8,348, It is recommended that the annual
minimum guarantee fee be set at $7,000,00 in 12 equal monthly installments of $583.33. After the
submission of an annual end-of-the-year report Cinematheque, Cinematheque will be responsible to pay
the difference between the minimum guaranteed fee and 15% of its reported gross revenues.
At its September
recomme
2011 meeting, the Finance & Citywide Committee discussed the
a concession to run coterminous with the Lease
Financial Information:
Source of
F1..mds:
Financial
KGB/MAS/AP/MM
T:\AGENDA\20·12\10·24·12\Cinernatheque Concess,on SUM (10<3·1
Account
do ex
and
AGENDA ITEM ---c---c~-
OATE ___;;_~.......;..__,__
176
Conier Drive. Miomi Florida l:l9,
Mayor Matti Bower and
Interim
OF MAYOR AND
MIAMI BEACH, FlORIDA,
FORM ATTACHED HERETO), A ................ IL
WITH MIAMI BEACH FILM SOCIETY,
CINEMATHEQUE TO
CAFE THE AREA
meeting, the the Administration's recommendation that
process of developing on supply demand
and occupancy at Historic Hall, and
leases and/or extensions) for use of ai
handled as it is in the private sector and not through a competitive bid
ensuring market are negotiated operating
!t'a,::.t'::> would continue to require City approval Code.
177
for the
any future
City Hall
with the
included. All
Commission Memaandum-Cinemateque Outdoor Cafe
October 24, 2012
Page 2of3
On December 9, 2009, the Mayor and City Commission adopted Resolution No. 2009-27282,
approving the Lease Agreement between the City and Cinematheque for the approximately
2,523 square feet of ground floor space in the building known as Historic City Hall, the City-
owned property located at 1130 Washington Avenue, 151 Floor South, Miami Beach, Florida (the
"Leased Premises") and waiving the competitive bidding and approval requirements by 5n1h
vote of the Mayor and City Commission, upon a finding by the Mayor and City Commission that
the public interest would be served by waiving such conditions.
The Lease Agreement is for an initial term of three (3) years, commencing on March 1, 2010,
and terminating on February 28, 2013, with two (2) additional three (3) year renewal terms. The
Tenant is a not-for-profit 501 (c)3 organization.
The Leased Premises include two large doors that open out onto steps and an outdoor
courtyard to the south of the Historic City Hall Building. The Leased Premises do not include
the outdoor space. Cinematheque has requested use of the outdoor courtyard space, adjacent
to the Leased Premises, to place eight tables and 16 chairs immediately outside of the south
door for the purpose of serving the public and Cinematheque's patron's light fare, including
without limitation, baked goods, specialty chocolates, coffee, tea and non-alcoholic beverages.
A proposed site plan for the tables and chairs is attached and labeled Attachment 1.
ANALYSIS
In order to facilitate use of the outdoor area by Cinematheque and be consisent with other
similar arrangements, a separate Concession Agreement is the recommended method for
governing the use of the space. Said Concession Agreement is not subject to the restrictions of
the March 14, 2012 Exclusive Non-Alcoholic Beverage Agreement between the City of Miami
Beach and Coca-Cola North America, a division of the Coca-Cola Company. Staff's proposed
terms are outined below, including the proposed concession fee of the greater of $7,000 per
year (the "Minimum Guarantee", or "MG"), or 15 percent (15%) of Cinematheque's gross
revenues ("Percentage of Gross" or "PG"). Fifteen percent (15%) of gross is comparable to
what other food and beverage concessioners pay for comparable, limited food concessions in
the City.
For purposes of determining the Minimum Guarantee, Staff reviewed Cinematheque's Projected
Outdoor Cafe Revenue. Cinematheque's' Projected Outdoor Cafe Revenues, Use Assumption,
Financial Assumtions, and Sample Menu items are outlined in the Miami Beach Cinematheque
Projected Outdoor Cafe Revenue Sheet, labelled Attachment 2. Because it is reasonable to
expect that there could be up to 100 bad weather days, Staff believes that Cinematheque's
gross revenues will be closer to $55,650, or $210 x 265 days.
Based upon this assumption, at 15 percent of gross, the annual concession fee would be
$8,348. It is therefore recommended that the annual minimum guarantee fee be set at $7,000,
payable in 12 equal monthly installments of $583.33. After the submission of an annual end of
the year report by the Cinematheque, the Cinematheque will be responsible to pay the
difference between the minimum guaranteed fee and 15% of its reported gross revenues.
Concession Terms
At the September 26, 2011 F&CPC meeting, Staff proposed the Concession Agreement terms
as set forth below. The Cinemateque requested a waiver of the security deposit requirement in
light of the fact that it posted a security deposit in the amount of $8,410.00 for the Leased
Premises under the Lease Agreement.
178
Commission Memorandum -Cim?matemue Outdoor Cafe
October 24, 2012
3 of3
The F&CPC recommended terms set forth below which include the approval of the waiver of
the security deposit requirement Cinematheque subsequently requested the right to terminate
the Concession Agreement upon thirty (30) days written notice. agreed subject to either
party having the right to terminate upon thirty (30) days written notice to the other party.
CONCESSIONAIRE: Miami Beach Film Society, Inc. d/b/a Miami Beach Cinematheque
LANDLORD: City of Miami
CONCESSION AREA:
TERM:
HOURS OF
USES:
PRICING:
CONCLUSION
Courtyard Space adjacent to Tenant's Demised on the South
side of the Historic City Hall Building, as depicted on Attachment 1
Effective on December 1, 2012 and concurrent with terms of
Agreement, the initial term will end on February 2013. Provided
Concessionaire is is in good standing and the Lease Agreement for the
adjacent space is in full force and effect the Concession Agreement may
be extended for two (2) additional three (3) year renewal terms. The
Concession Agreement may be terminated by either party upon thirty (30)
days written notice to other party.
The of Minimum Guaranteed fee in the amount of $7,000
annually, payable monthly in twelve equal monthly installments of
$583.33 per month, or Fifteen Percent (15°/o) of the Outdoor Cafe's Gross
Profits
The outdoor
business hours
shall be open only during Cinematheque's regular
Only coffee, tea, soft drinks, baked goods and specialty chocolates shall
be served. No alcoholic beverages will served
Maximum of seating for sixteen (16) people, maximum of eight (8) tables
All drinks and food items shall be priced between Three Do!lars ($3.00)
and Five Dollars ($5.00) with an average assumed to be '"'"'"'"",.,
Dollars ($7.00)
The Administration recommends in favor of finalizing a Concession Agreement with
Cinematheque for use of City-owned outdoor space directly adjacent to the South of the
Cinematheque's Leased Premises, said Concession Agreement to run concurrent with the
Lease, incorporating the previously referenced financial terms and operational conditions.
179
RESOLUTION
adopted Resolution No.
square of
1130 Washington Avenue, Miami ~-<a,::ol"n
an term three which
2013, with two additional three (3) year r'"'"""""''"
large that
courtyard immediately to Hal!, but the ~..ca;)cu
outdoor and
and __ day of _____ 201
T:\AGENDA\2012\10~24-12\Cinematheque Concession RESO (10-9-12).docx
180
the
City-owned building
(the
ATIACHMENT1
SIDEWAU<
£ EXI'ENI'OFUMBREL
. . --------------.J----. I I I I
I ®.. (8]... II (]ll].. []fji].. I
I ::::::i : { ;::::~ : I I . ~::::; : . ::~:::: : 1· .... ... ... . ..
I~ ~ll~ ~L .. 1D-•..n0~11~0~1 L ________ JL ________ J
181
ATTACHMENT 2
Miami Beach Cinematheque Projected Outdoor Cafe Revenue
Use assumptions:
• The cafe wfll be open during MBC's regular business hours
• No alcoholic beverages will be served in the cafe
• The cafe would serve coffee, tea, soft drinks, baked goods and specialty
chocolates
• The cafe would have eight small tables with seating for 16 people
• All drinks and food Items would be priced at between $3 and $5 with an
average sale assumed to be $7
• The cafe will primarily function as an amenity for MBC patrons providing
light snacks pre and post films and during gallery visits but will be
available to street traffic as well
Financial assumptions:
• 15 patrons per day between noon and 6pm @$7 per sale = $1 05
15 patrons per day between 6 and 10 pm @ $7 per sale = $1 05
Total dally Income • $210
• $210 per day X 365 days = $76,650 yearly Income
• (not including bad weather consideration)
Sample menu items:
• Nespresso expresso $3
• Nespesso cappuccino, or cafe au lait $4
• Nespesso teas $3
• Various soft drinks $3
• Plain croissants $4
• Chocolate or almond croissants $5
• Brownies $4
• Pound cake $4
• Large cookies $3
• Chocolate truffles $5
182
Miami Beach
Film SOCi,ety,. Inc.
' ',
Concession
Agreement
183
SECTION
1.
2.
2.1
3.
3.1
3.3
4.
4.1
4.2
4.3
4.4
5.
6.
7.
8.
9.
10.
10.1
10.2
10.3
10.4
10.5
10.6
11.
12.
12.4
12.5
12.6
13.
13.1
13.2
13.3
13.4
13.5
13.6
13.7
INDEX
TITLE PAGE
TERM ......................................................................................................................................... 5
:::(:~~~~~~~~~ : :::::: ::::: : :: :::: :::::::~:::::~::.:::::: :: :: :::: :: : : : J
Food and Beverage Service ........................................................................................ 6
City Business Tax Receipts ......................................................................................... 7
CONCESSION FEES ................................................................................................................ ?
Minimum Guarantee (MG) ........... ~,.;~ .......................................................................... ?
Percentage of Gross (PG) vs. M$; .............................................. ; .............................. 7
Interest for Late Payment ..... :· ....................................................................................... 8
Sales and Use Tax ................... :·:~ ••. , ............................................................................ 8
MAINTENANCE AND EXAMINATION OF RI;C08QS ........................................................... 8
INSPECTION AND AUDIT ................................. ~~:.~.~~': ............................................................... 8
TAXES, ASSESSMENTS, AND UTILITIES ......... ;~; • ., .............................................................. 9
EMPLOYEES AND INDEPENDENt CONTRACTOR.$ .......................................................... 9
HOURS OF OPERATION ................... :.~~~:;;.., ........................................................................... 10
IMPROVEMENT, MAINTENANCE, REPAlft;~ OPERATION ........................................... 10
~:r::=p~~i~~·:::::::::::~:::::~:::::::::::::::::~::~::::::::::::::::::::::::::::::::::::::::::::::::::::::::~~
MQin~nance/Repair ........... ;.~ .................................................................................... 12
· .No Dangerous Materials ............................................................................................ 12
·Security ...................................................................................................................... 13
Inspection ........ , .......................................................................................................... 13
~~~~~~T~~.::~::~:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::~!
· ·. Subrogat1Qn ................................................................................................................ 15
Force Majeure ............................................................................................................. 15
Waiver of LoS$ ffom Hazards ................................................................................... 15
DEFAULT ANO. TERMlNATION ............................................................................................. 15
Bank~y .......... ::: ..................................................................................................... 15
DefauiNn Payment .................................................................................................... 16
Non-Mo,netary Default ............................................................................................... 16
City's ~medies for Concessionaire's Default ......................................................... 16
Concessionaire's Remedies for City's Default ......................................................... 17
Tennination for Convenience .................................................................................... 17
Surrender of Concession Area ................................................................................. 17
2
184
SECTION
14.
15.
16.
16.2
16.3
17.
18.
19.
20.
20.1
20.2
20.3
21.
21.1
21.2
21.3
21.4
21.5
21.6
21.7
21.8
21.9
21.10
21.11
21.12
21.13
22.
23.
TITLE PAGE
PERFORMANCE BOND ORAL TERNATE SECURITY ....................................................... 17
ASSIGNMENT ......................................................................................................................... 18
SPECIAL EVENTS I SPONSORSHIPS ................................................................................. 18
City Special Events .................................................................................................... 18
Sponsorships ............................................................................................................. 19
NO IMPROPER USE .............................................................. · ................................................ 19
PRICE SCHEDULES .............................................................................................................. 20
NOTICES .................................................................... : .............. .".-............................................ 20
LAWS .............................................................................................. ;~ ........................................ 21
Compliance ............................................................................. ! .. , ............................... 21
Equal Employment Opportunity ...••. : ... : ................................... ;~··············· ................. 21
No Discrimination ....................... ~.~ ............................................. .' .. , ............................ 21
MISCELLANEOUS .................................................................................................................. 21
No Partnership ...................................................................................... :·; ................... 21
Modifications ................................................. ~ ............................................................ 21
Complete Agreement ........................ : .......... : ............................................................ 21
~~~~~~9~if~~t:::::::::::::::::::~:::::::::::::::::::::::::::::~:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::~~
Clauses .............................. :: . ."~ ................................................................................... 22
Severability ................. ~ ........................................... ~ ................................................... 22
.~J~:::::::::··:+:.t::·:::·:::J~:·=:·:~::::::::::::::::::::::::::::::::•••••••••:::•:::•:::::::~~
No Third Party·Ben.eficiary .......• ~~ .............................................................................. 23
LIMITATION OF LIABILITY; .. : ................................................................................................. 23
VENUE ............... ; .................... : ....... ; ........................................................................................ 24
EXHIBtTS .
EMhibit 2.1 ......... ····· ..................................................................................................... 25
Eld'libit 3.1.1 ................................................................................................................ 26
3
185
CONCESSION AGREEMENT BETWEEN
CITY OF MIAMI BEACH AND
MIAMI BEACH FILM SOCIETY, INC.
FOR MANAGEMENT AND OPERATION OF A FOOD & BEVERAGE CONCESSION
IN THE COURTYARD SPACE ADJACENT TO TENANT'S DEMISED PREMISES
THIS AGREEMENT made the day of----___, 2012, between the
(hereinafter called
Drive, Miami Beach,
(d/b/a Miami Beach
place of business at
(hereinafter called
CITY OF MIAMI BEACH, a municipal corporation of the
"City"), having its principal address at 1700 Conve
Florida, 33139, and MIAMI BEACH FILM SOCI
Cinematheque), a Florida not-for-profit corporation,
1130 Washington Avenue, 1st Floor South, Miami
"Concessionaire").
WHEREAS, on December 9,
Resolution No. 2009-27282, app
Concessionaire for the a"'"'r·nvl;rY'I
building known as Historic City Hall,
Avenue, 151 Floor
he City Commission adopted
reement between the City and
ground floor space in the
at 1130 Washington
~r,:omiC:!~~"); and
WHEREAS,th
on March 1, 201
year renewal terms,
·nitial term of three (3) years, commencing
28, 2013, with two (2) additional three (3)
adjacent
purpose of
without lim
beverages; and
ises i large doors that open out onto steps and
to the south of Historic City Hall, but the Leased
space; and
·re has requested use of the outdoor courtyard space,
to place eight (8) tables and sixteen (16) chairs for the
public and Concessionaire's patron's light fare, including
... v .. , .... ~. specialty chocolates, coffee, tea, and non-alcoholic
WHEREAS, at the September 26, 2011 Finance and Citywide Projects Committee
meeting, the Committee recommended entering into a Concession Agreement with
Concessionaire for use of the outdoor City-owned space; 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
4
186
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
"Commencement Date"), and terminate
December, 2012 (the
day of February, 2013
(the Term).
For purposes of this Agreement,
certain period commencing on
28th day of February.
It is the intent of the parties hereto of this Agreement is to run
Agreement by and between
Film Society, Inc., dated
concurrent with the that
the City of Miami
December 9, 2009
n Agreement, the Lease
to be of any legal force and
rQn.~\J.r:•r, then this Concession Agreement
shall be null and void and of no further
is standing and free from default(s) under Section
upon written notice from Tenant, which notice shall be
City Manager no earlier than one hundred twenty (120)
case no later than sixty (60) days prior to the expiration of
, this Agreement may be extended for two (2) additional three
(3) newal terms. Any extension, if approved, shall be memorialized in
writing and signed by the parties hereto (with the City hereby designating the
City Manager as the individual authorized to execute such extensions on its
behalf).
In the event that the City Manager determines, in his sole discretion, not to
extend or renew this Agreement (upon expiration of the initial term or any
renewal term), the City Manager shall notify Tenant of same in writing, which
notice shall be provided to Tenant within fifteen (15) business days of the
City Manager's receipt of Tenant's written notice.
5
187
SECTION 2. CONCESSION AREA
The City hereby grants to Concessionaire the right, during the Term herein, to maintain,
manage and operate a food and beverage concession in the following Concession Area:
2.1 Concession Area:
Outdoor courtyard space adjacent to and south of the Cinematheque
Theatre, located at 1130 Washington Avenue, 1st Floor South, Miami Beach,
Florida, and as further delineated in Exhibit 2.1 hereto.
Concessionaire shall have the right to place a
with seating for sixteen (16) people within
approval by the City and compliance with
approved number of tables and chairs,
within the Concession Area, is also
material change in the approved
permitted without prior written
which consent (if given at all)
sole and reasonable judgment
of eight (8) tables
on Area, subject to
ADA requirements. The
are to be situated
2.1 hereto. No
2.1) shall be
his designee,
esignee's)
2.2 Notwithstanding the
2.1, Concessionaire
Area shall be open
choosing to enjoy Co
3.1
of
the following kind(s) of businesses and
Concession Area, all at its sole expense
all prepare, or cause to be prepared, for sale within
ncession Area, such pre-cooked, prepared, and/or
foods and such non-alcoholic beverages as those set
ibit 3.1.1. The City Manager hereby approves the types of
beverages, and prices for same (as those set forth in Exhibit
. Any amendments to Exhibit 3.1.1, whether as to type of food
d beverages to be sold, or as to changes in prices for same, must
be approved in writing by the City Manager or his designee prior to
such changes being implemented within the Concession Area, and a
new updated Exhibit 3.1.1 will be incorporated into this Agreement.
3.1.2 All food and beverages sold within the Concession Area will be
properly prepared and served in compliance with all applicable health
and sanitary standards, laws and regulations.
6
188
3.3
4.2
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
3.1.5
3.1.6
sanitary manner.
At least one supervisory employee
Management Certification iss
Department in Florida. In additi
licensed by the Florida Depa
of Hotels and o ..... ,. ..... ,
and/or as may furthe
corresponding agen
oss1ess a Food Service
. County Public Health
on Area must be
·'"'"'' ... '""' on, Division
of Agriculture,
and/or by
speakers, or any other device
nd the Concession Area.
and responsibility, any
for the proposed use(s)
City law (as same may be
ess tax receipts shall be obtained for each
onc;eslslor Area.
the City's granting of the rights provided in this
ionaire shall pay to the City a Minimum Guaranteed
(MG) of Seven Thousand Dollars ($7,000.00)
ly installments of Five Hundred Eighty Three and 33/1 00
payable on the 1st day of every month of each contract
Term.
For each contract year during the Term, in the event that the amount equal to
fifteen (15%) percent of Concessionaire's gross receipts (PG) exceeds the
MG amount, then Concessionaire shall also pay to the City the difference
between the PG amount and the MG amount, which payment shall be
received no later than sixty (60) days after the end of each contract year.
The term "gross receipts" is understood to mean all income, whether
collected or accrued, derived by Concessionaire under this Agreement, or
any licensee, sub-concessionaire, or sub-tenant, as Concessionaire, from all
business conducted upon or from the Concession Area, including but not
7
189
limited to receipts from sale of food and beverages. The term "gross receipts"
shall exclude amounts of any Federal, State, or City sales tax, or other tax,
governmental imposition, assessment, charge or expense of any kind,
collected by the Concessionaire from customers and required by law to be
remitted to the taxing or other governmental authority.
4.3 Interest for Late Payment.
4.4
Any payment which Concessionaire is required to make to the City which is
not paid on or before the respective date provided in this Agreement shall
be subject to interest at the rate of twelve (12 nt per annum, or the
maximum amount allowable under Florida is greater, from the
due date of payment until such time as ctually received by the
City.
Sales and Use Tax.
It is also understood that the
be added to Concessionaire's
said payments. It is the City's ·
Concessionaire as net of such
Use Tax shall
as part of
due from
financial records, on an
reement. Systems and
tvc:.,.,..,., of internal controls; all
ce accepted accounting
g, and audit by the City Manager or his
, during normal hours of operation.
its principal office, currently located at
, if moved to another location, all such
sole expense, to a location in Miami Beach,
of request for inspection from the City. Such records and
, a breakdown of gross receipts, expenses, and profit
and all maintain accurate receipt-printing cash registers
(or a I Area which will record and show the payment for
every sa ed in such Area. Such other records shall be maintained
as would be dent CPA in order to audit a statement of annual gross
receipts and statement pursuant to generally accepted accounting
principles. records shall also be maintained for a period of three (3) years
following expiration other termination) of this Agreement (regardless of whether such
termination results from the expiration of the Term or for any other reason).
Concessionaire shall submit to the City Finance Department's Revenue Manager, within
sixty (60) days of the end of each contract year, an annual statement of gross receipts, in a
form consistent with generally accepted accounting principles. Additionally, such statement
shall be audited by an independent CPA.
SECTION 6. INSPECTION AND AUDIT.
The City Manager or his designee shall be entitled to audit Concessionaire's records as
often as he/she deems necessary throughout the Term, and three (3) times within the three
8
190
(3) year period following expiration (or other termination) of this Agreement. The City shall
be responsible for paying all costs associated with such audit(s), unless the audit(s) reveals
a deficiency of five (5%) percent or more in Concessionaire's statement of gross receipts
for any year or years audited, in which case Concessionaire shall pay to the City, within
thirty (30) days of the City deeming the audit final, the cost of the audit and a sum equal to
the amount of the deficiency revealed by the audit, plus interest. These audits are in
addition to periodic City audits of Resort Tax collections and payments (which are
performed separately).
It is Concessionaire's intent to stay informed of comments
regarding Concessionaire's performance under the .u.n•r.c..c.rn
the end of each contract year, Concessionaire an
Concessionaire's performance under the Agreement
meeting, Concessionaire and the City may discuss
any other issues regarding Concessionaire's
Nothing contained within this Section shall
collection purposes.
estions by the City
in thirty (30) days after
may meet to review
contract year. At the
maintenance and
Tax
all taxes and assessments of
v~i:)vU, and/or Resort Taxes)
n Area including, without
and/or assessed against
Agreement, or by reason of
of Concessionaire upon or in connection
se, to contest the amount or validity, in
and/or by appropriate proceedings, which
iligently and continuously, in good faith. Concessionaire
extent it is contesting the imposition of same in a
provided, however, if, as a result of such contest,
n.c.t'onrY•.c. due, Concessionaire shall be responsible for such
to payment of the contested tax (if so ordered).
responsible for and shall promptly pay when due all charges
to the Concession Area (including all hook-up fees and impact
, water, sewer, cable, telephone, trash collection, etc.
In addition to other rights and remedies hereinafter reserved to the City, upon the failure of
Concessionaire to pay for such utility services when due, the City may elect to pay same
and Concessionaire shall promptly reimburse the City upon demand. In no event shall the
City be liable, whether to Concessionaire or to third parties, for an interruption or failure in
the supply of any utilities services to the Concession Area.
SECTION 8. EMPLOYEES AND INDEPENDENT CONTRACTORS.
8.1 Concessionaire shall select, train, employ (or otherwise hire or retain) such
9
191
8.2
number of employees and/or independent contractors as is necessary and
appropriate for Concessionaire to satisfy its responsibilities hereunder, and
as necessary to maintain the same levels of service as exist in similar first
class concession facilities and operations. Concessionaire's employees
and/or independent contractors shall be employees and/or independent
contractors of Concessionaire and not of the City, and Concessionaire shall
be solely responsible for their supervision and daily direction and control.
Concessionaire shall be solely responsible for, and have the sole authority to
hire, terminate and discipline any and all pe and/or contractors
employed or retained by Concessionaire.
Concessionaire and its employees and/or i
identification badges and uniforms !::lnr'\rr.m
operation. All employees and/or i
the graces of personal grooming.
its operation who are neat,
a professional and courteous
and/or retained by Concessio
felony (excluding traffic offenses).
Concessionaire shall
the concession ope
contractors shall wear
during all hours of
shall observe all
letowork in
ager or managers overseeing
The Concession
regular business h
ng Cinematheque Theatre's
condition.
Concession
thereon). This
garbage and
generated by its
10.1 Improvements.
the Concession Area in its "AS IS" "WHERE IS"
sole responsibility and expense for maintenance of the
furniture, fixtures, equipment and any other improvements
without limitation, daily (i.e. 365 days) removal of litter,
onaire shall also be responsible for all garbage disposal
1 0.1.1 Any improvements to the Concession Area shall be at
Concessionaire's sole expense and responsibility; provided, however,
that any plans for such improvements shall be submitted to the City
Manager or his designee for prior written approval. Upon termination
and/or expiration of this Agreement, all personal property and non-
permanent trade fixtures may be removed by Concessionaire without
causing damage to the Concession Area.
10
192
10.1.2
10.2
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 1 0.1.2.
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
prosecuted to completion and acco
licensed, reputable contractors
Manager or his designee. In add
the City Manager or his des
proprietary capacity), C
for obtaining, at its sol
licenses, and/or regu
which may include,
approvals of other requ
required for ction
shall be diligently
d through the use of
ptable to the City
the prior approval of
of the City, in a
responsible
all permits,
approvals
use and/or the
agencies having jurisdiction)
ments.
upon termination and/or
ire shall immediately
to the Concession Area
expense and responsibility.
shall also restore the Concession Area
to the improvements being made,
pted.
require for submission of plans and the use of
shall not apply to improvements (which term, for
this subsection 1 0.1.3 only, shall also include
!SJ"-'IJ.:to:•a ry for Concessionaire's ongoing maintenance
ir Concession Area) which do not exceed Five
($500.00) Dollars; provided that the work is not structural,
further that it is permitted by applicable law.
V'O""'"""'• to litter, garbage and debris removal, Concessionaire shall
provide, at its sole expense, a sufficient number of trash receptacles for its
own use and for the use of its patrons. Determination of the "number" of
receptacles shall at all times be within the City Manager or his 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,
11
193
generated by, or as a result of Concessionaire's operations, into any of the
Historic City Hall trash receptacles shall be strictly prohibited.
10.3 Maintenance/Repair.
10.3.1
10.3.2
10.3.3
10.4
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 expe Concessionaire.
All damage or injury of any kind to the
improvements and/or FFE thereo
willful misconduct or gross negl
obligation of Concessionaire,
replaced promptly by Con
satisfaction of the City
on Area, and/or to any
damage caused by the
ity, shall be the sole
, restored and/or
nse, to the
manner.
rs, restoration and/or
City, at the expense of
nd expenses incurred by the
by the City and shall be paid by
1 0) days after receipt of a bill or statement
the City may elect to make such repairs,
the City shall have no obligation
cessionaire's sole obligation to ensure that any
·rs and/or improvements made by Concessionaire to
ce~•s•c1n Area comply with all applicable permitting, building
life safety codes of governmental authorities having
onaire agrees not to use or permit in the Concession Area the
storage and/or use of gasoline, fuel oils, diesel, illuminating oils, oil lamps,
combustible powered electricity producing generators, turpentine, benzene,
naphtha, propane, natural gas, or other similar substances, combustible
materials, or explosives of any kind, or any substance or thing prohibited in
the standard policies of fire insurance companies in the State of Florida. Any
such substances or materials found within the Concession Area shall be
immediately removed.
In consideration of a separate and specific consideration of Ten ($10.00)
Dollars and other good and valuable consideration, the receipt and
12
194
10.5
10.6
sufficiency of which are hereby acknowledged, Concessionaire shall
indemnify and hold the City harmless from any loss, damage, cost, or
expense ofthe 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 1 0.4 shall survive the termination or rlier expiration of this
Agreement.
Security.
Concessionaire shall be responsible
security measures as may be req
such reasonable
ion Area and
shall the City
loss of any
rty of
, and/or
any improvements and FFE
be responsible for any stolen
improvements; or any
Concessionaire's employees,
any other third parties.
Inspection.
Concessionaire ag
may be inspected at
or his by
agency
(and operations thereon)
n by the City Manager
or State officer, or other
ju for inspection of such
waives all claims against the City for
sustained by reason of any interference
er by the City or by any public agency
duties, or enforcing compliance with
, or regulations.
times throughout the Term, at its sole expense and
a. General Liability, in the minimum amount of One Million
Dollars (subject to adjustment for inflation) per occurrence
jury and property damage. This policy must also contain
for premises operations, products and contractual liability.
b. Workers Compensation Insurance shall be required in accordance with the
laws of the State of Florida.
c. Automobile Insurance shall be provided covering all owned, leased, and
hired vehicles and non-ownership liability for not less than the following limits
(subject to adjustment for inflation):
Bodily Injury
Bodily Injury
13
$1,000,000.00 per person
$1,000,000.00 per accident
195
Property Damage $1,000,000.00 per accident
The policies of insurance referred to above shall not be subject to cancellation or
changing coverage except upon at least thirty (30) days prior written notice to the
City, and then only subject to the prior written approval of the City Manager or his
designee. Prior to the Commencement Date of this Agreement, Concessionaire
shall provide the City with a Certificate of Insurance for each such policy. ALL
POLICIES SHALL NAME THE CITY OF MIAMI BEACH FLORIDA AS AN
ADDITIONAL NAMED INSURED. All such policies II be obtained from
companies authorized to do business in the State of with an A.M. Best's
Insurance Guide (latest edition) rating acceptable Risk Manager, and
any replacement or substitute company shall a to the approval of the
City's Risk Manager.
12.1 specific consideration of Ten ($10.00)
consideration the receipt and sufficiency
, Concessionaire shall indemnify, hold
officers, employees, contractors, agents or
against any claim, demand or cause of action of
re arising out of error, omission, or negligent act of
employees, contractors, agents or servants in
rvices under this Agreement.
12.2 in consideration of a separate and specific consideration of
liars and other good and valuable consideration the receipt
of which are hereby acknowledged, Concessionaire shall
indem , hold harmless and defend the City, its officers, employees,
contractors, agents or servants from and against any claim, demand or
cause of action of whatever kind or nature arising out of any misconduct of
Concessionaire, its officers, employees, contractors, subconcessionaire(s),
agents or servants not included in Subsection 12.1 herein and for which the
City, its officers, employees, contractors, subconcessionaire(s), agents or
servants are alleged to be liable.
12.3 Subsections 12.1 and 12.2 shall survive the termination or expiration of this
Agreement. Subsections 12.1 and 12.2 shall not apply, however, to any such
14
196
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.
12.5
12.6
13.1
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.
Force Majeure.
Whenever a period of time is herein prescribed
the City or Concessionaire (as applicable),
applicable}, shall not be liable or respons
from the computation of such period of
acts of God, shortages of labor or
regulations, or restrictions in the
bona fide delay beyond the
applicable). The foregoing s
under this Agreement.
taking of any action by
or Concessionaire (as
there shall be excluded
due to strikes, riots,
.,.,,,,orr'lrn.c.nT·.:~~I laws,
ms against the City for loss
lting from an event of Force
aire hereby expressly
City and forever releases
, actions and causes of
of default under this Agreement. An
the City to exercise any and all remedies
under this Agreement, including but not limited to those
on 14. An event of default by the City shall entitle
II remedies described as Concessionaire's remedies
not limited to those set forth in Subsection 13.5.
or Concessionaire shall be adjudged bankrupt or insolvent,
iver or trustee of all or any part of the business property of
either 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
15
197
breach of contract.
13.2 Default in Payment.
In the event Concessionaire fails to submit any payment within five (5) days
of its due date, there shall be a late charge of Fifty ($50.00) Dollars per day
for such late payment, in addition to interest at the highest rate allowable by
law. If any payment and accumulated penalties are not received within fifteen
(15) days after the payment due date, and such failure continues three (3)
days after written notice thereof, then the City m ut further demand
or notice, terminate this Agreement without prejudiced as to any
remedies which may be available to it forb ontract, and may begin
procedures to collect the Performance in Section 14 herein.
13.3 Non-Monetary Default.
13.4
In the event that Concessionaire or
the covenants, terms or provi
continues thirty (30) days
hereto, such non-defaulting
and without further demand or
that a default is not
the defaulting party
period, commence
thereafter completes
default, ·
days
of set forth in this Section, shall occur, the
ce (if required) and the expiration of cure periods, as
sole option and discretion, institute such proceedings
to cure such default(s) and to compensate the
g from such default(s), including but not limited to
to Concessionaire a notice of termination of this Agreement.
given, the Term of this Agreement shall terminate upon the
1n such notice from the City to Concessionaire. On the date so
r.n,...,.c.c. ionaire shall then quit and surrender the Concession Area
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:
16
198
13.5
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.
Concessionaire's Remedies for Citv's Default.
If an event of default, as set forth in this ....... ~,l•v•
Concessionaire may, after the expiration of
Agreement upon written notice to the City.
effective upon receipt of the written notice
date specified in the notice, ConCE~SSIOIIJ
Concession Area to the City pursua
the City shall occur,
period, terminate this
rmination shall become
by the City. On the
it and surrender the
Subsection 13.7.
13.6 Termination for Convenience.
13.
13.6.1 Section 13, reement
by the City, for convenience
g of sixty (60) days prior written
13.6.2 nt to this subsection,
agrees that it shall not have
of of whatsoever kind or nature,
, servants and employees (including, but
start-up costs, interference in business or
o;;an,,,.."''"", or interference in its concession
the City be liable to Concessionaire for
, lost profits or consequential damages.
ment, or earlier termination in accordance with
rQobn'1Qolnt, Concessionaire shall surrender the Concession
condition as the Concession Area was prior to the
Date of this Agreement, reasonable wear and tear
lvv.:>.:>,··v• aire shall remove all its personal property, upon forty-
urs written notice from the City Manager or his designee unless
a 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 ORAL TERNATE 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
17
199
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 ly renewed, the original
of which shall be held by the City's Chief Financial Officer. re shall be so
required to maintain said Performance Bond or alternate as accepted by the City
Manager or his designee, in full force and effect throug of this Agreement.
Concessionaire shall have an affirmative duty to notify ng, in the event said
Performance Bond or alternate security lapses All interest that
accrues in connection with any financial above
shall be the property of Concessionaire, case the
City shall be entitled to all interest that
SECTION 15. ASSIGNMENT.
Concessionaire shall not assign,
use of by any other person other
portion of this Agreement and/or of
referred to collectively as "transfers"),
which consent shall not
Concessionaire
consummation
shall agree to be
hereunder. tra
COI1CEISSI.IOn or license, permit the
otherwise transfer all or any
the forgoing are herein after
~anc!cnT of the City Manager,
of any proposed transfer prior to
transfer is approved, the transferee
is Agreement required of the transferor
this section shall be null, void, and of
act of der this Agreement. Notwithstanding any
transfer under any provision of this section, unless
Concessionaire shall remain jointly and severally
ki'"IC!t·cr-.c.c, who shall automatically become liable for all
with respect to that portion of the Agreement so
I be permitted to enforce the provisions of this Agreement
re or any transferee of Concessionaire without proceeding in
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
18
200
sponsored special events and/or City produced and/or sponsored
productions. Additionally, the aforestated events may also require additional
time for load-in and load-out of the event. In such cases, the City may
request that Concessionaire cease and desist operations during the term of,
and in the area of, the special event and/or production, and Concessionaire
shall cease and desist during such time. To the extent that Concessionaire is
displaced, and/or required to cease and desist operations, City shall provide,
calculated on a per diem basis for the period of time the Concession Area is
non-operational, a credit against Concessionaire's amount, as delineated
in Section 4.2 herein. If the Concessionaire is uired to close, or the
City Manager or his designee determines th
open in such a manner as prescribed by
the special event and/or production, Co
in either case, in cooperating with
remain open during special Au.conT~
be allowed to have in nn.c:~~r~l'lt"\n
and staff. "Normal" shall
16.3 Sponsorships.
The City reserves u re rights to negotiate all
forms of endorsement based on the
marketing of , brand, logo and/or
an endorsement and/or
the marketing value of a City trademark
, shall belong exclusively to the City.
ly prohibited from entering into, or
and/or endorsements with third parties
solely part on the marketing value of a City
, brand, logo and/or reputation.
nor r or permit any person to use in any manner
Area for any improper, immoral or offensive purpose, or for
any pu Federal, State, County, or municipal ordinance, rule, order
or regulation, I rule or regulation now in effect or hereafter enacted
or adopted. re will protect, indemnify, and forever save and keep harmless
the City, its officers, oyees, 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
19
201
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
18.2
All notices
mailed by reg
to this Agreement. All subsequent price app and changes must be
approved in writing by the City Manager or h nee. Prices shall be
reasonably consistent with those charged items in other similar
public concessions in the City. The City sh final right of approval
for all such prices and changes. Co to refrain from the
sale of any item identified as prohi to sell only those
items approved by the City. Con in an adequate
supply necessary to accom
I be deemed duly served upon receipt, if
receipt to Concessionaire at the following
a Keith Weekly, President
i Beach Film Society, Inc.
0. Box 19-1876
Beach, Florida 33139
·re to the City shall be deemed duly served upon receipt, if
mail return receipt requested to the City of Miami Beach at
the following add
With copy to:
City Manager
City of Miami Beach
1700 Convention Center Drive
Miami Beach, FL 33139
Director of Real Estate, Housing & Community Development
City of Miami Beach
1700 Convention Center Drive
20
202
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
20.2
20.3
21.2
Compliance.
Concessionaire shall comply with all appl
Federal ordinances, statutes, rules and regu
to all applicable environmental City, Co
statutes, rules and regulations, as same
, County, State, and
including but not limited
nd Federal ordinances,
from time to time.
performing
ainst any
use of race, sexual
status, religion or handicap.
utilize minorities and females in
ination as to race, sex,
n, familial status, religion or
or in the operations referred to by this
be no discrimination regarding any use,
within the Concession Area. All facilities
available to the public.
ed in is Agreement shall constitute or be construed to be or
p or joint venture between the City and Concessionaire.
cannot be changed or modified except by agreement in
writing 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
203
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.
21.6
21.7
21.8
21.9
This Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and perm assigns.
Clauses.
The illegality or invalidity of any term or a
not affect the validity of the remainder of
shall remain in full force and effect
were not contained herein u
detrimentally reduces the
this Agreement or material
Agreement.
Severability.
If any provision of
application thereof to
or unenforceable, or
of this Agreement shall
and the Agreement
id term or clause
such provision
ive under
of this
of such provision or the
shall be held to be invalid
local, State, or Federal
longer be a part of this laws,
Agreoc.rnc Ag such provisions and the
ap or circumstances, shall not be affected
be so modified.
Manager, shall at all times during hours
the right to enter into and upon any and all parts of the
the purpose of examining the same for any reason
of parties to this Agreement.
derstood and agreed that no part, parcel, building, structure,
pace is leased to Concessionaire; that this Agreement is a
agreement and not a lease, and that Concessionaire's right to
nage, 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
22
204
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 ulations. Any signage
posted by Concessionaire shall be subject to th approval of the City as
to size, shape and placement of same.
21.11 Conflict of Interest.
Concessionaire shall perform its se
the concession operation(s) conte
no preference for other con
managed, or otherwise
u:~~..,..,,onTand conduct
er so as to show
, operated,
21.12 No Waiver.
21.12.1 by and between the parties
upon the strict performance
or provisions of this
n conferred, will not be
a wa relinquishment for the future
ants, terms, provisions or options but
d remain in full force and effect.
herein shall not be implied by any
he City to a forfeiture on account of the violation of
such violation by continued or repeated subsequently and
waiver shall not affect any term other than the one
waiver and that one only for the time and in the
c.n•:~~,...,,"""<=~~ ly stated.
pt of any sum paid by Concessionaire to the City after
of any condition, covenant, term or provision herein contained
not be deemed a waiver of such breach, but shall be taken,
nc..,no,,..on 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 Beneficiarv.
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
23
205
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 ofTen Thousand ($10,000.00) Dollars.
Concessionaire hereby expresses its willingness to enter into this Agreement with a Ten
Thousand ($1 0,000.00) 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 arising out of the
performance or non-performance of any obligations im the City by this
Agreement. Nothing contained in this paragraph or his Agreement is in any
way intended to be a waiver of limitation placed upon liability as set forth in
Florida Statutes, Section 768.28.
SECTION 23. VENUE.
This Agreement shall be deemed to have
interpreted in accordance with the laws of
enforceable in Miami-Dade County, Florida, a
with respect to the enforcement of any and all
venue for the enforcement of II lie in
and
nt shall be
is necessary ither party
AND CONCESSIONAIRE H LY
conditions herein, exclusive
County, Florida. THE CITY
TENTIONALL Y WAIVE THE
lNG THAT THE CITY AND
EACH OTHER WITH
D TO THIS AGREEMENT
RIGHT TO TRIAL BY JURY IN
CONCESSIONAIRE MAY HEREIN
RESPECT TO ANY
OR THE CONCIES~;n
Attest:
William Egan, DIRECTOR
CORPORATE SEAL
(affix seal here)
have caused their names to be signed
year first above written, indicating their
CITY OF MIAMI BEACH, FLORIDA
Matti Herrera Bower, MAYOR
MIAMI BEACH FILM SOCIETY, INC.
Dana Keith Weekly, PRESIDENT
F:IRHCD\$ALLIECON\$ALL\ASSET\OLDCITY\MB Film Society\Cinematheque Cafe Concession Agreement (Draft 10-8-12).doc
24
206
'
EXHIBIT 2.1
Concession Area
SIDEWALK
--~------------J--:__-£ IXJENI'OFUMBIIEI..
I I I I
I fll].. DID"' I I I]IJ" Ofiil" I I . ~~==~ . : :::::~ : I I ~~:; :: . :::~:;: .: 1· .. ... .. ..
I~ ~tl~ ~L '~DUlllifL.liii~D~' L ________ JL ________ J
207
EXHIBIT 3.1.1
Menu & Prices
• Nespresso expresso $3
• Nespesso cappuccino, or cafe au Jait $4
• Nespesso teas $3
• Various soft drinks $3
• Plain croissants $4
• Chocolate or almond croissants $5
• Brownies $4
• Pound cake $4
• Large cookies $3
• Chocolate truffles $5
208
THIS PAGE INTENTIONALLY LEFT BLANK
209