C7H-Waive Bidding-Execute Concession Agmt w- Blissberry South Pointe Park PaviliCOMMISSION ITEM SUMMARY
Condensed Title:
A Resolution Accepting The Recommendation Of The Finance And Citywide Projects Committee And Of The City
Manager, And Waiving, By 5/7ths Vote, The Competitive Bidding Requirement, And Approving And Authorizing The Mayor
And City Clerk To Execute A Concession Agreement, Between The City and Blissberry, LLC, For The Management And
Operation Of The Food And Beverage Concession, Located ln The South Pointe Park Pavilion Building, Consisting Of
Approximately 240 Square Feet, Having A Term Of Five (5) Years, Without Any Renewal Options, Commencing On
December 1,2015 And Ending On November 30,2015.
lntended Outcome
N/A
Supporting Data (Surveys, Environmental Scan, etc.):
N/A
!tem
On May 12,2010, the City approved the issuance of Request for Proposals (RFP) No. 34-09/10, for the management and
operation of a food and beverage concession located in a portion of the South Pointe Park Pavilion Building. Blissberry,
LLC was the top-ranked firm and on September 15, 2010, the City adopted Resolution No.2010-27485, authorizing to
enter into negotiations and to execute a Concession Agreement upon conclusion of successful negotiations.
The City and Concessionaire executed a Concession Agreement, dated November 24,2010, for an initial term of two (2)
years commencing on December 1,2010, with three (3) renewal options for one (1) year each. The Concessionaire
exercised all three (3) renewal options and the Concession Agreement is scheduled to end on November 30,2015.
Concessionaire currently pays a Concession Fee equal to fifteen percent (15%) of gross sales, including a MG of $9,71 1.
Concessionaire paid a total Concession Fee of $33,700 for the contract year ending November 30,2014.
The Concessionaire submitted a letter requesting a five (5) year extension to the Concession Agreement. The
Administration submitted Concessionaire's request at the March 2, 2015 Finance and Citywide Projects Committee
(FCWPC) meeting. The FCWPC recommended: 1) extending the term for five (5) years and 2) increasing the annual
Minimum Guarantee (MG) to $25,000, payable in quarterly installments of $6,250 each.
Subsequent to the March 2, 2015 FCWPC meeting, Concessionaire additionally requested the Concession Fee be
reduced from fifteen percent (15%) to ten percent (10%) of gross sales. Concessionaire's request for a reduced
Concession Fee was submitted to the FCWPC at its April 8, 2015 meeting. The FCWPC recommended reducing the
Concession Fee from fifteen percent (15%) to ten percent (10%) of gross sales.
Additionally, the City Manager recommended the waiver, by 5/7th vote, of the competitive bidding requirement, as being in
the best interest of the City, as required pursuant to Section 2-367(e) of the City Code.
The Administration recommends that the City Commission adopt the recommendations of the FCWPC from its March 2,
2015 and April 8, 2015 meetings, and of the City Manager, and approve a new Concession Agreement.
Board Recom on:
Max Sklar, ext. 611
T.\AGENDA\2015 lissberry\Blissbeny SU ltl (5-6-1 5).docx
AGEHDA ITEM C7 HE MIAMIBEACH DATE 5-6-(T190
MIAMIBEACH
City of Miomi Beoch, ,l700 Convention Center Drive, Miomi Beoch, Florido 33'l39, www.miomibeochfl.gou
COMMISSION MEMORANDUM
Mayor Philip Levine and of the City
Jimmy Morales, City Manager
May 6, 2015
A RESOLUTION OF THE MA
TO:
FROM:
DATE:
SUBJECT:AND CITY COMMISSION OF THE
CITY OF MIAMI BEACH, FLORIDA, ACCEPTING THE
RECOMMENDATION OF THE FINANCE AND CITYWIDE PROJEGTS
COMMISSION COMMITTEE AND OF TI{E CITY MANAGER, AND
WAIVING, BY 5I7TH VOTE, THE COMPETITIVE BIDDING
REQUIREMENT, FINDING SUCH WAIVER TO BE IN THE BEST
INTEREST OF THE GITY; AND APPROVING AND AUTHORIZING THE
MAYOR AND CITY CLERK TO EXECUTE A CONCESSION
AGREEMENT BETWEEN THE CITY AND BLISSBERRY, LLC FOR
THE MANAGEMENT AND OPERATION OF THE FOOD AND
BEVERAGE CONCESSION, LOGATED IN A PORTION OF THE
SOUTH POINTE PARK PAVILION BUILDING, CONSISTING OF
APPROXIMATELY 240 SQUARE FEET; SAID CONCESSION
AGREEMENT HAVING A TERM OF FIVE (5) YEARS, WITHOUT ANY
RENEWAL OPTIONS, COMMENCING ON DEGEMBER 1, 2015 AND
ENDING NOVEMBER 30, 2020.
ADMINISTRATION RECOMMENDATION
Adopt the Resolution.
BAGKGROUND
On May 12, 2010, the Mayor and City Commission approved the issuance of Request for
Proposals (RFP) No. 34-09/10, for the management and operation of a food and beverage
concession located in a portion of the South Pointe Park Pavilion Building.
Concessionaire was the top-ranked firm and on September 15, 2010, the Mayor and City
Commission adopted Resolution No. 2010-27485, authorizing the Administration to enter into
negotiations with Concessionaire; and further authorizing the Mayor and City Clerk to execute
an agreement, upon conclusion of successful negotiations.
ANALYSIS
The City and Concessionaire are parties to a Concession Agreement (attached hereto as
"Exhibit A"), dated November 24, 2010, for the management and operation of a food and
beverage concession located in a portion of the South Pointe Park Pavilion Building.
The basic terms and conditions of the Concession Agreement are as follows:
191
Commission Memorandum
Blissberry, LLC - Concession Agreement
May 6, 2015
Page 2 of 3
Concession Area:
lnitialTerm:
Renewal Options:
Goncession Fee:
Minimum Guarantee:
A portion of the South Pointe Park Pavilion Building, consisting of
approximately 240 square feet
Two (2) years commencing on December 1, 2010 and ending on
November 30,2012
Three (3) renewal options for one (1) year each
Fifteen percent (15Yo) of gross sales
Nine thousand dollars ($9,000) annually, paid at the beginning of
each contract year, with Consumer Price lndex (CPl) increases
annually, starting in the third year
For the first four (4) years of the Concession Agreement, Concessionaire's gross sales, and the
corresponding fees paid to the City, are illustrated in the following chart:
Contract Gross
Year Period Sales % lncrease
1',r' 12/LO- LL/LL 74,652
2 72/LL- 1L/L2 L24,U6 67%
3 L2lL2- Lt/r3 t74,2q q%
4 L2lL3- 7L/I4 224,666 29%
598,404
True-Up Total
(15%ofGrossl Rent
2,L98 LL,L98
9,727 18,727
16,560 26,L36
23,989 33,700
76L
Minimum
Guarantee
9,000
9,000
9,576
9,7LL
*Reflects Eight (8) Months of Sales Due to Delayed Opening
Concessionaire is currently in its final renewal term, ending on November 30, 2015, and has
submitted a letter to the City (attached hereto as "Exhibit B'), requesting to extend the
Concession Agreement for a period of five (5) years.
FINANCE AND CITYWIDE PROJECTS COMMITTEE
At the March 2, 2015 Finance and Citywide Projects Committee (FCWPC) meeting, the
Administration presented this item and recommended, in the event the FCWPC agreed to
extend the Concession Agreement, to maintain the Concession Fee at fifteen percent (15o/o) of
gross sales. However, based on recent conversations with the Concessionaire, and the
average of the last two (2) years of actual gross sales, the Administration recommended
increasing the Minimum Guarantee to thirty thousand dollars ($30,000) annually, payable in
equal quarterly installments of seven thousand dollars ($7,500) each.
The FCWPC Committee considered this matter and recommended extending the term for a
period of five (5) years; and further recommended increasing the Minimum Guarantee to twenty
five thousand dollars ($25,000) annually, payable in equal quarterly installments of six thousand
two hundred and fifty dollars ($6,250) each.
Subsequent to the March 2, 20'15 recommendation of the FCWPC, the Concessionaire
determined that the Concession Fee of fifteen percent (15Yo) of gross sales was not sustainable
and requested that the Concession Fee be reduced to ten percent (10Vo) of gross sales.
192
Commission Memorandum
Blissberry, LLC - Concession Agreement
May 6, 2015
Page 3 of 3
The Administration submitted the Concessionaire's request to reduce the Concession Fee to the
Finance and Citywide Projects Committee (FCWPC) at its April 8, 2015 meeting, and the
FCWPC recommended reducing the Concession Fee from fifteen percent (15Yo) of gross sales
to ten percent (1oo/o) of gross sales.
CONCLUSION AND RECOMMENDATION
The City Manager is hereby recommending the waiver, by 5/7th vote, of the competitive bidding
requirement, as being in the best interest of the City, as required pursuant to Section 2-367(e) ot
the City Code.
The Administration recommends in favor of accepting the recommendations of the FCWPC and
Exhibits:
A Concession Agreement
B Letter From Concessionaire
T:\AGENDAV0l 5\May\TCED\Blissberry\Blissberry MEMO (5-6-1 5).docx
193
{L
Exhibit A
Blissberry, LLC
Concession
Agreement
194
SECTION
1.
2.
2.1
3.
3.1
3.3
3.4
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
'|.3.7
INDEX
TITLE PAGE
195
SECTION
14.
15.
16.
16.2
16.3
17.
18.
19.
20.
20.1
20.2
20.s
21.
21.1
21.2
2'.1.3
21.4
21.5
21.6
21.7
21.8
21.9
21.10
21.11
21.12
21.13
22.
23.
TITLE PAGE
196
CONCESSION AGREEMENT BETWEEN
CITY OF MIAMI BEACH, FLORIDA AND
BLISSBERRY, LLC
FOR MANAGEMENT AND OPERATION OF A FOOD & BEVERAGE CONCESSION
IN A PORTION OF THE SOUTH POINTE PARK PAVILION BUILDING
THIS AGREEMENT rnade the 24th day of November, z}l},between the CITY OF MIAMI
BEACH, a municipal corporation of the State of Florida (hereinafter called "City"), having its
principal address at 1700 Convention Center Drive, Miami Beach, Florida, 33139, and
BLISSBERRY, LLC, a Florida limited liability company, having its principal place of
business at 332 Lincoln Road, Miami Beach, Florida, 33139, (d/b/a Blissberry and
hereinafter called "Concessionaire").
WTNESSETH
WHEREAS, on May 12,2010, the Mayor and City Commission approved the issuance of
Request for Proposals (RFP) No. 34-09/10, for a the management and operation of a
concession facility within a portion of the structure commonly referred to as the "Pavilion
Building'located in South Pointe Park; and
WHEREAS, Concessionaire was the top-ranked finn; and
WHEREAS, on September 15,2010, the Mayorand CityCommission adopted Resolution
No. 2010-27485, authorizing the Administration to enter into negotiations with
Concessionaire; and further authorizing the Mayor and City Clerk to execute an agreement,
upon conclusion of successful negotiations; and
WHEREAS, accordingly, the City and Concessionaire have negotiated the following
Concession Agreernent.
NOW THEREFORE, in consideration of the premises and the mutual covenants and
conditions herein contained and other good and valuable consideration, the receipt and
adequacy of which are hereby conclusively acknowledged, it is agreed by the parties
hereto as follows:
The City hereby granB to the Concessionaire, and the Concessionaire hereby accepts
from the City, the right to maintain, manage and operate atood and beverage concession
within the Concession Area (as hereinafterdefined), in accordance with the purpose(s) and
forthe tenn(s) stated herein, and subject to all the lerms and conditions herein contained.
SECTION 1. TERM.
1.1 This Agreement shall commence on the 1't day of December, 2010 (the
"Commencement Date"), and terminate on the 30rh day of November,2012
(the Term).
197
For purposes of this Agreement, a "contract year" shall be defined as that
certain period commencing on the 1tt day of December, and ending on the
30rh day of November.
1.2 Provided that the Concessionaire is not in default under Section 13 herein,
and at the City Manager's sole discretion, and upon written notice from
Concessionaire of its intent to renew, which notice shall be given no less
than thirty (30) days prior to the expiration of the initialterm (or any renewal
term, as the case may be), the City Manager may extend the term of this
Agreement, upon the same terms and conditions, forthree (3) individualone
(1) year renewal terms. Any such renewal rnay require Concessionaire to
purchase new equipment for the renewal term, subject to the prior written
approvalof the City Manager.
SECTION 2. CONCESSION AREA.
The City hereby grants to Concessionaire the right, during lhe Term herein, to maintain,
manage and operate a food and beverage concession in the following Concession Area:
2.1 Concession Area within the Pavilion Buildinq:
An area comprised of 240 squarefeetwithin the Pavilion Building, located at
3 South Washington Avenue and as further delineated in Exhibit 2.1 hereto.
2.2 Notwithstanding the Conoession Area granted to Concessionaire in Section
2.1, Concessionaire hereby understands, agrees, and acknowledges thatthe
Concession Area, along with any and all other public facilities in South Pointe
Park not specifically identified herein is intended to be open and available to
the public and, as such, must remain available forthe use and enjoyment of
the general public. Notwithstanding the preceding, Concessionaire may
designate areas within the Concession Area which shall not be open to
and/or accessible to the general public (e.9. "kitchen areas, pantries, and/or
storage closets, etc.).
SECTION 3. USE(S).
Concessionaire is hereby authorized to conduct the following kind(s) of businesses and
provide the following kind(s) of services within the Concession Area, all at its sole expense
and responsibili$:
Food and Beveraoe Service.
3.1.1 Concessionaire shall prepare, or cause to be prepared, forsalewithin
and from the Concession Area, such pre-cooked, prepared, andlor
prepackaged foods and such non-alcoholic beverages as those set
forth in Exhibit 3.1.1. The City Manager hereby approves the types of
food and beverages, and prices for same (as those set forth in Exhibit
3.1 . 1). Any amendments to Exhibit 3.1 .1 , whether as to type of food
and beverages to be sold, or as to changes in prices for same, must
be approved in writing by the City Manager or his designee, such
approval not to be unreasonably withheld, delayed or conditioned,
priorto such changes being implemented within the Concession Area,
3.1
198
3.1.2
3.1.3
3.1.4
3.1.5
3.1.6
and a new updatd Exhibit 3.1.1 will be incorporated into this
Agreement.
All food and beverages sold within the Concession Area will be
prepared using only the equipment and/or methodology approved by
the City and as set forth in Exhibit 3.1.2. as well as properly prepared
and served in compliance with all applicable health and sanitary
standards, laws and regulations.
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.
ln addition to Concessionaire's general maintenance obligations for
the Concession Area, as set forth in Section 10 herein, the
Concession Area and the immediately surrounding ten (10) foot
adjacent areas, shall at all times be maintained in a clean and
sanitary manner.
At least one supervisory employee must possess a Food Service
Management Certification issued by a County Public Health
Department in Florida. ln addition, the Concession Area rnust be
licensed by the Florida Department of Business Regulation, Division
of Hotels and Restaurants, and/or the Departmenl of Agriculture,
and/or as may further be required by State law and/or by
corresponding agencies.
Concessionaire agrees not to place any speakers, or any other device
used to amplify sound, in, on or around the Concession Area.
3.3 Cfu Business Tax Receipts.
Concessionaire shall obtain, at its sole expense and responsibility, any
business tax receipts required by the City for the proposed use(s)
contemplated herein. To the extent required by City law (as sarne may be
amended from time to time), business tax receipts shall be obtained for each
proposed use within a particular Concession Area.
3.4 Parkinq.
Concessionaire may request from the City's Parking Department, the use of
one (1) designated parking space at the Municipal Parking Lot P1 (South
Pointe Park parking lo0 for delivery vehicle use only. The rate for said
parking spaoe is subject to change, and is currently Seventy Dollars ($70.00)
per month, plus applicable sales and use tiax per space.
sEcTtoN 4. coNcESStoN FEEq
4.1 Minimum Guarantee (MG):
ln consideration of the Crty's granting of the rights provided in this
Agreement, on the 1't day of eicn contract yearlurinb tne Term, the
199
4.2
Concessionaire shall pay to the City a Minimum Guaranteed Annual
Concession Fee (MG) of Nine Thousand ($9,000.00) Dollars.
Commencing with the third contract year (i.e. the first renewalterm), and
every subsequent contract year during the Term hereof, Concessionaire
agrees that the MG shall be adjusted upward on the first day of each
contract year during the Term hereof by the percentage change of the
"Base Number' and the "Current Numbe/' in the Consumer Price lndex -
All Urban Consumers - U.S. Food and Beverages - CUUR0000SAf, as
published by the Bureau of Labor Statistics of the U.S. Department of
Labor, or of any revised or successor index hereafter published by the
Bureau of Labor Statistics or other agency of the United States
Governmentsucceeding to its functions ('CPl'). The Base Numbershallbe
the index for that month (i.e. July) and year which is four (4) months prior to
the Commencement Date of this Agreement (the "Base Month'). The
Current Number shall be the latest CPI published for the Base Month of
each calendar year during the term of the ferm of this Agreement.
Percentaoe of Gross (PG) vs. MG:
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 rnean 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
limited to receipts from sale of food and beverages. The term "gross receipts'
shall exclude amounts of any Federa!, 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.
lnterest for Late Pavment.
Any payment which Concessionaire is required to make to the City which is
not paid on or before the respective date provided for in this Agreement shall
be subject to interest at the rate of twelve (12o/o) percent per annum, or the
maximum amount allowable under Florida law, whichever is greater, from the
due date of payment until such time as payment is actually received by the
City.
Sales and Use Tax.
It is also understood thatthe required Florida State Sales and Use Tax shall
be added to Concessionaire's payments and forwarded to the City as part of
said payments. lt is the City's intent that it is to receive all payrnents due from
Concessionaire as net of such Florida State Sales and Use Tax.
4.3
4.4
200
sEcTroN 5. MATNTENANCE ANp EMMINATTON OF RECORDg
Concessionaire shall maintain current, accurate, and complete financial records, on an
accrual basis, related to its operations pursuant to this Agreement. Systems and
procedures used to maintain these records shall include a system of internalcontrols; all
accounting records shall be maintained in accordance with generally accepted accounting
principles; and shall be open to inspection, copying, and audit by the City Manager or his
designee upon reasonable verbal or written notice, during normal hours of operation.
Concessionaire shall maintain all such records at its principal office, currently located at
332 Lincoln Road. Miami Beach. Florida. 33139, or, if rnoved to another location, all such
records shall be relocated, at Concessionaire's sole expense, to a location in Miarni Beach,
within ten (10) days from notice of request for inspection from the City. Such records and
accounts shall include, at a minimum, a breakdown of gross receipts, expenses, and profit
and loss statements. Concessionaire shallmaintain accurate receipt-printing cash registers
(or a like alternative) in the Concession Area which will record and show the payment for
every sale made or service provided in such Area. Such other records shall be maintained
as would be required by an independent CPA in order to audit a statement of annual gross
receipts and profit and loss statement pursuant to generally accepted accounting
principles. Concessionaire records shallalso be rnaintained fora period of three (3) years
following expiration (or other termination) of this Agreement (regardless of whether such
termination results from the expiration of the Term or for any other reason).
Concessionaire shallsubmit to the City Finance Department's Revenue Manager, within
sirily (60) days of the end of each contracl year, an annua! statement of gross receipts, in a
form consistent with generally accepted accounting principles.
sEciloN 6. |NSPECTION AND AUD|T.
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
(3) year period following expiration (or othertermination) 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 cotlections and payments (which are
performed separately).
It is Concessionaire's intent to stay infonned of comments and suggestions by the City
regarding Concessionaire's performance underthe Agreement. \Mthin thirty (30) days after
the end of each contract year, Concessionaire and the City may meet to review
Concessionaire's performance under the Agreement for the previous contract year. At the
meeting, Concessionaire and the City may discuss quality, operational, maintenance and
any other issues regarding Concessionaire's performance under the Agreement.
Nothing contained within this Section shall preclude the City's audit rights for Resort Tax
collection puposes.
SECTION 7. TAXES. ASSESSMENTS. AND UTILITIES.
Concessionaire agrees and shallpay, before delinquency, alltaxes and assessments of
201
any kind (including, without limitation, ad valorem taxes, if assessed, and/or ResortTaxes)
levied or assessed upon Concessionaire and/or the Concession Area including, without
limitation, anysuch taxes and/or assessments that may be levied and/orassessed against
Concessionaire and/or the Concession Area by reason of this Agreement, or by reason of
the business or other operations and/or activities of Concessionaire upon or in connection
with the Concession Area.
Concessionaire will have the right, at its own expense, to contest the amount or validity, in
whole or in part, of any tax and/or assessment by appropriate proceedings, which
Concessionaire shallconduct diligently and continuously, in good faith. Concessionaire
may refrain from paying a tax to the extent it is contesting the imposition of same in a
manner that is in accordance with law; provided, however, if, as a result of such contest,
additionaldelinquencycharges become due, Concessionaire shallbe responsible forsuch
delinquency charges, in addition to payment of the contested tax (if so ordered).
Concessionaire shallbe solely responsibleforand shallpromptly paywhen due allcharges
for utility seruice(s) provided to the Concession Area (including all hook-upfees and impact
fees) for gas, electricity, water, sewer, cable, telephone, trash collection, etc.
Notwithstanding the preceding paragraph, the City shall charge Concessionaire a flat fee
for 1) electricity, in the amount of One Hundred Twenty ($120.00) Dollars per month; and
2) water usage, in the amount of Forg ($40.00) Dollars per month. The City reserves the
right, at its sole discretion, to adjust the flat monthly fees charged to Concessionaire for
electric and water use at any time during the Term, upon thirty (30) days priorwritten notice
to Concessionaire.
ln addition to other rights and remedies hereinafler reserved to the City, upon the failure of
Concessionaire to pay tor such utility seruices when due, the City may elect to pay same
and Concessionaire shall promptly reimburse the Cig upon demand. ln no event shallthe
City be liable, whether to Concessionaire or to third parlies, lor an interuption or failure in
the supply of any utilities services to the Concession Area.
SECTION 8. EMPLOYEES AND INDEPENDENT CONTMCTORS.
8.1 Concessionaire shall select, train, employ (or otherwise hire or retain) such
number of employees and/or independent contractors as is necessary and
appropriate for Concessionaire to satisfy its responsibilities hereunder, and
as necessary to maintain the same levels of service as exist in similar first
class concession facilities and operations. Concessionaire's employees
and/or independent contractors shall be employees and/or independent
contractors of Concessionaire and not of the City, and Concessionaire shall
be solely responsible for their supervision and daily direction and control.
Concessionaire shall be solely responsible for, and have the sole authority to
hire, terminate and discipline any and all personnel and/or contractors
employed or retained by Concessionaire.
8.2 Concessionaire and its employees and/or independent contractors shallwear
identification badges and uniforms approved by the City, such approval not
to be unreasonably withheld, delayed or conditioned, during all hours of
202
operation. All employees and/or independent contractors shall observe all
the graces of personalgrooming. Concessionaire shall hire people to work in
its operation who are neat, clean, wellgroomed, and comportthemselves in
a professionaland courteous manner. Concessionaire and any persons hired
and/or retained by Concessionaire shall never have been convicted of a
felony (excluding traffic offenses).
Concessionaire shall have an experienced manager or managers overseeing
the concession operations at alltimes.
SECTION 9. HOURS OF OPERATION.
The Concession Area shall be open for business every day of the year, weather or events
of force majeure permitting. Concessionaire's minimum hours of operation shall be:
9:00 AM to 7:00 PM or Sunset (whichever occurs earlier)
Any change in the hours of operation inctuding, without lirit"tion, any request by
Concessionaire for an increase or decrease in same, shall be subject to the prior written
approval of the City Manager or his designee, which approval, if granted at all, shall be al
the City Manager's (or his designee's) sole option and discretion.
SECTION 10. IMPROVEMENTS. ITTIAINTENANCE. REPAIR and OPEMTION.
Concessionaire accepts the use of the Concession Area in its "AS lS" "WHERE lS"
condition. Concessionaire assumes sole responsibility and expense for maintenance of the
Concession Area (including all furniture, fixtures, equipment and any other improvements
thereon). This shall include, without limitation, daily (i.e. 365 days) removal of litter,
garbage and debris. Concessionaire shall also be responsible for all garbage disposal
generated by its operations.
10.1 lmprovements.
10.1.1 Any improvements to the Concession Area shall be at
Concessionaire's sole expense and responsibility; provided, however,
that any plans for such improvements shall be submitted to the City
Manager or his designee for prior written approval, such approval not
to be unreasonably withheld, delayed or conditioned, and a list of the
approved improvements shall be attached hereto as Exhibit 10.1.1.
Upon termination and/or expiration of this Agreernent, all personal
property and non-permanent trade fixtures may be removed by
Concessionaire without causing damage to the Concession Area.
All permanent (fixed) improvements to the Concession Area shall
remain the property of the City upon termination andlor expiration of
this Agreement, except as provided in Subsection 10.1.2.
Concessionaire will permit no liens to attach to the Concession Area
arising from, connected with, or related to, the design, construction,
and installatlon of any improvements.
10
203
10.1.2
10.1.3
Construction of any approved improvements shall be diligently
prosecuted to completion and accomplished through the use of
licensed, reputable contractors who are acceptable to the City
Manager or his designee. ln addition to obtaining the prior approvalof
the City Manager or his designee (acting on behalf of the City, in a
proprietary capacity), Concessionaire shall also be solely responsible
for obtaining, at its sole cost and expense, any and all permits,
licenses, and/or regulatory approvals; such regulatory approvals
which may include, without limitation, land use board and/or the
approvals of other required regulatory agencies having jurisdiction)
required for the construction of improvements.
Notwithstanding Subsection 10.1.1 hereof, upon termination and/or
expiration of this Agreement, Concessionaire shall immediately
remove any permanent improvernents made to the Concession Area
during the Term, at Concessionaire's sole expense and responsibility.
ln such event, Concessionaire shall also restore the Concession Area
to its original condition prior to the improvements being made,
reasonable wear and tear excepted.
The above requirements for submission of plans and the use of
specific contractors shall not apply to improvements (which term, for
purposes of this subsection 10.1.3 only, shall also include
improvements necessa ry for Concessionaire's ongoin g rna intenance
and repair of the Concession Area) which do not exceed Five
Hundred ($500.00) Dollars; provided that the work is not structural,
and provided further that it is permitted by applicable law.
Garbaoe Receptacles.
With respect to litter, garbage and debris removal, Concessionaire shall
provide, at its sole expense, a suflicient number of trash receptacles for its
own use and for the use of its patrons. Determination of the "numbe/' 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 rernoval 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
reoeptacles by the City, because of the Concessionaire's failure to do so, will
be assessed to, and become the responsibility of, the Concessionaire.
The dumping or disposal of any refuse, discards, trash or garbage,
generated by, or as a result of Concessionaire's operations, into any of the
South Pointe Park trash receptacles shall be strictly prohibited.
Maintenance/Repair.
Concessionaire shall maintain, at its sole expense and responsibility, all
furniture, fixtures, and equipment (FFE) and any other improvements
(whether pennanent or not) required to operate the concession. ln the event
any FFE andlor other improvement(s) is lost, stolen, ordamaged, it shallbe
replaced or repaired promptly, at the sole expense of Concessionaire.
10.2
10.3
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10.3.1
10.3.2
10.3.3
10.3.4
All damage or injury of any kind to the Concession Area, and/orto any
improvements and/or FFE thereon, except damage caused by the
willful misconduct or gross negligence of the City, shall be the sole
obligation of Concessionaire, and shall be repaired, restored and/or
replaced promptly by Concessionaire, at its sole expense, to the
satisfaction of the City Manager or his designee.
All of the aforesaid repairs, restoration and replacement shall be in
quality and class equal to or better than the original work (or FFE, as
the case may be) and shall be done in good and workrnanlike
manner.
lf Concessionaire fails to make any repairs, restoration and/or
replacement, the same may be made by the City, at the expense of
Concessionaire, and all sums spent and expenses incurred by the
City shall be collectable by the City and shall be paid by
Concessionaire within ten (10) days after receipt of a bitl or statement
thereof. Notwithstanding that the City may elect to make such repairc,
restoration, and/or replacement, the City shal! have no obligation
and/or affirmative duty to do so.
It shall be Concessionaire's sole obligation to ensure that any
renovations, repairs and/or improvements made by Concessionaire to
the Concession Area comply with all applicable permitting, building
codes and life safety codes of governmental authorities having
jurisdiction.
10.4 No Danoerous 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.
ln consideration of a separate and specffic consideration of Ten (910.00)
Dollars and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Concessionaire shall
indemniff and hold the City harmless from any loss, damage, cost, or
expense of the City, including, without limitation, reasonable attorney'sfees,
incurred as a result of, arising from, or connected with the placernent by
Concessionaire of any "hazardous substance" or "petroleum products" on,
under, in or upon the Concession Area as those terms are defined by
applicable Federal and State statutes, or any environmental rules and
environmental regulations promulgated thereunder. The provisions of this
subsection 10.4 shall survive the termination or earlier expiration of this
Agreement.
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10.5 Securitv.
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 shallthe City
be responsible for any stolen or damaged FFE; damage to or loss of any
improvements: or any stolen, lost, or damaged personal property of
Concessionaire's employees, contractors, patrons, guests, invitees, and/or
any other third parties, except if caused by the willful misconduct or gross
negligence of the City, its officers, employees, contractors, agents or
servants.
lnsoection.
Concessionaire agrees that the Concession Area (and operations thereon)
may be inspected at any time during hours of operation by the City Manager
or his designee, or by any other municipal, County or State officer, or other
agency having responsibility and/or jurisdiction for inspection of such
operations. Concessionaire hereby waives all claims against the City for
compensation for loss or damage sustained by reason of any interference
with the concession operations, whether by the City or by any public agency
or official, in enforcing their respective duties, or enforcing compliance with
any applicable laws, or ordinances, or regulations.
10.6
SECTION 11. INSURANCE.
Concessionaire shall maintain, at alltimes throughout the Term, at its sole expense and
responsibility, the following types of insurance coverage:
a. Comprehensive General Liability, in the minimum amount of One Million
($1,000,000.00) Dollars (subject to adjustrnent for inflation) per occunence
for bodily injury and property damage. This policy must also contain
coverage for premises operations, products and contractual liability.
b. Workers Compensation lnsurance shall be required in accordance with the
laws of the State of Florida.
c. Automobile lnsuranoe 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 lnjury $1,000,000.00 per person
Bodily lnjury $1,000,000.00 per accident
Property Damage $1,000,000.00 per accident
The policies of insurance referred to above shall not be subject to cancellation or
changing coverage except upon at least thirty (30) days prior written notice to the
City, and then only subject to the prior written approval of the City Manager or his
designee, such approval not to be unreasonably withheld, delayed or conditioned.
Priorto the Commenoement Date of this Agreement, Concessionaire shall provide
the Citywith a Certificate of lnsuranceforeach such policy. ALL POLICIES SHALL
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NAME THE CITY OF MIAMI BEACH FLORIDA AS AN ADDITIONAL NAMED
INSURED. All such policies shall be obtained from companies authorized to do
business in the State of Florida with an A.M. Best's lnsurance Guide (latest edition)
rating acceptable to the City's Risk Manager, and any replacement or substitute
company shall also be subject to the approval of the City's Risk Manager, such
approval not to be unreasonably withheld, delayed or conditioned.
Should Concessionaire fail to obtain, rnaintain or renew the policies of insurance
referred to above, in the required amounts, the City may, at its sole discretion,
obtain such insurance, and any sums expended by the City in obtaining said
insurance, shall be repaid by Concessionaire to the City, plus ten (100/o) percent of
the arnount of premiums paid to compensate the City for its administrative costs. lf
Concessionaire fails to repay the City's expenditures following written demand from
the City (and within the time specified in the City's demand notice), such failure shall
be deemed an event of default hereunder and the total sum owed shall accrue
interest at the rate of twelve (12Yo) percent until paid.
SECTION 12. INDEMNITY.
12.1 ln consideration of a separate and specific consideration of Ten ($10.00)
Dollars and othergood and valuable consideration the receipt and sufficiency
of which are hereby acknowledged, Concessionaire shall indemnify, hold
harmless and defend the City, its officers, employees, contractors, agents or
servants from and against any claim, demand or cause of action of
whatsoever kind or nature arising out of error, omission, or negligent act of
Concessionaire, its officers, employees, contractors, agents or servants in
the performance of services under this Agreement.
ln addition, and in consideration of a separate and specific consideration of
Ten ($10.00) Dollars and other good and valuable consideration the receipt
and sufficiency of which are hereby acknowledged, Concessionaire shall
indemnifl, 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 forwhich the
City, its officerc, employees, contractors, subconcessionaire(s), agents or
servants are alleged to be liable.
Subsections 12.1 and 12.2 shall survive the termination or expiration of this
Agreement. Subsections '12.1 and 12.2 shall not apply, however, to any such
liability, that arises as a result of the willful misconduct orgross negligence of
the City, its officers, employees, contractors, agents or servants.
Subrooation.
The terms of insurance policies referred to in Section 11 shall preclude
subrogation claims against Concessionaire, the City and their respective
officers, employees, contractors, agents or servants.
12.2
12.3
12.4
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12.5
12.6
13.1
13.2
SECTION 13. DEFAULT AND TERMINATION.
Subsections 13.1 through 13.3 shallconstitute events of default underthisAgreement. An
event of default by Concessionaire shallentitle the City to exercise any and all remedies
described as the City's remedies under this Agreement, including but not limited to those
set forth in Subsection 13.4 and Section 14. An event of default by the City shall entitle
Concessionaireto exercise any and all remedies described as Concessionaire's remedies
under this Agreement, including but not limited to those set forth in Subsection 13.5.
Force Majer:rre.
Whenever a period of time is herein prescribed for the taking of any action by
the City or Concessionaire (as applicable), the City or Concessionaire (as
applicable), shall not be liable or responsible for, and there shallbe excluded
from the computation of such period of time, any delays due to strikes, riots,
acts of God, shortages of labor or materials, war, or governmental laws,
regulations, or restrictions in the nature of a prohibition or moratorium, or any
bona fide delay beyond the reasonable control of City or Concessionaire (as
applicable). The foregoing shall not apply to any payments of money due
under this Agreement.
Waiver of Loss from Hazards.
Concessionaire hereby expressly waives all claims against the City for loss
ordamage sustained bythe Concessionaire resulting fiom an eventof Force
Majeure (as defined herein), and the Concessionaire hereby expressly
waives all rights, claims, and demands againstthe City and forever releases
and discharges the City from all demands, claims, actions and causes of
action arising from any of the aforesaid causes.
BankruotcJL
lf either the City or Concessionaire shall be adjudged bankrupt or insolvent,
or if any receiver or trustee of all or any part of the business property of
either party shall be appointed, or if any receiver of all or any part of the
business property shall be appointed and shall not be discharged within sixty
(60) days afier 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 lo any remedies which may be available to it for
breach of contract.
Default in Pavment.
ln the event Concessionaire fails to submit any paymentwithin five (5) days
of its due date, there shall be a late charge of Fifty ($50.00) Dollars per day
for such late payment, in addition to interest at the highest rate allowable by
law. lf any payment and accumulated penalties are not received within fifteen
(15) days after the payment due date, and such failure continues three (3)
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13.3
13.4
days after written notice thereof, then the City may, without further demand
or notice, terminate this Agreement without being prejudiced as to any
remedies which may be available to it for breach of contract, and may begin
procedures to collect the Performance Bond required in Section 14 herein.
Non-Monetarv Default,
ln the eventthat Concessionaire orthe Cityfails to perform orobserve anyof
the covenants, terms or provisions under this Agreement, and such failure
continues thirty (30) days after written notice thereof from the other party
hereto, such non-defaulting pafi may immediately or at anytime thereafter,
a nd without further demand or notice, terminate this Ag reement. I n the event
that a default is not reasonably susceptible to being cured within such period,
the defaulting party shall not be considered in default if it shall, within such
period, commence with due diligence and dispatch to cure such default and
thereafter completes with dispatch and due diligence the curing of such
default, but in no event shallsuch extended cure period exceed nine$ (90)
days from the date of written notice thereof. ln the event Concessionaire
cures any default pursuant to this subsection, it shall promptly provide the
City with written notice of same.
Citv's Remed ies for Concessionaire's Default.
lf any of the events of default, as set forth in this Section, shall occur, the
City may, after notice (if required) and the expiration of cure periods, as
provided above, at its sole option and discretion, institute such proceedings
as in its opinion are necessary to cure such default(s) and to compensate the
City for damages resulting from such default(s), including but not limited to
the right to give to Concessionaire a notice of termination of this Agreement,
lf such notice is given, the Term of this Agreement shallterminate upon the
date specified in such notice from the City to Concessionaire. On the date so
specified, Concessionaire shallthen quit and sunender the Concession Area
to the City pursuant to the provisions of Subsection 13.7. Upon the
terrnination of this Agreement by the City, all rights and interest of
Concessionairein and to the Concession Area and to this Agreement, and
every partthereol shall@ase and terminate and the City may, in addition to
any other rights and remedies il may have, retain all sums paid to it by
Concessionaire underthis Agreement, including but not limited to, beginning
procedures to collect the Performance Bond in Section 14 herein.
ln addition to the rights set forth above, the City shall have the rights t,o
pursue any and all of the following:
a. the right to injunction or other similar relief available to it under Florida
law against Concessionaire; and/or
b. the right to maintain any and all actions at law or suits in equity or
other proper proceedings to obtain damages resulting from
Concessionaire's default.
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Concessiona i re's Remed ies for C itv's Defau lt.
lf an event of default, as set forth in this Section, by the City shall occur,
Concessionaire may, after the expiration of the cure period, terminate this
Agreement upon written notice to the City. Said termination shall become
effective upon receipt of the written notice of termination by the City. On the
date specified in the notice, Concessionaire shall quit and surrender the
Concession Area to the City pursuant to the provisions of Subsection 13.7.
13.6 Termination for Convenience.
13.6.1 Notwithstanding any other provision of this Section 13, this Agreement
rnay be terrninated, in whole or in part, by the City, for convenience
and without cause, upon the furnishing of sixg (60) days prior written
notice to Concessionaire.
13.6.2 ln the event of termination by the City pursuant to this subsection,
Concessionaire herein acknowledges and agrees that it shall not have
any claim, demand, or cause of action of whatsoever kind or nature,
against the City, its agents, servants and employees (including, but
not limited to, claims for any start-up costs, interference in business or
damages for interuption of services, or interference in its concession
operations). ln no event shallthe City be liable to Concessionaire for
any indirect, incidental, special, lost profits or consequential damages.
13.7 Surrender of Concession Area.
At the expiration of this Agreement, or earliertermination in accordance with
the terms of this Agreement, Concessionaire shall sunenderthe 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 rernove all its personal property, upon forty-
eight (a8) hours written notice from the City Manager or his designee unless
a longer tirne 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 rnay be prosecuted as such. ln addition, the
Concessionaire shallpay to the City One Thousand ($1,000.00) Dollars per
day as liquidated damages for such trespass and holding over.
SECTION 14. PERFORMANCE BOND OR ALTERNATE SECURITY.
Concessionaire shall, on or before the Commencement Date of this Agreement, furnish to
the City Manager or his designee a Perfornance Bond in the penal sum as stated below
for the payment of which Concessionaire shall bind itself for the faithful performance of the
terms and conditions of this Agreement. A Performance Bond, in the arnount of Two
Thousand Two Hundred Fifly ($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. ln the event that a Certificate of Deposit is
13.5
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210
approved, it shall be a Two Thousand Two Hundred Fifty ($2,250.00) Dollar one-year
Certificate of Deposit in favor of the City, which shall be automatically renewed, the original
of which shall be held by the City's Chief Financial Officer. Concessionaire shall be so
required to maintain said Performance Bond oraltemate security, as accepted bythe City
Manager or his designee, in full force and effect throughout the Term of this Agreement.
Concessionaire shall have an affirmative dutyto notifo the Cig, in writing, in the event said
Performance Bond or alternate security lapses or otherwise expires. All interest that
accrues in connection with any financial instrument or sum of money referenced above
shall be the property of Concessionaire, except in an event of default, in which case the
City shall be entitled to all interest that accrues after the date of default.
SECTION 15. ASSIGNMENT.
Concessionaire shall not assign, sublease, grantany sub-concession or license, permitthe
use of by any other person other than Concessionaire, or otherwise transfer all or any
portion of this Agreementand/orof the Concession Area (allof theforgoing are herein after
referred to collectively as "transfers"), withoutthe priorwritten consent of the City Manager,
which consent shall not be unreasonably withheld.
Concessionaire shall notify the City Manager of any proposed transfer prior to
consummation of same. ln the event inat anyluch transfei is approved, the transferee
shall agree to be bound by all the covenants of this Agreement required of the transferor
hereunder. Any transfer made without complying with this section shall be null, void, and of
no effect and shall constitute an act of default under this Agreement. Notwithstanding any
such consent, or any permitted transfer under any provision of this section, unless
expressly released by the City Manager, Concessionaire shall remain jointly and severally
liable (along with each approved transferee, who shall automatically become liable for all
obligations of the transferor hereunder with respect to that portion of the Agreement so
transferred), and the City shall be permitted to enforce the provisions of this Agreement
directly against Concessionaire or any transferee of Concessionaire without proceeding in
any way against any other person.
SECTION 16. SPECIAL EVENTS / SPONSORSHIPS.
16.1 The parties agree and acknowledge that Concessionaire's proposed use(s),
as defined in Section 3 hereof, do not contemplate nor allowthe production,
promotion or sponsorship by the Concessionaire of special events in or
around the Concession Area.
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
rcserves the right to displace the Concessionaire for City produced and/or
sponsored special events and/or City produced and/or sponsored
productions, upon five (5) days prior written notice to Concessionaire.
Additionally, the aforestated events may also require additionaltime for load-
in and load-out of the event. ln 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 shallcease
and desist during such time. To the extent that Concessionaire is displaced,
16.2
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16.3
and/or required to cease and desist operations, Cityshallprovide, calculated
on a per diem basis for the period of time the Concession Area is non-
operational, a credit against Concessionaire's PG amount, as delineated in
Section 4.2 herein. lf the Concessionaire is not required to close, orthe Cig
Manager or his designee determines that Concessionaire may remain open
in such a manner as prescribed by the City, that will not interfere with the
special event and/or production, Concessionaire shall use its best efforts, in
either case, in cooperating with the City. lf Concessionaire is allowed to
remain open d urin g special events a nd/or prod uctions, Concessionai re m ay
be allowed to have in operation its normaldaily 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).
Sponsorshios.
The City reserves unto itself all present and future rights to negotiate all
forms of endorsement and/or sponsorship agreements based on the
marketing value of any City trademark, property, brand, logo and/or
reputation, Any and all benefits derived from an endorsement and/or
sponsorship agreement based on the marketing value of a City trademark
property, brand, logo and/or reputation, shall belong exclusively to the City.
Concessionaire shall be specifically prohibited from entering into, or
otherwise creating any, sponsorships and/or endorsements with third parties
which are based solely or in any part on the marketing value of a City
trademak, property, brand, logo and/or reputation.
SECTION 17. NO IMPROPER USE.
Concessionaire will not use, nor suffer or permit any person to use in any manner
whatsoever, the Concession Area for any improper, immoral or offensive purpose, or for
any purpose in violation of any Federal, State, County, or municipal ordinance, rule, order
or regulation, or of any govemmental rule or regulation now in effect or hereafter enacted
or adopted. Concessionaire will protect, indemniff, and forever save and keep harmless
the City, its officers, employees, contractors, agents orservants, from and against damage,
penalty, fine, judgment, expense or charge suffered, imposed, assessed or incuned 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 seruants. ln 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 failto conect 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
verba! notice of the nature and extent of such violation, conduct, or practice; such
suspension to continue until the violation is cured. Concessionaire further agrees not to
commence operations during the suspension untilthe violation has been corrected to the
satisfaction of the City Manager or his designee.
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18.1
18.2
SECTION 18. PRICE SCHEDULES.
Concessionaire agrees that prices charged forthe sale of food and beverage
service will be consistent with the price schedule(s) herein submitted by the
Concessionaire and approved bythe City and incorporated herein as exhibib
to this Agreement. All subsequent price approvals and changes must be
approved in writing by the City Manager or his designee, such approvalnot
to be unreasonably withheld, delayed or conditioned. Prices shall be
reasonably consistent with those charged for sirnilar items in other similar
public concessions in the City. The City shall have the final right of approval
for all such prices and changes, such approval not to be unreasonably
withheld, delayed or conditioned. Concessionaire agrees to refrain from the
sale of any item identified as prohibited by the City and to sell only those
items approved bythe City. Concessionaire agrees to maintain an adequate
supply necessary to accommodate park patrons.
Notwithstanding Subsection 18.1, Concessionaire acknowledges that the
City has an existing "Concession Agreement for Operation of Vending
Machines", dated October 19, 2005, which entitles the vendor to the
placement of up to six (6) vending machines within South Pointe Park.
Concessionaire shall at all times price products of similar type and/or volume
in a manner equalorgreatertothe pricing of the vending machine item(s). At
no time shall Concessionaire's item(s) be sold at a lower price than similar
items sold in the vending machines.
SECTION 19. NOTICES.
All notices from the City to Concessionaire shall be deemed duly served upon receipt, if
rnaited by registered orcertified mailwith a return receiptto Concessionaire atthe following
addresses:
Kim E. Pham, Manager
Blissberry, LLC
332 Lincoln Road
Miami Beach, Florida 33139
With copies to:
Craig M. Dome, P.A.
407 Lincoln Road, Penthouse SE
Miami Beach, Florida 33139
All notices from Concessionaire to the City shall be deemed duly served upon receipt, if
mailed by registered or certified mail return receipt requested to the City of Miami Beach at
the following addresses:
City Manager
City of Miami Beach
1700 Convention Center Drive
MiamiBeach, FL 33139
213
With copy to:
Director of Real Estate, Housing & Community Development
City of Miami Beach
1700 Convention Center Drive
MiamiBeach, 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
Compliance.
Concessionaire shall comply with all applicable City, County, State, and
Federalordinances, 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 lime to time.
Equal Emplovment Opportunity.
Neither Concessionaire nor any affiliate of Concessionaire performing
services hereunder, or pursuant hereto, will discriminate against any
employee or applicant for employment because of race, sex, sexual
orientation, color, creed, nationalorigin, familialstatus, religion or handicap.
Concessionaire willtake affinnative steps to utilize minorities andfemales in
the work force and in correlative business enterprises.
No Discrimination.
Concessionaire agrees that there shall be no discrimination as to race, sex,
sexual orientation, color, creed, national origin, familial status, religion or
handicap, in its employment practice or in the operations refened to by this
Agreement; and further, there shall be no discrimination regarding any use,
service, maintenance, or operation within the Concession Area. Allfacilities
and services offered shall be made available to the public.
SECTION 21. MISCELLANEOUS.
21.1 No Partnership.
Nothing contained in thisAgreement shall constitute or be construed to be or
create a partnership or joint venture between the City and Concessionaire.
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 agrced 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.
21.2
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21.3
21.4
21.5
21.6
21.7
21.8
21.9
Comolete Aqreement.
ThisAgreement, togetherwith allexhibits 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.
Headinos.
The section, subsection and paragraph headings contained herein are for
convenience of reference only and are not intended to define, lirnit, or
describe the scope or intent of any provision of this Agreement.
Bindino Effect.
This Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns.
Clauses.
The illegality or invalidity of any term or any clause of this Agreement shall
not affect the validity of the remainder of the Agreement, and the Agreement
shall remain in full force and effect as if such illegal or invalid term or clause
were not contained herein unless the elimination of such provision
detrimentally reduces the consideration that either pafi is to receive under
this Agreement or materially affects the continuing operation of this
Agreement.
Severabilitv.
lf any provision of this Agreement or any portion of such provision or the
application thereof to any person orcircumstance shallbe held to be invalid
or unenforceable, or shall become a violation of any local, State, or Federal
laws, then the same as so applied shall no longer be a part of this
Agreement but the remainder of the Agreement, such provisions and the
application thereof to other persons or circumstances, shall not be affec-ted
thereby and this Agreement shall be so modified.
Riqht of Entrv.
The City, at the direction of the City Manager, shall at alltimes during hours
of operation, have the right to enter into and upon any and all parts of the
Concession Area for the purpose of examining the same for any reason
relating to the obligations of parties to this Agreement.
Not a Lease.
It is expressly understood and agreed that no part, parcel, building, structure,
equipment or space is leased to Concessionaire; that this Agreement is a
concession agreement and not a lease, and that Concessionaire's right to
operate, manage, and maintain the concession shallcontinue 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
215
21.11
Concessionaire or otherwise, Concessionaire shall surrender and yield unto
the City the Concession Area, in accordance with Subsection 13.7 hereot,
and the City shall in no way be required to evict and/or otherwise remove
Concessionaire from the Concession Area as if this were a tenancy under
Chapter 83, Florida Statutes, nor shall Concessionaire be afforded any other
rights afforded to nonresidentialtenants purcuant to said Chapter{the parties
having herein expressly acknowledged thatthis Agreement is intended to be
a concession agreement and is in no way intended to be a lease).
21.10 Sionaqe.
Concessionaire shall provide, at its sole expense and responsibility, any
required signs at its concession. Alladvertising, signage and postings shall
be approved by the City, and shall be in accordance with all applicable
Municipal, County, State and Federal laws and regulations. Any signage
posted by Concessionaire shall be subject to the prior approval of the City as
to size, shape and placement of same, such approval notto be unreasonably
withheld, delayed or conditioned.
Conflict of lnterest.
Concessiona ire shall perform its services under th is Agreement and cond u ct
the concession operation(s) conternplated herein, in a manner so as to show
no preference for other concession operations/facilities owned, operated,
managed, or otherwise controlled by Concessionaire.
21.12 No Waiver.
21.12.1 lt is mutually covenanted and agreed by and between the parties
hereto that the failure of the City to insist upon the strict perforrnance
of any of the conditions, covenants, terms or provisions of this
Agreement, or to exercise any option herein confened, will not be
considered or construed as a waiver or relinquishment for the future
of any such conditions, covenants, terms, provisions or options but
the same shall continue and remain in fullforce and effect.
21.12.2 A waiver of any term expressed herein shall not be implied by any
neglectof the Cityto declare a forfeiture on account of the violation of
such term if such violation bycontinued or repeated subsequenUy and
any express waiver shall not affect any term other than the one
f'T11"*J:.:li::,,il:if:oand
that one onrv ror the time and in the
21.12.3 The receipt of any sum paid by Concessionaire to the Cig after
breach of any condition, covenant, term or provision herein contained
shall not be deemed a waiver of such breach, but shall be taken,
considered and construed as payment for use and occupation (and
not as rent), unless such breach be expressly waived in writing by the
City.
23
216
21.13 No Third Partv 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 rnanagement and operation of the
Concession Area in the hands of a private management entity only if so doing the City can
place a limit on its liability for any cause of action for breach of this Agreement, so that its
liability for any such breach never exceeds the sum of Ten Thousand ($10,000.00) Dollars.
Concessionaire hereby expresses its willingness to enter into this Agreement with a Ten
Thousand ($10,000.00) Dollar limitation on recovery for any action for breach of contract.
Accordingly, and in consideration of the separate consideration of Ten Thousand
($10,000.00) Dollars, the receipt of which is hereby acknowledged, the City shall not be
liable to Concessionaire for damages to Concessionaire in an amount in excess of Ten
Thousand ($10,000.00) Dollars, for any action for breach of contract arising out of the
performance or non-performance of any obligations imposed upon the City by this
Agreement. Nothing contained in this paragraph or elsewhere in this Agreement is in any
way intended to be a waiver of limitation placed upon the City's liability as set forth in
Florida Statutes, Section 768.28.
SECTION 23. VENUE.
This Agreement shall be deemed to have been made and shall be construed and
interpreted in accordance with the laws of the State of Florida. This Agreement shall be
enforceable in Miami-Dade County, Florida, and if legal action is necessary by either party
with respect to the enforcement of any and all the terms or conditions herein, exclusive
venue for the enforcement of same shall lie in Miami-Dade County, Florida. THE CITY
AND CONCESSIONAIRE HEREBY KNOWINGLY AND INTENTIONALLY WAIVE THE
RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING THAT THE CITY AND
CONCESSIONAIRE MAY HEREIN AFTER INSTITUTE AGAINST EACH OTHER WITH
RESPECT TO ANY MATTER ARISING OUT OF OR RELATED TO THIS AGREEI'IENT
OR THE CONCESSION AREA
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
24
217
lN WITNESS WHEREOF, the parties hereto have caused their names to be signed
and their seals to be affixed, all as of the day and year first above written, indicating their
agreement.
Attest:
Attest:
Signature/Secretary
CITY OF MIAM! BEACH, FLORIDA
lA""*\A"
Kim E. Pham, Manager
CORPORATE SEAL
(affix seal here)
(Print Name)
F:\FHCD\oALL\ECON\$ALL\ASSET\SOPTPARfXBlbsbeny Concession Agreemenl.FlNAL.doc
AI'PROVEDAS TO
FORM&IANGUAGE
E FOR E)(ECUNON
--rg\,b
Parcher, CITY CLERK
25
218
EXHIBIT 2,1
Concession Area
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219
Yagurt Bar & Eecch 6ri//
i65 Dav, a \'rar: 9an-.luu.ttl
&ncb trtin lill Stn.za iailv
bliu beocragca
lliu H2O, Purc lnlL hollh)hli,at , lou ,ruty,nr,! 2. I h, lalt bnv.
I-r,chcc Grcen Tca, rl S'()BE./ta,till, , Su,*l t I\t-,Srvtlnrl, v,rur hli,,"'
l"resh Sqrrcczcd Srxla kmonadc: nnrh uv'-ltrlt r4utt:ti la'nl lowu, il 'till hul,hh' up wutr lav
Frcsh Squcczed l*mona<lc: illafu hvrb thilv dlb hti hnunu
Victoamese lced (rffee l(xtz.: (iunntl *,fli */ ttnt\trt) uil/;, ,'1rr1r, unrl.u'7,v) o.v lct
!'resh Squeczed .luice l6 oz: lQllth Ltal on).\'rubly quta' h orrlictirt. fiu nn htlt tht litltnttt
l'resh .S<lueezed Smrxrthies l(i oz;
blissbcrrv sno*' brbblc ,4 lrub ll'n\i!-lruit rornllti' layt,',',1tv t ltt,riru I'all lrcut
i\lini: .{ oz rv/ lblprngs
i\ledium: li oz rv/'IolrPings
,\{ega: I ti oz rv/ Toppings
Slini
Thc Big Kid
Bliss Snacks
Menu & Prices
(page 1 of 2)
Gounnet Cupcakeu / Snacka
3 / $5.00
llrut.qino liliu to von !
EXHIBIT 3.1.1
tllrssrerr!'t
t&L,)
G ou rme t 6l iaaber ry Yogu rt
$2
$2
$4
.!i,
$q
$4
$(;
$6
$5.00
$(;.00
$n.50
$1.:)0
$3.00
27
220
EXH|B|T 3.1.1
Menu & Prices
(page 2 of 2)
b,""berrg*
Ynurt ktr &Beach 6r,//
'$,&
Good illornitE Miami
Moming Pastries
Hot ofl Tltc Prana
l'anini
Qtrcsdilla: r\lade with blcndcd chccsc and grrcssld ro prli'crion
Soupa an) aata)a
Skinnv l)i1r, liwl,.ul l+aqir,, ri Dip
blissbcrn, Signatu re .Salad
Fruit Salatl: A medle;, of I'resh fruits
Cacsar Salad u,; Grillcd or lllackencd Chickeo
.5oup of t[c [)ar': Prcparcd rry' only rhc licshest ingrcdicntslou *,ill alrva.r,s bc sari.slied
'Ibtu cJ Tinyr
No rllcat g,lcasc Qu.'sadilla, lillcd u'irh lrrsh grarr,d e hersr lrxl
(irilled Kosher llor l)oggie Dqg
l'he Crilled Cheesc: r\ perfeet grilled cheese sandrvirh rnade u,ith.r,orrr lrre:rrl ofchoice
Tqr ir with toPpingsl add ($11 eaclr
,rn,o, 0o,,, n,l;lil!,'ii,"l, * o, Ft, t i s
lil 10, )t&-ili0
'l'EX'l' : Blir,,2Go
L'o,,b pr ?'h Rliu, lttvilll.v L'{tn) il(.t,I?ttulv! I lt)t, DIS('OL'A''l'r/ ItwlN (arl
Brirying hlu' h, vn!
$e
$lo
$lo
$12
$4 up
$8 lr,rr,l
$q
$9
$6
$6
$6
$6
$;
28
221
EXHIBIT 3.1.2
Concessionaire's Equipment List
Bread Rack
Freezer
Prep Table with fridge
Toaster
Juicers (2)
Blenders (2)
Cash Register
Television
29
222
EXHIBIT 10.1.1
Concessionaire's I mprovements
Concessionaire does not anticipate the need to make any improvements.
30
223
EXHIBIT 21.10
Concessionaire's Signage
(TO BE SUBLilTTED BY CONCESSIONAIRE)
31
224
Exhibit B
*&':.fu - ;1
{ii, ip.:-",--rtr
1.,
Date: September 29, 201 4
To: City manager of Miami Beach
RE: Blissberry concession at South Pointe Park renewal
17000 Convention Center Drive
Miami Beach, FL 33139
CC: Director of Real Estate, Housing & Community Development
To whom it rnay concern,
I wanted to thank the city of Miami beach for allowing Blissberry to be the chosen
concession for South Pointe Park. We would like to formally extend our Contract
for an additional year based on the renewal terms.
Please do not hesitate contacting us if there any problems regarding the
extension. We hope the city is happy with performance of Blissberry. We plan on
continuing servicing the South Pointe Park and the city of Miami beach.
Sincerely,
.-')/ ^./,7t--------
*,, = Pham
Blissberry
CEO & Founder
www.blissberry.us
kim@blissberry.us
1340 Monad Terrace #4
Miami Beach , Fl 33139
(305) e7e-6553
,,ffi
225
RESOLUTION NO
A RESOLUTION OF THE MAYOR AND CIry COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, ACCEPTING THE RECOMMENDATION OF THE
FINANGE AND CITYWIDE PROJECTS COMMISSION COMMITTEE AND OF THE
CITY MANAGER, AND WAIVING, BY 5I7TH VOTE, THE COMPETITIVE BIDDING
REQUIREMENT, FINDING SUCH WAIVER TO BE IN THE BEST INTEREST OF
THE CIry; AND APPROVING AND AUTHORIZING THE MAYOR AND CITY
CLERK TO EXECUTE A CONCESSION AGREEMENT BETWEEN THE CITY AND
BLISSBERRY, LLC FOR THE MANAGEMENT AND OPERATION OF THE FOOD
AND BEVERAGE CONCESSION, LOCATED IN A PORTION OF THE SOUTH
POINTE PARK PAVILION BUILDING, CONSISTING OF APPROXIMATELY 240
SQUARE FEET; SAID CONCESSION AGREEMENT HAVING A TERM OF FIVE(5) YEARS, WTTHOUT ANy RENEWAL OPT|ONS, COMMENCTNG ON
DECEMBER 1, 2015 AND ENDING NOVEMBER 30, 2020.
WHEREAS, on May 12, 2010, the Mayor and City Commission approved the issuance of
Request for Proposals (RFP) No. 34-09/10, for the management and operation of a food and
beverage concession located in a portion of the South Pointe Park Pavilion Building; and
WHEREAS, Concessionaire was the top-ranked firm and on September 15, 2010, the Mayor
and City Commission adopted Resolution No. 2010-27485, authorizing the Administration to enter
into negotiations with Concessionaire; and further authorizing the Mayor and City Clerk to execute
a Concession Agreement, upon conclusion of successful negotiations; and
WHEREAS, the City and Concessionaire executed a Concession Agreement, dated November
24, 2010, for an initial term of two (2) years commencing on December 1 , 2010 and ending on
November 30, 2012, with three (3) renewal options for one (1) year each; and
WHEREAS, Concessionaire exercised all three (3) of its renewal options and the Concession
Agreement is scheduled to end on November 30, 2015; and
WHEREAS, Concessionaire submitted a letter to the City requesting to extend the Concession
Agreement for a period of five (5) years; and
WHEREAS, the Administration submitted Concessionaire's renewal request to the Finance and
Citywide Projects Committee (FCWPC) at its March 2, 2015 meeting, and the FCWPC
recommended: 1 ) to extend the Term for a period of five (5) years and 2) to increase the Minimum
Guarantee to $25,000 annually, payable in equal quarterly installments of $6,250 each; and
WHEREAS, subsequent to the March 2,2015 recommendation of the FCWPC, Concessionaire
requested that the Concession Fee be reduced from fifteen percent (15o/o) gross sales to ten
percent (10o/o) of gross sales; and
WHEREAS, the Administration submitted Concessionaire's request to reduce the Concession
Fee to the Finance and Citywide Projects Committee (FCWPC) at its April 8,2015 meeting, and
the FCWPC recommended to reduce the Concession Fee from fifteen percent (15o/o) of gross
sales to ten percent (10%) of gross sales; and
226
WHEREAS, as recommended by FCWPC, at its March 2,2015 and April 8,2015 meetings,
and pursuant to the City Manager's recommendation, set forth in the accompanying City
Commission memorandum, and as required pursuant to Section 2-367(e) of the City Code, the City
Manager is recommending the waiver, by 5l7th vote, of the competitive bidding iequirement, ai
being in the best interest of the City; and
WHEREAS, the Administration recommends the approval of a new Concession Agreement,
substantially in the form attached hereto and incorporated herein as "Exhibit 1".
NOW, THEREFORE, BE IT DULY RESOLVED THAT THE MAYOR AND CITY COMMTSSION
OF THE CITY OF MIAMI BEACH, FLORIDA, hereby accept the recommendation of the Finance
and Citywide Projects Commission Committee and of the City Manager, and waive, by 5/7th vote,
the competitive bidding requirement, finding such waiver to be in the best interest of the City; and
approve and authorize the Mayor and City Clerk to execute a concession agreement between the
City and Blissberry, LLC for the management and operation of the food and beverage concession,
located in a portion of the South Pointe Park Pavilion Building, consisting of approximately 240
square feet; said concession agreement having a term of five (5) years, without any renewal
options, commencing on December 1 , 2015 and ending November 90, 2020.
PASSED and ADOPTED this
ATTEST:
day of 2015.
Rafael E. Granado, City Clerk Philip Levine, Mayor
T:lAGENDA\201 S\May\TCED\Blissberry\Blissberry RESO (5-6-1 5).docx
APPROVED AS TO
FORM & LANGUAGE
227
Blissberry, LLC
Concession
Agreement
EXHIBlTIt
228
SECTION
1.
2.
2.1
3.
3.1
3.3
3.4
4.
4.1
4.2
4.3
4.4
5.
6.
7.
8.
9.
10.
10.'l
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
!NDEX
TITLE PAGE
229
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
230
CONCESSION AGREEMENT BETWEEN
CITY OF MIAMI BEACH, FLORIDA AND
BLISSBERRY, LLC
FOR MANAGEMENT AND OPERATION OF A FOOD & BEVER,AGE CONCESSION
IN A PORTION OF THE SOUTH POINTE PARK PAVILION BUILDING
THIS AGREEMENT made the _ day of ,2015, between the GITY OF
MIAMI BEACH, a municipal corporation of the State of Florida (hereinafter called "City"),
having its principal address at 1700 Convention Center Drive, Miami Beach, Florida,
33139, and BLISSBERRY, LLG, a Florida limited liability company, having its principal
place of business at 332 Lincoln Road, Miami Beach, Florida, 33139, (dlbla Blissberry and
hereinafter called "Concessionaire"). dl'= i.'
WITNESSETH
WHEREAS, on May 1 2,2010, the Mayor anO City Commission approved,.the issuance of
Request for Proposals (RFP) No. 34-09110, for the management and operation of a food
and beverage concession located in a portion of the Sbuth Pointe Park Pavilion Building;
and
WHEREAS, Concesp.ioe-aLreyas the top-ranked nr, ,nJiU#ii,S"pt"rber 1 s,2010, the
Mayor and City Commission" adopted Resolution No. 2010-27485, authorizing the
Administration to en'ter into neQdations with Concessionaire; and further authorizing the
Mayor and City Clerk to execute,a Concession Agreement, upon conclusion of successful
negotiations; and v:1
4F'*,1' 3ity anO d6heessionaire executed a Concession Agreement, datedWHEREAS, thc
November. 24,2010, for an initidffif,,tn of two (2) years commencing on December 1 ,2010
and endin0 on November 30, 201X $^rith three (3) renewal options for one (1) year each;and ':.:
, .
=, ,
WHEREAS, Condessionaire exercised all three (3) of its renewal options and the
Concession AgreemOnt is schOduled to end on November 30,2015; and
WHEREAS, Concessionaire submitted a letter to the City requesting to extend the
Concession Agreement for a period of five (5) years; and
WHEREAS, the Administration submitted Concessionaire's renewal request to the Finance
and Citywide Projects Committee (FCPC) at its March 2,2015 meeting, and the FCPC
recommended: 1) to extend the Term for a period of five (5) years and 2) to increase the
Minimum Guarantee to $25,000 annually, payable in equalquarterly installments of $6,250
each; and
WHEREAS, subsequent to the March 2, 2015 recommendation of the FCWPC,
Concessionaire requested that the Concession Fee be reduced from fifteen percent (15%)
gross sales to ten percent (10%) of gross sales; and
231
WHEREAS, the Administration submitted Concessionaire's request to reduce the
Concession Fee to the Finance and Citywide Projects Committee (FCWPC) at its April B,
2015 meeting, and the FCWPC recommended to reduce the Concession Fee from fifteen
percent (15%) of gross sales to ten percent (10%) of gross sales; and
WHEREAS, on May 6,2105, the Mayor and City Commission adopted Resolution No.2015-_, accepting the recommendation of the Finance and Citywide Projects
Committee and approving and authorizing the Mayor apd City Clerk to execute the
following Concession Agreement; and f..!N
WHEREAS, accordingly, the City and Concessio_q!.'-@have negotiated the following
Concession Agreement. . .
NOW THEREFORE, in consideration of tne pilmir", ,nO the mutual covenants and
conditions herein contained and other good and valuable consideration, the receipt and
adequacy of which are hereby conclusively acknowledged, it is bgreed by the parties
hereto as follows'
,i
The City hereby grants to the Cohcessionaire, anO tf,e Concessionaire hereby accepts
from the City, the right to maintain, manage and operate a food and beverage concession
within the Concession Area (as nereihafter defined), in accordance with the purpose(s) and
forthe term(s) stated herein, and subj6Etto alltheterms and conditions herein contained.
'ri:i::::::::::: ::.
,:,1,:lSECTION 1. TERM.
1_1 This Agreement shall.commeiEbrcn the 1't day.of December, 2015 (the
L!!@lpmencement Date"), and teim..qlate on the 30th day of November,2o2o
(the Term).
For of this Agreement, a "contract yea/' shall be defined as that
-certain period dbmmencing on the l tt day of December, and ending on the
'ril0H-oay of NoEmber.
SECTION 2. CONCESSION AREA.
The City hereby grant5 to.CoFCessionaire the right, during the Term herein, to maintain,
manage and operate a fdtid and beverage concession in the following Concession Area:
2.1 Concession Area within the Pavilion Buildinq:
An area comprised of 240 square feet within the Pavilion Building, located at
3 South Washington Avenue and as further delineated in Exhibit 2.1 hereto.
2.2 Notwithstanding the Concession Area granted to Concessionaire in Section
2.1 , Concessionaire hereby understands, agrees, and acknowledges that the
Concession Area, along with any and all other public facilities in South Pointe
Park not specifically identified herein is intended to be open and available to
the public and, as such, must remain available forthe use and enjoyment of
the general public. Notwithstanding the preceding, Concessionaire may
232
3.1
designate areas within the Concession Area which shall not be open to
and/or accessible to the general public (e.9. "kitchen areas, pantries, and/or
storage closets, etc.).
SECTION 3. USE(S).
Concessionaire is hereby authorized to conduct the following kind(s) of businesses and
provide the following kind(s) of services within the Concession Area, all at its sole expense
and responsibility:
Food and Beveraqe Service.
3.1.1 Concessionaire shall prepare, or'cause to be prepared, for sale within
and from the Concession Area,'Such pre-cooked, prepared, and/or
prepackaged foods and such non-alcoholic beverages as those set
forth in Exhibit 3.1.1. The.City Manager hereby approves the types of
food and beverages, fiffi$rices for same (as those set forth in Exhibit
3.1.1). Any amendments to Exhibit 3.1.1, whether as to type of food
and beverages to be sold, or as to changes in prices for same, must
be approved in writing by the City Manager or his designee, such
approval not to be unreasonably,'lwithheld, delayed or conditioned,
priorto such changeS'.being implembnted within the Concession Area,
and a new upda-teO-Exh-iOit 3.1fiiffi be incorporated into thiso,9, , *ffiit1ru
AifooO7 u b"r"rrges sold within the Concession Area will be
piepnred usipO only the equipment and/or methodology approved by
the$ty an#; *,$.$ forth in Exhibit 3.1.2, as well as properly prepared
,nd *erre ifh",,c6.nr_pliance with all applicable health and sanitary
standards, laws andiregulations.
: ::::::::::::::t t::: ; I
The Quality Of fogd, beverages, and seryice offered will be first-rate
and comparabl$ tbdhat available at other public concession facilities
at world class resOrts on par with the City of Miami Beach.
in additioh to Concessionaire's general maintenance obligations for
the Concession Area, as set forth in Section 10 herein, the
ConceSsion Area and the immediately surrounding ten (10) foot
adjacent areas, shall at all times be maintained in a clean and
sanitary manner.
At least one supervisory employee must possess a Food Service
Management Certification issued by a County Public Health
Department in Florida. ln addition, the Concession Area must be
licensed by the Florida Department of Business Regulation, Division
of Hotels and Restaurants, and/or the Department of Agriculture,
and/or as may further be required by State law and/or by
correspond ing agencies.
3.1.2
3.1.3
3.1.4
3.1.5
233
3.1.6 Concessionaire agrees not to place any speakers, or any other device
used to amplify sound, in, on or around the Concession Area.
Percentaoe of Gross (PG) vs. MG:
For each contract year during the Term, in the event that the amount equal to
ten (10%) percent of Concessionaire's gross receipts (PG) exceeds the MG
amount, then Concessionaire shall also pay to the City the difference
between the PG amount and the MG amount, which payment shall be
received no later than sixty (60) days after the end of each contract year.
3.3 Citv Business Tax Receipts.
Concessionaire shall obtain, at its sole expense and responsibility, any
business tax receipts required by the City for the proposed use(s)
contemplated herein. To the extent required by City law (as same may be
amended from time to time), business tax receipts shall be obtained foreach
proposed use within a particular Concession Area.
:-.3.4 Parkinq.
Concessionaire may request from the City's Parking Deparlment, the use of
one (1) designated parking space at the Municipal Parking Lot P1 (South
Pointe Park parking lot) for deUr,Seriv vehicle-use only. The rate for said
parking space is subject to chari[eiand is currentlySeventy Dollars ($70.00)
per month, plus applicable saleS and use tax per space.
4.1 Minimum Guarantee (MG): i( Wln consideration of the Ci!y'-s grantid$,zd the rights provided in this
Agreement, for each contract year during ihe ferm, the Concessionaire shall
pay to the;G*ity"_.a Minimum Guaranteed Anhual Concession Fee (MG) of
Twenty,ll Ffti iT ousand ($25,000.00}.Dollars,"pbyable in equal quarterly
installments of Sii, Thousand Two Hundred and Fifty Dollars ($6,250.00)
each, payable on tle 1st day of each quarter during the Term.
commen.i;f;u11** $ ,h,no cohtiact year, and every subsequent contract, ', - year during thb Term nereoi, Concessionaire agrees that the MG shall be
'] ' adjusted'Upward $n the firsttay of each contract year during the Term
:r - hereof by the percenta.,.gg change of the "Base Numbed' and the "Current' Numbed' in the Consumer Price lndex - All Urban Consumers - U.S. Food
ahd Beverages - CUUR0000SAf, as published by the Bureau of Labor
Statistics of the U.S. Department of Labor, or of any revised or successor
indeX hereafter p'Ublished by the Bureau of Labor Statistics or other agency
of the United States Government succeeding to its functions ("CPl"). The
Base Number shall be the index forthat month (i.e. July) and yearwhich is
four (4) months prior to the Commencement Date of this Agreement (the
"Base Month"). The Current Number shall be the latest CPI published for
the Base Month of each calendar year during the term of the Term of this
Agreement.
4.2
234
The term "gross receipts" is understood to mean all income, whether
collected or accrued, derived by Concessionaire under this Agreement, or
any licensee, sub-concessionaire, or sub-tenant, as Concessionaire, from all
business conducted upon or from the Concession Area, including but not
limited to receipts from sale of food and beverages. The term "gross receipts"
shall exclude amounts of any Federal, State, or City sales tax, or other tax,
governmental imposition, assessment, charge or expense of any kind,
collected by the Concessionaire from customers and required by law to be
remitted to the taxing or other governmenlelig,uthority.
4.3 lnterest for Late Pavment. - l,
u''
Any payment which Concessionaire,il${:,,f5 tjfred to make to the City which is
not paid on or before the respective ddite provided for in this Agreement shall
be subject to interest at the rate of twelve (12%| percent per annum, or the
maximum amount allowable under Florida law, whichever is greater, from the
due date of payment until such time as payment is aCt*ally received by thecity'
,, i,,, '' I
: --=
4.4 Sales and Use Tai. -. L.
It is also understood th tli$',required Florida State Sales and Use Tax shall
be added to Concessiohaire's payments and forwarded to the City as part of
said payments. lt is the Citlf,;,p intentihat it is to receive all payments due from
Concessionaire as net of suclr Florida Slate Sales and Use Tax.
SECTION 5. MAINTENANCE AND EXAM|NATION OF RECORDS.
Concessionaire shall maintain Current, accurate, and complete financial records, on an
accrual baqisilirelgted to its operations pursuant to this Agreement. Systems and
proceduffiused t0rigaintain these records shallrinclude a system of internal controls; all
accodnLi records shatf;be maintained in accordance with generally accepted accounting
principlS€nd shall be opel to ihspection, copying, and audit by the City Manager or his
designee'Epen reasonablEverbalbr written notice, during normal hours of operation.
Concession@,gtratl maintain all such records at its principal office, currently located at
332 Lincoln RoHd; M-iami Beabh. Florida. 33139, or, if moved to another location, all such
records shall be relGEaled, qfjppncessionaire's sole expense, to a location in Miami Beach,
within ten (10) days fro1,'6-nS$Fe of request for inspection from the City. Such records and
accounts shall include, at a ffiinimum, a breakdown of gross receipts, expenses, and profit
and loss statements. ConCessionaire shallmaintain accurate receipt-printing cash registers
(or a like alternative) in the Concession Area which will record and show the payment for
every sale made or service provided in such Area. Such other records shall be maintained
as would be required by an independent CPA in orderto audit a statement of annual gross
receipts and profit and loss statement pursuant to generally accepted accounting
principles. Concessionaire records shall also be maintained for a period of three (3) years
following expiration (or other termination) of this Agreement (regardless of whether such
termination results from the expiration of the Term or for any other reason).
Concessionaire shall submit to the City Finance Department's Revenue Manager, within
sixty (60) days of the end of each contract year, an annual statement of gross receipts, in a
form consistent with generally accepted accounting principles.
235
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
(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.ofrcoffirnerts and suggestions by the City
regarding Concessionaire's performance undeithe Agreement. Within thirty (30) days after
the end of each contract year, Concessionaire and the City may meet to review
Concessionaire's performance under the Agreement for the previous contract year. At the
meeting, Concessionaire and the City may disCuss qug,,litp;operational, maintenance and
any othLr issues regarding Concessibnaiie's pe*p-rmedc'd under the Agreement.
Nothing contained within this Section shall preclude the City's audit rights for Resort Tax
collection purposes.
Concessionaire a and Shall pay, before delinquency, all taxes and assessments of
any kind (including, fritlrout limitation, ad valorem taxes, if assessed, and/or Resort Taxes)
levied or assessed upoilConcessionaire and/or the Concession Area including, without
limitation,any'such taxes and/-orass6s-srnentSthat may be levied and/orassessed against
Concessionaird andlorthe eb'fi.cessiori=A 'by reason of this Agreement, or by reason of
the business or other operatioris;hn_d/or activities of Concessionaire upon or in connection
with the Concession Area. *1,+".,I':'
Concessionaire will have the right, at its own expense, to contest the amount or validity, in
whole or in part, of any ta'x and/or assessment by appropriate proceedings, which
Concessionaire shall condudt diligently and continuously, in good faith. Concessionaire
may refrain from paying a'tax to the extent it is contesting the imposition of same in a
manner that is in accordance with law; provided, however, if, as a result of such contest,
additional delinquency charges become due, Concessionaire shall be responsible for such
delinquency charges, in addition to payment of the contested tax (if so ordered).
Concessionaire shall be solely responsible for and shall promptly pay when due all charges
for utility service(s) provided to the Concession Area (including all hook-up fees and impact
fees) for gas, electricity, water, sewer, cable, telephone, trash collection, etc.
Notwithstanding the preceding paragraph, the City shall charge Concessionaire a flat fee
for 1 ) electricity, in the amount of One Hundred Twenty ($120.00) Dollars per month; and
2) water usage, in the amount of Forty ($40.00) Dollars per month. The City reserves the
right, at its sole discretion, to adjust the flat monthly fees charged to Concessionaire for
electric and water use at any time during the Term, upon thirty (30) days priorwritten notice
236
to Concessionaire.
ln addition to other rights and remedies hereinafter reserved to the City, upon the failure of
Concessionaire to pay for such utility services when due, the City may elect to pay same
and Concessionaire shall promptly reimburse the City upon demand. ln no event shallthe
City be liable, whetherto Concessionaire orto third parties, foran interruption orfailure in
the supply of any utilities services to the Concession Area.
SECTTON 8. EMPLOYEES ANp TNpEpENpENT CONTMCTORS.
:::8.1 Concessionaire shall select, train, employ (or othenruise hire or retain) such
number of employees and/or independeht contractors as is necessary and
appropriate for Concessionaire to satisfy its responsibilities hereunder, and
as necessary to maintain the same levels of service as exist in similar first
class concession facilities qpd operations. Concessionaire's employees
and/or independent contractois shall be employees and/or independent
contractors of Concessionai16 nd not of the City, and Concessionaire shall
be solely responsible for their SUife_ruisrg$ llind daily direction and control.
Concessionaire shall be solely responsible for, and have the sole authorityto
hire, terminate and'discipline any andLall personnel and/or contractors
employed or retained by Concessionaire.
.8.2 Concessienaire and its employees and/,or indepbndent contractors shallwear
identification badges and uniforms approved by the City, such approval not
to be'urrieasonably- withheld, delayed or conditioned, during all hours of
operati6,h;.All empldyees andlor independent contractors shall observe all
the graces of per.g.gnal grooming. Concessionaire shall hire people to work in
= - peration wtro aie n6at;:clean, well groomed, and comport themselves in
,ttliif " a Brdf$sionalE rourte0Es=i*anner. Concessionaire and any persons hired
tLl,1il1.i!,', and/or l€iained b - ncessi6fiaire shall never have been convicted of a
''W+!;)'""Y (exetuding tra-fr.. nses)
=Goncessio naird Hhal I haVb an experienced manager or managers overseeing
thE$oncession operations at all times..i.#,riii
,rMll"
SECTION 9. HOURS OF:]gPERATION.
The Concession Area shall be open for business every day of the year, weather or events
of force majeure permitting. Concessionaire's minimum hours of operation shall be:
9:00 AM to 7:00 PM or Sunset (whichever occurs earlier)
Any change in the hours of operation including, without limitation, any request by
Concessionaire for an increase or decrease in same, shall be subject to the prior written
approval of the City Manager or his designee, which approval, if granted at all, shall be at
the City Manager's (or his designee's) sole option and discretion.
SECT]ON 10. IMPROVEMENTS, MAINTENANCE, REPAIR and OPERATION.
Concessionaire accepts the use of the Concession Area in its "AS !S" "WHERE lS"
10237
condition. Concessionaire assumes sole responsibility and expense for maintenance of the
Concession Area (including allfurniture, fixtures, equipment and any other improvements
thereon). This shall include, without limitation, daily (i.e. 365 days) removal of litter,
garbage and debris. Concessionaire shall also be responsible for all garbage disposal
generated by its operations.
10.1 lmprovements.
10.1.1 Any improvements to the Concession Area shall be at
Co ncessio nai re's so le expense a ndpshonsibil ity; provided, however,
that any plans for such improveme?its bhall be submitted to the City
Manager or his designee for pri.efi...lviritten approval, such approval not
to be unreasonably withheld, ddaydd,=o.r..rconditioned, and a list of the
approved improvements shall be attached hereto as Exhibit 10.1.1.
Upon termination and/or expiration of thiS Agreement, all personal
property and non-permanent trade fixturds may be removed by
Concessionaire without causing damage to the Concession Area.
All permanent'(fixed) improvements to the Concession Area shall
remain the pi.o.pefty. of the City upon termination and/or expiration of
this Agreemepd$f f,,p",r.vided in Subsection 1O.1.2.
Concessionaire fi1it p"r"iffiiens to attach to the Concession Area
arising from, connected with;ror related to, the design, construction,
'and installalion of anFfu ements.
Construction of any approved improvements shall be diligently- irosecuted to=completion and accomplished through the use of
,,Jieerrsed, reputabld contraetors who are acceptable to the City
MaEger or his designee. ln addition to obtaining the prior approval of
the€ily=Manager or his designee (acting on behalf of the City, in a
propriefu capacity), Concessionaire shall also be solely responsible
,.. for obtd, g, at its sole cost and expense, any and all permits,
{ft1 licensesftnd/or regulatory approvals; such regulatory approvals
'1, ;1fi-b_ich include, without limitation, land use board and/or the
dp,p;,o,y.a[$=of other req u i red reg u lato ry agencies havi ng j u risd iction )
reQuiF,,Hd= fo r the co nstructio n of i m prove ments.
Notwithstanding Subsection 10.1.1 hereof, upon termination and/or
expiration of this Agreement, Concessionaire shall immediately
remove any permanent improvements made to the Concession Area
during the Term, at Concessionaire's sole expense and responsibility.
ln such event, Concessionaire shall also restore the Concession Area
to its original condition prior to the improvements being made,
reasonable wear and tear excepted.
The above requirements for submission of plans and the use of
specific contractors shall not apply to improvements (which term, for
purposes of this subsection 10.'l .3 only, shall also include
10.1.2
10.1 .3
11
238
improvements necessary for Concessionaire's ongoi ng maintenance
and repair of the Concession Area) which do not exceed Five
Hundred ($500.00) Dollars; provided that the work is not structural,
and provided further that it is permitted by applicable law.
10.2 Garbage Receptacles.
With respect to litter, garbage and debris removal, Concessionaire shall
provide, at its sole expense, a sufficient number of trash receptacles for its
own use and for the use of its patrons. Determination of the "number" of
receptacles shall at all times be within the City Manager or his designee's
sole discretion. Disposal of the contents of said receptacles (and removal of
litter, garbage and debris within the Concession Area), shall be done on a
daily (i.e. 365 days) basis. Any costs for removal of the contents of said trash
receptacles by the City, because of the Concessionaire's failure to do so, will
be assessed to, and become^the responsibility of, the Concessionaire.
10.3
The dumping or disposal otiia.ny refuse, discards, trash or garbage,
generated by, or as a result of Ccincessionaire's operatiohs, into any of the
South Pointe Park trash receptaclEl,qftatl be strictly prohibited.
*t ,-rr iMaintenance/Repair. I =q
"Concessionaire shall maintain, at its sole bxpense and responsibility, all
furniture,,,,f"i,.!i.t,,,!res, and equipment (FFE) bnd any other improvements
(whethdi B'tiffianent or not) required to operate the concession. ln the event
any FFE,and/or bther improvement(s) is lost, stolen, or damaged, it shall be
replaced ol repaif€d promptly, at the sole expense of Concessionaire.
10.3.1
10.3.2
10.3.3
!91 ,,
All da#.h$€ar injlUrurof any,,kind to the Concession Area, and/orto any
improve''ffi'6nts andloi FFE thereon, except damage caused by the
willful miscd"nduct or $ioSS negligence of the City, shall be the sole
obligation of'C'oncessionaire, and shall be repaired, restored and/or
replaced prompt{$ by Concessionaire, at its sole expense, to the
satisfaction of the'City Manager or his designee.
All of theiaforesaid repairs, restoration and replacement shall be in
quality aid 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.
lf Concessionaire fails to make any repairs, restoration and/or
replacement, the same may be made by the City, at the expense of
Concessionaire, and all sums spent and expenses incurred by the
City shall be collectable by the City and shall be paid by
Concessionaire within ten (10) days after receipt of a bill or statement
thereof. Notwithstanding that the City may elect to make such repairs,
restoration, and/or replacement, the City shall have no obligation
andior affirmative duty to do so.
It shall be Concessionaire's sole obligation to ensure that any10.3.4
12
239
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 Danoerous 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 s[bstance 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
immediatgry removed
.;:..*"r,t:;:;:=
--,
,.,,.
ln consideration of a separ specific consid€ration of Ten ($10.00)
Dollars and other good ahdiiijlvaluable consideration, the receipt and
sufficiency of which are herbby ackn-q#ledged, Codiessionaire shall
indemnify and hold the City harmless fiom any loss, damage, cost, or
expense of the City, ihcluding, without-l,i tation, reasonable attorney's fees,
incurred as a result of, arising.from, oifunnected with the placement by
Concessionaire of any "hazardous_ substahffi,or "petroleum products" on,
under, in oJ.upon the Concessioh Area a$,those terms are defined by
applicable Federal and State statutes, or ariy environmental rules and
environmental re$ulations promulgated thereunder. The provisions of this
subsection 10.4 shall survive the termination or earlier expiration of this
10.5
Agreement.
:'',.Secunw.
Conce55lo.nflre shall be reSpohsible for and provide such reasonable
security rnB'Sbures as may be required to protect the Concession Area and
4y improveftpgts and FFE thereon. Under no circumstances shallthe City
be responsibleffor any stolen or damaged FFE; damage to or loss of any
impio*vements;Id1 any stolen, lost, or damaged personal property of
Cond6ssionaire'S employees, contractors, patrons, guests, invitees, and/or:::::: : ,any othdffiirQ rties, except if caused by the willful misconduct or gross
negligence,.Of"'the City, its officers, employees, contractors, agents or
servants.
lnspection.
Concessionaire agrees that the Concession Area (and operations thereon)
may be inspected at any time during hours of operation by the City Manager
or his designee, or by any other municipal, county or state officer, or other
agency having responsibility and/or jurisdiction for inspection of such
operations. Concessionaire hereby waives all claims against the City for
compensation for loss or damage sustained by reason of any interference
with the concession operations, whether by the City or by any public agency
or official, in enforcing their respective duties, or enforcing compliance with
any applicable laws, or ordinances, or regulations.
10.6
13
240
Concessionaire shall maintain, at all times throughout the Term, at its sole expense and
responsibility, the following types of insurance coverage:
a. Comprehensive General Liability, in the minimum amount of One Million
($1,000,000.00) Dollars (subject to adjustment for inflation) per occurrence
for bodily injury and property damage. This policy must also contain
coverage for premises operations, products ald contractual liability.
tti l[.i{$b. Workers Compensation lnsurance shall*ffi#r/lt$\uired in accordance with the
laws of the State of Florida. ,,.*='
Nllffii=c. Automobile lnsurance shall be proVided coVe-.*-1tg all owned, leased, and
hired vehicles and non-ownership liability for not'"l s than the following limits
(subject to adjustment for inflation):
dE
-afi
Bodily lnjury +1,000,000.00 per petsbn.
Bodily$ury $1,000,000.00 per accidtiilit,-rM1@rn" $1 ;ooo'ooo.oo per accident
The policies of insurance refe,SSgd to d*[p,VS shall hot be subject to cancellation or
changing coverage except upor{fat leaS'trrthffi(30) days prior written notice to the
City, and then only subject to the prior wiitteh.approval of the City Manager or his
designee, such approval not to be"tihr.d.E nably w[thheld, delayed or conditioned.
Priorto the Commencement Date of thiS Agreement, Concessionaire shall provide
the City with a Certiflcate of lnsurance'ft5l each such policy. ALL POLICIES SHALL
NAM, HE Crry Or UTAUTSEACH f=OruOe AS AN ADDTTONAL NAMED
IN$URED. Allsuch policies shall be obtained from companies authorized to do
bNness in the'$t of Florida with an A.M. Best's lnsurance Guide (latest edition)
ra@ acceptable'16$e City'-s Risk Manager, and any replacement or substitute
compaq.-ry shall alsciffi subjeit lo the approval of the City's Risk Manager, such
aOnroffiot to be uffionably withheld, delayed or conditioned.
Should Conce'Ssio naii'e iail to obtain, maintain or renew the policies of insurance
referred to aboVe,. in'flthe required amounts, the City may, at its sole discretion,
obtain such insuranbe, and any sums expended by the City in obtaining said
insurance, shall be repaid by Concessionaire to the City, plus ten (10%) percent of
the amount of premiums paid to compensate the City for its administrative costs. If
Concessionaire fails to repaythe City's expenditures following written demand from
the City (and within the time specified in the City's demand notice), such failure shall
be deemed an event of default hereunder and the total sum owed shall accrue
interest at the rate of twelve (12o/o) percent until paid.
SECTION 12. INDEMNITY.
SECTION 11. INSURANCE.
ln consideration of a separate and specific consideration of Ten ($10.00)
Dollars and other good and valuable consideration the receipt and sufficiency
12.1
14241
12.2
12.3
12.4
12.5
of which are hereby acknowledged, Concessionaire shall indemnify, hold
harmless and defend the City, its officers, employees, contractors, agents or
servants from and against any claim, demand or cause of action of
whatsoever kind or nature arising out of error, omission, or negligent act of
Concessionaire, its officers, employees, contractors, agents or servants in
the performance of services under this Agreement.
ln addition, and in consideration of a separate and specific consideration of
Ten ($10.00) Dollars and other good and valuable consideration the receipt
and sufficiency of which are hereby acknowledged, Concessionaire shall
indemnify, hold harmless and defend the City, its officers, employees,
contractors, agents or servants from and against any claim, demand or
cause of action of whatever kind orrature arising out of any misconduct of
Concessionaire, its officers, emp-.[q.....y es, contractors, subconcessionaire(s),
agents or servants not included- bsection 12.1ftrein and for which the
City, its officers, employees, contractors, subcondessionaire(s), agents or
servants are aileged to be rirbf$,i,il.,.kH'-_
*..A
=
Subsections 12.1 and 1 2.2 shall sU#hr-ffi..pp'termination or expiration of this
Agreement. Subsectiohs'12.1 and 12.2.bhall not apply, however, to any such
liability, that arises as a result of the willfEffisconduct orgross negligence of
the City, its officers, employees, contractoib, agents or servants.
!#r"Subrq,fl#ie$; .' -=
The teims of in'5-=ti'rance po'[i'e,ies 'referred to in Section 11 shall preclude
subrogiiiol claids against Concessionaire, the City and their respective
officers, eEpJoyeds, contractors, agents or servants.
Force Maieure.
Whenever a pdddd of time is ii.ppin prescribed for the taking of any action by
the City or ConCdssionaire (ai'applicable), the City or Concessionaire (as
applicable), shall not be liable or responsible for, and there shall be excluded
from the computation 6{,such period of time, any delays due to strikes, riots,
a'ets of God, shortages'CIf labor or materials, war, or governmental laws,
regulations, or reStrictions in the nature of a prohibition or moratorium, or any
bona f.ide delay beyond the reasonable control of City or Concessionaire (as
applicable). The foregoing shall not apply to any payments of money due
under 15;gfureement.
Waiver of Loss from Hazards.12.6
Concessionaire hereby expressly waives all claims against the City for loss
or damage sustained by the Concessionaire resulting from an event of Force
Majeure (as defined herein), and the Concessionaire hereby expressly
waives all rights, claims, and demands against the City and forever releases
and discharges the City from all demands, claims, actions and causes of
action arising from any of the aforesaid causes.
SECTION 13. DEFAULT AND TERMINATION.
Subsections 1 3.1 through 1 3.3 shall constitute events of default under this Agreement. An
event of default by Concessionaire shall entitle the City to exercise any and all remedies
15242
described as the City's remedies under this Agreement, including but not limited to those
set forth in Subsection 13.4 and Section 14. An event of default by the City shall entitle
Concessionaire to exercise any and all remedies described as Concessionaire's remedies
under this Agreement, including but not limited to those set forth in Subsection 13.5.
13.1 Bankruptcv.
lf either the City or Concessionaire shall be adjudged bankrupt or insolvent,
or if any receiver or trustee of all or any part of the business property of
either party shall be appointed, or if any receiver of all or any part of the
business property shall be appointed and shall not be discharged within sixty
(60) days after appointment, or if either party shall make an assignment of its
property for the benefit of creditors, or shall file a voluntary petition in
bankruptcy, or insolvency, or shall apply for reorganization or arrangement
with its creditors under the bantftrptcy or insolvency laws now in force or
hereinafterenacted, Federal, St*.t orotherwise;,or,.if such petitionsshallbe
filed against either party and shall not be dismissed within sixty (60) days
after such filing, then the othe.r arty may immediately, or at any time
thereafter, and without further demand or notice, terminate this Agreement
without being preju$,1ged as to any re=medies which may be available to it for
Default in Pavment. W
ln the everll Concessioha@ fails to submit any payment within five (5) days
of its due date,.there shall'fua [6fid pHHlg.R\-gJ Fifty (gSO.00) Dollars per day
for such late payment, in ad'Hj.tidh to interestat the highest rate allowable by
law. lf any payment and accumufated penalties are not received within fifteen
(15) days after the payment due date, and such failure continues three (3)
=r1; a,y--..,s,a,fter written notice thereof, then the City may, without further demand
',, -oi fl6iti0p,, terminate this Agreement without being prejudiced as to any
- remedies Which may be available to it for breach of contract, and may begin
i
i,,i,.,,l.."dures
tocollect the.Performance Bond required in Section 14 herein.
Nda-Moneta r'71i .bfa u lt.
lntEiBevent that Concessionaire or the City fails to perform or observe any of
the d6i.il.iuants, teims or provisions under this Agreement, and such failure
continU€.E-,,1,'ffirty (30) days after written notice thereof from the other party
hereto, sUCEEnon-defaulting party may immediately or at anytime thereafter,
and without further demand or notice, terminate this Agreement. ln 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. ln the event Concessionaire
cures any default pursuant to this subsection, it shall promptly provide the
City with written notice of same.
Citv's Remedies for Concessionaire's Default.
lf any of the events of default, as set forth in this Section, shall occur, the
13.2
13.3
13.4
16243
City may, after notice (if required) and the expiration of cure periods, as
provided above, at its sole option and discretion, institute such proceedings
as in its opinion are necessary to cure such default(s) and to compensate the
City for damages resulting from such default(s), including but not limited to
the right to give to Concessionaire a notice of termination of this Agreement.
If such notice is given, the Term of this Agreement shall terminate upon the
date specified in such notice from the City to Concessionaire. On the date so
specified, Concessionaire shallthen quit and surrenderthe Concession Area
to the City pursuant to the provisions of Subsection 13.7. Upon the
termination of this Agreement by the _"Q1i att rights and interest of
Concessionaire in and to the Concessig.l3+.Ai.ea and to this Agreement, and
every part thereof, shall cease and term'tilil:t and the City may, in addition to
any other rights and remedies it maylaV€;'retain all sums paid to it by
Concessionaire underthis Agreement, includihg brt not limited to, beginning
procedures to collect the Performance Bond in S$0'$'#"on 14 herein.
ln addition to the rights set forth above, the City shall have the rights to
pursue any and all of the following:
a. the right to injunotion or other Similar relief available to it under Florida
b.at law or suits in equity or
damages resulting fiom
13.5
13.6
.,...,rrL QEggssionairels Rem6dies for €itv's Default.
'=-. lf=Eh'CVent of default, as set forth in this Section, by the City shall occur,
ConceSsionaire may, after the expiration of the cure period, terminate this, Agreement'Bpon written notice to the City. Said termination shall becomei -Sective up6rgfu-e"ceipt of the written notice of termination by the City. On the'd specified?ffihe notice, Concessionaire shall quit and surrender the
CdE'cession Arffio the City pursuant to the provisions of Subsection 13.7.
Te rm i nati'bn:f6,,i1!Co n ve n i e n ce.
13.6.1
::::=-
Notrruiihstanding any other provision of this Section 13, this Agreement
may be terminated, in whole or in part, by the City, for convenience
and without cause, upon the furnishing of sixty (60) days priorwritten
notice to Concessionaire.
ln the event of termination by the City pursuant to this subsection,
Concessionaire herein acknowledges and agrees that it shall not have
any claim, demand, or cause of action of whatsoever kind or nature,
against the City, its agents, servants and employees (including, but
not limited to, claims for any start-up costs, interference in business or
damages for interruption of seryices, or interference in its concession
operations). ln no event shallthe City be liable to Concessionaire for
13.6.2
17244
13.7
any indirect, incidental, special, lost profits or consequential damages.
Surrender of Concession Area.
At the expiration of this Agreement, or earliertermination in accordance with
the terms of this Agreement, Concessionaire shallsurrenderthe Concession
Area in the same condition as the Concession Area was prior to the
Commencement Date of this Agreement, reasonable wear and tear
excepted. Concessionaire shall remove all its personal property, upon forty-
eight (48) hours written notice from the City Manager or his designee unless
a longer time period is agreed to by the City. Concessionaire's obligation to
observe or perform this covenant shall survive the expiration or other
termination of this Agreement. Continued occupancy of the Concession Area
after termination of the Agreement shall constitute trespass by the
Concessionaire, and may be,,,lprgsecuted as such. ln addition, the
Concessionaire shall pay to t!:!=g0iry One Thousand ($1,000.00) Dollars per
day as liquidated damages,f.6 Uch trespass and holding over.
CE BOND OR AET€RNATI }SECURITY.
Concessionaire shall, on or before the Comme of this Agreement, furnish to
the City Manager or his designee a-Performance Aonii*in the penal sum as stated below
forthe payment of which Concessionaire shall bind itSelf forthe faithful performance of the
terms and conditions of this Agreement. A PerformanCe Bond, in the amount of Two
Thousand Two Hundr:ed=F ($2,250.00) Dollars, shall'b'6'' quired and be in faithful
observance of this Agreement. A cash deposit, irrevocable letter of credit, or certificate of
deposit may also,,: ffice, as'ddermined by the City Manager or his designee in his
reasonable discretion.. The form of the Performance Bond or letter of credit shall be as
required by the City Manager or his designee. ln the event that a Certificate of Deposit is
approved, it shall be a T =o-$odsand Two Hundred Fifty ($2,250.00) Dollar one-year
Certificate of Deposit in favoiffihe Citr; whicfr shall be automatically renewed, the original
of which shall be held by the Ci[y:s Chief Financial Officer. Concessionaire shall be so
required to maintain said Performahg.g Bond or alternate security, as accepted by the City
Manager or his designee, in full fordb and effect throughout the Term of this Agreement.
Concessionaire shall have an affirmatile duty to notify the City, in writing, in the event said
Performance Bond or alternate security lapses or othenruise expires. All interest that
accrues in connection with any financial instrument or sum of money referenced above
shall be the property of Concessionaire, except in an event of default, in which case the
City shall be entitled to all interest that accrues after the date of default.
SECTION 1 5. ASSIGNMENT.
Concessionaire shall not assign, sublease, grant any sub-concession or license, permit the
use of by any other person other than Concessionaire, or othenarise transfer all or any
portion of this Agreement and/or of the Concession Area (all of the forgoing are herein after
referred to collectively as "transfers"), without the priorwritten consent of the City Manager,
which consent shall not be unreasonably withheld.
Concessionaire shall notify the City Manager of any proposed transfer prior to
consummation of same. ln the event that any such transfer is approved, the transferee
shall agree to be bound by all the covenants of this Agreement required of the transferor
hereunder.Anytransfer made without complying with this section shall be null, void, and of
18245
no effect and shall constitute an act of default under this Agreement. Notwithstanding any
such consent, or any permitted transfer under any provision of this section, unless
expressly released by the City Manager, Concessionaire shall remain jointly and severally
liable (along with each approved transferee, who shall automatically become liable for all
obligations of the transferor hereunder with respect to that portion of the Agreement so
transferred), and the City shall be permitted to enforce the provisions of this Agreement
directly against Concessionaire or any transferee of Concessionaire without proceeding in
any way against any other person.
SECTION 16. SPECIAL EVENTS / SPONSORSHIPS.
16.1
16.2
16.3
a.ii=..:tt;.zr,
'.|L.
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.
Citv Special Events. ,-
Notwithstanding Subsection 16.1 herein, and in the eveht thal the City, at its
sole discretion, dee-,811$Jhat it would be in the best interest of the City, the City
reserves the right t6;-$..iSpface the Concessionaire for City produced and/or
sponsored special 'events and/or City produced and/or sponsored
productions, upon fivE (5) dayb prior written notice to Concessionaire.
Additionally, the aforestated evehts may also require additional time for load-
in and load-outr,of the ev€n!. fp,sruCff1ie.,...9,9s, the City may request that
Concessionaire Cease and de.p,.,i$t operati6EHuring the term of, and in the
area of, the specialevent and/ffiroduction, and Concessionaire shallcease
and desistduring ch time. T6|the extent that Concessionaire is displaced,'W,!9r required to cease and deiistoperations, Cityshall provide, calculated
-'6h'Eper diem basis for the period of time the Concession Area is non-
operatioha=Ea credit against Concessionaire's PG amount, as delineated in' Section 4.Z',fterein lf,the Concessionaire is not required to close, orthe City
'.,=;: nager or hiS"-designee determines that Concessionaire may remain open
"'iE'.such a man.i.16; as prescribed by the City, that will not interfere with the
g-iul event apO{or production, Concessionaire shall use its best efforts, in
eitheil rffise, in$d-operating with the City. lf Concessionaire is allowed to
rema i n'€pend'B,{hg specia l events a nd/o r prod uctio ns, Co ncessio nai re may
be allowed'-tGflave 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).
Sponsorships.
The City reserves unto itself all present and future rights to negotiate all
forms of endorsement and/or sponsorship agreements based on the
marketing value of any City trademark, property, brand, logo and/or
reputation. Any and all benefits derived from an endorsement and/or
sponsorship agreement based on the marketing value of a City trademark
property, brand, logo and/or reputation, shall belong exclusively to the City.
Concessionaire shall be specifically prohibited from entering into, or
19246
othenarise creating any, sponsorships and/or endorsements with third parties
which are based solely or in any part on the marketing value of a City
trademark, property, brand, logo and/or reputation.
SECTION 17. NO IMPROPER USE.
Concessionaire will not use, nor suffer or permit any person to use in any manner
whatsoever, the Concession Area for any improper, immoral or offensive purpose, or for
any purpose in violation of any Federal, State, County, or municipal ordinance, rule, order
or regulation, or of any governmental rule or regulation now in effect or hereafter enacted
or adopted. Concessionaire will protect, indemnify, and Jolever save and keep harmless
the City, its officers, employees, contractors, agents or-s-e. s, from and against damage,
penalty, fine, judgment, expense or charge suffered,.itfrp ed, assessed or incurred for any
violation, or breach of any law, ordinance, rule, ordproi regtlation occasioned by any act,
neglect or omission of Concessionaire, or any of its offiie-rs, employees, contractors,
agents or servants. ln the event of any violation by Concessionaire, or if the City shall
deem any conduct on the part of Concessionaire to be objectionaQJp,or improper, the City
Manager or his designee shall have the right to suspend the concedbi"onoperations should
the Concessionaire fail to correct any such violation, conduct, or practiCe !o the satisfaction
of the City Manageror his designee within twenty-fourQ$ hours after receiving written or
verbal notice of the nature and efient,of such violation, conduct, or practice; such
suspension to continue until the vidHiU.fiaiE.cured. Concessionaire further agrees not to
commence operations during tne sJtpgniion untilthe violation has been corrected to the
::::::I :I J: :IJilil" *'U";= G
18.1 Concessionaire agrees that pricgs*charged forthe sale of food and beverage
;.Je-wjce will berconsistent *,,n ,6*;;$rice schedule(s) herein submitted by the
-ffii,i"== e5sionaifu and approveo nyihe City and incorporated herein as exhibits-t:liiiii, to this A,g1ee,.m9nt""All subsequent price approvals and changes must be
""1ii1j,,,,,., approved ih Wfiting by the City Manager or his designee, such approval not',0.# be unreasonably withheld, delayed or conditioned. Prices shall be'$asonably coE-sistent with those charged for similar items in other similar
puhffc concessions in the City. The City shall have the final right of approval
for 6ll such prices and changes, such approval not to be unreasonably
18.2
withheld;"d,e-la@ or conditioned. Concessionaire agrees to refrain from the
sale of ari ,$f$e identified as prohibited by the City and to sell only those
items approVed bythe City. Concessionaire agrees to maintain an adequate
supply necessary to accommodate park patrons.
Notwithstanding Subsection 18.1, Concessionaire acknowledges that the
City has an existing "Concession Agreement for Operation of Vending
Machines", dated October 19, 2005, which entitles the vendor to the
placement of up to six (6) vending machines within South Pointe Park.
Concessionaire shall at all times price products of similartype and/orvolume
in a manner equal or greater to the pricing of the vending machine item(s). At
no time shall Concessionaire's item(s) be sold at a lower price than similar
items sold in the vending machines.
20247
SECTION 19. NOTICES.
All notices from the City to Concessionaire shall be deemed duly served upon receipt, if
mailed by registered or certified mail with a return receipt to Concessionaire at the following
addresses:
Kim E. Pham, Manager
Blissberry, LLC
332 Lincoln Road
Miami Beach, Florida 33139
With copies to: : ,="
Craig M. Dorne, P.A.
407 Lincoln Road, Penthouse SE
Miami Beach, Florida 33139
All notices from Concessionaire to the Cit! $ all be deemed duly served upon receipt, if
mailed by registered or certified mail return reCeipt requested to the City of Miami Beach at
the following addresses: "$"-
.::i::::r:i:t1;r"
With copy to: j,rl:::
Trra
.,3ty Manager '='
,
City of Miami Beach
1700 Convention Center Drive :t,fi6,"m' Beach, FL'33139 'tlr'
City of Miami Beach
;t=469*ntrfilte.€.ffice of Rea I E statejrs,:
1700 Convention Center Drive.'-, i,-:'Bigmi Beath:YiiFl 33 1 39
:$#
Concessionaire and the City may cFibnge the above mailing addresses at any time upon
giving the othet party written notification. All notices under this Agreement must be in
writing.
l,:''
SECTION 20. LAWS.= -.,i,-
,
20.1 Compliance.
Concessionaire shall comply with all applicable City, County, State, and
Federal ordinances, statutes, rules and regulations (including but not limited
to all applicable environmental City, County, State, and Federal ordinances,
statutes, rules and regulations, as same may be amended from time to time.
Equal Emplovment Opportunitv.
Neither Concessionaire nor any affiliate of Concessionaire performing
services hereunder, or pursuant hereto, will discriminate against any
employee or applicant for employment because of race, sex, sexual
orientation, color, creed, national origin, familial status, religion or handicap.
20.2
21248
Concessionaire willtake affirmative steps to utilize minorities and females in
the work force and in correlative business enterprises.
No Discrimination.
Concessionaire agrees that there shall be no discrimination as to race, sex,
sexual orientation, color, creed, national origin, familial status, religion or
handicap, in its employment practice or in the operations referred to by this
Agreement; and further, there shall be no discrimination regarding any use,
service, maintenance, or operation within the Concession Area. Allfacilities
and services offered shall be made available to the public.
. :]:::::::.:
i' ,:::::::=
SECTION 21. MISCELLANEOUS. Sli i
21.1 No Partnership. ,$" 'fl.+i
Nothing contained in this Agreeme-ht shall constiitiiJgrpr be construed to be or
create a partnership or joint venture between the S_-t}=nd Concessionaire.
21.2
20.3
21.3
:
:i
21.4
21.5
21.6
Modifications.
This Agreement c?=EI;}g! be changed .o- odified except by agreement in
writing executed byalffirties hereto. Cohcessionaire acknowledges that no
modification to this Agre=eme_nt-may be agreed to bythe City unless approved
by the Mayor and City mmiS$n except where such authority has been
expressly prqyided hereifu the'City, ager.
I 'w/
Complete Aqreement. ,,.,'i" '.1
This Agreement, togetherwith a|l€xhibits iniorporated hereto, constitutes all
the understandings and agree!-fr..-Q;ts of whatsoever nature or kind existing
@Utlr,rcen th6='parties with resiiiicl to Concessionaire's operations, as
=-oilGffinfated hedn =
Headinos.rh6non, su.Bsection and paragraph headings contained herein are for-'cCI'ntrenience bf reference only and are not intended to define, limit, or
d6$eribe the sco or intent of any provision of this Agreement.
:
Bindinq Effect.
This Agreeffiilt sfratt be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns.
Clauses.
The illegality or invalidity of any term or any clause of this Agreement shall
not affect the validity of the remainder of the Agreement, and the Agreement
shall remain in full force and effect as if such illegal or invalid term or clause
were not contained herein unless the elimination of such provision
detrimentally reduces the consideration that either party is to receive under
this Agreement or materially affects the continuing operation of this
Agreement.
Severabilitv.21.7
249
21.8
21.9
21.10
,,ffij
lf any provision of this Agreement or any portion of such provision or the
application thereof to any person or circumstance shall be held to be invalid
or unenforceable, or shall become a violation of any local, State, or Federal
laws, then the same as so applied shall no longer be a part of this
Agreement but the remainder of the Agreement, such provisions and the
application thereof to other persons or circumstances, shall not be affected
thereby and this Agreement shall be so modified.
Risht of Entrv.
The City, at the direction of the City Mana€,€i*hall at all times during hours
of operation, have the right to enter i mg upon any and all parts of the
Concession Area for the purpose o ariii61,fp the same for any reason
relating to the obligations of parties tdthis A$f nt.
Notalease. i tu^
It is expressly understood and agreed that no part, pdrffil, building, structure,
equipment or space is leased to€oncessionaire; thattffS54greement is a
concession agreeme--nt€nd not a lease3nd that ConceSsibnaire's right to
operate, manage, aq, if!,.lain the conc€ssion shallcontinue only so long as
Concessionaire coni'p.' S' lt,the undertakings, provisions, agreements,
stipulations and conditions of t(ffireement,
Accordingly,'Concessionaffi,,he,..L- agfieg; and acknowledges that in the
event of termination of tliid:::A ementi, hether due to a default by
Concessionaire or othenruise, Coicessionaiie shall surrender and yield unto
the City thEConcession Area,'*Eccordance with Subsection 13.7 hereof,
(.4?s#&i;{ltS City's5-;11 in no way beffiuired to evict and/or othenryise remove
l:=:'adhdnn"*ronaire'from the Conces$ibn Area as if this were a tenancy under
Cha ptei8ff lo rid'a' Statutes, noiiha I I Co ncessio na i re be afford ed any other
:. rights affoid to nonresidentialtenants pursuantto said Chapter(the parties
'.:'having herein bxoressly acknowledged that this Agreement is intended to be
aryssion dlftement and is in no way intended to be a lease).
Siqnaqe. li+
ConceSSffiair:e Shall provide, at its sole expense and responsibility, any
required di$fi$ at its concession. All advertising, signage and postings shall
be approved by the City, and shall be in accordance with all applicable
Municipal, County, State and Federal laws and regulations. Any signage
posted by Concessionaire shall be subject to the prior approval of the City as
to size, shape and placement of same, such approval not to be unreasonably
withheld, delayed or conditioned.
21.11 Conflict of lnterest.
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 othenruise controlled by Concessionaire.
23250
21.12 No Waiver.
21.12.1
21.12.2
21.12.3
It is mutually covenanted and agreed by and between the parties
hereto that the failure of the City to insist upon the strict performance
of any of the conditions, covenants, terms or provisions of this
Agreement, or to exercise any option herein conferred, will not be
considered or construed as a waiver or relinquishment for the future
of any such conditions, covenants, terms, provisions or options but
the same shall continue and remain in full force and effect.
A waiver of any term expressed herein shall not be implied by any
neglect of the City to declare a forfeiture on account of the violation of
such term if such violation by continued or repeated subsequently and
any express waiver sha,l|:#tgt-ffect an'y term other than the one
specified in such waiver and that one only for the time and in the
manner specificallV state!
The receipt of any sumfuai.9 by===.€ cessionaire& the City after
breach of any condition, covenant, term or provision herein contained
shall not be d€emed a waiver,ffi,puch 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 theCity. ?
21.13
shall confer upon any person or entity, other than
the parties t'hreA respeGtive successors and permitted assigns,
any rights or re e.dies bV? n of this Agreement.
The City desires to enter into this ASjlE ment placing the management and operation of the
Concession Area in the hands of a priVate management entity only if so doing the City can
place a limit on its liability for any cause of action for breach of tfris Agreement, so that its
liability for any such breach never exceeds the sum of Ten Thousand ($10,000.00) Dollars.
Concessionaire hereby expresses its willingness to enter into this Agreement with a Ten
Thousand ($10,000.00) Dollar limitation on recovery for any action for breach of contract.
Accordingly, and in conSideration of the separate consideration of Ten Thousand
($10,000.00) Dollars, the receipt of which is hereby acknowledged, the City shall not be
liable to Concessionaire for damages to Concessionaire in an amount in excess of Ten
Thousand ($10,000.00) Dollars, forany action for breach of contract arising out of the
performance or non-performance of any obligations imposed upon the City by this
Agreement. Nothing contained in this paragraph or elsewhere in this Agreement is in any
way intended to be a waiver of limitation placed upon the City's liability as set forth in
Florida Statutes, Section 768.28.
SECTION 23. VENUE.
This Agreement shall be deemed to have been made and shall be construed and
interpreted in accordance with the laws of the State of Florida. This Agreement shall be
Nothing iil this
251
enforceable in Miami-Dade County, Florida, and if legal action is necessary by either party
with respect to the enforcement of any and all the terms or conditions herein, exclusive
venue for the enforcement of same shall lie in Miami-Dade County, Florida.
THE CITY AND CONCESSIONAIRE HEREBY KNOWINGLY AND INTENTIONALLY
WAIVE THE RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING THAT THE
CIry AND CONCESSIONAIRE MAY HEREIN AFTER INSTITUTE AGAINST EACH
OTHER WITH RESPECT TO ANY MATTER ARISING OUT OF OR RELATED TO THIS
AGREEMENT OR THE CONCESSTON AREA.
#i,\\\
lN WITNESS WHEREOF, the parties hereto haffiCaused their names to be signed
and their seals to be affixed, all as of the day and y,q$iifiEt above written, indicating theiragreement. I ','
Attest:CITY OF MIAMI=E-ilCH, FLORIDA
Rafael Granado, CITY CLERK
:
Philip Levine, MAYOR
ffiiii',M'-''
=3LISSBE..R.RY, LLCAttest:
Signatuie Kim E. Pham, Manager
Signatuie ,i
Print Name
CORPORATE SEAL
(affix seal here)
25252
F:\RHCD\$ALL\ECON\$ALLIASSET\SOPTPARK\Blissberry Concession Agreement.FlNAL.doc
Iffituu,,
26253
EXHIBIT 2.1
Concession Area
F
=.flxrguazo<
tsEE)ZEUE!s:5(,Z*
f;$=l!v-E
I
frJ:)0
Eo
u,t0-()
J,l)
:8Nu
27254
Yo3arl Br,r & *erc.h 6r;//
56i llav,t a. Yt*r : .9arn-Swutt
llt,yb lrrrit' tiil. Sua,u hilli
bli,tt beoeraget
bliad lI2O, l.turt J'r*ib loul'l)[/i,r,r , yau nuty *unl2. I 1p s6.[1t boru'.
L-r.iiee ()reen 'lea: A SOBE Faur;ft , S$eet or Un-srakne), vou,'!,lirt
lr'r"esh Squeez-ed Soda l,emtinade: mti)e *y'.h'col, ,tiu.etztl) /orul lnnona, it will /,ult,!d up ltour i.l,ry
Fresh Squeezed Lem<:na,Je: lla& /refi )aily u'itb /,,cat lzmont
Vietrramese Tcerd Cirffee 16oz: Coarmtt c,r-/ee ul eon?cntt] nilA, a/talyn nnr)ft.rftA.teer it.
Fresh Srlueezed .Juicc l6 oz: l00o,h Local,zni)Jred/tly.r1uu:ar lo perj,ction, l'ou can tttttc t/stfre,,hnu,t
Ii'resh Squcezed Srnoothics 1(i oz:
lrlisslrerry snow- bubble /y'zrlt /,/erth.?.iruit an*nlhtl bycrci) orer a ti.ipi,tr:a hoil trul
Go u rmet b llt i berry Yog ur t
M:ini: 4 oz rty''lbppings
Mediun: B oz ty' Toppings
-&lega: 16 oz w'/'Iirppiags
@u**hmnns@
Gourmet Cupcaket / Snacht
3 i $5.00
$2
$2
$4
t4
$4
$,i
$6
$rt
EXHIBIT 3.1.1
Menu & Prices
(page 1 of 2)
Ii-in1liaq Bli.ta to ylu!
.\.Iirri
1'hrr I)[ Kicl
Bliss Snack.s
$.;.00
s6.00
$8.50
$r.50
$3.00
28255
@$$mmtuwr-rk$@
Yo3url &ar
(".
@ffil&d i.{,M
Goo} t?Iorning Miami
S'Iorning Pastries
IIot alJ' Tbe Prcat
Panini
f]uesadilla: iltadt: with blenderl chcest: and pressed to lxrfttti.on
Soupd an7 talaA,t
Slrinnv l)\r: Irath cut Veggiu 'tl Dip
bli ssberrv Signatrr re Salad
Fruit Salad: A medlc,y of lrcsh fruits
Caesar Salad rv/ Clrilled or: Illackened Chicken
Soup of the f)aw: Prepared rv otlv the frtshest ingredieilts.lou will .rlwavs [:e satisfied
'Ibtt elT'inya
No Meat please Quesadilla, [i]led rvith fresL grared cheese and
(]rillcd I(oshur Hot f)oggie Dog
'f hc C;rilled Chcese: A perfect grillc'd cheese sandrvich made with 3'11tl1 brcad o{:choicc
'111, it rvith to1>pingsl add ($1) r'ach
Sout:h Point
lllv'\).I"am,ut,' ,tr|hmi Butlt, l'l 3J159
'lt/.5tb' 558..i1;t)
TFXT: RtiuZGo
EXHIBIT 3.1.1
Menu & Prices
(page 2 of 2)
&&uaeh Gri/l
$6
lb9
$9
$e
$10
$10
$12
$4 "up
58 l,utl
$6
$6
I'(>
fi7
ll.'b,: I)liu I4uh1t ('a,0 ateptr) onlyi ]tt% Dl.SC){itYll) 'v/ I*yalty (lar)
B r in_r1 in g l, l;d a to yo u t
C'anb ot
29256
EXHIBIT 3,1,2
Concessionaire's Equipment List
Slla'
qffi;
,.EHi"r, n-*"&+ii:\- ^\\rPult::::ut: : :uuuut+-
*is\..F;\.\N
N
.,slliill
Bread Rack \iil jR\"Freezer :,,
Prep Table with fridge :
Toaster
Juicers (2)
l,,r,i Blenders (2)
=. Cash Register
i,i[@.I levision
,n%
*,,M
\!:e:
30257
EXHIBIT 10.1,1
Concessionaire's I mprovements
7a-r*
"ti.'
,. ..... .,,..4,..._.= ., r.
Concessionaire does not anticip-te the ne. akd any improvements.'w -*'@
...::=: .::.rt.::.....:.....:.:= =,, , :i
=-
,,tL
t ' 1:
irtitittrrrrt
*_ :1ffi
31258
EXHIBIT 21.10
Concessionaire's Signage
Feqryffi iuBM lrrEDBY coNcESSloNAIRE)
===
32259