HomeMy Public PortalAbout2005-22 Agreement with Zoom Mini, IncRESOLUTION NO. 2005-22
A RESOLUTION OF THE VILLAGE COUNCIL OF THE
VILLAGE OF KEY BISCAYNE, FLORIDA, APPROVING
KEY BISCAYNE COMMUNITY CENTER CONCESSION
AGREEMENT TO BE ENTERED INTO BETWEEN THE
VILLAGE AND ZOOM MINI, INC., GRANTING A FOOD
AND BEVERAGE CONCESSION IN THE VILLAGE
COMMUNITY CENTER; AUTHORIZING
IMPLEMENTATION BY VILLAGE MANAGER; AND
PROVIDING FOR EFFECTIVE DATE.
WHEREAS, the Village of Key Biscayne, Florida, desires to grant a food and beverage
concession in the Village Community Center to Zoom Mini, Inc.; and
WHEREAS, Zoom Mini, Inc. has the necessary experience and resources to run the food
and beverage concession in the Community Center; and
WHEREAS, the Village Council finds that approval of the Key Biscayne Community Center
Concession Agreement between the Village and Zoom Mini, Inc. is in the best interest of the Village.
NOW, THEREFORE, BE IT RESOLVED BY THE VILLAGE COUNCIL OF THE
VILLAGE OF KEY BISCAYNE, FLORIDA, AS FOLLOWS:
Section 1. Recitals Adopted. That each of the above stated recitals is hereby adopted and
confirmed.
Section 2. Agreement Approved. That the Key Biscayne Community Center
Concession Agreement, in substantially the form attached hereto, between the Village and Zoom
Mini, Inc., is hereby approved, and the Village Manager is hereby authorized to execute the
Agreement on behalf of the Village, once approved as to form and legal sufficiency by the Village
Attorney._
Section 3. Implementation. That the Village Manager is hereby authorized to take any
action which is necessary to implement the purposes of this resolution and the Agreement.
hereof.
Section 4. Effective Date. That this resolution shall be effective immediately upon adoption
PASSED AND ADOPTED this 10th day of May , 2005.
/142(d4,€4 L.-_.
MAYOR ROBERT OLDAKOWSKI
AT
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CHITA H. ALVAREZ, CMC, VILLAGE CLE
APPROVED AS To FORM AND LEGAL SUFFIC
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VILLAGE A' i 0
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KEY BISCAYNE COMMUNITY CENTER
CONCESSION AGREEMENT
C6C)
THIS COMMUNITY ENTER CONCESSION AGREEMENT (hereinafter the
"Agreement") is made as of t day of --fit, 2005 by and between the VILLAGE OF
KEY BISCAYNE, a Florida m ipal corporation (hereinafter the "Village") and ZOOM MINI,
INC., a Florida corporation (hereinafter the "Concessionaire").
RECITALS
A. The Village is the owner of that certain real property located at 95 West McIntyre
Street, Key Biscayne, Miami -Dade County, Florida and commonly known as the Key Biscayne
Community Center (the "Community Center");
B. The Village desires to grant Concessionaire a food and beverage concession (the
"Concession") on the first floor of the Community Center in the approximate location shown on
Exhibit "A" attached hereto (the "Concession Location"); and Concessionaire desires to secure
such concession rights in the Community Center, and shall perform in accordance with this
Agreement.
NOW, THEREFORE, in consideration of the mutual promises set forth herein, and other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties agree as follows:
1. Recitals. The foregoing recitals are true and correct and are hereby incorporated
into this Agreement by reference.
2. Concession Grant. The Village grants to Concessionaire and Concessionaire
accepts from the Village the exclusive privilege of maintaining the Concession in the Concession
Location, subject to and in accordance with the terms of this Agreement. The Concession
granted shall constitute a license to use a portion of the Community Center. This Agreement
does not constitute a lease, and no landlord/tenant relationship shall be created. This Agreement
shall not impair or affect the Village's authority to provide for vending machines containing
snacks and beverages at the Community Center or to host or allow special events at which foods
and beverages are served by Village or other persons at the Community Center.
3. Condition of Concession Location. Taking possession of the Concession
Location by Concessionaire shall constitute acknowledgment that the Community Center and the
Concession Location are in good condition. Concessionaire shall accept the Concession
Location in its presently existing condition, and the Village shall not be required to make any
alterations to the Concession Location or to the Community Center. Concessionaire is
authorized at Concessionaire's sole cost and expense, to make, through a qualified licensed
contractor retained by Concessionaire, all of the improvements set forth on Exhibit "B" attached
hereto (the "Improvements"), subject to issuance of a Village Building Permit. At no cost to
Village, Concessionaire shall relocate the Village equipment and cabinets as indicated on Exhibit
"B". The plans and specifications for the Improvements and relocation of the Village's
equipment and cabinets shall be subject to the prior approval of the Village.
4. Concession Fee. Concessionaire shall pay to the Village during the initial term of
this Agreement $600.00 per month (the "Monthly Fee"), together with all applicable sales taxes
due thereon, for the use of the Concession Location. The payments shall be paid to the Village
on the first (1st) day of each month for operations of the preceding calendar month, and
payments shall be made to the order of the Village of Key Biscayne and mailed to Village of Key
Biscayne, 88 West McIntyre Street, Key Biscayne, Florida 33149, to the attention of Finance
Director.
5. Intentionally Left Blank.
6. Intentionally Left Blank.
7. Use of Premises. The Concession Location shall be used by Concessionaire
solely to conduct a food and beverage business. Concessionaire shall not use or permit the
Concession Location to be used for any other purpose. Concessionaire shall not sell, serve,
provide or allow the consumption or use of any alcoholic beverages or tobacco products at the
Concession Location.
8. Equipment required of Concessionaire. Concessionaire shall furnish and install
ready for use at the Concession Location, at Concessionaire's sole cost and expense, all the
equipment listed on Exhibit "C" attached hereto. All of such equipment that is to be provided
by Concessionaire that is removable from the Concession Location without any damage (the
"Removable Items") to the Concession Location shall remain the property of Concessionaire
and may be removed by Concessionaire at the termination of this Agreement. If such
Removable Items are not removed within thirty (30) days after termination of this Agreement,
it shall become the property of the Village, at the Village Manager's discretion.
9. Quality of Service. All items sold by Concessionaire shall be of first class
quality, commensurate with the Community Center, and the services provided by Concessionaire
shall be rendered courteously and efficiently. The Village reserves the right to prohibit the sale
of any item that it deems objectionable, and the Village shall have the right to order the
improvement of the quality of either the foods or the services rendered.
10. Rates and Charges. Maximum rates and charges for foods and beverages to be
sold and services to be rendered are as set forth in the menu included in Exhibit "D" attached
hereto. Concessionaire shall post the prices for all foods and beverages in such places as the
Village Manager may designate.
11. Changes in Rates and Services. Concessionaire shall not change any rates
established in Article 10 of this Agreement or curtail or diminish any food or beverage services
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provided for in this Agreement without first requesting and receiving permission from the
Village Manager.
12. Hours of Operation. Concessionaire shall operate the Concession seven (7) days
each week during the term of this Agreement from 7:30 a.m. to 7:00 p.m. on Monday to and
including Thursday, and from 9:00 a.m. to 6:00 p.m. on Friday, Saturday and Sunday. The
Village Manager reserves the right to establish different hours of operation at any time that she
deems the same to be necessary, but shall not reduce hours to less than a total of sixty (60) hours
per week. The Village shall determine those holidays for which the Community Center shall be
closed to the public andto Concessionaire. The Concessionaire may request approval from the
Village Manager to reduce the total hours of operation or alter the hours of operation, which
approval shall not be unreasonably withheld.
13. Employees of Concessionaire. Concessionaire shall at all times employ only
those persons of good moral character and Concessionaire shall not retain any employee that the
Village considers to be unfit for employment or otherwise objectionable. All employees of
Concessionaire shall be well groomed and neatly dressed at all times. Employees shall conduct
themselves courteously in their relations with the public.
14. Utilities. The Village shall provide routine water, telephone, sewer and electric
service. Concessionaire shall pay all applicable connection fees of utilities and any impact fees
imposed by government entity concerning the Concession Location. Concessionaire shall pay
for any long distance or toll telephone service. The failure or the interruption or termination of
any utility services, in whole or in part, shall not render the Village liable in any respect to
Concessionaire, nor work an abatement of the Monthly Fee, nor relieve Concessionaire from the
obligation to fulfill any covenant or agreement hereof.
15. Term. The term of this Agreement shall be for one (1) year, and shall commence
on April , 2005 and end on April , 2006, both dates being inclusive. The term of this
Agreement is subject to the option to renew as provided in Article 16, and to sooner termination
as provided in Article 32 below.
16. Option to Renew. Concessionaire shall have the option to renew this Agreement
for up to four (4) successive additional one (1) year terms after the termination of the initial term,
provided that at a time not later than ninety (90) days prior to the expiration of the initial or then
current renewal term of this Agreement, Concessionaire serves a written notice on the Village
Manager of Concessionaire's desire to extend the term of the Agreement. All of the provisions
of this Agreement shall remain the same during any renewal term unless both parties mutually
agree to revise any of the provisions. The option to renew is, and shall remain, subject to the
provisions of Article 32 of this Agreement, concerning termination by the Village. Within thirty
(30) days after receipt of Concessionaire's notice of renewal, the Village Manager, at her
discretion, may decline the exercise of the option to renew. In the event that the option to renew
is so declined by the Village, the Termination Reimbursement provisions of Section 32.3 shall
apply.
17. Repair and Maintenance of Concession Location. Except as provided in
Article 18, Concessionaire shall maintain the Concession Location in good order and repair at
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Concessionaire's own expense during the entire term of this Agreement. Concessionaire shall
perform any required maintenance and repairs at Concessionaire's own expense. If
Concessionaire neglects or refuses to do so, the Village shall have the right to perform necessary
maintenance or repairs for the account of Concessionaire, and Concessionaire shall promptly
reimburse the Village for the cost of such necessary maintenance or repairs, provided that the
Village shall first give Concessionaire ten (10) days written notice of its intention to perform
necessary maintenance or repairs to enable Concessionaire to perform necessary maintenance or
repairs at Concessionaire's own expense.
18. Structural Maintenance. Structural maintenance to the Concession Location
and painting and decoration, whether interior or exterior, shall be done by the Village, except
that the Concessionaire must repair any damages which it has caused.
19. Alterations. Except as provided in Article 3, no alterations or additions of any
character shall be made on or to the Concession Location by Concessionaire without obtaining
the prior written consent of the Village. If alterations or additions are made, they shall be made at
the sole cost and expense of Concessionaire.
20. Improvements as Property of the Village. All alterations and additions to the
Concession Location, except as provided in Article 8 as to Removable Items, shall remain on the
Concession Location and become the property of the Village on the termination of this
Agreement.
21. Maintenance of Equipment. Concessionaire shall maintain all equipment used
for the Concession in good working condition at all times, at Concessionaire's sole cost and
expense, for the operation of the Concession. Concessionaire shall be responsible for replacing,
with the exception of reasonable wear and tear, any equipment of the Village that becomes
missing, damaged beyond repair, or too unsanitary for use; Concessionaire shall replace all
equipment that Concessionaire is required to provide under Article 8 of this Agreement, if it
becomes unfit for use.
22. Premises to be Kept Clean. Concessionaire shall keep the Concession Location
in a clean and sanitary condition at all times. Concessionaire shall store all trash and garbage in
the containers provided by Concessionaire for that purpose. Concessionaire shall provide and
pay for the removal of all trash and garbage from the Concession Location, if Village's solid
waste collection service provider imposes any charge for such service.
23. Right of Access. The Village shall have access to the Concession Location, and
to each part of the Concession Location, during the regular business hours of Concessionaire for
the purpose of inspecting the same and making repairs to the Concession Location.
24. Damage to Concession Location. If at any time during the term of this
Agreement the Concession Location is damaged by fire, act of nature, or other cause beyond the
control of Concessionaire, to the extent that continued use of the Concession Location is not
practical, Concessionaire may, on written notice to the Village delivered within ten (10) days
after the damage has occurred, terminate this Agreement without any liability of Concessionaire
to the Village except for the payment of concession fees accrued to the date of termination. If
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Concessionaire does not elect to terminate this Agreement, the Village shall, with due diligence,
restore the Concession Location to operative condition, but the Village shall not be obligated
under this provision to expend on such restoration more than the proceeds of any insurance
received by it on account of the damage. The Village shall not be responsible for any profits lost
by Concessionaire due to the partial or complete damage or destruction of the Concession
Location. If the use of the Concession Location is not practical due to such damage, then
Concessionaire shall not be responsible for the Monthly Fee from the date of the damage until
the date that the repair is complete.
25. Signs, Advertising, Name. Concessionaire shall not erect any sign on the
Concession Location or in the vicinity of the premises without obtaining the advance written
approval of the Village Manager. The Concession Location shall be known by the name of
ZOOM MINI and this name may not be changed without obtaining the advance written approval
of the Village Manager.
26. Licenses and Permits. Concessionaire shall obtain and pay for all Village,
County, State and Federal permits and all licenses that may be required for the operation of the
Concession and for all improvements and alterations made by the Concessionaire to the
Concession Location as permitted by the terms of this Agreement.
27. Compliance with Laws. Concessionaire shall comply with applicable state and
local laws governing the operation of the Concession and with Village's operating procedures for
the Community Center. Violation of state laws or the ordinances of Miami -Dade County,
Florida or the Village or Village's operating procedures shall be considered as cause for
termination of this Agreement by Village. Village shall be responsible for the Community
Center's compliance with the Americans with Disabilities Act (the "ADA"). However,
Concessionaire shall be responsible for accommodating all special ADA-related requests arising
out of Concessionaire's use of the Concession Location.
28. Payment of Bills. Concessionaire shall promptly pay all debts incurred by
Concessionaire for the purchase of goods or services used by Concessionaire in the operation of
the Concession. Concessionaire shall not allow any lien or purported lien to be placed on the
Concession Location or equipment or upon the Community Center. The Community Center
shall fully retain its immunity from all encumbrances or liens as municipal property.
29. Taxes. Concessionaire shall pay all taxes on personal property belonging to
Concessionaire located on the Concession Location, and Concessionaire shall pay all sales and
other taxes levied against the use and operation of the Concession business, the Monthly Fee and
real property taxes, if any, assessed against the Concession Location.
30. Insurance.
30.1 Liability Insurance. Throughout the term of this Agreement,
Concessionaire shall maintain insurance for bodily injury, death, or property damage occasioned
by reason of the operations conducted by Concessionaire on the Concession Location, including
products liability, with minimum liability limits of $1,000,000.00 for bodily injury or death of
any one person and $2,000,000.00 for bodily injury or death of two or more persons in any one
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incident or event, and in the minimum amount of $1,000,000.00 for damage to property resulting
from any one incident. The Village shall be designated as an additional insured.
30.2 Selection of Insurance Company. The above liability insurance policies
shall be placed with an insurance company or companies which are approved by Village's Risk
Management Consultant.
30.3. Copies of Policies to be delivered to the Village. Certified copies of the
above -described insurance policies and all certificates of such policies shall be furnished to the
Village effective as of the date of this Agreement.
30.4. Contents of Insurance Policies. The above insurance policies shall
contain clauses or endorsements substantially in the following words:
1. "Notwithstanding any other provision in this policy, the
insurance afforded under this policy to the Village as additional insured
shall be primary as to any other insurance or reinsurance covering the
Village, and such other insurance or reinsurance shall not be required to
contribute to any liability until the appropriate limit of liability afforded
under this policy has been exhausted."
2. "This policy may not be canceled or materially changed
until thirty (30) days after receipt by the Village of a written notice of
cancellation or change in coverage, as evidenced by receipt of a certified
letter."
30.5 Workers Compensation. Concessionaire shall take out and maintain
during the life of this Agreement workers' compensation insurance and employer's liability
insurance for all Concessionaire's employees in strict compliance with Florida law. Certificates
evidencing such insurance or approved self-insurance shall be submitted to the Village, effective
on the date of this Agreement. The certificates shall provide that notice of cancellation or change
of self -insured status shall be delivered to the Village thirty (30) days in advance of the effective
date of the cancellation or change.
31. Indemnification. Concessionaire shall defend, indemnify and hold harmless the
Village, Village's officers and employees, from liabilities, damages, losses and costs, including,
but not limited, reasonable attorney's fees, to the extent caused by the negligence, recklessness or
intentional wrongful conduct of the Concessionaire and persons employed or utilized by the
Concessionaire in the performance of the Agreement.
32. Termination.
32.1 Discontinuance. If the Village Council decides to discontinue food and
beverage Concession service at the Community Center, the Village may terminate this
Agreement or any renewal thereof upon 120 days advance written notice to Concessionaire.
32.2 Concessionaire's Default. If Concessionaire is in default of any of the
terms of this Agreement, the Village shall give Concessionaire a written notice specifying the
id,
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particulars of such default. If Concessionaire fails to cure the default within twenty (20) days
after receipt by Concessionaire of the notice, the Village may terminate this Agreement.
32.3 Termination Reimbursement. In the event that Village terminates this
Agreement during the initial term or during any renewal term at a date which is before May
, 2008, Village shall pay to Concessionaire, within sixty (60) days after the date of
termination, funds which represent the depreciated value of the Improvements constructed by
Concessionaire in accordance with Article 3 of this Agreement (the "Termination
Reimbursement"). The initial value of the Improvements shall be calculated based upon the
initial construction cost which is certified by Concessionaire's engineer upon completion of the
Improvements (the "Certified Cost"). The Certified Cost shall be filed by Concessionaire with
the Village's Building Department prior to issuance of a Certificate of Completion for the
Improvements. The depreciated value shall be calculated and determined by the Village Finance
Director, whose determination and calculation shall be final and conclusive. This Termination
Reimbursement shall not be applicable in the event that Village terminates the Agreement on or
after May , 2008, or in the event that Village terminates the Agreement before May ,
2008 upon the grounds of Concessionaire's unsatisfactory performance or default in compliance
with the terms of this Agreement. In any event, the Termination Reimbursement, if applicable,
shall not exceed Twenty Five Thousand and No/100 ($25,000.00) Dollars, for a termination
which occurs after May , 2006.
32.4. Termination by Concessionaire. Concessionaire may terminate this
Agreement at any time by giving ninety (90) days written notice to the Village of
Concessionaire's intention to terminate. In the event that Concessionaire terminates this
Agreement, no Termination Reimbursement shall be payable by the Village to Concessionaire.
32.5. Concession Location on Termination. On the termination of this
Agreement for any reason, the Village shall have full authority to take full and exclusive
possession and use of the Concession Location without the necessity of obtaining any legal
process. Concessionaire stipulates that the Village shall not be liable to prosecution or for
damages for resuming exclusive possession and use of the Concession Location.
33. Assignment Prohibited. Concessionaire shall operate the Concession directly
through its employees and shall not assign any right, privilege, or license conferred by this
Agreement; nor may Concessionaire sublicense the whole or any part of the Concession
Location.
34. Nondiscrimination. Concessionaire shall not discriminate against any employee
or applicant for employment because of race, color, creed, sex, age, or national origin or sexual
orientation. Concessionaire and Concessionaire's employees shall not discriminate against any
person because of race, color, age, creed, sex, sexual orientation or national origin by refusing to
furnish such person any service or privilege offered to or enjoyed by the general public.
35. Waiver of Breach. The waiver by the parties of any breach of any term
contained in this Agreement shall not be deemed to be a waiver of such term for any subsequent
breach of the same or any other term. The subsequent acceptance of a concession fee payment by
the Village shall not be deemed to be a waiver of any prior occurring breach by Concessionaire
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of any term contained in this Agreement regardless of the knowledge of the Village of the prior
existing breach at the time of the acceptance of the concession fee payment.
36. Material Terms. Each term of this Agreement is material. A breach by
Concessionaire of any one of the terms of this Agreement shall be considered to be a material
breach of the entire Agreement and shall be grounds for the termination of the entire Agreement
by the Village, after expiration of any applicable notice and cure period.
37. Headings for Convenience Only. The paragraph headings contained in this
Agreement are for convenience of reference only and are not intended to define or limit the
scope of any provision of this Agreement.
38. Force Majeure. Any prevention, delay, or stoppage due to strikes, walkouts,
labor disputes, acts of God, inability to obtain labor, materials, or reasonable substitutes for the
same, governmental restrictions, controls, or regulations, enemy or hostile governmental action,
civil commotion, fire, or any other causes beyond the reasonable control of Concessionaire, shall
not be deemed to be a breach of this Agreement. Concessionaire shall have a reasonable time
after cessation of any of the above -mentioned causes to render performance.
39. Governing Law. This Agreement shall be construed in accordance with the laws
of the State of Florida and any proceeding arising between the parties in any manner pertaining
or related to this Agreement shall, to the extent permitted by law, be held in Miami -Dade
County, Florida. Each party hereby knowingly, voluntarily and intentionally waives any right
they may have to a trial by jury in respect of any litigation based upon the Agreement or arising
out of, under or in connection with any other agreement contemplated to be executed in
conjunction herewith, or any course of conduct, course of dealing, statements (whether verbal or
written) or actions of any party. This provision is a material inducement for the parties entering
into this Agreement.
40. Modification. Notwithstanding any of the provisions of this Agreement, the
parties, by mutual consent, may agree to modifications or additions to it. The Village shall have
the right to grant reasonable extensions of time to Concessionaire for any purpose or for the
performance of any obligation of Concessionaire under this Agreement.
41. Notices. Any notice which either party may or is required to give, shall be given
in writing and shall be given by mailing the same, certified mail, return receipt requested,
postage prepaid, or by hand delivery, or by overnight courier service, to the Village at the
address shown below or Concessionaire at the address shown below, or at such other places as
may be designated in writing by the parties from time to time. Notices may also be delivered by
facsimile provided such notice is also sent by one of the methods in the preceding sentence.
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If to Village:
Village of Key Biscayne
88 West McIntyre Street
Key Biscayne, Florida 33149
Attention: Jacqueline R. Menendez, Village Manager
Facsimile No.: (305) 365-8936
and
Village of Key Biscayne
Attn: Director, Recreation Department
88 West McIntyre Street
Key Biscayne, Florida 33149
Facsimile No.: (305) 365-8991
In addition to being the duplicate addressee for notices to the Village, the principal contact for
the Village in connection with this Agreement is the Director of the Recreation Department,
which is currently Todd Hofferberth, unless otherwise directed by the Village Manager.
If to Concessionaire:
ZOOM MINI, INC.
Attention: Mr. Fernando Sabino
Facsimile No.:
42. Complete Agreement This Agreement, when executed, together with the
attached Exhibits, as provided for by this Agreement, shall constitute the entire Agreement
between both parties and this Agreement may not be amended, modified or terminated except by
writing signed by both parties. The Village Manager is authorized to act on behalf of the Village
hereunder.
43. Reservation; Authority.
43.1 Rights Reserved. Any rights not expressly granted herein by Village to
Concessionaire are reserved by Village.
43.2 Regulatory Approval. Village cannot, and hereby specifically does
not, waive or relinquish any of its regulatory approval or enforcement rights and obligations as it
may relate to regulations of general applicability which may govern the Concession or any
operations at the Concession. Nothing herein shall be deemed to create an affirmative duty of
Village to abrogate its sovereign right to exercise its police powers and governmental powers by
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approving or disapproving or taking any other action in accordance with its ordinances, rules and
regulations, federal laws and regulations and state laws and regulations.
44. Counterparts This Agreement and any amendments may be executed in one or
more counterparts, each of which shall be deemed an original but all of which together shall
constitute one and the same instrument.
[REMAINDER OF PAGE IS INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and seals the
day and year first above written.
WITNESSES:
7,4701
Print Name: Ica/
Attest.
Print Name: iSsit\hi 1, M2
Village Clerk
/a -a,
Approved as to legal form and
sufficiency:
By:
Village Atto
ZOOM MI (I, INC., a Florida corporation
By: _
Ferran o Sabino, President
VILLAGE:
VILLAGE OF KEY BISCAYNE,
a Florida municipal corporation
acqueline R. Menende , illa) Manager
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