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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 %I ad"- CHITA H. ALVAREZ, CMC, VILLAGE CLE APPROVED AS To FORM AND LEGAL SUFFIC -7 VILLAGE A' i 0 F:\100\103001\Concession Agreement\Reso. Approving Community Center Concession Agreement.doc 2 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 2 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 3 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 4 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 5 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, 6 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 7 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. 8 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 9 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] 10 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 F:\100\103001\Concession Agr- nt\Key Biscayne Concession Agreement v4,doc 11