HomeMy WebLinkAboutBack-Up DocumentsREVOCABLE LICENSE AGREEMENT
ISSUED BY
THE CITY OF MIAMI
TO
ULTIMATE CATERING
FOR FOOD AND BEVERAGE SERVICES AT
CITY OF MIAMI POLICE HEADQUARTERS
400 NW 21'iD AVENUE
MIAMI, FLORIDA, 33128
LICENSE AGREEMENT
This Revocable License Agreement, made this day of 2019, by
and between the City of Miami, a municipal corporation of the State of Florida, (the
"City") and Ultimate Catering LLC 's(the "Concessionaire") an organization
incorporated under the Laws of the State of Florida.
WITNESS:
Whereas, the City desires to have quality food and beverage service be provided
through concession operations in the City of Miami Police Headquarters building, located
at 400 N.W. 2nd Avenue, Miami, Florida 33128 (the "Premises"); and
Whereas, the Concessionaire is willing and able to provide such food and
beverage services at the Premises; and
Whereas, the current concessionaire, Lopetegui Corporation INC., will be
vacating the "Premises" on March 31, 2019; and
Whereas, the City desires to maintain continuous concession operation of the
"Premises" until the request for proposal process is completed through the Procurement
Department; and
Whereas, a License Agreement, issued to Ultimate Catering LLC, will include a
cancellation by request of either parties without cause; and
Whereas, the thirty (30) day written notice for cancelation without cause will
allow a smooth transition after the current concessionaire's departure and continuous
operation of the "Premises" throughout the request for proposal process;
Now, therefore, in consideration of the mutual covenants and agreements set
forth, to be kept and performed by the parties, it is agreed between the City and
Concessionaire as follows:
ARTICLE I
TERMS
1.1 DEFINITIONS OF TERMS. For the purpose of this License , the terns
defined in this Article shall have the following meanings.
1. "City Manager" means the administrative head of the City's government who has
been appointed by the City Commission of the City of Miami in accordance with the
provisions of Section 15 of the Charter of the City of Miami, as amended, and who is
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authorized to execute this License and other documents including notices required
hereunder.
2. "Cafeteria" shall mean approximately 1,416 square feet of space on the third floor
of the Premises, consisting of a kitchen, serving area, dining area, and storage area
together with certain furniture, fixtures and equipment set forth in the Inventory.
3. "Commencement Date" shall mean April 1st, 2019.
4. "Concessionaire Manager" shall mean the person authorized by the
Concessionaire to act fully on behalf of the Concessionaire in managing the Food
Services as required by this License.
5. "Contract Administrator" shall be the Director of the Department of real Estate
and Asset Management, authorized by the City to administer the License and coordinate
the activities of the Concessionaire at the Premises.
6. "Food Services" shall mean all services necessary for furnishing and operating the
cafeteria dining service and catering service for the Premises and off -site.
7. "Gross Revenues" shall mean the entire amount of revenues and/or percentages of
revenues collected or accrued, from the sale of all food and beverages, conducted on the
Premises or off -site, whether such revenues shall be credit or cash or otherwise, and
whether the foregoing be collected or uncollected and shall include any finance charges
or similar payments received by Concessionaire as a result of any of the foregoing. Gross
Revenues shall not include any amount of any sales, use or gross sales tax unposed by
any Federal, State or governmental authority directly on sales and collected from
customers, provided that the amount is added to the selling price therein and paid by the
Concessionaire to such governmental authority.
8. "Inventory" shall mean furniture, fixtures and equipment provided by City to
Concessionaire for its use at the Cafeteria, as described in "Exhibit C".
9. "License" shall mean this written agreement.
10. "License Year" shall mean a consecutive twelve (12) month period during the
Tenn, commencing on the Commencement Date.
11. "Premises" shall mean the Cafeteria located at 400 NW 2 Avenue, Miami,
Florida, more particularly described in "Exhibit A".
12. "Subcontractor" shall mean any individual, partnership or corporation who is
contractually bound to the Concessionaire to perform a specific portion of the total work
package under this License, as approved by the Contract Administrator.
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13. "Termination Date" shall mean the day on which this License is cancelled or
terminated in accordance with the provisions of this License.
ARTICLE II
GENERAL DESCRIPTION OF CONCESSION
2.1 DESCRIPTION OF CONCESSION PRIVILIGES. The City grants to
Concessionaire, subject to the exceptions and conditions hereinafter set forth, the
exclusive privilege to occupy the Cafeteria for purposes of providing Food Services at the
Premises. The exclusive privilege herein granted expressly excludes food and beverage
catering services. The City may, on occasion, solicit catering from the Concessionaire
for City functions at the Premises and to other City facilities and Concessionaire may
utilize the Cafeteria for purposes of providing such catering to the City; however, the
City reserves the right to negotiate with other vendors for catering.
The City, its officers, employees and agents may utilize the dining area of the
Cafeteria during Required Operating Hours, as such term is defined in subsection 2.2
below, for purposes of eating "bagged lunches". City further reserves the right to utilize
the Cafeteria dining areas for special occasions, meetings or other assemblies upon
providing three (3) days advance notice to Concessionaire and provided that after each
use, the space is cleaned and rearranged without any additional expense to
Concessionaire.
The Concessionaire shall not use the Cafeteria for any purpose other than herein
specifically designated without prior written consent of the Contract Administrator,
which may include additional consideration.
2.2 OPERATION OF CONCESSION PRIVILIGES. Starting on the
Commencement Date, the Concessionaire shall provide Food Services in a first class and
reputable manner continuously during the entire term of this License, Monday through
Friday, excluding legal holidays or when Police Headquarters is closed for operation,
from 6:00 AM to 6:00 PM, or such additional hours as may be required from time to
time, by the City Manager or Contract Administrator (the "Required Operating Hours").
If Concessionaire fails or refuses to satisfy any of the foregoing requirements, then in
such event City shall have the right, in addition to all other remedies provided for in this
License, to collect, and Concessionaire shall be obligated to pay, as Additional Fees one
hundred dollars ($100.00) for each day that Concessionaire does not comply with said
requirements. Additionally, the City may provide such Food Services in any manner it
may deem appropriate (subject to City's right to terminate under Section 6.1), and to use
any of the food or supplies of Concessionaire, which are available, and City shall be
entitled to receive all revenues. City shall reimburse Concessionaire for Concessionaire's
actual cost of the food and supplies actually used.
Concessionaire agrees that the City Manager may require the Concessionaire to
keep the Cafeteria open for business during a state of emergency and accordingly hereby
agrees to use its best efforts to accommodate this request.
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2.3 SANITATION. The Concessionaire shall, at its sole cost and expense,
maintain and keep fixtures, equipment and personal property, whether owned by the
Concessionaire, the City or third parties, and all areas of the Cafeteria and other areas
designated for its use, in a clean and sanitary condition satisfactory to the City.
Concessionaire is responsible for all janitorial related services including the necessary
equipment and cleaning supplies to fulfill the janitorial requirements for the cleaning of
the Cafeteria upon the close of business of each working day.
The Concessionaire shall provide the Food Services in strict compliance with all
applicable Federal, State and local laws and regulations governing this type of operation.
Concessionaire shall obtain and maintain a satisfactory rating on all health department
sanitation inspections. The Concessionaire shall provide copies of each inspection report
to the Contract Administrator within two (2) business days of receipt of the same by
Concessionaire.
In addition to other rights granted to the City herein, Concessionaire agrees that
should its operation or any portion thereof be shut down for its failure to comply with the
requirements of the Health Department of the State of Florida, and said shutdown could
have reasonably been averted by Concessionaire, its agents or employees, Concessionaire
shall pay to the City as liquidated damages, and not as any penalty therefore, the sum of
one hundred dollars ($ l 00.00) per day for each day said shutdown continues.
2.4 QUALITY AND PRICE CONTROL. The Concessionaire shall provide the
City employees and the public with Food Services of the highest quality, which shall
include a variety of nutritious foods, vegetarian entrees and special ethnic specialties at
reasonable prices. As a condition of this License the Concessionaire agrees to comply
with such standards of quality as may from time to time be adopted by the City in order
to insure attainment of quality of Food Services as hereinabove set forth.
It is the intention of the parties that all matters such as prices, portions and quality
of food and beverage shall be the same as, or better than that available in comparable
cafeterias in the Greater Miami area and for that purpose all such matters shall be
proposed by the Concessionaire but shall be subject to the prior written approval of the
Contract Administrator. All items offered for sale must be sold at prices, which are
plainly displayed. The established prices shall not be changed without the prior written
consent of the Contract Administrator. Concessionaire shall not submit request for price
changes more frequently than twice during a License Year. The City reserves the right to
review the prior year's income statement before granting any price increase and to
compare with other food service operations in the Miami area.
The failure on the part of the Concessionaire to comply with such price and
quality standards as the City may from time to time require, or failure of the
Concessionaire to change, correct, or modify its price or quality after written notice is
duly given by the City to do so, shall be cause for cancellation of this License; provided,
however, that no action by the City shall be arbitrary and capricious and the
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Concessionaire shall be afforded notice by the City in writing, specifying the violations
of the standards required under this License, and the date by which compliance must be
accomplished. Thereafter, any repetition of the same violations shall be considered a
breach of contract and shall be cause for immediate cancellation of this License by the
City without further notification.
2.5 FOOD AND BEVERAGE WARRANTY. Concessionaire warrants that all
merchandise dispensed or served hereunder (cafeteria, vending, and/or catering services)
shall, in all respects, be suitable for human consumption and, in particular, it shall
conform to whatever Federal, State, county and local health laws which relate to it.
2.6 CONCESSIONAIRE RESPONSIBILITIES. The Concessionaire covenants
and agrees that Concessionaire shall, at its sole cost and expense, operate, manage and
maintain the Cafeteria, provide the Food Services and catering required under this
License and specifically agrees as follows:
A. Concessionaire shall, at its sole cost and expense:
(i) purchase all food, beverages, supplies and materials necessary for
the operation of Food Services.
(ii) provide and replace, as necessary, all short life small ware
including, but not limited to, all paper products, plastic ware, silverware, dishes, glasses,
cups, bowls, cookware, cooking utensils, serving utensils, uniforms, tablecloths, trays,
laundry items, and cleaning supplies.
(iii) furnish, and remove all decorations and promotional material for
merchandising in serving and dining areas.
(iv) provide all pest control services in the Cafeteria.
(v) provide all cleaning and janitorial services for the Cafeteria
including but not limited to emptying of trash containers; wiping all tables and chairs,
microwave, window sill; cleaning of equipment, walls and floor tiled areas using a safe
method for the grease removal without damaging the equipment and building surfaces.
B. The Concessionaire shall, at its sole cost and expense, pay all federal, state
and local taxes which may be assessed against its operations, equipment, or merchandise
while in or upon the Premises.
C. The Concessionaire shall, at its sole cost and expense, provide telephone
service for its own use.
D. The Concessionaire shall be responsible for security at the Cafeteria
during the scheduled hours of operation. The Concessionaire shall insure that all
appropriate equipment and lights have been turned off and appropriate doors locked at
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the close of operation within the Cafeteria each day and insure that no cash is left on the
premises.
E. The Concessionaire shall provide the Contract Administrator with the
name, phone number, pager number and cellular phone number of a management
individual that will be available at any time to call in the case of emergencies. This
individual must be available by phone 24 hours a day, seven days a week.
F. Concessionaire shall assume all operating costs except as provided herein,
retain all receipts and be responsible for payment of all labor, food, operating supplies
and all other general administration expenses.
G. Concessionaire shall, at its sole cost and expense, be responsible for the
provision, installation, repair and preventive maintenance of all food service equipment
necessary to operate the Premises that is not part of the Inventory.
H. Concessionaire shall, at its sole cost and expense, provide proper cleaning
and removal of grease monthly from exhaust hoods and at least two semi-annual range
hood system inspections or more often if circumstances dictate and the proper
maintenance and removal of grease from grease traps not less than twice per year.
Concessionaire shall further be responsible for providing, at its sole cost and expense,
plumbing maintenance and repair caused by its use of the Cafeteria. Concessionaire shall
be responsible for compliance of any applicable laws to operate the business and to
provide copies of the operational licenses, permits and required inspection certificates to
the Contract Administrator upon request.
2.7 FURNISHINGS AND EQUIPMENT. The City has title to all items listed in the
Inventory. The Concessionaire may use such Inventory, free of any charge, and the
Concessionaire hereby accepts the use of such Inventory "as is" and "where is". The
Concessionaire, at its sole cost and if needed, shall repair, replace, and/or maintain all
cafeteria equipment and furnishings according to reasonable standards acceptable to the
City. Documentation of said repairs or replacements shall be maintained and provided to
the City. The Concessionaire shall not remove or replace any of the items listed in the
Inventory from the Premises without the prior written consent of the Contract
Administrator.
Concessionaire shall, at its sole cost and expense, be responsible for the normal
operation, cleaning, preventative maintenance, reasonable care and repair of all the
equipment and furnishings listed in the Inventory.
2.8 GARBAGE REMOVAL AND RECYCLING. The Concessionaire shall, at its
sole cost and expense, provide a sufficient number of trash and garbage receptacles
within the Cafeteria and other areas designated for its use, and for the use by its
customers. The Concessionaire shall, at its sole cost and expense, be responsible for the
disposal of such receptacles and the removal of trash and garbage from the Premises
utilizing acceptable environmental techniques and canisters. All trash and garbage
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collected by the Concessionaire must be removed at the time of collection and sent to
areas designated by the Contract Administrator.
Upon implementation of a recycling program at the Premises, the Concessionaire
shall separate trash according to classification and send the same to areas designated by
Contract Administrator at no cost to the City. Concessionaire understands that all
recyclables are the property of the City. Employees handling hazardous wastes must be
trained in the handling of hazardous wastes. Concessionaire shall comply with City
policies for collection of paper, aluminum cans and any other products designated by the
Contract Administrator.
2.9 UTILITIES. City shall, at its sole cost and expense, furnish air conditioning,
heat, hot and cold water, lights, electric current, sewage, and garbage disposal service.
The Concessionaire must abide by the rules, regulations, schedules and practices of the
City in the administration of these services.
The City reserves the right to interrupt, curtail or suspend the provision of any
utility service, including but not limited to, heating, ventilating and air conditioning
systems and equipment serving the Premises, to which Concessionaire may be entitled
hereunder when necessary by reason of accident or emergency, or for repairs, alterations
or improvements in the sole judgment of the City. The work of such repairs, alterations
or improvements shall be procured and executed with reasonable diligence and within a
reasonable time frame. The City shall in no respect be liable for any failure of the utility
companies or governmental authorities to supply utility service to Concessionaire or for
any limitation of supply resulting from governmental orders or directives. No diminution
or abatement of Monthly Use Fee or other charges, nor damages, shall be claimed by
Concessionaire by reason of the City's or other individual's interruption, curtailment or
suspension of a utility service, nor shall this License or any of Concessionaire's
obligations hereunder be affected or reduced thereby.
2.10 CITY TO PROVIDE PARKING. City will provide parking on a first come,
first serve basis at the police parking garage at no cost to Concessionaire. In the event
that parking is not available at the police parking garage, overflow parking is directed to
the parking area under I-95 between NW 4 Street and NW 5 Street. For loading and
unloading of merchandise, concessionaire may park on the ground floor with close
proximity to the elevator. Concessionaire shall provide its management and employees
with identification to facilitate their authorized entry into the police parking garage or the
overflow parking area during their hours of employment. Concessionaire and its
employees shall comply with all established parking rules.
2.11 CITY ACCESS TO FACILITY. City and its authorized representative shall
have at all times access to the Premises assigned to the Concessionaire. City will
maintain a complete set of keys to the Cafeteria. Concessionaire shall immediately
provide keys to the City for any new equipment or key changes. Key changes must be
approved in writing, in advance by the Contract Administrator.
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2.12 PERFORMANCE REVIEW MEETINGS. Concessionaire's Manager will
schedule formal meetings with Contract Administrator ninety (90) days after the
Commencement Date and semi-annually thereafter, to review all aspects of
Concessionaire's performance under this License. The Concessionaire shall present to
City operational issues, completed programs, ideas for new programs, improvements and
financial results.
2.13 CITY RIGHT TO DOWNSIZE CAFETERIA. City reserves the right to
downsize the total square footage of the Cafeteria at anytime during the Tern in the event
the space is needed by one or more City departments. The City shall provide thirty (30)
days advance written notice to Concessionaire in the case of any such downsizing.
ARTICLE III
PERSONNEL
3.1 PERSONNEL. The Concessionaire shall, at its own expense, provide an
adequate number of staff for the provision of the Food Services. Such staff shall be
trained in food handling and shall provide courteous, efficient and sanitary service to the
customers. Persons handling and vending products under this License shall be clean and
free from any communicable disease. When inforned that an employee of
Concessionaire has a condition which reveals that existence of an illness or
communicable disease or other condition which could affect the safe, sanitary or
healthful operation of the food service, Concessionaire will ensure that the said employee
undergo, by a licensed physician approved by the City, an examination which would
either verify or contradict the existence of the condition. If such condition is verified,
Concessionaire will not utilize the services of said employee at the food service until the
condition of that employee returns to a healthful status as indicated in writing and signed
by the physician.
Food handling and sanitation shall conforn to such requirements as may be
prescribed by law and federal, state, and local health authorities.
All Concessionaire employees engaged in handling food shall wear when on duty,
distinctive uniforms in color and design approved by the City and said uniforms shall be
maintained and laundered as necessary by Concessionaire at its sole cost and expense.
Additionally, employees engaged in food handling or vending shall also wear hairnets
and disposable sanitary gloves. No person shall be allowed to cook, handle, sell or
dispense food at the Cafeteria unless he or she is wearing such uniform. The
Concessionaire shall, upon written notice from the City, immediately dismiss any
employee of the Concessionaire who shall be, in the sole discretion of the City,
objectionable and shall cause such person forthwith to leave the Premises.
The Concessionaire and its employees shall comply with all City rules and
regulations governing access to and conduct on City property. City agrees to furnish the
Concessionaire's personnel with identification required for entrance to or exit from the
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Premises during normal work hours. Concessionaire shall immediately give notice to the
Contract Administrator of any employee no longer performing services on behalf of
Concessionaire pursuant to this License. Concessionaire shall return any and all
identification media of any such personnel to the Contract Administrator within one (1)
day following the day that the Contract Administrator is notified as provided in this
paragraph. Concessionaire must further immediately return all identification media to
Contract Administrator upon the termination or cancellation of this License.
Concessionaire's employees may be subject to a background investigation by the
City. Concessionaire agrees that it shall not employ any person to work in the Premises
who cannot satisfy said background investigation.
3.2 CONCESSIONAIRE MANAGER. Concessionaire shall have one full-time
manager (Concessionaire's Manager) responsible for all food service functions at the
Premises as specified in this License. The Concessionaire Manager shall be on -site
during all hours the cafeteria is open. The Concessionaire's Manager must have a
minimum of three consecutive years within the last five years of experience in a similar
operation with comparable responsibilities. The Concessionaire's Manager will have
education and/or experience in food service with particular emphasis upon effective
financial controls and merchandising techniques.
3.3 PERSONNEL TRAINING. The Concessionaire shall recruit, train, supervise,
direct, discipline and if necessary, discharge any and all personnel working in the food
service facilities employed by the Concessionaire. The Concessionaire shall have
adequately trained personnel to maintain a high quality of food service as required by the
City. Concessionaire shall ensure that critical positions (those that are necessary to open
and operate the Cafeteria) will have adequate back-up employees to call in to cover for
absenteeism. Concessionaire shall require employees to comply with all instructions,
rules and regulations of the City. Concessionaire's employees must comply with City's
no smoking policy.
3.4 LABOR RELATIONS. Concessionaire shall be responsible for its own
labor relations with any trade or union representative among its employees and shall
negotiate and be responsible for adjusting all of the disputes between itself and its
employees or any union representing such employees.
Whenever Concessionaire has knowledge that any actual or potential labor
dispute is delaying or threatens to delay the timely performance of the Food Services
called for under this License, Concessionaire shall immediately contact the Contract
Administrator by phone or pager and provide a written follow-up notice of the dispute.
Concessionaire shall continue to provide services under the License in the event
of strikes and other labor disturbances.
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ARTICLE IV
TERM
4.1 TERM. There is no stated or expressed term for this License. As a
revocable license, it has an indefinite term and may be terminated or revoked for
convenience at the will of the City Manager and as otherwise provided in this License.
The License begins on the Commencement Date and shall continue until terminated by
any means available in this License. Concessionaire acknowledges that this is a revocable
license agreement authorizing a specific use, subject to various other limitations specified
herein; and that it does not convey, pledge, hypothecate, or confer any right, title or
interest in any City -owned real property.
4.2 HOLDING OVER. In the event that Concessionaire fails to peacefully surrender
the Premises at the expiration of the 30-day notice period required above for cancellation
of this Agreement, then the City shall, in addition to all other remedies, be entitled to
collect from Concessionaire, and Concessionaire shall pay to the City, a fifty percent
(50%) increase to the Concession Fee ("Increased Fee") then in effect. Acceptance of the
Increased Fee by City shall, in no event, constitute a waiver of the City's rights under this
Agreement and shall not prevent the City from pursuing all other remedies to which is
entitled including but not limited to the right to seek injunctive relief to eject
Concessionaire from the Premises. Concessionaire shall also reimburse the City for and
indemnify the City against all damages incurred by the City from any delay by
Concessionaire in vacating the Premises.
ARTICLE V
PAYMENTS
5.1 CONCESSION FEE. Commencing on the Commencement Date of this License
and or on before the 15th day of each calendar month thereafter during the Term,
Concessionaire agrees to pay City a Monthly Use Fee ("Monthly Use Fee"), in the
amount of Five Hundred Dollars and No Cents ($500.00) and State of Florida Use Tax, if
applicable, for each calendar month or a prorated portion of such Monthly Use fee for
partial occupancy of the concession along with a Percentage Fee ("Percentage Fee") in an
amount equal to the following:
(A) Percentage Fee.
Ten Percent (10%) of Gross Revenues
The Monthly Use Fee, together with the payment of the Percentage Fee
and, in any event, within ten (15) days after the end of each calendar
month, Concessionaire shall deliver to City a written Gross Revenue
Report of revenues generated during the preceding calendar month, on
forms approved by City. This report shall be signed by Concessionaire
certifying to the accuracy of such Gross Revenues.
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Gross Revenues, as defined herein, shall mean the entire amount of the revenues
generated, collected or accrued, from the sale of all food and beverages, conducted on the
Premises, including sales made or performed by means of mechanical or other vending
devices on the Premises, whether such revenues shall be credit or cash or otherwise, and
whether the foregoing be collected or uncollected and shall include any finance charges
or similar payments received by Concessionaire as a result of any of the foregoing. Gross
Revenues shall not include any amount of any sales, use or gross sales tax imposed by
any federal, state or governmental authority directly on sales and collected from
customers, provided that the amount is added to the selling price therein and paid by the
Concessionaire to such governmental authority.
5.2 RETURNED CHECK FEE. In the event any check is returned to the City as
uncollectible, the Concessionaire shall pay to City a returned check fee (the "Returned
Check Fee") based on the following schedule:
Returned Amount
$00.01 - 50.00
$50.01 - 300.00
$300.01 - 800.00
OVER $800
Returned Check Fee
$20.00
$30.00
$40.00
5% of the returned amount.
The Returned Check Fee shall constitute additional fees due and payable, to City
by Concessionaire, upon the date of payment of the delinquent payment referenced
above. Acceptance of Returned Check Fee by City shall, in no event, constitute a waiver
of Concessionaire violations with respect to such overdue amount nor prevent City from
the pursuit of any remedy to which City may otherwise be entitled.
5.3 ADDITIONAL FEES. In addition to the Concession Fee under Section 5.1, all
other payments or charges payable by Concessionaire, however denoted, are called
"Additional Fees". Unless this License provides otherwise, all Additional Fees shall be
paid with the next installment of the Concession Fee.
5.4 LATE FEE. In the event any installment of the monthly fee is not received by
the City within five (5) days of the same becoming due, Concessionaire shall pay the City
a late charge of ten percent (10%) of the total amount due. Such late fee shall constitute
additional fees due and payable to City by Concessionaire upon the date of payment of
the delinquent payment referenced above. Acceptance of such late charge by City shall,
in no event, constitute a waiver of Concessionaire's violations with respect to such
overdue amount nor prevent City from the pursuit of any remedy to which City may
otherwise be entitled.
Any amount not paid to the City within fifteen (15) days after the date on which
such amount is due shall bear interest at the rate of 18% per annum from its due date until
paid. Payment of such interest shall not excuse or cure any violation by the Licensee.
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5.5 OVERPAYMENT AND UNDERPAYMENT. In the event that the
Concessionaire can demonstrate, by standard and acceptable accounting practices, that it
has made an overpayment in the Concession Fee in remitting the sum due in accordance
with Section 5.1 of this License, such overpayment shall be refunded promptly to the
Concessionaire exclusive of interest thereon, but if the Concessionaire has made an
underpayment in the Concession Fee then said underpayment shall be paid to the City
with interest thereon at ten percent (18%) per annum from the date that it was originally
due until it is paid.
ARTICLE VI
TERMINATION OF LICENSE
6.1 TERMINATION BY CITY FOR CAUSE. In the event the Concessionaire
defaults or fails to observe the terms and conditions of this License in any material
aspect, City shall have the right to do any one, or all, of the following:
A) give Concessionaire notice of the default, specify required corrective
action, and the time period within which corrective action is required to avoid immediate
termination of this License;
B) give Concessionaire thirty (30) days written notice of its intention to
terminate this License for cause. Thirty (30) days thereafter, this License and
Concessionaire's occupation of the Premises will end regardless of any corrective action
by Concessionaire; and/or
C) immediately terminate this License, if in the sole discretion of the City, the
default or failure to observe terins and conditions is so egregious as to warrant immediate
termination. Upon such termination, Concessionaire's rights to occupy the Premises will
end forthwith.
6.2 TERMINATION BY CITY Without Cause. This agreement conveys no
express or guaranteed term; and the City shall have the right to terminate this License at
its sole option, for any reason whatsoever, upon at least thirty (30) days written notice to
the Concessionaire. Upon such termination, the occupancy of the Premises will end and
Concessionaire agrees to waive any claims for damages, including loss of anticipated fees
and profits.
6.3 TERMINATION BY CONCESSIONAIRE WITHOUT CAUSE.
Concessionaire may terminate this License at its sole option, for any reason
whatsoever, upon at least one hundred and eighty (180) days written notice to the City.
Upon such termination, the occupancy of the Premises will end and Concessionaire
agrees to waive any claims for damages, including loss of anticipated fees and profits.
6.4 TERMINATION BY CONCESSIONAIRE WITH CAUSE. In the event the
City defaults or fails to observe the terms and conditions of this License in any material
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aspect, Concessionaire shall have the right to terminate the License after notifying City in
writing of the action required to correct the problem and giving City thirty (30) days from
receipt of said notice to correct the problem.
6.5 SURRENDER OF CONCESSION OF PREMISES. At the expiration of the
teen or earlier termination of this License, Concessionaire shall promptly surrender
possession and shall deliver to the City all keys that it has to any part of the Cafeteria or
the Premises. The Concessionaire shall return all facilities, equipment and other items
furnished by City in the condition in which received, reasonable wear and tear excepted.
Additionally, at the expiration of the term or earlier termination of this License , if
the City desires, it may purchase all or any part of the equipment, furnishings and trade
fixtures owned and used by the Concessionaire under this License at prices equal to the
lower of either the depreciated cost or fair market value. This provision shall not apply to
fixtures, which become part of the Cafeteria and are owned by the City under Section
12.1 hereof.
Concessionaire will be responsible for all losses and damages to the Cafeteria and
the Premises resulting from its default, failure or negligence during the term of this
License . If within thirty (30) days of termination of this License the City determines that
any part of the Cafeteria or the Premises are damaged, and that such condition was not
readily evident at the time of Concessionaire surrendered possession of the Cafeteria,
City reserves the right to have Concessionaire pay for the repairs to said damaged
facilities and/or equipment. This clause shall survive the expiration of this License.
ARTICLE VII
HAZARDOUS MATERIALS
7.1 ENVIRONMENTAL WARRANTY. Concessionaire shall, at its sole cost and
expense, at all tunes and in all respects comply with all federal, state and local laws,
statutes, ordinances and regulations, rules, rulings, policies, orders and administrative
actions ("Hazardous Materials Laws"), including, without limitation, any Hazardous
Materials Laws relating to industrial hygiene, environmental protection or the use,
storage, disposal or transportation of any flammable explosives, toxic substances or other
hazardous, contaminated or polluting materials, substances or wastes, including, without
limitation, any "Hazardous Substances", "Hazardous Wastes", "Hazardous Materials" or
"Toxic Substances", under any such laws, ordinances or regulations (collectively
"Hazardous Materials"). Concessionaire shall, at its sole cost and expense, procure,
maintain in effect and comply with all conditions of any and all permits, licenses and
other governmental and regulatory approvals relating to the presence of Hazardous
Materials within, on, under or about the Premises required for Concessionaire's use of
any Hazardous Materials in or about the Premises in conformity with all applicable
Hazardous Materials Laws and prudent industry practices regarding management of such
Hazardous Materials. City recognizes and agrees that Concessionaire may use materials
in normal quantities that are applicable to the use of the Premises for the purposes stated
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herein and that such use by Concessionaire shall not be deemed a violation of this
Section, so long as the levels are not in violation of any Hazardous Materials Laws.
Upon termination or expiration of this License, Concessionaire shall, at its sole cost and
expense, cause all Hazardous Materials, including their storage devices, placed in or
about the Premises by Concessionaire or at Concessionaire's direction to be removed
from the Premises and transported for use, storage or disposal in accordance and
compliance with all applicable Hazardous Materials Laws. City acknowledges that it is
not the intent of this Article VII to prohibit Concessionaire from operating in the
Premises for the use described in Section 2.1. Concessionaire may operate according to
the custom of the industry so long as the use or presence of Hazardous Materials is
strictly and properly monitored according to all applicable governmental requirements.
7.2 INDEMNIFICATION. Concessionaire shall indemnify, protect, defend and hold
City free and harmless from and against any and all claims, liabilities, penalties,
forfeitures, losses and expenses (including attorneys' fees) or death of or injury to any
person or damage to any property whatsoever, arising from or caused in whole or in part,
directly or indirectly, by the presence in or about the Premises of any Hazardous
Materials placed in or about the Premises by Concessionaire or at Concessionaire's
direction or used by Concessionaire or by Concessionaire's failure to comply with any
Hazardous Materials Law or in connection with any removal, remediation, cleanup,
restoration and materials required hereunder to return the Premises and any other
property of whatever nature to their condition existing prior to the appearance of the
Hazardous Materials.
7.3 DISCLOSURE, WARNING AND NOTICE OBLIGATIONS.
Concessionaire shall comply with all laws, ordinances and regulations in the State
of Florida regarding the disclosure of the presence or danger of Hazardous Materials.
Concessionaire acknowledges and agrees that all reporting and warning obligations
required under the Hazardous Materials Laws are the sole responsibility of
Concessionaire, whether or not such Hazardous Materials Laws permit or require the City
to provide such reporting or warning, and Concessionaire shall be solely responsible for
complying with Hazardous Materials Laws regarding the disclosure of, the presence or
danger of Hazardous Materials. Concessionaire shall immediately notify City, in writing,
of any complaints, notices, warning, reports or asserted violations of which
Concessionaire becomes aware relating to Hazardous Materials on or about the Premises.
Concessionaire shall also immediately notify City if Concessionaire knows or has reason
to believe a complaint, notice, warning, report or violation will be released on or about
the Premises.
Notwithstanding the above, Concessionaire must subunit a list to Contract
Administrator of all chemical products (soaps, glass cleaners, detergents, degreasers, etc.)
it proposes to use in its operations. Such list shall be accompanied by a Material Safety
Data Sheet for each product. It shall be the responsibility of Concessionaire to keep the
list updated as products are added or deleted and shall provide new or updated Material
15
Safety Data Sheets as conditions warrant. City reserves the right to require any product
to be deleted from such list if, in the sole opinion of the City, such product is causing
damage to the Premises or is unsafe.
7.4 SURVIVAL OF CONCESSIONAIRE'S OBLIGATION. The respective rights
and obligations of City and Concessionaire under this Article VII shall survive the
cancellation or termination of this License.
ARTICLE VIII
SECURITY
8.1 SECURITY. Simultaneously with the execution of this License by
Concessionaire, Concessionaire shall have a deposit with City the sum of $5,000.00 as a
security deposit (the "Security"). The Security shall be security for the payment and
performance by Concessionaire of all of Concessionaire's obligations, covenants,
conditions, and Licenses under this License. City shall have the right, but shall not be
obligated, to apply all or any portion of the Security to cure any default, in which event,
Concessionaire shall promptly deposit with City the amount necessary to restore the
Security to its original amount. The Security shall not be deemed liquidated damages and
application of the Security to reduce City's damages, shall not preclude City from
recovering from Concessionaire all additional damages incurred by City.
If Concessionaire fully and faithfully complies with all of the terms, provisions
and conditions of the License , the Security shall be returned to Concessionaire without
interest within ninety (90) days after the following occurs: (i) the termination or
cancellation of the License, and (ii) Concessionaire's delivery to City of the entire
Premises in the same condition or better than existed on the Commencement Date,
ordinary wear and tear excepted.
Upon termination of this License by either party, if Concessionaire fails to pay
within ten (10) days after the date of said termination the cost of repair or replacement of
equipment or furnishings which are necessitated by the neglect, negligence or intentional
misconduct of Concessionaire, then said failure shall be a breach of this License and the
costs of such repairs shall be payable out of said Security.
ARTICLE IX
ABANDONMENT
9.1 ABANDONMENT. If Concessionaire shall vacate or abandon the Cafeteria
during the Term or Additional Term of this License for a period of two (2) consecutive
workdays, the City, at its option and without serving notice elsewhere required in this
License , may:
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(i) take immediate possession of the Cafeteria for the remainder of the Term or
Additional Term, and contract with another person or corporation for the provision of
Food Services at the Cafeteria. In such event the Concessionaire shall remain liable for
all obligations under this License.
OR;
(ii) immediately cancel this License
ARTICLE X
SPECIAL ASSESSMENTS OR TAXES
10.1 CONCESSIONAIRE TO PAY. During the term hereof, Concessionaire
covenants and agrees to pay before delinquency all municipal, county or state taxes
assessed against any occupancy interest or personal property of any kind, owned by or
placed in, upon or about the Premises by Concessionaire. In the event Concessionaire
appeals a tax, Concessionaire shall immediately notify City of its intention to appeal said
tax and shall furnish and keep in effect a surety bond of a responsible and substantial
surety company reasonably acceptable to City or other security reasonably satisfactory to
City in an amount sufficient to pay one hundred percent of the contested tax with all
interest on it and costs and expenses, including reasonable attorneys' fees, to be incurred
in connection with it.
ARTICLE XI
RECORDS AND AUDITING
11.1 RECORDS OF SALES. During the term of this License and any extension
thereto, Concessionaire shall maintain and keep, or cause to be maintained and kept at the
Premises or such other location in Miami to be approved by Contract Administrator, a
full, complete and accurate record and account of all Gross Revenues arising or accruing
by virtue of its operations conducted at or from the Premises, for each day of the tern and
all extensions thereof. All records and accounts including sales slips (which will be
serially numbered), cash register tapes, bank statements or duplicate deposit slips, mail
orders, telephone orders, settlement report sheet of transactions with subcontractors,
concessionaires and licensees, income and sales tax returns and all other supporting
records, shall be available for inspection and audit by the City and its duly authorized
agents or representatives during the hours of 8:00 AM to 5:00 PM, Monday through
Friday, and shall be in accordance with generally accepted accounting procedures.
Concessionaire must provide point of sale machines or such other cash registers or
accounting control equipment deemed reasonably necessary and consented to by the
Contract Administrator, for proper control of cash and payments whether such transaction
is a cash or credit transaction. Concessionaire shall keep and preserve, or cause to be
kept and preserved, said records for not less than thirty-six (36) months after the payment
of the Concession Fee due under the terns hereof. For the same period of time,
Concessionaire shall also retain copies of all sales and tax returns covering its operations
at the Premises, and any other govermnental tax or other returns, which show
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Concessionaire's sales therein, and shall, upon demand, deliver photographic copies
thereof to the City at no cost. The Concessionaire will cooperate with the City's internal
auditors (or such other auditors designated by City) in order to facilitate the City's
examination of records and accounts.
11.2 AUDITS. Commencing within sixty (60) days after the end of each Calendar
Year, as hereinafter defined, the Concessionaire shall deliver or cause to be delivered to
the City of Miami, Department of Real Estate and Asset Management, 444 S.W. 2nd
Avenue, 3rd Floor, Miami, FL 33130, a Gross Revenue report for the prior Agreement
year, certified by an independent certified public accountant ("CPA") employed at the
Concessionaire's sole cost and expense. Said CPA shall certify that he made a complete
examination of the books, state sales tax returns, and federal income tax returns of
Concessionaire and that such report (hereinafter the "Audited Gross Revenue Report") is
prepared in accordance with generally accepted accounting principles and practices and
represents the Gross Revenue of the Concessionaire for the period indicated therein. The
Calendar Year shall mean each twelve-month interval commencing on January 1 and
expiring December 31. In the event the Effective Date falls between July 1st and
December 31st, the Concessionaire shall not be required to file a certified financial
statement for its first calendar year of operation at the Premises until the end of the
following Calendar Year.
Notwithstanding the above, and during the thirty-six (36) month period described
in Section 11.1 of this Agreement entitled "Records of Sales", at its option, the City may
cause, at its sole cost and expense, a complete audit to be made of the Concessionaire's
business affairs, records, files, sales slips and sales tax records in connection with the
Concessionaire's sales on, from or related to the Premises for the period covered by any
financial statement furnished by the Concessionaire to the City.
With each financial statement, Concessionaire shall pay to City any unpaid
balance of the Concession Fee, if any, and City shall refund any overpayments, if any.
Such underpayment or overpayment shall be paid as set forth in Section 5.5 Overpayment
and Underpayment. In the event the Concessionaire fails to prepare or deliver any
required Audited Financial Statement to the City within the time set forth above, the City,
upon fifteen (15) days written notice to Concessionaire, may elect to exercise either or
both of the following remedies:
(i) To treat, as a default of this License, any such omission continuing after
thirty (30) days notice thus entitling the City, without further notice, to exercise its right
to cancel this License and resort to other legal remedies; and/or
(ii) To cause an audit and/or accounting, pursuant to the provisions of this
License to be made at the sole cost and expense of Concessionaire. Concessionaire shall
pay the full cost of such audit within ten (10) days of receipt of an invoice indicating the
cost of such audit.
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Notwithstanding the above, at its option, City may cause, at any time within sixty
(60) months of receipt of any Concession Fee furnished by Concessionaire, a complete
audit to be made of Concessionaire's business affairs, records, files, sales slips and sales
tax records in connection with Concessionaire's sales on, from or related to the Premises
for the period covered by any such statement furnished by Concessionaire. If such audit
shall disclose an underpayment of fees, Concessionaire shall pay City any unpaid balance
within thirty (30) days of receipt of notice from City that such balance is due. If such
audit shall disclose an overpayment, City shall refund such to Concessionaire. Such
underpayment or overpayment shall be paid as set forth in Section 5.5 Overpayment and
Underpayment.
Concessionaire shall allow the City or the auditors of the City to inspect all or any
part of the compilation procedures for the aforesaid monthly reports. Said inspection
shall be reasonable and is at the sole discretion of the City. Records shall be available
Monday through Friday, inclusive, between the hours of 8:00 AM and 5:00 PM at the
Premises or at such other location in Miami, which may be approved by the Contract
Administrator.
The acceptance by City of payments of the Concession Fee shall be without
prejudice to City's right to conduct an examination of Concessionaire's books and records
of its Gross Revenues and inventories of merchandise on or for the Premises in order to
verify the amount of annual Gross Revenues made by Concessionaire in and from the
Premises.
The Concessionaire shall further be subject to periodic, unannounced operational
audits of the food services by a representative of the City. Such audits shall include a
review of the following:
service quality, attentiveness, courteousness, etc
food quality, quantity, presentation, merchandising
sanitation practices and conditions
personnel appearance
training program techniques, schedules and records
safety conditions
operation performance from a financial perspective
other related operational conditions and/or practices
City shall prepare a report as a result of the operational audit notifying the
Concessionaire of conditions needing correction or improvement.
ARTICLE XII
ALTERATIONS AND IMPROVEMENTS
12.1 ALTERATIONS AND IMPROVEMENTS. Concessionaire shall not make or
permit to be made any construction, repairs, alterations, additions, partitions or changes
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to the Cafeteria (hereinafter collectively called "Alterations") without the prior written
consent of the Contract Administrator. If Contract Administrator grants consent:
(i) the Alterations shall be performed in a good and workmanlike manner in
accordance with all applicable Federal, State and local statutes, laws, ordinances and
regulations, as they presently exist and as they may be amended hereafter.
(ii) all Alterations shall be provided at Concessionaire's sole cost and
expense.
(iii) Concessionaire shall pay for and obtain the necessary and applicable
permits in compliance with all Federal, State and local laws, rules and regulations in
connection with any Alteration made by Concessionaire to the Premises.
(iv) Alterations (other than movable trade fixtures, which can be removed
without injury to the Cafeteria) shall at once become a part of the Premises, the property
of the City and shall be included in the Inventory.
Concessionaire shall have the right to remove any movable personal property and
trade fixtures that it places in or at the Premises. If any part of the Premises is in any way
damaged by the removal of such items, said damage shall be repaired by Concessionaire
at its sole cost and expense. Should Concessionaire fail to repair any damage caused to
the Premises within ten (10) days after receipt of written notice from City directing the
required repairs, City shall cause the Premises to be repaired at the sole cost and expense
of Concessionaire. Concessionaire shall pay City the full cost of such repairs within ten
(10) days of receipt of an invoice indicating the cost of such required repairs. Failure to
pay such invoice shall be sufficient cause to terminate this License as provided in Section
6.1 herein. Notwithstanding the above, License may be terminated due to
Concessionaire's failure to repair the Premises as directed without the necessity of City
repairing the Premises.
12.2 LIENS AND ENCUMBRANCES. The Concessionaire shall keep the
Premises free and clear of any liens and encumbrances. Nothing in this License shall be
construed as constituting the consent or request of the City, expressed or implied, by
inference or otherwise, to any contractor, subcontractor, laborer or inaterialman for the
performance of any labor or the furnishing of any materials for any specific Alteration, or
repair of or to the Premises nor as giving the Concessionaire the right, power or authority
to contract for or permit the rendering of any services or the furnishing of any materials
that would give rise to the filing of any mechanics liens or other encumbrance against the
City's interest in the Premises.
If any lien shall at any time be filed against the Premises as a result of any
Alteration undertaken by Concessionaire, the Concessionaire shall cause it to be
discharged of record within ten days after the date the Concessionaire has knowledge of
its filing. If the Concessionaire shall fail to discharge a lien within that period, then in
addition to any other right or remedy, the City may, but shall not obligated to, discharge
20
the lien either by paying the amount claimed to be due or by procuring the discharge of
the lien by deposit in court of bonding, or in the event the City shall be entitled, if it so
elects, to compel the prosecution of any action for the foreclosure of the lien by the lien
or and to pay the amount of the judgment, if any, in favor of the lien or with interest,
costs and allowances with the understanding that all amounts paid by the City shall
constitute Additional Fee due and payable under this License and shall be repaid to the
City by the Concessionaire immediately upon rendition of an invoice or bill by the City.
The Concessionaire shall not be required to pay or discharge any lien so long as the
Concessionaire shall in good faith proceed to contest the lien by appropriate proceedings
and if the Concessionaire shall have given notice in writing to the City of its intention to
contest the validity of the lien and shall furnish and keep in effect a surety bond of a
responsible and substantial surety company reasonably acceptable to City or other
security reasonably satisfactory to City in an amount sufficient to pay one hundred ten
percent (110%) of the amount of the contested lien claim with all interest on it and costs
and expenses, including reasonable attorneys' fees, to be incurred in connection with it.
ARTICLE XIII
INDEMNIFICATION AND INSURANCE
13.1 INDEMNIFICATION AND HOLD HARMLESS. Concessionaire shall
indemnify, protect, defend and hold harmless the City, its officials and employees, from
and against any and all claims, suits, actions, damages or causes of action of whatever
nature arising out of the use or operation of the Cafeteria and the Premises by
Concessionaire, its agents, contractors, employees or servants, whether such claim shall
be made by an employee of Concessionaire, an employee of the City or by any third
party, and whether it relates to injury to persons (including death) or damage to property
and whether it is alleged that the City or its employees or officials were negligent.
Concessionaire shall at its own cost and expense pay and satisfy all costs related to any
orders, judgments or decrees which may be entered thereon, and from and against all
costs, attorneys' fees, expenses and liabilities incurred in and about the defense of any
such claims and the investigation thereof. Concessionaire shall further indemnify,
defend, protect and hold City harmless from and against any and all claims arising from
any breach or default in performance of any obligation of Concessionaire's part to be
performed under the terms of this License, or arising from any act, neglect, fault or
omission of Concessionaire or its agents, contractors, employees and servants and from
and against all costs, attorneys' fees, expenses and liability incurred in connection with
such claim or any action or proceeding brought thereon. In case any action or proceeding
shall be brought against City by reason of any claim, Concessionaire upon notice from
City shall defend the same at Concessionaire's expense by counsel approved in writing
by City. City reserves the right to defend itself.
Concessionaire shall immediately notify City, in writing, of any claim or action
filed, of whatever nature, arising out of the use or operation of the Premises by
21
Concessionaire, its agents, contractors, employees or servants. Concessionaire shall also
immediately notify City if Concessionaire knows or has reason to believe a claim or
action will be filed, of whatever nature, arising out of the use or operation of the Premises
by Concessionaire, its agents, contractors, employees or servants.
13.2 INSURANCE. In connection with this License, Concessionaire shall
obtain and maintain throughout the tern of this License the types and amounts of
insurance coverage set forth in Exhibit D, attached hereto and incorporated herein by this
reference.
ARTICLE XIV
DAMAGE OR LOSS TO CONCESSIONAIRE'S PROPERTY
14.1. RISK OF LOSS. City shall not be liable for injury or damage to the property
or merchandise of the Concessionaire or its employee's, invitees, patrons occurring in or
about the Premises caused by or resulting from anyone or any peril whatsoever which
may affect the Premises, including, without limitation, fire, steam, electricity, gas, water,
rain, vandalism or theft which may leak or flow from or into any part of the Premises, or
from the breakage, leakage, obstruction or other defects of the pipes, sprinklers, wires,
appliances, plumbing, air conditioning or lighting fixtures of the Premises, or from
hurricane or any act of God or any act of negligence of any user of the facilities or
occupants of the Premises or any person whomsoever, whether such damage or injury
results from conditions arising upon the Premises or upon other portions of the Premises
or from other sources.
14.2 NOTICE OF DAMAGES OR INJURIES. The Concessionaire shall give City
prompt written notice of any fire, damage or injury occurring at the Premises.
14.3. VANDALISM AND THEFTS. Where vandalism or theft occurs to
Concessionaire's machines, equipment or operation, it shall be the sole responsibility and
liability of Concessionaire to insure, repair or replace damaged or stolen equipment at
Concessionaire's expense within forty-eight (48) hours. All vandalism shall be reported
to the Contract Administrator immediately upon discovery.
14.4. THEFT AND LOSS LIABILITY. City will not be responsible for any of
Concessionaire's losses or thefts, and any such losses must be borne solely by the
Concessionaire out of its own funds they may not be used to diminish or be absorbed by
payment due the City.
ARTICLE XV
ASSIGNMENT AND SUBCONTRACTING
15.1 ASSIGNMENT AND SUBCONTRACTING. Concessionaire is not pennitted
to provide a contract or subcontracting services.
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Except as specifically provided above, Concessionaire shall not: (1) assign or
transfer this License, in whole or in part; (2) subcontract the Cafeteria operations, in
whole or in part; (3) subcontract any other listed responsibilities, or any part hereof; or
(4) pen -nit any third party or parties other than Concessionaire, its authorized agents and
employees, to occupy or use the Premises, or portion thereof (hereinafter individually and
collectively referred to as a "Subcontract") without prior review and written consent of
the City Manager, which consent may be conditioned or withheld for any or no reason,
including, but not limited to additional financial consideration. Any assignment, transfer
or subcontract in violation of this License or without the written approval of the City
Manager shall be void and have no binding effect upon City. If any portion of the work
or services, which have been subcontracted by the Concessionaire, is not executed in
accordance with this License, the Subcontractor shall be replaced on request of the City
Manager. No Subcontract entered into by the Concessionaire shall relieve the
Concessionaire of any of its liabilities and obligations.
It is agreed that all terms and conditions of this License shall extend to and be
binding on all Subcontractors as may be approved by the City Manager. Concessionaire
shall be liable for acts and omissions by any Subcontractor affecting this License. City
reserves the right to directly terminate any Subcontractor for any cause for which
Concessionaire may be terminated.
15.2 PROCEDURE FOR SUBCONTRACT. Should Concessionaire desire to make
a Subcontract hereunder, Concessionaire shall give written notice of its intention to do so
to the City Manager at least sixty (60) days prior to the effective date of any such
proposed Subcontract, specifying in such notice the nature of such proposed Subcontract
and the proposed date thereof and specifically identifying the proposed Subcontractor.
Such notice shall be accompanied by a copy of the proposed Subcontract Agreement, and
any other documents or financial information (including without limitation, three years
audited financial statements) City may require in order to make a determination as to the
suitability of the Subcontractor. City shall, within thirty (30) days after its receipt of such
notice of a proposed Subcontract from Concessionaire, either (i) withhold consent to the
Subcontract or (ii) consent to such Subcontract subject to the terms and conditions
provided for in this Article. Concessionaire acknowledges and agrees that the imposition
of the conditions described in this Article 15 as a condition of Concessionaire's consent is
reasonable.
ARTICLE XVI
SIGNAGE AND ADVERTISING
16.1 SIGNAGE AND ADVERTISING. Concessionaire shall not permit any signs or
advertising matter to be placed on any portion of the Premises except with prior written
approval of the Contract Administrator. Concessionaire shall, at its sole cost and
expense, install, provide, maintain such sign, decoration, advertising matter or other
things as may be pennitted hereunder in good condition and repair at all times.
Concessionaire must further obtain approval from all governmental authorities having
23
jurisdiction, and must comply with all applicable requirements set forth in the City of
Miami Code and Zoning Ordinance. Upon the expiration or earlier termination of this
License, Concessionaire shall, at its sole cost and expense, remove any sign, decoration,
advertising matter or other thing permitted hereunder from the Premises. If any part of
the Premises is in any way damaged by the removal of such items, said damage shall be
repaired by Concessionaire at its sole cost and expense. Should Concessionaire fail to
repair any damage caused to the Premises within ten (10) days after receipt of written
notice from City directing the required repairs, City shall cause the Premises to be
repaired at the sole cost and expense of Concessionaire. Concessionaire shall pay City
the full cost of such repairs within ten (10) days of receipt of an invoice indicating the
cost of such required repairs.
ARTICLE XVII
NOTICE
17.1 NOTICE. All notices or other communications which shall or may be given
pursuant to this License shall be in writing and shall be delivered by personal service or
by certified mail addressed to the parties at their respective addresses indicated below or
as the same may be changed in writing from time to time. Such notice shall be deemed
given on the day on which personally served, or if by certified mail, on the fifth day after
being posted or the date of actual receipt, whichever is earlier.
NOTICE TO CITY:
City Manager
City of Miami
444 S.W. 2nd Avenue
Miami, Florida 33130
NOTICE TO CONCESSIONAIRE:
Peter Torocsik
Ultimate Catering LLC
P.O. Box 3071
West Palm Beach, FL 33402
WITH COPY TO:
Director
Department of Real Estate and Asset Management
City of Miami
444 S.W. 2nd Avenue, 3rd Floor
Miami, FL 33130
City Attorney
Office of the City Attorney
City of Miami
444 S.W. 2nd Avenue, 9th Floor
Miami, FL 33130
Chief of Police
Police Department
City of Miami
400 NW 2 Avenue
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Miami, FL 33128
ARTICLE XVIII
MISCELLANEOUS
18.1 COMPLIANCE WITH LAWS. Concessionaire shall comply with all applicable
federal, state and local laws, regulations, orders, ordinances and codes pertaining to its
perfonnance under this License. Concessionaire shall additionally comply with the
provisions of section 119.0701, Florida Statutes
18.2 INDEPENDENT CONTRACTOR. Concessionaire and its employees and
agents shall be deemed to be independent contractors, and not agents, employees or
representatives of the City and shall not attain rights or benefits under the Civil Service or
Pension Ordinances of the City nor any rights generally afforded classified or
unclassified employees; further they shall not be entitled to the Florida Workers
Compensation benefits as employees of the City.
18.3 SUCCESSORS AND ASSIGNS. This License shall be binding upon the parties
herein, their heirs, executors, legal representatives, successors and assigns.
18.4 AMENDMENTS. City and Concessionaire by mutual agreement shall have the
right but not the obligation to amend this License. The City Manager has the right to
execute any amendments to the License and shall be effective only when signed by City
Manager and Concessionaire and shall be incorporated as a part of this License.
18.5 AWARD OF LICENCE. Concessionaire warrants that it has not employed or
retained any person employed by City to solicit or secure this License and that it has not
offered to pay, paid, or agreed to pay any person employed by City any fee, commission,
percentage, brokerage fee, or gift of any kind contingent upon or resulting from the award
of this License.
18.6 CONFLICT OF INTEREST. Concessionaire is aware of the conflict of interest
laws as set forth in Section 2-611 of the Code of the City of Miami, Florida, as amended,
and agrees that it will comply in all respects with the terms thereof.
18.7 CONSTRUCTION OF LICENSE. This License shall be construed and enforced
according to the laws of the State of Florida.
18.8 COURT COSTS AND ATTORNEYS' FEES. In the event that it becomes
necessary for City to institute legal proceedings to enforce the provisions of this License,
Concessionaire shall pay City's court costs and attorney(s)' fees. Concessionaire
acknowledges that Florida law provides for mutuality of attorney's fees as a remedy in
contract cases and specifically and irrevocable waives its right to collect attorney's fees
from the City under applicable laws, including specifically, but not limited to Section
57.105, Florida Statutes. It is the express intent of the parties hereto that in no event will
25
the City be required to pay Concessionaire's attorney's fees and court costs for any action
arising out of this License. In the event that Concessionaire's waiver under this section is
found to be invalid then Concessionaire agrees that the City's liability for
Concessionaire's attorney's fees and court costs shall not exceed the sum of $100.00. In
the event that the waiver and limitations contained herein are found to be invalid, or are
otherwise not upheld, then the provisions of this Section shall become null and void and
each party shall be responsible for its own attorney's fees and costs.
18.9 WAIVER OF JURY TRIAL. The parties hereby knowingly, irrevocable,
voluntarily and intentionally waive any right either may have to a trial by jury in respect
of any action, proceeding or counterclaim based on this Agreement, or arising out of,
under or in connection with this License or any amendment or modification of this
Agreement, or any other agreement executed by and between the parties in connection
with this Agreement, or any course of conduct, course of dealing, statements (whether
verbal or written) or actions of any party hereto. This waiver of jury trial provision is a
material inducement for the City and Concessionaire entering into the subject transaction.
18.10 SEVERABILITY. If any provision of the License , or any paragraph, sentence,
clause, phrase, or word, or the application thereof, is held invalid, the remainder of the
License shall be construed as if such invalid part were never included herein and the
License shall be and remain valid and enforceable to the fullest extent permitted by law.
18.11 WAIVER. No waiver of any provision hereof shall be deemed to have been
made unless such waiver is in writing and signed by City or Concessionaire. The failure
of either party to insist upon the strict performance of any of the provisions or conditions
of this License shall not be construed as waiving or relinquishing in the future any such
covenants or conditions but the same shall continue and remain in full force and effect.
18.12 CAPTION. The captions contained in this License are inserted only as a matter
of convenience and for reference and in no way define, limit or prescribe the scope of this
License or the intent of any provisions thereof.
ARTICLE XIX
AFFIRMATIVE ACTION AND NONDISCRIMINATION
19.1 AFFIRMATIVE ACTION. Concessionaire shall have in place an Affirmative
Action/Equal Employment Opportunity Policy and shall institute a plan for its
achievement, which will require that action be taken to provide equal opportunity in
hiring and promoting for women, minorities, individuals with disabilities, and veterans.
Such plan will include a set of positive measures which will be taken to insure
nondiscrimination in the work place as it relates to hiring, firing, training and promotion.
In lieu of such a policy/plan, Concessionaire shall subunit a Statement of Assurance
indicating that their business is in compliance with all relevant Civil Rights laws and
regulations.
26
19.2 NONDISCRIMINATION. Concessionaire agrees that there will be no
discrimination against any person based upon race, religion, color, sex, ancestry, age,
national origin, mental or physical handicap, in the use of the Premises and
improvements thereof. It is expressly understood that upon a determination by a court of
competent jurisdiction that discrimination has occurred, City shall have the right to
terminate this License.
ARTICLE XX
MINORITY PROCUREMENT
20.1 MINORITY PROCUREMENT. Deleted.
ARTICLE XXI
ENTIRE AGREEMENT
21.1 ENTIRE AGREEMENT. This License represents the total License between the
parties. All other prior Agreements between the parties, either verbal or written, are
superseded by this License and therefore no longer valid.
IN WITNESS WHEREOF, the parties hereto have individually, through their
proper officials, executed this License the day and year first herein above written.
ATTEST:
The City of Miami,
A municipal corporation
Of the State of Florida
By: By:
Todd Hannon
City Clerk
Emilio T. Gonzalez, Ph.D.
City Manager
APPROVED AS TO FORM AND APPROVED AS TO INSURANCE
CORRECTNESS: REQUIREMENTS:
By: By:
Victoria Mendez
City Attorney
Ann Marie Sharpe, Director
Risk Management
27
WITNESS: Ultimate Catering LLC,
Signature
Print Name Print Name
Signature
Print Name
"EXHIBIT A"
PREMISES
400 NW 2 AVENUE
MIAMI, FL 33130
FOLIO NO. 01-0107-050-1090
LEGAL DESCRIPTION:
MIAMI NORTH PB-41
ALL BLK 75 & BLK 88
LESS S10FT OF LOTS 11 THRU 20
AND LESS E10FT OF N32FT OF
S42FT OF LOT 20 AND
LESS EXT AREA OF CURVE
IN SW & SE COR FOR R/W
PER UNITY OF TITLE
29
"EXHIBIT B"
CAFETERIA LOCATION
30
6L.A.C47.;PPII 075
LE
I
SrP
rib.,;t474".e.)frt -0377
01.4 .sTar
0K
ROA
'340
WO'
tidz,k
ORW4
itf!
s'ronAcAlF.
l
t*,-4At cYre lee?. e41
Oer4 Mit:IOC,
Kii4m6m,t4
idgitOrif ARM
"Plot?..1A 74'e,
. .
"EXHIBIT C"
INVENTORY
31
Qty.
1
1
1
1
• •1.
1
5
2
8
3
• 4
59
, Cafeteria inventory
Description
Refrigerator Bar code # 003673
Refrigerator Double Door Bar Code # 10546
Double Door Freezer Bar Code# 10547
Oven Bar totle#006895
..........
Grill & Fryer
Stainless Steel Counter W/ Food 'Display
Stainless Steel 3 Hole Sink
Stainless Steel Shelve. Bar Code #t: 00033087
Stainless Steel Shelve
5 Level Stainless Steel Shelve
3x6 Table
3X4 Table
3x3 Table
4x8 Table
Chairs
"EXHIBIT D"
INSURANCE REQUIREMENTS
AND MIAMI POLICE DEPARTMENT CAFETERIA
I. Commercial General Liability
Limits of Liability
Bodily Injury and Property Damage Liability
Each Occurrence $1,000,000
General Aggregate Limit $ 2,000,000
Products/Completed Operations $ 1,000,000
Personal and Advertising Injury $1,000,000
Damage to Rented Premises , $ 100,000
Endorsements Required
City of Miami included as an additional insured
Primary Insurance Clause Endorsement
Premises & Operations Liability
II. Business Automobile Liability
Limits of Liability
Bodily Injury and Property Damage Liability
Combined Single Limit
Any Auto/Owned Autos/Scheduled
Including Hired, Borrowed or Non -Owned Autos
Any One Accident $ 300,000
Endorsements Required
City of Miami included as an additional insured
32
III. Worker's Compensation
Limits of Liability
Statutory -State of Florida
Waiver of subrogation
A. Employer's Liability
Limits of Liability
$100,000 for bodily injury caused by an accident, each accident.
$100,000 for bodily injury caused by disease, each employee
$500,000 for bodily injury caused by disease, policy limit
IV. Property Coverage
The licensee shall maintain business personal property coverage insuring
against all risk of direct physical loss (special form), including coverage
for windstorm and hail, and flood if applicable. The coverage should be
written on a full replacement cost with maximum deductibles of $1,000 all
other perils, and 5% wind and hail.
The above policies shall provide the City of Miami with written notice of
cancellation or material change from the insurer in accordance to policy provisions.
Companies authorized to do business in the State of Florida, with the following
qualifications, shall issue all insurance policies required above:
The company must be rated no less than "A" as to management, and no less than
"Class V" as to Financial Strength, by the latest edition of Best's Insurance Guide,
published by A.M. Best Company, Oldwick, New Jersey, or its equivalent. All
policies and /or certificates of insurance are subject to review and verification by Risk
Management prior to insurance approval.
33