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Agreement w/ Nick Valenti, Patina Restaurant Group, LLC/~ ~ ~ - !O {~~` ~o~ a ~_ MIAMIBEACH City of Miami Beach, 1700 Convention Center Drive; Miami Beach, Florida 33139, www.miamibeachfil.gov OFFICE OF REAL ESTATE, HOUSING & COMMUNITY DEVELOPMENT Tel: 305.673.7193, Fax: 305.673.7033 June 5, 2009 Mr. Nick Valenti, President Patina Restaurant Grou~, LLC 120 West 45~' Street, 16t Floor New York, NY 10036 Re: Agreement between the City of Miami Beach, Florida (City) and One Washington Avenue Corp. d/bla Smith & Wollensky Restaurant (S8~W) for Temporary Use of an Outdoor Concession Area in South Points Park Dear Mr. Valenti: The foregoing Letter Agreement shalt confirm the understanding between the City and S&W with regard to S&W's temporary, revocable use of approximately 581 square feet of public property in South Pointe Park (the Park), directly south of the cutwalk behind the S&W restaurant building, for use by S&W as an outdoor dining area (said premises, as also identified in the sketch attached as Exhibit "A" hereto, are hereinafter referred to as the Concession Area}. The City hereby agrees to grant S&W the use of the Concession Area (and S&W hereby agrees to use said Area) solely for the purpose of providing food and beverage service to patrons seated at the tables and seats located in the Concession Area. S8~W shall have the right to place such number of tables and chairs as shall be approved by the City and subject to the Area (including the table and chairs within it) complying with applicable ADA requirements. The approved number of tables and chairs, and where they are to be situated within the concession area shall be attached in a site plan which shall be incorporated as Exhibit "An hereto. No change in the approved site plan {in Exhibit "A") shall be permitted without the prior written consent of the City Manager or his designee, which consent (if given at all) shall be at the Manager's (or his designee's) sole and reasonable judgment and discretion. In no event shall S&W's use of the Concession Area, and its operations thereon, conflict with the operation and use of the Park. S&W acknowledges and agrees that the operation and use of the Park as a public park and recreational amenity is primary and, as such, S&W shall not unreasonably interfere with the public's right to use the Park including, without limitation, any and all recreational amenities located thereon. The Concession Area shall be open and accessible to members of the general public who choose to use and enjoy the outdoor dining area (for drinks and/or food} as patrons of S&W restaurant. The term of this Agreement shat! commence on June 4, 2009, and shall automatically terming#e {without any further notice required by the City) on September 30, 2009 (the Term); provided, however, that in the event S&W and the City have negotiated, and the City Commission approves, a "long term" concession agreement for the Area, prior to September 30, 2009, then this Agreement shall automatically terminate on the commencement da#e of the new concession agreement. Notwithstanding the preceding Term, this Letter Agreement may also be terminated by the City Manager or his designee ei#her 1}for cause, in the event of a breach by S&W of any term(s) and/or condition{s) set forth herein and S&W's failure to satisfactorily cure same within five (5) days of written notice of such breach by the City Manager or his designee; or 2) for convenience (without cause}, upon seven (7) days written notice to S&W. Upon termination by the City (whether for cause or for convenience), and/or expiration of this Agreement, S8~W shall immediately cease operations thereon; remove any and all tables, chairs, and other equipment from the Concession Area; and restore the Area to its original condition prior to the commencement of the Term, ordinary wear and tear excepted. Other than approval of this Letter Agreement by the Mayor and City Commission, S&W does not anticipate that any additional approvals from the City will be necessary to allow i# to operate the Concession Area for the stated purposes herein. To the extent any additional approvals do become necessary, S&W shall have the option to terminate this Agreemen#, effective immediately, rather than seek any such additional approvals. As further consideration for S&W's right to use the Concession Area for the stated purposes herein, S&W agrees to pay the City an amount equal to ten (10%) percent of its monthly gross receipts for the Concession Area (Percentage of Gross or PG). The term "gross receipts" shall have the same meaning as provided in that certain Lease Agreement, dated February $, 1985 (and subsequen#ly amended) between the City and One Washington Avenue Corp. for the S&W restaurant building/facility (hereinafter, said Lease and all amendments thereto is referred to as the S&W Lease). Within thirty (30} days after each month of the Term, S&W shall deliver to the City a written monthly s#a#ement of the gross receipts for such month, certified by SSW to be true, accurate, and complete. The PG shall be due and payable at the time of submittal of the statement of monthly gross receipts. The first statement of monthly gross receipts and first PG payment shall be due no later than July 31, 2009 (representing the PG for the month of June 2009). S&W assumes liability for any loss, injury or damage to the extent caused by the negligence, omissions, or other wrongful conduct by S&W, its employees or 2 agents, provided, however, that with respect to real property damage the liability shall be limited to the limits of the insurance policies required hereunder. Similarly, subject to the limitations in F.S. Sec. 768.28, the City assumes liability for any loss, injury or damage to the extent caused by the negligence, omissions or other wrongful conduct by the City, its employees or agents. S&W further acknowledges and agrees that it shall be solely responsible for providing reasonable measures to secure and safeguard any and all items, such as equipment, and other property to be stored in the Concession Area. Except for the City's liability otherwise herein, S&W further acknowledges and agrees that under no circumstances shall the City be in anyway responsible or liable whether to S&W, its employees, agents, sub-consultants, or any other person or entity acting under S&W's control, in connection with this Letter Agreement, for any stolen, damaged, or destroyed equipment, furniture, records, or other property stored within the Concession Area. It is understood that there is no City property in the Concession Area. S&W shall, at its sole cost and expense, comply with all insurance requirements of the City. It is agreed by the parties that the S&W shall not occupy the Concession Area until proof of the following insurance coverages have been furnished to and approved by the City's Risk Manager: Comprehensive General Liability in the minimum amount of $1,000,000 per occurrence for bodily injury and property damage. The City of Miami Beach must be named as additional insured parties on this policy. Workers Compensation and Employers Liability coverage in accordance with Florida statutory requirements. All-Risks property and casual#y insurance, written at a minimum of 80% of replacement cost value and with replacement cost endorsement, covering all of S&W's personal property in the Concession Area {including, without limitation, inventory, trade fixtures, floor coverings, furniture and o#her property removable by S&W under the provisions of this Agreement) and all improvements installed in the Concession Area by or on behalf of S&W. Proof of these coverages must be provided by submitting original certificates of insurance. All policies must provide #hirty (30) days written notice of cancellation to both the City's Risk Manager and Asset Manager at 1700 Convention Center Drive, Miami Beach, Florida, 33139. All insurance policies shall be issued by companies authorized to do business under the laws of the State of Florida and must have a rating of B+:VI or better per A.M. Best's Key Rating Guide, latest edition, and certificates are subject to the approval of the City's Risk Manager. No utility services shall be provided to the Concession Area. 3 S&W accepts the Concession Area in its "AS IS WHERE IS" condition, and hereby assumes sole responsibility and expense for maintenance of the Concession Area including, wi#hout limitation 1} daily removal of litter, garbage, and debris; 2) pressure cleaning (as per specifica#ions provided by the City and attached as Exhibit "B° hereto); and 3) any and all such additional maintenance, litter control, and cleaning, as reasonably required at all times to maintain the Concession Area in a clean, neat, and orderly manner. Additionally, in furtherance of the parties' acknowledgment and agreement that South Pointe Park is an important public recreational amenity in the City of Miami Beach, and that the public's use and enjoyment of the Park and its recreational facilities must be a primary consideration, S&W shall comply with the following requirements: 1) S&W shall clean and maintain that certain area between the Demised Premises, (as said term and said area is defined in the S&W Lease) and the Concession Area (such certain area hereinafter referred to as the Catwalk Area}, which shall include, without limitation, daily cleaning, litter control, and pressure cleaning (as per the specifications provided by the City in Exhibi# "B" hereto); 2) S&W shall, to the reasonable satisfaction of the City Manager or his designee, main#ain the Catwalk Area free from obstructions at all times during its operations on the Concession Area by implementing all of the following measures: a) Identify a queuing area for patrons and provide (at its sole cost and expense) staff to use reasonable efforts to maintain the Catwalk Area clear of patrons waiting for seating. Benches will be placed on the southeast and southwest corners of the Demised Premises; b) Provide signage advising patrons that they should remain clear of the Catwalk Area; c) Provide s#anchions and/or other appropriate barrier{s) to demarcate an area where patrons can wait for a table; and 3} S&W shall, at all times, adhere to the City of Miami Beach Noise Ordinance, as same may be amended from time to time. This Letter Agreement embodies the entire agreement and understanding between the parties hereto, and there are no other agreements and understandings, oral or written with reference #o the subject matter hereof that are not merged herein and superseded hereby. No alteration, change, or modification of the terms of this Agreement shall be valid unless amended in writing, signed by both parties hereto, and approved by the City of Miami Beach. If the aforestated terms and conditions meet your approval, please acknowledge, execute and have same duly witnessed in the space provided below. Upon execution by the City, we will forward a fully execu#ed copy to your office for your records. This Letter Agreement shall be enforceable in Miami-Dade County, Florida, and if legal 4 action is necessary by any party with respect #o the enforcement of any or all of the terms or conditions herein, exclusive venue fior the enforcement of same shall fie in Miami-Dade County, Florida. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Florida, both substantive and remedial, without regard to principles of conflict of laws. The exclusive venue for any litigation arising out of this Agreement shall be Miami-Dade County, Florida, if in State court, and the U.S. District Court, Southern District of Florida, if in federal court. BY ENTERING INTO THIS AGREEMENT, CITY AND S&W EXPRESSLY WAIVE ANY RIGHTS EITHER PARTY MAY HAVE TO A TRIAL BY JURY OF ANY CIVIL LITIGATION RELATED TO, OR ARISING OUT OF, THIS AGREEMENT. Sincerely, Anna Parekh Director AP:rlr I have read this Letter Agreement and, fully understanding same, agree to be bound by the terms and conditions contained herein. I further warrant and represent to the City that 1 am authorized to execu#e this Letter Agreement on behalf of City / S&W (respectively) and, accordingly bind City / S&W to the terms and conditions set forth herein. CITY OF MIAMI BEACH, FLORIDA Date Date F:IRHCDI$ALLIECONI$ALLWSSET~SOPTPARM~S&W Temporary Use Agn:ement.doc Valenti, President Jorge M. Gonzalez, City Manager APPROM1/ED AS TO FORM & LANGUAGE ~ FOR EXECUTION ;I -----, b ~Z b~ City A mey ate EXHIBIT ~A" {the Concession Area) rn ~ U ;, Z T a ~_ .. 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We appn'ciate yotu~ biisi.ness and with proper care and maintenance it ra~ilt look great for many years to come. t;euca,ally, tnvumal maintenance. is rc,~uired. ~ light, periodic pressure cteat>2ng niit3ht be >tecessary Liar h~vy dirt or staining from tires, pine needles and vehicle fluids. Most ot4en, hosing dot"rn yater driveway. ant! cleaning with a biodegradable detergent, using a mylou bristle brush will remave basic c1i11: and star. For more stuhborp stains, please a#ntact'us. Also, please be aware that cettain chericals can adversely affect ~=our "Tabby" Canerete. Among t11e chemicals that can dame are: Muratic acid / Battery acid /Radiator overflows 7cylene ! Tylene /Paint thinners Paint strippers Automoliiie wheel cover cleaners Please advise your rxtaiq#eaance aiad pool clcamlit>!; comtracttar IL,_O'1~; to plaee atay kind ai' cieaimiug.ebt~eicais on any of the drlveovay areas. }<oRgwing the above l,uidelinevt will help ensure the beauty and durability :for many years tu. come. Once again, we hope you will enjoy years of comfort: knowing your investment is protected and maintained by the professionals of''t~'~i:9~"~ :;Cz~t:'€vs~!"€ s. 5inc;erely, :tint Cannery President ~- ~~~3 ~'~~ 7