2009-27098 ResoRESOLUTION NO. 2009-27098
A RESOLUTION OF THE MAYOR A1VD CITY
COMMISSION OF THE CITY OF MIAMI BEACH,
FLORIDA, APPROVING AND AUTHORIZING THE CITY
MANAGER TO EXECUTE A LETTER AGREEMENT
BETWEEN THE CITY AND ONE WASHINGTON
AVENUE CORP. (SMITH AND WOLLENSKY
RESTAURANT) FOR THE TEMPORARY REVOCABLE
USE OF AN APPROXIMATELY 581 SQUARE FOOT
PAVED AREA IN SOUTH POINTE PARK, ADJACENT
TO THE RESTAURANT, FOR AN OUTDOOR DINING
AREA; WITH THE TERM OF SAID AGREEMENT
COMMENCING ON JUNE 3, 2009, AND TERMINATING
ON SEPTEMBER 30, 2009.
WHEREAS, the Administration has been negotiating with One Washington
Avenue Corp., as owner of the Smith and Wollensky Restaurant in South Pointe
Park (hereinafter S&W), on a concession agreement for an outdoor dining area,
originally with the expectation that those deliberations and subsequent approvals
would occur concurrent with the reopening of South Pointe Park (the Park) on
March 22, 2009; and
WHEREAS, on April 14, 2009, the Finance and Citywide Projects
Committee discussed the proposed concession agreement and made
recommendations to the Administration regarding operational conditions and
financial terms; and
WHEREAS, on May 6, 2009, the City required the removal of all tables and
chairs from the outdoor dining area pending approval and execution of a
concession agreement; and
WHEREAS, at its May 13, 2009 meeting, the City Commission discussed
the outdoor dining area and directed the Administration to continue negotiations
with S&W for a long term concession agreement; and
WHEREAS, the parties have negotiated an interim agreement for the use of
the approximate 581 square foot paved area for outdoor dining by S&W
commencing on June 4, 2009;
NOW, THEREFORE, BE IT RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and
City Commission approve and authorize the City Manager to execute a letter
agreement between the City and One Washington Avenue Corp. (Smith and
Wollensky Restaurant) for the temporary revocable use of an approximately 581
square foot paved area in South Pointe Park, adjacent to the restaurant, for an
outdoor dining area; with the term of said Agreement commencing on June 4,
2009, and terminating on September 30, 2009.
PASSED and ADOPTED this 3rd day of June, 2009.
ATTEST:
Robert Parcher, CITY CLERK atti Her era Bower, MAYOR
JMG\HMF~APIACVI
APPROVED AS TO
FORM & LANGUAGE
T:\AGENDA\2009Wune 3\Regular\SW Letter Agreement RES.doc ~ FOR EXECUTION
city Attu v to
COMMISSION ITEM SUMMARY
Condensed Title:
A Resolution Approving A Letter Agreement Between The City And One Washington Avenue Corp., For The Use Of Property In South Pointe
Park Ad'acent To The Smith & Wollensk Restaurant For The Mana ement And O eration Of An Outdoor Dinin Area.
Ke Intended Outcome Su orted:
Increase resident satisfaction with the level of services and facilities.
Supporting Data (Surveys, Environmental Scan, etc.): Approximately 40% of retail businesses surveyed, rank Miami Beach as one of the
best places to do business and 61 % of the same group would recommend Miami Beach as a place to do business.
Issue:
Should the Cit a rove the Letter A reement for ancilla dinin with One Washin ton Avenue?
item summa ~Kecommenaa><IVn:
BACKGROUND
On July 27, 2005, the City Commission adopted Resolution No. 2005-25978 approving the design and construction of the South Pointe Park
improvements. The improvements included a change to the cutwalk, and included a paved area identified for use as an outdoor dining area
south of the cutwalk behind Smith and Wollensky (S&W). S&W had previously operated an outdoor dining area (on the then-existing 10-foot
wide cutwalk) pursuant to the issuance of annual sidewalk cafe permits by the City.
The Administration has been negotiating with S&W a concession agreement for the outdoor dining area. On April 14, 2009, the Finance &
Citywide Projects Committee (F&CPC) discussed the proposed concession agreement and directed staff to further negotiate financial terms. On
May 5, 2009, the City advised S&W that they had to remove all tables and chairs from the paved outdoor area pending approval of a concession
agreement. At the May 13, 2009 meeting of the City Commission the Commission discussed the outdoor dining area, resulting with the
Commission giving the Administration direction to reestablish negotiations with S&W to facilitate a mechanism for the outdoor dining.
S&W has requested interim authorization to use the outdoor seating area via a Letter Agreement which would be short term in nature, to allow
the operations to continue until such time as the concession agreement that is under negotiation is approved by the City Commission.
LETTER AGREEMENT PROVISIONS:
TERM: Commencing on June 4, 2009, and terminating on the earlier of: 1) final action by the City Commission as to a proposed concession
agreement for the use of said area; or, 2) September 30, 2009.
FEE: 10% of gross receipts collected during the term of this Letter Agreement.
USES : Placement of tables and chairs as approved following ADA compliance review; only on the paved area south of the cutwalk located on
the south side of S & W's restaurant building for use as an outdoor dining area ancillary to the restaurant.
CONDITIONS: The outdoor seating would be subject to the following conditions:
• S & W must submit a site plan. Site plan must be reviewed and approved by relevant City departments prior to use;
• S & W must clean and maintain the cutwalk area (between the demised premises of the lease and the paved area that is
the location of the outdoor dining area), to include daily cleaning, litter control, pressure cleaning (as per the
specifications provided by the Park contractor);
• S & W to identify a queuing area for guests and provide, at its own cost and expense, staff to maintain the cutwalk clear
of patrons waiting for seating; provide signage on the demised premises and on the paved area, advising patrons that
they should remain clear of the cutwalk; provide stanchions or other appropriate barrier on the demised premises to
demarcate the area where patrons can wait in the demised premises;
INDEMNIFICATION & INSURANCE: To be provided prior to use and approved by the City Attorney's Office and the Risk Management Division.
The Administration recommends the approval of the Letter Agreement
Advisory Board Recommendation•
On April 14, 2009 the Finance & Citywide Projects Committee recommended changes to the operational conditions and negotiation of a more
favorable base minimum rent. On May 13, 2009 the City Commission directed the Administration to move forward to the City Commission the
issue of the Concession Agreement with One Washington Ave Corp.
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Source of Amount Account
Funds: n/a r 1
Financial Impact Summary:
Ci Clerk's Office Le islative Trackin
Ana Cecilia Velasco extension 6727
Si n-Offs•
Department Director is n C' M ager City anager
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T.•IAGENDA12009Vune 31Regu/arISW LetterAgree~ent SUM.doc
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m MIAMIBEACH
AGENDA ITEM ~~~
DATE 3-~5
m MIAMIBEACH
City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33139, www.miamibeachfl.gov
COMMISSION MEMORANDUM
To: Mayor Matti Herrera Bower and Members of the City Commission
FROM: Jorge M. Gonzalez, City Manager
DATE: June 3, 2009
SUBJECT: A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH,
FLORIDA, APPROVING AND AUTHORIZING THE CITY MANAGER TO EXECUTE A LETTER
AGREEMENT BETWEEN THE CITY AND ONE WASHINGTON AVENUE CORP. (SMITH AND
WOLLENSKY RESTAURANT) FOR A TEMPORARY REVOCABLE USE LETTER AGREEMENT
("LETTER AGREEMENT") OF AN APPROXIMATELY 581 SQUARE FOOT PAVED AREA IN SOUTH
POINTE PARK, ADJACENT TO THE RESTAURANT BUILDING, FOR THE OPERATION OF A FOOD
AND BEVERAGE CONCESSION AND OUTDOOR DINING AREA; WITH THE TERM OF SAID
AGREEMENT COMMENCING ON JUNE 4, 2009, AND TERMINATING ON THE EARLIER OF 1)
FINAL ACTION BY THE CITY COMMISSION AS TO A PROPOSED CONCESSION AGREEMENT
BETWEEN THE CITY AND ONE WASHINGTON AVENUE CORP. FOR THE USE OF SAID AREA,
OR 2) SEPTEMBER 30, 2009.
BACKGROUND
On July 27, 2005, the City Commission adopted Resolution No. 2005-25978 approving the design and
construction of the South Pointe Park improvements. The improvements included a change to the cutwalk,
and included the construction of a paved area south of the cutwalk behind Smith & Wollensky (S&W)
identified for use as an outdoor dining area. S&W had previously operated an outdoor dining area (on the
then-existing 10-foot wide cutwalk) pursuant to the issuance of annual sidewalk cafe permits by the City.
As a result of the new construction, the Administration and City Attorney's Office determined that the
correct instrument to memorialize S&W's use of this specific public property for its outdoor dining area -
going forward -would be through a concession agreement. Accordingly, the Administration has been
negotiating with S&W on a concession agreement for the outdoor dining area, originally with the
expectation that those deliberations and subsequent approvals would occur concurrent with the reopening
of the Park on March 22nd. On April 14, 2009, the Finance & Citywide Projects Committee (F&CPC)
discussed the proposed concession agreement. The F&CPC recommended changes to the proposed
operational conditions, and requested that the Administration negotiate a more favorable base minimum
rent. On May 6, 2009, the City advised S&W that it had to remove all tables and chairs from the paved
area pending approval of a concession agreement. At the May 13, 2009 meeting of the City Commission,
the Commission discussed the outdoor dining area, resulting with the Commission giving the
Administration direction to reestablish negotiations with S&W to facilitate a mechanism for the outdoor
dining.
Pursuant to the City's directive, S&W is currently not operating the outdoor dining area. While these
negotiations continue, S&W has requested interim authorization to use the outdoor seating area. Such
approval would require the execution of a Letter Agreement that would require S&W to pay a percentage
of gross, and meet certain operational conditions. This Letter Agreement, if approved by the Commission,
would be short term in nature, to allow the operations to continue until such time as the concession
agreement that is under negotiation is approved by the City Commission.
Commission Memorandum
S&W Letter Agreement
June 3, 2009
Page 2 of 2
LETTER AGREEMENT PROVISIONS
Should the City Commission consider granting a Letter Agreement to S&W for use of the outdoor dining
area until such time as the terms of the proposed concession agreement can be negotiated and approved
by the City Commission, the following key terms would be incorporated:
TERM: Commencing on June 4, 2009, and terminating on the earlier of: 1) final action by the City
Commission as to a proposed concession agreement for the use of said area; or, 2)
September 30, 2009.
FEE: 10% of gross receipts.
USES : Placement of the maximum number of tables and chairs approved following ADA
compliance review; tables and chairs only on the gray paved area south of the cutwalk
located on the south side of S & W's restaurant building; for use only as an outdoor dining
area ancillary to the restaurant.
CONDITIONS: The outdoor seating would be subject to the following conditions:
• S & W must submit a site plan. Site plan must be reviewed and approved by relevant
City departments prior to use;
• S & W must clean and maintain the cutwalk area (between the demised premises of
the lease and the paved area that is the location of the outdoor dining area), to include
daily cleaning, litter control, pressure cleaning (as per the specifications provided by
the Park contractor);
• S & W to identify a queuing area for guests and provide, at its own cost and expense,
staff to maintain the cutwalk clear of patrons waiting for seating; provide signage on the
demised premises and on the paved area advising patrons that they should remain
clear of the cutwalk; provide stanchions or other appropriate barrier on the demised
premises to demarcate the area where patrons can wait in the demised premises;
• S&W must adhere to all City Code requirements (e.g. noise, etc.);
• S&W hours of operation must be consistent with restaurant hours of operation; notable
service when/if kitchen is closed.
INDEMNIFICATION
& INSURANCE: To be provided prior to use and approved by the City Attorney's Office and the Risk
Management Division.
CONCLUSION
The construction of South Pointe Park incorporated a paved area south of the cutwalk to accommodate an
outdoor dining area as an ancillary use of the Smith and Wollensky Restaurant operations. Pending final
approval of a concession agreement for S&W's use of the paved area, it is recommended that the City
Commission approve a Letter Agreement to provide for outdoor dining in the paved area on a short term
basis.
JMG\HMF\APWCV\
T:IAGENDA12009Vune 31RegularlSW LetterAgn;ement MEM.doc
m MIAMIBEACH
City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33139, www.miamibeachfl.gov
OFFICE OF REAL ESTATE, HOUSING & COMMUNITY DEVELOPMENT
Tel: 305.673.7193, Fax: 305.673.7033
June 4, 2009
Mr. Nick Valenti, President
Patina Restaurant Group, LLC
120 West 45th Street, 16t" Floor
New York, NY 10036
Re: Agreement between the City of Miami Beach, Florida (City)
and One Washington Avenue Corp. d/b/a Smith & Wollensky
Restaurant (S&W) for Temporary Use of an Outdoor
Concession Area in South Pointe Park
Dear Mr. Valenti:
The foregoing Letter Agreement shall 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. S&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 "A" 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 shall commence on June 4, 2009, and shall
automatically terminate (without any further notice required by the City) on the
earlier of 1) the City and S&W's conclusion of negotiations for, and the City
Commission's approval of, a "final" concession agreement for S&W's use of the
Concession Area (which, if approved, is intended to authorize S&W's use of the
Concession Area for a longer term); or 2) September 30, 2009 (the Term).
Notwithstanding the preceding Term, this Letter Agreement may also be
terminated by the City Manager or his designee either 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, S&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 it 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 Agreement, 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 8, 1985 (and subsequently
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 statement of the gross receipts for such month, certified by
S&W 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 casualty 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 other 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 thirty (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, without limitation 1) daily removal of litter, garbage, and debris; 2)
pressure cleaning (as per specifications 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 Cutwalk Area), which shall
include, without limitation, daily cleaning, litter control, and pressure cleaning (as
per the specifications provided by the City in Exhibit "B" hereto);
2) S&W shall, to the reasonable satisfaction of the City Manager or his designee,
maintain the Cutwalk 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 Cutwalk 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
Cutwalk Area;
c) Provide stanchions 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 to 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
4
by the City, we will forward a fully executed copy to your office for your records. This
Letter Agreement shall be enforceable in Miami-Dade County, Florida, and if legal
action is necessary by any party with respect to the enforcement of any or all of the
terms or conditions herein, exclusive venue for the enforcement of same shall lie 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,
Ana Cecilia Velasco
Asset Manager
ACV:acv
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 I am authorized to execute this Letter Agreement on behalf of City / S&W
(respectively) and, accordingly bind City / S&W to the terms and conditions set forth
herein.
ONE WASHINGTON AVENUE CORP.
Nick Valenti, President
Date
T:\AGENDA\2009\June 3\Regular\SW Letter Agreement.doc
CITY OF MIAMI BEACH, FLORIDA
Jorge M. Gonzalez, City Manager
Date APPROVED Ag TO
FORM ~ LANGUAGE
~ FOR CUTION
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EXHIBIT "A"
(the Concession Area)
[TO BE INSERTED]
EXHIBIT "B"
C O N N E RY 946 Beachland Blvd., Suite 12, Vero Beach, FL 32963 (772) 231-1224
CONCRETE Decker Avenue, Stuart, FL (772) 288-1072
Melbourne, FL (321) 723-4004
Fax (772)231-SS62
May 27, 2009
Care ~ Maintenance
Thank you for choosing COIYNERI` ('(}NC`12ETI: to install and seal your new "Tabby"
driveway areas. We appreciate your business and with proper caze and maintenance it
will look great for many years to come.
Generally, minimal maintenance is required. Alight, periodic pressure cleaning might be
necessary for heavy dirt or staining from tires, pine needles and vehicle fluids. Most
often, hosing down your driveway and cleaning with a biodegradable detergent,
using a nylon bristle brush will remove basic dirt and stains. For more stubborn stains,
please contact us.
Also, please be aware that certain chemicals can adversely affect your "Tabby"
Concrete. Among the chemicals that can damage are:
Muratic acid /Battery acid /Radiator overflows
Xylene / Tylene /Paint thinners
Paint strippers
Automobile wheel cover cleaners
Please advise your maintenance and pool cleaning contractor NOT to place any kind
of cleaning chemicals on any of the driveway areas.
Following the above guidelines will help ensure the beauty and durability for many years
to come. Once again, we hope you will enjoy years of comfort knowing your investment
is protected and maintained by the professionals of C'ONNFftY C"O~t'12FTG.
Sincerely,
~~ ~
Jim Connery
President
" ,~ '~._
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~~~~~
SEA St~1EL.t. CONCRETE
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