Smith & Wollensky Agreementaoo9" ~ 7~7 ~
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Smith & Wollen
Concession
Agreement
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INDEX
SECTION TITLE
1. TERM ........................................................................................
2. CONCESSION AREA ...............................................................
2.1 Concession Area ..........................................................
3. USE(S) ......................................................................................
3.1 Food and Beverage Service .........................................
3.2 City Business Tax Receipts ..........................................
4. CONCESSION FEES ................................................................
4,1 Minimum Guarantee (MG) ...........................................
4.2 Percentage of Gross (PG) vs. MG ...............................
4.3 Interest for Late Payment .............................................
4.4 Sales and Use Tax .......................................................
5. MAINTENANCE AND EXAMINATION OF RECORDS .............
6. INSPECTION AND AUDIT ........................................................
7. TAXES, ASSESSMENTS, AND UTILITIES ..............................
8. EMPLOYEES AND INDEPENDENT CONTRACTORS............
9. HOURS OF OPERATION .........................................................
10. IMPROVEMENT, MAINTENANCE, REPAIR and OPERATIO
10.1 Improvements ..............................................................
10.2 Garbage Receptacles ...................................................
10.3 Maintenance/Repair .....................................................
10.4 No Dangerous Materials ...............................................
10.5 Security .........................................................................
10.6 Inspection .....................................................................
11. INSURANCE .............................................................................
12. INDEMNITY ...............................................................................
12.4 Subrogation ..................................................................
12.5 Force Majeure ..............................................................
12.6 Waiver of Loss from Hazards .......................................
13. DEFAULT AND TERMINATION ...............................................
13.1 Bankruptcy .............................................:.....................
132 Default in Payment .......................................................
13.3 Non-Monetary Default ..................................................
13.4 City's Remedies for Concessionaire's Default .............
13.5 Concessionaire's Remedies for City's Default .............
13.6 Termination for Convenience/Partial Termination........
13.7 Surrender of Concession Area .....................................
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SECTION
14.
15.
16.
16.2
16.3
17.
18.
19.
20.
20.1
20.2
20.3
21.
21.1
21.2
21.3
21.4
21.5
21.6
21.7
21.8
21.9
21.10
'21.11
21.12
21.13
22.
23.
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TITLE I~, ~ PAGE
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PERFORMANCE BOND OR ALTERNATE SECURITY ......................'... ~.'........................18
ASSIGNMENT .................................................................. ....:........................19
SPECIAL EVENTS /SPONSORSHIPS ...............................................'....,.......................19
City Special Events ..................................................................~... ~.
.. ! ~ .......................19
Sponsorships ...........................................................................'. ' ......................19
NO IMPROPER USE ...........................................................................!... x.'........................20
PRICE SCHEDULES ............................................................................! !,
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NOTICES .............................................................................................!...!.~........................20
LAWS ...................................................................................................... ~........................ 21
Compliance ........................................
Equal Employment Opportunity..........
No Discrimination ...............................
MISCELLANEOUS ..........................................
No Partnership ...................................
Modifications ......................................
Complete Agreement .........................
Headings ............................................
Binding Effect .....................................
Clauses ..............................................
Severability .........................................
Right of Entry ......................................
Not a Lease ........................................
Signage ..............................................
Conflict of Interest ..............................
No Waiver ..........................................
No Third Party Beneficiary ..................
LIMITATION OF LIABILITY .............................
VENUE ............................................................
EXHIBITS
Exhibit 2.1 ...........................................
Exhibit 5 ..............................................
Exhibit 10.2 .........................................
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CONCESSION AGREEMENT BETWEEN
CITY OF MIAMI BEACH, FLORIDA AND ';
1 WASHINGTON AVENUE CORPORATION
FOR MANAGEMENT AND OPERATION OF A FOOD & BEVERAGE CONCESSION
IN A PORTION OF SOUTH POINTE PARK
THIS AGREEMENT made the 1 st day of October, 2009, between the CIS OF MIAMI BEACH, a
municipal corporation of the State of Florida (hereinafter called "City"), having its principal address
at 1700 Convention Center Drive, Miami Beach, Florida, 33139, and One WASHINGTON AVENUE
CORP., a Florida corporation, having its principal place of business at One Washington Avenue,
Miami Beach, Florida, 33139, (d/b/a Smith &Wollensky Restaurant and hereinafter called
"Concessionaire").
WITNESSETH
WHEREAS, on April 14, 2009, t
proposed Concession Agreement
beverage concession on a portion
Wollensky Restaurant; and
~e Finance and Citywide Projects Committee discussed a
with Concessionaire to operate arid manage a food and
of South Pointe Park, adjacent to Coincessionaire's Smith &
i
WHEREAS, the Committee made recommendations to the Administration regarding operational
conditions and financial terms; and ii
WHEREAS, at its May 13, 2009 meeting, the Mayor and City Commission idiscussed the proposed
Concession Agreement and directed the Administration to Conti i ue negotiations with
Concessionaire; and
WHEREAS, on June 3, 2009, the Mayor and City Commission adopted Resolution No. 2009-
27098, approving an interim agreement to operate the aforestated concession; and the Letter
Agreement is scheduled to terminate on September 30, 2009; and
WHEREAS, on July 21, 2009, the Finance and Citywide Projects Committee discussed and
approved the proposed terms of the concession agreement, such terms which were subsequently
approved by the City Commission on September 9, 2009; and
WHEREAS, accordingly, the City and Concessionaire have negotiated the following Concession
Agreement. ~ ~
NOW THEREFORE, in consideration of the premises and the mutual covenants and conditions
herein contained and other good and valuable consideration, the receipt and adequacy of which are
hereby conclusively acknowledged, it is agreed by the parties hereto as follows:
The City hereby grants to the Concessionaire, and the Concessionaire hereby accepts from the
City, the right to maintain, manage and operate a food and beverage concession within the
Concession Area (as hereinafter defined), in accordance with the purpose(s) and for the term(s)
stated herein, and subject to all the terms and conditions herein contained.
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SECTION 1. TERM.
1.1 This Agreement shall commence on the 1St day of October, 2009 (the
"Commencement Date"), and terminate on the 6t" day of Novi tuber, 2025 (the Term).
For purposes of this Agreement, a "contract year" shall be defined as that certain
period commencing on the 1St day of October, and ending on the 30t" day of
September.
It is the intent of the parties hereto that the Term of this Agreement is to run
concurrent with the term of that certain Lease Agreement entitled, "South Pointe Park
Restaurant Facility between the City of Miami Beach and Specialty Restaurant
Corporation (as amended), dated February 8, 1985 (hereinafter, the "Lease
Agreement"). ~,
If, at any time during the Term of this Concession Agreement, the Lease Agreement
is terminated or otherwise ceases to be of any legal force 'and effect, for whatever
reason whatsoever, then this Concession Agreement shall automatically terminate,
and shall be null and void and of no further force and effect.
SECTION 2. CONCESSION AREA. ;~
The City hereby grants to Concessionaire the right, during the Term herein, to maintain, manage
and operate a food and beverage concession in the following Concession Area:
2.1 Concession Area:
That certain area comprised of approximately 581 square feet, located south of the
Smith &Wollensky Restaurant building and south of (and adjacent to) the South
Pointe Park public baywalk (which public baywalk is herei ~ after referred to at the
"cutwalk", and as further delineated in the sketch attached and incorporated as
Exhibit 2.1 hereto. ~ ~
Concessionaire shall have the right to place such number of'~tables and chairs within
the Concession Area, subject to approval by the City and compliance with applicable
ADA requirements. The currently approved number of tables and chairs, and where
they are to be situated within the Concession Area, is also delineated in Exhibit 2.1
hereto. No material change in the approved configuration (or in Exhibit 2.1) shall be
permitted without 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.
2.2 Notwithstanding the Concession Area granted to Concessionaire in Section 2.1,
Concessionaire hereby agrees and acknowledges that the Concession Area shall be
open and available to all members of the general public choosing to enjoy
Concessionaire's food and beverage services as patrons of Smith and Wollensky
Restaurant.,
SECTION 3. USE(S).
Concessionaire is hereby authorized to conduct the following kind(s) of bus
following kind(s) of services within the Concession Area, all at its sole expo
3.1 Food and Beverage Service.
;finesses and provide the
Anse and responsibility:
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3.1.1 Concessionaire shall offer for sale within the Concession Area, such food and
beverages which, at a minimum, are consistent with the type and quality of
food and beverages prepared and sold at Smith &~ Wollensky Restaurant.
However, actual cooking and heating within or on the Concession Area shall
not be allowed. ~ ~
3.1.2 All food and beverages sold or otherwise offered within the Concession Area
shall be subject to any and all terms and conditions governing food and
beverage service under the Lease Agreement and shall be dispensed only
from the Smith &Wollensky Restaurant building. ~
3.1.3 The City hereby allows Concessionaire the right to serve and sell alcoholic
beverages within the Concession Area, but only fort consumption within the
Concession Area, and further subject to Concessionaire's compliance, at all
times, with whatever restrictions and/or regulations are (or may be) imposed
by the State of Florida, Miami-Dade County, and/or ithe City, with respect to
the dispensing and sale of alcoholic beverages (including, without limitation,
alcoholic beverage license requirements). Notwithstanding the preceding
sentence, all alcoholic beverages shall be dispensed only from the Smith &
Wollensky Restaurant building, and Concessionaire ;shall not be permitted to
erect or maintain upon the Concession Area, any permanent or temporary
structure and/or area (i.e. bars, mini bars, etc.) for the dispensing or sale of
alcoholic beverages.
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3.1.4 In addition to Concessionaire's general maintenance obligations, as set forth
in Section 10 hereof, the Concession Area, and the immediately surrounding
twenty five (25) foot adjacent areas, shall at all times be maintained in a clean
and sanitary manner; provided however that any obligations to pressure clean
the area shall be as set forth in Section 10.2 hereof.. ~~
3.1.5 Food and beverage service shall be offered daily to patrons at all times during
the Concession Area hours of operation, as set forth in Section 9 hereof.
3.1.6 Concessionaire agrees not to place any speakers, orany other device used to
amplify sound, in, on or around the Concession Area. Furthermore,
Concessionaire shall in no manner use the Concession Area, or the Smith &
Wollensky Restaurant building, as an outdoor entertainment or open air
entertainment establishment, and hereby acknowledges that such uses are
prohibited (whether as main or accessory uses). Concessionaire shall, at all
times, adhere to the City of Miami Beach Noise Ordinance, as same may be
amended from time to time.
3.1.7
3.1.7.1
Concessionaire shall, to the reasonable satisfaction of the City Manager or his
designee, maintain the cutwalk free from obstructions at all times during its
operations on the Concession Area, by implementing all of the following
measures:
Identify a queuing area for patrons and provide (at its sole cost and
expense) staff to use reasonable efforts to maintain the cutwalk clear of
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patrons waiting for seating. Benches will be
and southwest corners of the Smith & Wolle
3.1.7.2 Provide signage advising patrons that they sh'
cutwalk; and ',
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3.1.7.3 Provide stanchions and/or other appropriate b
area where patrons can wait for a table.
3.2 City Business Tax Receipts.
Concessionaire shall obtain, at its sole expense and respor
receipts required by the City for the proposed use(s) cont~
extent required by City law (as same may be amended fror
tax receipts shall be obtained for each proposed use within
Area.
SECTION 4. CONCESSION FEES.
4.1 Minimum Guarantee (MG):
In consideration of the City's granting of the rights prov
Concessionaire agrees to pay the City a Minimum Guaran
Fee (MG) of Eighty Thousand ($80,000.00) Dollars, payabl
of Six Thousand Six Hundred Sixty Six Dollars ($6,666.6
Minimum Guarantee" or "MMG"). The MMG shall be due an
of each month throughout the Term of this Agreement.
ed on the southeast
Restaurant building;
Id remain clear of the
s) to demarcate an
~ibility, any business tax
mplated herein. To the
time to time), business
~ particular Concession
ed in this Agreement,
ed Annual Concession
in monthly installments
and 67/100 ("Monthly
payable on the first day
Commencing with the fifth (5t") contract year (i.e. October 1, 2014), Concessionaire
agrees that the MG (and corresponding MMG) shall be increased to One Hundred
Thousand ($100,000.00) Dollars annually, payable in monthly installments of Eight
Thousand Three Hundred Thirty Three ($8,333.33) Dollars and 33/100.
Commencing with the tenth (10t") contract year (i.ei.i October 1, 2019),
Concessionaire further agrees that the MG (and corresponding MMG) shall be
increased to One Hundred Twenty Thousand ($120,00000) Dollars annually,
payable in monthly installments of Ten Thousand ($10,000; I00) Dollars.
Commencing with the fifteenth (15t") contract year (i.e. October 1, 2024),
Concessionaire agrees that the MG (and corresponding MMG) shall be increased to
One Hundred Forty Thousand ($140,000.00) Dollars annually, payable in monthly
installments of Eleven Thousand Six Hundred Sixty Six ($11,666.67) Dollars and
67/100.
4.2 Percentage of Gross (PG) vs. MG:
For each contract year during the Term, in the event that the amount equal to ten
(10%) percent of Concessionaire's gross receipts (PG) exceeds the MG amount, then
Concessionaire shall also pay to the City the difference between the PG amount and
the MG amount, which payment shall be received no later than thirty (30) days after
the end of each contract year. j
The term "gross receipts" is understood to mean all income, whether collected or
7
accrued, derived by Concessionaire under this Agreement, or any licensee, sub-
concessionaire, orsub-tenant, as Concessionaire, from all business conducted upon
or from the Concession Area, including but not limited to receipts from sale of food,
beverages, and alcoholic beverages. The term "gross receipts" shall exclude amounts
of any Federal, State, or City sales tax, or other tax, governmental imposition,
assessment, charge or expense of any kind, collected by the Concessionaire from
customers and required by law to be remitted to the taxing or other governmental
authority. I, ~
4.3 Interest for Late Payment.
Any payment which Concessionaire is required to make to the City which is not paid
on or before the respective date provided for in this Agreement shall be subject to
interest at the rate of twelve (12%) percent per annum, o ~ the maximum amount
allowable under Florida law, whichever is greater, from the due date of payment until
such time as payment is actually received by the City. j
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4.4 Sales and Use Tax.
It is also understood that the required Florida State Sales and Use Tax shall be
added to Concessionaire's payments and forwarded to the City as part of said
payments. It is the City's intent that it is to receive all payments due from
Concessionaire as net of such Florida State Sales and Used Tax.
SECTION 5. MAINTENANCE AND EXAMINATION OF RECORDS. ~~
Concessionaire shall maintain current, accurate, and complete financial j records, on an accrual
basis, related to its operations pursuant to this Agreement. System's and procedures used to
maintain these records shall include a system of internal controls; all accounting records shall be
maintained in accordance with generally accepted accounting principles; and shall be open to
inspection, copying, and audit by the City Manager or his designee ;upo,n reasonable verbal or
written notice, during normal hours of operation. Concessionaire shall maintain all such records at
its principal office, currently located at One Washington Avenue, Miami~Beach, Florida, 33139, or, if
moved to another location, all such records shall be relocated, at Concessionaire's sole expense, to
a location in Miami Beach, within ten (10) days from notice of request for inspection from the City.
Such records and accounts shall include, at a minimum, a breakdown of gross receipts, expenses,
and profit and loss statements. Concessionaire shall maintain accurate receipt-printing cash
registers (or a like alternative) for the Concession Area which will record acid show the payment for
every sale made or service provided in such Area. Such other records shall be maintained as would
be required by an independent CPA in order to audit a statement of annual gross receipts and profit
and loss statement pursuant to generally accepted accounting principles. Concessionaire records
shall also be maintained for a period of three (3) years following expiration ~(or other termination) of
this Agreement (regardless of whether such termination results from the expiration of the Term or
for any other reason). ~
A monthly report of gross receipts must be submitted to the City Finance; Department's Revenue
Manager, no later than thirty (30) days after the close of each month during the Term herein.
Concessionaire shall submit to the City Finance Department's Revenue Manager, within sixty (60)
days of the end of each contract year, an annual statement of gross receipts, along with any
payment required pursuant to Section 4.2 herein, in a form consistent with generally accepted
accounting principles. Additionally, within one hundred twenty (120) days of the end of each
s
contract year, a report applying agreed-upon procedures shall be submitted to the City Finance
Department's Revenue Manager, such statement shall be accompanied by a report from an
independent CPA firm which shall perform certain agreed upon procedures, as described in Exhibit
5, attached hereto.
SECTION 6. INSPECTION AND AUDIT.
The City Manager or his designee shall be entitled to audit Concessio
throughout the Term, and three (3) times within the three (3) year pei
other termination) of this Agreement. The City shall be responsible for
with such audit(s), unless the audit(s) reveals a deficiency of five
Concessionaire's statement of gross receipts for any year or yea
Concessionaire shall pay to the City, within thirty (30) days of the City
cost of the audit and a sum equal to the amount of the deficiency i
interest. These audits are in addition to periodic City audits of Resort T<
(which are performed separately).
It is Concessionaire's intent to stay informed of comments and sugg~
Concessionaire's performance under the Agreement. Within thirty (3~
contract year, Concessionaire and the City may meet to review Cc
under the Agreement for the previous contract year. At the meeting,
may discuss quality, operational, maintenance and any other issues
performance under the Agreement.
Nothing contained within this Section shall preclude the City's audit rig
purposes.
SECTION 7. TAXES, ASSESSMENTS, AND UTILITIES.
Concessionaire agrees and shall pay, before delinquency, all taxes ar
(including, without limitation, ad valorem taxes, if assessed, and/c
assessed upon Concessionaire and/or the Concession Area including,
taxes and/or assessments that maybe levied and/or assessed againsl
Concession Area by reason of this Agreement, or by reason of the bi
and/or activities of Concessionaire upon or in connection with the Coi
Concessionaire will have the right, at its own expense, to contest the a
in part, of any tax and/or assessment by appropriate proceedings,
conduct diligently and continuously, in good faith. Concessionaire may
the extent it is contesting the imposition of same in a manner that
provided, however, if, as a result of such contest, additional delinqu
Concessionaire shall be responsible for such delinquency charges, it
contested tax (if so ordered).
The Concession Area is currently not serviced by any utilities. Con
responsible for and shall promptly pay when due all charges for gas, elE
telephone, trash collection, and any other utility service provided to the
without limitation, all hook-up fees and impact fees. In addition to
hereinafter reserved to the City, upon the failure of Concessionaire to
when due, the City may elect to pay same and Concessionaire shall 1
upon demand. In no event shall the City be liable, whether to Concessi
na
''s records once a year
following expiration (or
ing all costs associated
io) percent or more in
audited, in which case
~ning the audit final, the
aled by the audit, plus
~Ilections and payments
is by the City regarding
/s after the end of each
sionaire's performance
essionaire and the City
rding Concessionaire's
Resort Tax collection
essments of any kind
sort Taxes) levied or
ut limitation, any such
essionaire and/or the
s or other operations
on Area.
it or validity, in whole or
i Concessionaire shall
yin from paying a tax to
accordance with law;
charges become due,
ition to payment of the
>ionaire shall be solely
;ity, water, sewer, cable,
cession Area, including,
'r rights and remedies
for such utility services
tptly reimburse the City
re or to third parties, for
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an interruption or failure in the supply of any utilities services to the Concession Area.
SECTION 8. EMPLOYEES AND INDEPENDENT CONTRACTORS. ~
8.1 Concessionaire shall select, train, employ (or otherwise hire or retain) such number of
employees and/or independent contractors as is necessary and appropriate for
Concessionaire to satisfy its responsibilities hereunder, and as necessary to maintain
the same levels of service as exist in similar first clas's concession facilities and
operations. Concessionaire's employees and/or independent contractors shall be
employees and/or independent contractors of Concessionaire and not of the City,
and Concessionaire shall be solely responsible for thei ~ supervision and daily
direction and control. Concessionaire shall be solely responsible for, and have the
sole authority to hire, terminate and discipline any 'and all personnel and/or
contractors employed or retained by Concessionaire. i
8.2 Concessionaire and its employees and/or independent ;contractors shall wear
identification badges and uniforms approved by the City during all hours of operation.
The S&W Restaurant uniforms currently worn by Concessionaire's employees shall
satisfy the preceding requirement. All employees and/or independent contractors
shall observe all the graces of personal grooming. Concessionaire shall hire people to
work in its operation who are neat, clean, well groomed, and 'comport themselves in a
professional and courteous manner. Concessionaire and any persons hired and/or
retained by Concessionaire shall never have been convicted of a felony.
Concessionaire shall have an experienced manager o ~ managers overseeing the
concession operations at all times. , j
SECTION 9. HOURS OF OPERATION.
The Concession Area shall operate only during hours of "active operation"~ of the adjacent Smith &
Wollensky Restaurant building, weather or events of force majeure permitting (the term "active
operation" being defined as when the full kitchen is in operation and a full restaurant menu is being
served). Concessionaire's hours of operation shall be:
I
Sunday through Thursday: 11:30 AM to 12:00 AM;
Friday through Saturday: 12:00 PM to 2:00 AM.
Any change in the hours of operation including, without limitation, any~request by Concessionaire
for an increase or decrease in same, shall be subject to the prior written approval of the City
Manager or his designee, which approval, if granted at all, shall be at the City Manager's (or his
designee's) sole option and discretion. ~ ~
SECTION 10. IMPROVEMENTS MAINTENANCE. REPAIR and OPERATION
Concessionaire accepts the use of the Concession Area in its "AS 15" `WHERE IS" condition.
Concessionaire assumes sole responsibility and expense for maintenance of the Concession Area
(including all furniture, fixtures, equipment and any other improvements~the~eon). This shall include,
without limitation, daily (i.e. 365 days) removal of litter, garbage and debris. Concessionaire shall
also be responsible for all garbage disposal generated by its operations.
10.1 Improvements.
10.1.1 Any improvements to the Concession Area shall be at Concessionaire's sole
expense and responsibility; provided, however that any plans for such
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improvements shall be submitted to the City Manager or his designee for prior
written approval. Upon termination and/or expiration of this Agreement, all
personal property and non-permanent trade fixtures may be removed by
Concessionaire without causing damage to the Concession Area.
All permanent (fixed) improvements to the Concession Area shall remain the
property of the City upon termination and/or expiration of this Agreement,
except as provided in Subsection 10.1.2. j
Concessionaire will permit no liens to attach to the Concession Area arising
from, connected with, or related to, the design, construction, and installation of
any improvements. ~i
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Construction of any approved improvements shall be diligently prosecuted to
completion and accomplished through the use of licensed, reputable
contractors who are acceptable to the City Manager or his designee. In
addition to obtaining the prior approval of the City Manager or his designee
(acting on behalf of the City, in a proprietary capacity), Concessionaire shall
also be solely responsible for obtaining, at its sole~cost and expense, any and
all permits, licenses, and/or regulatory approvals; such regulatory approvals
which may include, without limitation, land use board and/or the approvals of
other required regulatory agencies having jurisdiction) required for the
construction of improvements.
10.1.2 Notwithstanding Subsection 10.1.1 hereof, upon termination and/or expiration
of this Agreement, and at the City Manager or his designee's sole option and
discretion, Concessionaire shall, if so directed, immediately remove any
permanent improvements made to the Concession Area during the Term,
upon demand by the City Manager or his designee, at Concessionaire's sole
expense and responsibility. In such event, Concessionaire shall also restore
the Concession Area to its original condition priorto the improvements being
made, reasonable wear and tear excepted. j
10.1.3 The above requirements for submission of plans and the use of specific
contractors shall not apply to improvements (which term, for purposes of this
subsection 10.1.3 only, shall also include improvements necessary for
Concessionaire's ongoing maintenance and repair of the Concession Area)
which do not exceed Five Hundred ($500.00) Dollars; provided that the work is
not structural, and provided further that it is permitted by applicable law.
10.2 Garbage Receptacles.
With respect to litter, garbage and debris removal, Concessionaire shall provide, at its
sole expense, a sufficient number of trash receptacles fo ~ its own use and for the use
of its patrons. Determination of the "number" of receptacles shall at all times be within
the City Manager or his designee's sole discretion. Disposal of the contents of said
receptacles (and removal of litter, garbage and debris within the Concession Area),
shall be done on a daily (i.e. 365 days) basis. Any costs for removal of the contents of
said trash receptacles by the City, because of the Concessionaire's failure to do so,
will be assessed to, and become the responsibility of, the Concessionaire.
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The dumping or disposal of any refuse, discards, trash or garbage, generated by, or
as a result of Concessionaire's operations, into any of the South Pointe Park trash
receptacles shall be strictly prohibited.
Concessionaire shall clean and maintain the portion of the cutwalk between the Smith
& Wollensky Restaurant building and the Concession Area, which shall include,
without limitation, daily cleaning, litter control, and pressure cleaning (as per the
minimum specifications provided by the City in Exhibit 10.2 hereto).
In addition to the Concessionaire's general maintenance obligations for the
Concession Area, the Concessionaire shall maintain, at all times, the immediately
surroundingtwenty-five (25) foot adjacent areas, in a clean and sanitary manner, and
in a manner consistent with the maintenance standards set forth for the cutwalk and
other adjacent park areas.
10.3 Maintenance/Repair.
Concessionaire shall maintain, at its sole expense and responsibility, all furniture,
fixtures, and equipment (FFE) and any other improvements. (whether permanent or
not) required to operate the concession. In the event any FFE and/or other
improvement(s) is lost, stolen, or damaged, it shall be replaced or repaired promptly,
at the sole expense of Concessionaire.
10.3.1 All damage or injury of any kind to the Concession Area, and/or to any
improvements and/or FFE thereon, except damage caused by the willful
misconduct or gross negligence of the City, shall be the sole obligation of
Concessionaire, and shall be repaired, restored and/or replaced promptly by
Concessionaire, at its sole expense, to the satisfaction of the City Manager or
his designee.
10.3.2 All of the aforesaid repairs, restoration and replacement shall be in quality and
class equal to or better than the original work (or FFE, as the case may be)
and shall be done in good and workmanlike manner.
10.3.3 If Concessionaire fails to make any repairs, restoration and/or replacement,
the same maybe made by the City, at the expense of Concessionaire, and all
sums spent and expenses incurred by the City shall be collectable by the City
and shall be paid by Concessionaire within ten (10) days after receipt of a bill
or statement thereof. Notwithstanding that the City may elect to make such
repairs, restoration, and/or replacement, the City shall have no obligation
and/or affirmative duty to do so.
10.3.4 It shall be Concessionaire's sole obligation to ensure that any renovations,
repairs and/or improvements made by Concessionaire to the Concession Area
comply with all applicable permitting, building codes and life safety codes of
governmental authorities having jurisdiction.
10.4 No Dangerous Materials.
Concessionaire agrees not to use or permit in the Concession Area the storage
and/or use of gasoline, fuel oils, diesel, illuminating oils, oil lamps, combustible
i
12 ',
powered electricity producing generators, turpentine, benzene, naphtha, propane,
natural gas, or other similar substances, combustible materials, or explosives of any
kind, or any substance or thing prohibited in the standard policies of fire insurance
companies in the State of Florida. Any such substances or materials found within the
Concession Area shall be immediately removed. The parties agree that the use of
candles is permitted in the Concession Area.
Inconsideration of a separate and specific consideration'of Ten ($10.00) Dollars and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Concessionaire shall indemnify and hold the City harmless
from any loss, damage, cost, or expense of the City, including, without limitation,
reasonable attorney's fees, incurred as a result of, arising from, or connected with the
placement by Concessionaire of any "hazardous substance" or "petroleum products"
on, under, in or upon the Concession Area as those terms are defined by applicable
Federal and State statutes, or any environmental rules and environmental regulations
promulgated thereunder. The provisions of this subsection 10.4 shall survive the
termination or earlier expiration of this Agreement.
10.5 Security.
Concessionaire shall be responsible for and provide such security measures as it
deems necessary in its reasonable judgment and discretion to protect the
Concession Area and any improvements and FFE thereon. Under no circumstances
shall the City be responsible for any stolen or damaged,FFE; damage to or loss of
any improvements; or any stolen, lost, or damaged personal property of
Concessionaire's employees, contractors, patrons, guests, invitees, and/or any other
third parties.
10.6 Inspection.
Concessionaire agrees that the Concession Area (and operations thereon) may be
inspected at any time during hours of operation by the City Manager or his designee,
or by any other municipal, County or State officer,' or other agency having
responsibility and/or jurisdiction for inspection of such operations. Concessionaire
hereby waives all claims against the City for compensation for loss or damage
sustained by reason of any interference with the concession operations, whether by
the City or by any public agency or official, in enforcing their respective duties, or
enforcing compliance with any applicable laws, or ordinances, or regulations. The
City Manager, or his designee, shall make reasonable efforts during city inspections
of the concession area to minimize any disruption to the business being conducted in
the Concession Area.
SECTION 11. INSURANCE.
Concessionaire shall maintain, at all times throughout the Term, ~I at its sole expense and
responsibility, the following types of insurance coverage:
a. Comprehensive General Liability, in the minimum ;amount of One Million
($1,000,000.00) Dollars (subject to adjustment for inflation) per occurrence for bodily
injury and property damage. This policy must also contain coverage for premises
operations, products and contractual liability.
b. Workers Compensation Insurance shall be required in accordance with the laws of
the State of Florida.
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c. Automobile Insurance shall be
vehicles and non-ownership liab
adjustment for inflation):
Bodily Injury
Bodily Injury
Property Damage
provided covering all owned, leased, and hired
ility for not less than the following limits (subject to
$1,000,000.00 per person
$1,000,000.00 per accident
$1,000,000.00 per accident
The policies of insurance referred to above shall not be subject to cancellation or changing
coverage except upon at least thirty (30) days prior written notice to the City, and then only
subject to the prior written approval of the City Manager or his designee. Prior to the
Commencement Date of this Agreement, Concessionaire shall provide the City with a
Certificate of Insurance for each such policy. ALL POLICIES SHALL NAME THE CITY OF
MIAMI BEACH FLORIDA AS AN ADDITIONAL NAMED INSURED. All such policies shall
be obtained from companies authorized to do business in the State of Florida with an A.X. or
better rating in Best's Insurance Guide (latest edition), and any replacement or substitute
company shall also be subject to the approval of the City.
Should Concessionaire fail to obtain, maintain or renew the policies of insurance referred to
above, in the required amounts, the City may, at its sole discretion, obtain such insurance,
and any sums expended by the City in obtaining said insurance, shall be repaid by
Concessionaire to the City, plus ten (10%) percent of the amount of premiums paid to
compensate the City for its administrative costs. If Concessionaire fails to repay the City's
expenditures following written demand from the City (and within the time specified in the
City's demand notice), such failure shall be deemed an event of default hereunder and the
total sum owed shall accrue interest at the rate of twelve (12%) percent until paid.
SECTION 12. INDEMNITY.
12.1 In consideration of a separate and specific consideration of Ten ($10.00) Dollars and
other good and valuable consideration the receipt and sufficiency of which are hereby
acknowledged, Concessionaire shall indemnify, hold harmless and defend the City,
its officers, employees, contractors, agents or servants from and against any claim,
demand or cause of action of whatsoever kind or nature arising out of error, omission,
or negligent act of Concessionaire, its officers, employees, contractors, agents or
servants in the performance of services under this Agreement.
12.2 In addition, and in consideration of a separate and specific consideration of Ten
($10.00) Dollars and other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, Concessionaire shall indemnify, hold
harmless and defend the City, its officers, employees, contractors, agents or servants
from and against any claim, demand or cause of action of whatever kind or nature
arising out of any misconduct of Concessionaire, its officers, employees, contractors,
subconcessionaire(s), agents or servants not included in Subsection 12.1 herein and
for which the City, its officers, employees, contractors, subconcessionaire(s), agents
or servants are alleged to be liable.
12.3 Subsections 12.1 and 12.2 shall survive the termination or expiration of this
Agreement. Subsections 12.1 and 12.2 shall not apply, however, to any such liability,
that arises as a result of the willful misconduct or gross negligence of the City, its
officers, employees, contractors, agents or servants.
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12.4 Subro ation.
The terms of insurance policies referred to in Section 11 shall preclude subrogation
claims against Concessionaire, the City and their respective officers, employees,
contractors, agents or servants.
12.5 Force Majeure.
Whenever a period of time is herein prescribed for the taking of any action by the City
or Concessionaire (as applicable), the City or Concessionaire (as applicable), shall
not be liable or responsible for, and there shall be excluded from the computation of
such period of time, any delays due to strikes, riots, acts of God, shortages of labor or
materials, war, or governmental laws, regulations, or restrictions in the nature of a
prohibition or moratorium, or any bona fide delay beyond the reasonable control of
City or Concessionaire (as applicable). The foregoing shall not apply to any payments
of money due under this Agreement.
12.6 Waiver of Loss from Hazards.
Concessionaire hereby expressly waives all claims against the City for loss or
damage sustained by the Concessionaire resulting from an event of Force Majeure
(as defined herein), and the Concessionaire hereby expressly waives all rights,
claims, and demands against the City and forever releases and discharges the City
from all demands, claims, actions and causes of action arising from any of the
aforesaid causes.
SECTION 13. DEFAULT AND TERMINATION.
Subsections 13.1 through 13.3 shall constitute events of default underthis Agreement. An event of
default by Concessionaire shall entitle the City to exercise any and all remedies described as the
City's remedies under this Agreement, including but not limited to those set forth in Subsection 13.4
and Section 14. An event of default by the City shall entitle Concessionaire to exercise any and all
remedies described as Concessionaire's remedies under this Agreement, including but not limited
to those set forth in Subsection 13.5.
13.1 Bankruptcy.
If either the City or Concessionaire shall be adjudged bankrupt or insolvent, or if any
receiver or trustee of all or any part of the business property of either party shall be
appointed, or if any receiver of all or any part of the business property shall be
appointed and shall not be discharged within sixty (60) days after appointment, or if
either party shall make an assignment of its property for the benefit of creditors, or
shall file a voluntary petition in bankruptcy, or insolvency, or shall apply for
reorganization or arrangement with its creditors under the bankruptcy or insolvency
laws now in force or hereinafter enacted, Federal, State, or otherwise, or if such
petitions shall be filed against either party and shall not be dismissed within sixty (60)
days after such filing, then the other party may immediately, or at any time thereafter,
and without further demand or notice, terminate this Agreement without being
prejudiced as to any remedies which may be available to it for breach of contract.
13.2 Default in Payment.
In the event Concessionaire fails to submit any payment within five (5) days of its due
date, there shall be a late charge of Fifty ($50.00) Dollars per day for such late
payment, in addition to interest at the highest rate allowable by law. If any payment
and accumulated penalties are not received within fifteen (15) days afterthe payment
15
due date, and such failure continues three (3) days after written notice thereof, then
the City may, without further demand or notice, terminate this Agreement without
being prejudiced as to any remedies which may be available to it for breach of
contract, and may begin procedures to collect the Performance Bond required in
Section 14 herein.
13.3 Non-Monetary Default.
In the event that Concessionaire or the City fails to pertorm or observe any of the
covenants, terms or provisions under this Agreement, and such failure continues
thirty (30) days after written notice thereof from the other party hereto, such non-
defaulting party may immediately or at any time thereafter, and without further
demand or notice, terminate this Agreement. In the event that a default is not
reasonably susceptible to being cured within such period, the defaulting party shall
not be considered in default if it shall, within such period, commence with due
diligence and dispatch to cure such default and thereafter completes with dispatch
and due diligence the curing of such default, but in no event shall such extended cure
period exceed ninety (90) days from the date of written notice thereof. In the event
Concessionaire cures any default pursuant to this subsection, it shall promptly
provide the City with written notice of same.
13.4 City's Remedies for Concessionaire's Default.
If any of the events of default, as set forth in this Section, shall occur, the City may,
after notice (if required) and the expiration of cure periods, as provided above, at its
sole option and discretion, institute such proceedings as in its opinion are necessary
to cure such default(s) and to compensate the City for damages resulting from such
default(s), including but not limited to the right to give to Concessionaire a notice of
termination of this Agreement. If such notice is given, the Term of this Agreement
shall terminate upon the date specified in such notice from the City to
Concessionaire. On the date so specified, Concessionaire shall then quit and
surrender the Concession Area to the City pursuant to the provisions of Subsection
13.7. Upon the termination of this Agreement by the City, all rights and interest of
Concessionaire in and to the Concession Area and to this Agreement, and every part
thereof, shall cease and terminate and the City may, in addition to any other rights
and remedies it may have, retain all sums paid to it by Concessionaire under this
Agreement, including but not limited to, beginning procedures to collect the
Performance Bond in Section 14 herein.
In addition to the rights set forth above, the City shall have the rights to pursue any
and all of the following:
a. the right to injunction or other similar relief available to it under Florida law
against Concessionaire; and/or
b. the right to maintain any and all actions at law or suits in equity or other proper
proceedings to obtain damages resulting from Concessionaire's default.
13.5 Concessionaire's Remedies for City's Default
If an event of default, as set forth in this Section, by the City shall occur,
Concessionaire may, after the expiration of the cure period, terminate this Agreement
upon written notice to the City. Said termination shall become effective upon receipt
of the written notice of termination by the City. On the date specified in the notice,
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Concessionaire shall quit and surrender the Concession Area to the City pursuant to
the provisions of Subsection 13.7.
13.6 Termination for Convenience.
13.6.1 Notwithstanding any other provision of this Section 13, this Agreement
may be terminated, in whole or in part, by the City, for convenience and
without cause, upon the furnishing of sixty (60) days prior written notice
to Concessionaire.
13.6.2 In the event of termination by the City pursuant to this subsection,
Concessionaire herein acknowledges and agrees that it shall not have any
claim, demand, or cause of action of whatsoever kind or nature, against the
City, its agents, servants and employees (including, but not limited to, claims
for any start-up costs, interference in business or damages for interruption of
services, or interference in its concession operations). In no event shall the
City be liable to Concessionaire for any indirect, incidental, special, lost profits
or consequential damages.
13.7 Surrender of Concession Area.
At the expiration of this Agreement, or earlier termination in accordance with the
terms of this Agreement, Concessionaire shall surrender the Concession Area in the
same condition as the Concession Area was prior to the Commencement Date of this
Agreement, reasonable wear and tear excepted. Concessionaire shall remove all its
personal property, upon forty-eight (48) hours written notice from the City Manager or
his designee unless a longer time period is agreed to by the City. Concessionaire's
obligation to observe or perform this covenant shall survive the expiration or other
termination of this Agreement. Continued occupancy of the Concession Area after
termination of the Agreement shall constitute trespass by the Concessionaire, and
may be prosecuted as such. In addition, the Concessionaire shall pay to the City One
Thousand ($1,000.00) Dollars per day as liquidated damages for such trespass and
holding over.
SECTION 14. PERFORMANCE BOND OR ALTERNATE SECURITY
Concessionaire shall, on or before the Commencement Date of this Agreement, furnish to the City
Manager or his designee a Performance Bond in the penal sum as stated below for the payment of
which Concessionaire shall bind itself for the faithful performance of the terms and conditions of
this Agreement. A Performance Bond, in the amount of Forty Thousand ($40,000.00) Dollars, shall
be required and be in faithful observance of this Agreement. A cash deposit, irrevocable letter of
credit, or certificate of deposit may also suffice, as determined by the City Manager or his designee
in his reasonable discretion. The form of the Performance Bond or letter of credit shall be as
required by the City Manager or his designee. In the event that a Certificate of Deposit is approved,
it shall be a Forty Thousand ($40,000.00) Dollar one-year Certificate of Deposit in favor of the City,
which shall be automatically renewed, the original of which shall be held by the City's Chief
Financial Officer.
Notwithstanding the preceding paragraph, and as permitted within this Section 14, the City Manager
hereby agrees to accept alternate security to guarantee Concessionaire's compliance and
performance under the terms of this Agreement, in the form of a cash deposit, in the amount of
$40,000 (the Security), that is net of the MMG payment to the City by Concessionaire during the
17
first quarter of the first contract year. In the event that the net product of the MMG payments the
first quarter of the first contract year does not result in the payment of the $40,000 Security to the
City, then Concessionaire shall be required, within fifteen (15) calendar days of written demand
from the City, to remit the cash balance, as required to maintain the full $40,000 amount of the
Security. Failure by Concessionaire to do so within the time provided shall be considered an event
of default under this Agreement.
Concessionaire shall be so required to maintain the Security in full force and effect throughout the
Term of this Agreement. Concessionaire shall have an affirmative duty to notify the City, in writing,
in the event said Security lapses or otherwise expires. All interest that accrues in connection with
any financial instrument or sum of money referenced above shall be the property of Concessionaire
and paid by the City to Concessionaire not less frequently than annually, upon written request for
such payment submitted to the City by the Concessionaire, except in an event of default, in which
case the City shall be entitled to all interest that accrues after the date of default. In the event the
Concessionaire requests that in lieu of the Security it wishes to elect to furnish a Performance Bond
or such other Alternate Security as may be permitted herein, then Concessionaire shall make a
written request to the City Manager, and such Performance Bond or Alternate Security steal! be
subject to his or her prior written approval.
SECTION 15. ASSIGNMENT.
Concessionaire shall not assign, sublease, grant any sub-concession or license, permit the use of
by any other person or entity other than Concessionaire, or otherwise transfer all, or any portion of,
this Agreement and/or of the Concession Area.
SECTION 16. SPECIAL EVENTS /SPONSORSHIPS.
16.1 The parties agree and acknowledge that Concessionaire's proposed use(s), as
defined in Section 3 hereof, do not contemplate nor allow the production, promotion
or sponsorship by the Concessionaire of special events in or around the Concession
Area.
16.2 City Special Events.
Notwithstanding Subsection 16.1 herein, and in the event that the City, at its sole
discretion, deems that it would be in the best interest of the City, the City reserves the
right to displace the Concessionaire for City produced and/or sponsored special
events and/or City produced and/or sponsored productions, Additionally, the
aforestated events may also require additional time for load-in and load-out of the
event. In such cases, the City may request that Concessionaire cease and desist
operations during the term of, and in the area of, the special event and/or production,
and Concessionaire shall cease and desist during such time. If the Concessionaire is
not required to close, or the City Manager or his designee determines that
Concessionaire may remain open in such a manner as prescribed by the City, that
will not interfere with the special event and/or production, Concessionaire shall use its
best efforts, in either case, in cooperating with the City, If Concessionaire is allowed
to remain open during special events and/or productions, Concessionaire may be
allowed to have in operation its normal daily complement of equipment and staff.
"Normal" shall be defined as equipment and staff that the Concessionaire customarily
has available to service its patrons within the Concession Area on a normal business
day (during its hours of operation).
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16.3 Sponsorships.
The City reserves unto itself all present and future rights to negotiate all forms of
endorsement and/or sponsorship agreements based on the marketing value of any
City trademark, property, brand, logo and/or reputation. Any and all benefits derived
from an endorsement and/or sponsorship agreement based on the marketing value
of a City trademark property, brand, logo and/or reputation, shall belong exclusively to
the City. Concessionaire shall be specifically prohibited from entering into, or
otherwise creating any, sponsorships and/or endorsements with third parties which
are based solely or in any part on the marketing value of a City trademark, property,
brand, logo and/or reputation.
SECTION 17. NO IMPROPER USE.
Concessionaire will not use, nor suffer or permit any person to use in any manner whatsoever, the
Concession Area for any illegal activity or conduct, or for any act and/or purpose in violation of any
Federal, State, County, or municipal ordinance, rule, order or regulation, or of any governmental
rule or regulation now in effect or hereafter enacted or adopted. Concessionaire will protect,
indemnify, and forever save and keep harmless the City, its ofhcers, employees, contractors,
agents or servants, from and against damage, penalty, fine, judgment, expense or charge suffered,
imposed, assessed or incurred for any violation, or breach of any law, ordinance, rule, order or
regulation occasioned by any act, neglect or omission of Concessionaire, or any of its officers,
employees, contractors, agents or servants. In the event of any violation by Concessionaire, the
City Manager or his designee shall have the right to suspend the concession operations should the
Concessionaire fail to correct any such violation, conduct, or practice to the satisfaction of the City
Manager or his designee within twenty-four (24) hours after receiving written or verbal notice of the
nature and extent of such violation, conduct, or practice; such suspension to continue until the
violation is cured. Concessionaire further agrees not to commence operations during the
suspension until the violation has been corrected to the satisfaction of the City Manager or his
designee.
SECTION 18. PRICE SCHEDULES.
Intentionally Omitted.
SECTION 19. NOTICES.
All notices from the City to Concessionaire shall be deemed duly served upon receipt, if mailed by
registered or certified mail with a return receipt to Concessionaire at the following addresses:
Mark H. DeBlois, Chairman
C/O Bunker Hill Capital
260 Franklin Street, Suite 1860
Boston, MA 02110
With copies to: General Manager
Smith & Wollensky Restaurant
One Washington Avenue
Miami Beach, FL 33139
All notices from Concessionaire to the City shall be deemed duly served upon receipt, if mailed by
registered or certified mail return receipt requested to the City of Miami Beach at the following
addresses: City Manager
City of Miami Beach
19
1700 Convention Center Drive
Miami Beach, FL 33139
With copy to: Director of Real Estate, Housing & Community Development
City of Miami Beach
1700 Convention Center Drive
Miami Beach, FL 33139
Concessionaire and the City may change the above mailing addresses at any time upon giving the
other party written notification. All notices under this Agreement must be in writing.
SECTION 20. LAWS.
20.1 Compliance.
Concessionaire shall comply with all applicable City, County, State, and Federal
ordinances, statutes, rules and regulations (including but not limited to all applicable
environmental City, County, State, and Federal ordinances, statutes, rules and
regulations, as same may be amended from time to time.
20.2 Equal Employment Opportunity,
Neither Concessionaire nor any affiliate of Concessionaire performing services
hereunder, or pursuant hereto, will discriminate against any employee or applicant for
employment because of race, sex, sexual orientation, color, creed, national origin,
familial status, religion or handicap.
20.3 No Discrimination.
Concessionaire agrees that there shall be no discrimination as to race, sex, sexual
orientation, color, creed, national origin, familial status, religion or handicap, in its
employment practice or in the operations referred to by this Agreement; and further,
there shall be no discrimination regarding any use, service, maintenance, or
operation within the Concession Area. All facilities and services offered shall be made
available to the public.
SECTION 21. MISCELLANEOUS.
21.1 No Partnership.
Nothing contained in this Agreement shall constitute or be construed to be or create a
partnership or joint venture between the City and Concessionaire.
21.2 Modifications.
This Agreement cannot be changed or modified except by agreement in writing
executed by all parties hereto. Concessionaire acknowledges that no modification to
this Agreement maybe agreed to by the City unless approved by the Mayor and City
Commission except where such authority has been expressly provided herein to the
City Manager.
21.3 Complete Agreement.
This Agreement, together with all exhibits incorporated hereto, constitutes all the
understandings and agreements of whatsoever nature or kind existing between the
parties with respect to Concessionaire's operations, as contemplated herein.
21.4 Headings.
20
The section, subsection and paragraph headings contained herein are for
convenience of reference only and are not intended to define, limit, or describe the
scope or intent of any provision of this Agreement.
21.5 Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and permitted assigns.
21.6 Clauses.
The illegality or invalidity of any term or any clause of this Agreement shall not affect
the validity of the remainder of the Agreement, and the Agreement shall remain in full
force and effect as if such illegal or invalid term or clause were not contained herein
unless the elimination of such provision detrimentally reduces the consideration that
either party is to receive under this Agreement or materially affects the continuing
operation of this Agreement.
21.7 Severability.
If any provision of this Agreement or any portion of such provision or the application
thereof to any person or circumstance shall be held to be invalid or unenforceable, or
shall become a violation of any local, State, or Federal laws, then the same as so
applied shall no longer be a part of this Agreement but the remainder of the
Agreement, such provisions and the application thereof to other persons or
circumstances, shall not be affected thereby and this Agreement shall be so
modified.
21.8 Right of Entry.
The City, at the direction of the City Manager, shall at all times during hours of
operation, have the right to enter into and upon any and all parts of the Concession
Area for the purpose of examining the same for any reason relating to the obligations
of parties to this Agreement.
21.9 Not a Lease.
It is expressly understood and agreed that no part, parcel, building, structure,
equipment or space is leased to Concessionaire; that this Agreement is a concession
agreement and not a lease, and that Concessionaire's right to operate, manage, and
maintain the concession shall continue only so long as Concessionaire complies with
the undertakings, provisions, agreements, stipulations and conditions of this
Agreement.
Accordingly, Concessionaire hereby agrees and acknowledges that in the event of
termination of this Agreement, whether due to a default by Concessionaire or
otherwise, Concessionaire shall surrender and yield unto the City the Concession
Area, in accordance with Subsection 13.7 hereof, and the City shall in no way be
required to evict and/or otherwise remove Concessionaire from the Concession Area
as if this were a tenancy under Chapter 83, Florida Statutes, nor shall Concessionaire
be afforded any other rights afforded to nonresidential tenants pursuant to said
Chapter (the parties having herein expressly acknowledged that this Agreement is
intended to be a concession agreement and is in noway intended to be a lease).
21.10 Signaye.
21
Concessionaire shall provide, at its sole expense and responsibility, any required
signs at its concession. All advertising, signage and postings shall be approved by
the City, and shall be in accordance with all applicable Municipal, County, State and
Federal laws and regulations. Any signage posted by Concessionaire shall be subject
to the prior approval of the City as to size, shape and placement of same.
21.11 Conflict of Interest.
Concessionaire shall perform its services under this Agreement and conduct the
concession operation(s) contemplated herein, in a manner so as to show no
preference for other concession operations/facilities owned, operated, managed, or
otherwise controlled by Concessionaire.
21.12 No Waiver.
21.12.1 It is mutually covenanted and agreed by and between the parties hereto that
the failure of the City to insist upon the strict performance of any of the
conditions, covenants, terms or provisions of this Agreement, or to exercise
any option herein conferred, will not be considered or construed as a waiver or
relinquishment for the future of any such conditions, covenants, terms,
provisions or options but the same shall continue and remain in full force and
effect.
21.12.2 A waiver of any term expressed herein shall not be implied by any neglect of
the City to declare a forfeiture on account of the violation of such term if such
violation by continued or repeated subsequently and any express waiver shall
not affect any term other than the one specified in such waiver and that one
only for the time and in the manner specifically stated.
21.12.3 The receipt of any sum paid by Concessionaire to the City after breach of any
condition, covenant, term or provision herein contained shall not be deemed a
waiver of such breach, but shall be taken, considered and construed as
payment for use and occupation (and not as rent), unless such breach be
expressly waived in writing by the City.
21.13 No Third Party Beneficiary.
Nothing in this Agreement shall confer upon any person or entity, other than the
parties hereto and their respective successors and permitted assigns, any rights or
remedies by reason of this Agreement.
SECTION 22. LIMITATION OF LIABILITY.
The City desires to enter into this Agreement placing the management and operation of the
Concession Area in the hands of a private management entity only if so doing the City can place a
limit on its liability for any cause of action for breach of this Agreement, so that its liability for any
such breach never exceeds the sum of Ten Thousand ($10,000.00) Dollars. Concessionaire hereby
expresses its willingness to enter into this Agreement with a Ten Thousand ($10,000.00) Dollar
limitation on recovery for any action for breach of contract. Accordingly, and in consideration of the
separate consideration of Ten Thousand ($10,000.00) Dollars, the receipt of which is hereby
acknowledged, the City shall not be liable to Concessionaire for damages to Concessionaire in an
amount in excess of Ten Thousand ($10,000.00) Dollars, for any action for breach of contract
arising out of the performance ornon-performance of any obligations imposed upon the City by this
22
Agreement. Nothing contained in this paragraph or elsewhere in this Agreement is in any way
intended to be a waiver of limitation placed upon the City's liability as set forth in Florida Statutes,
Section 768.28.
SECTION 23. VENUE.
This Agreement shall be deemed to have been made and shall be construed and interpreted in
accordance with the laws of the State of Florida. This Agreement shall be enforceable in Miami-
Dade County, Florida, and if legal action is necessary by either party with respect to the
enforcement of any and all the terms or conditions herein, exclusive venue for the enforcement of
same shall lie in Miami-Dade County, Florida. THE CITY AND CONCESSIONAIRE HEREBY
KNOWINGLY AND INTENTIONALLY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY ACTION
OR PROCEEDING THAT THE CITY AND CONCESSIONAIRE MAY HEREIN AFTER INSTITUTE
AGAINST EACH OTHER WITH RESPECT TO ANY MATTER ARISING OUT OF OR RELATED
TO THIS AGREEMENT OR THE CONCESSION AREA.
IN WITNESS WHEREOF, the parties hereto have caused their names to be signed and their
seals to be affixed, all as of the day and year first above written, indicating their agreement.
Attest:
CITY OF MIAMI BEACH, FLORIDA
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Robert Parcher, CITY CLERK atti Her a Bow r, M YOR
Attest:
Signature/nSecretary
As~ys~t~o~
(Print Name)
ONE WASHINGTON AVENUE CORP.
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Mark H. DeBlois, CHAIRMAN
CORPORATE SEAL
(afflix seal here)
APPROVED AS TO
FORM & LANGUAGE
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EXHIBIT 5
ANNUAL REPORT ON
AGREED-UPON PROCEDURES
(A) Svstem Utilized by Concessionaire:
The Concessionaire shall utilize the MICROS POS (Point of Sales) system, or any such comparable POS system, that
has the capability of tracking transactions by different revenue centers. This system shall be capable of providing
separate detail for each revenue center, as well as a combined report for the unit in its entirety.
For this Concession Agreement, it is understood that the Concessionaire's POS system can or will:
1. Generate various revenue centers, such as Restaurant (main Dining room), Bar (bar area), Pavilion (food and
beverages with no alcohol), Catering (contracted event with or without a cash bar), and the Concession Area
(outside tables south of the cutwalk);
2. Each revenue center can report sales by time period (e.g., breakfast, lunch and dinner) and type of sales (e.g.,
food, beer wine, liquor, other beverage, coffee/tea), tax calculation, discounts, voids, guest count, transaction
count, tips and payments(cash, Visa, MC, Amex... );
3. Those daily transactions entered in the POS system will be archived in the system, providing the capability to
audit transactions.
Furthermore, the Concessionaire's accounting team will treat each revenue center with different rent requirements as its
own unit by preparing separate Journals to capture gross sales, discounts and payments for each revenue center.
(B) As~reed-upon procedures will include the following:
On an annual basis, the Concessionaire shall prepare and deliver to the City, within 120 days after the end of each
concession year term, a report prepared by a Certified Public Accountant applying these agreed-upon procedures that
reflects their findings of their review of the Concessionaire's operations. Such review, and report thereof, shall include
the following:
ANALYSIS OF OPERATION: Inquire of management and obtain and review documentation on the nature of the
concessionaire's business and the factors that affect sales. Inquire about and document any major changes
made during the period.
a. Review procedures for recording sales within and outside of the concession area.
b. Obtain the operating policies and procedures from the Concessionaire.
c. Interview key concessionaire representatives to determine procedures used.
d. Observe the utilization and effectiveness of the procedures through quarterly site visits to
concessionaire's Concession Area location.
2. ANNUAL STATEMENT OF GROSS RECEIPTS: Obtain the Annual Statement of Gross Receipts schedule for
the year ended, prepared in conformity with Section 5 of the Concession Agreement. Recalculate concession
fees for the period based on sales per the schedule and the terms of the Concession Agreement.
3. TIMELINESS OF CONCESSION PAYMENTS: Verify that the Concessionaire's payments were remitted timely
in adherence to the due dates designated by the City pursuant to Section 4.1 of the Concession Agreement.
4. TEST OF SALES BY REVENUE CENTER, TIME PERIOD AND TYPE OF SALES: Perform an analytical test of
sales by obtaining a schedule summarizing sales by revenue center, time period, and type of sales.
Obtain or prepare a reconciliation of total sales recorded in the general ledger for the period to the Annual
Statement of Gross Receipts schedule provided to the City of Miami Beach. Perform the following procedures:
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a. Test the analysis by selecting the Concession Area revenue center and related sub-categories, and
compare the amounts shown with those recorded in the sales schedule. Document the items selected
EXHIBIT 5
(Page 2 of 2)
for testing. Agree the sales schedule balances to the general ledger.
b. Review the analysis, and identify any unusual trends or variations within the period or the prior period.
c. Obtain sound business reasons for large variations that are unusual in amount or nature included in the
analysis.
5. TEST OF SALES PER GUEST/TABLE: Perform an analytical test of average sales per guest and/or table within
the Concession Area by time of day and compare to sales in other comparable revenue centers within the
restaurant. Obtain sound business reasons for large variations that are unusual in amount or nature included in
the analysis.
6. TEST OF SALES COMPLETENESS: Perform a test of sales completeness by applying the following
procedures:
a. Using sales documentation or daily POS reports, select 1 (one) day per month throughout the year,
including weekdays and weekends. Document the items selected for testing. Trace a sample of guest
checks (sales documentation -including cash sales and credit card sales) to the daily POS recaps.
Note the proper handling of any credit memos, etc.
b. Agree the summary information on the daily POS recap to proper recording in the general ledger, as
appropriate.
c. Agree a sample of deposits per the daily POS recap to the bank statements.
d. Foot and cross foot a selected number of monthly reports of gross receipts submitted to the City and
other linked documents to verify their accuracy.
e. Compare total sales for selected months to sales tax returns filed with the applicable taxing
jurisdictions.
7. VERIFICATION OF CONCESSION AREA OPERATIONS: Verify the status of operations within the Concession
Area.
a. Conduct site visit to determine the level of operations.
b. Review provided documents to determine the period of activity.
c. Discuss and document any variances with Concessionaire for explanation.
8. VERIFICATION OF CONCESSION AREA USE: Determine and document how management verifies the
Concession Area was open on a particular day.
a. Scan revenue reports for signs of low or no reported income for the Concession Area.
b. Verify whether notations of "inclement weather" or other explanation were recorded for days in which
the revenues are unusually low.
(C) Citv Riaht to Review
Notwithstanding the foregoing, the City shall retain the right to engage in all or similar reviews delineated above. The
Concessionaire agrees that the City, or their designee, shall be provided all necessary documentation to pertorm the
tests, verifications and reviews described above.
26
s
EXHIBIT 10.2
C O N N E R1~ s46 Beachland Blvd., Swte 12, Vero Beach, FL 329&3 (772) 231-1224
C O N C ~ E T ~ Decker Avenue, Stuart, FL (772) 288-1072
Melbourne, FL (321) 723-4004
fax (772) 231-5582
May 27, 2009
Care ~ Maintenance
Thank you for choosing CONNERY C®,NCRETE to install and seal your new "Tabby"
driveway areas. We appreciate your business and with proper care 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 diri or staining from tides, 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 stubborp 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 / 13attery.acid /Radiator overflows
Xylene I Tylene /Paint thinners
Paint strippers
Automobile wheel cover cleaners
Please advise yonr maintenance and pool cleaning contractor NOT to place any kind
of leaning 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 CONI~ERY CONCRETE.
Sincerely,
~~ ~~
Jin1 Connery
President
xm~~~
aio~s~t ~i
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