Service America Corp Centerplate ao 13 - 2n, lf/
CATERING AND CONCESSION SERVICES
AGREEMENT
BETWEEN
THE CITY OF MIAMI BEACH, FLORIDA
AND
SERVICE AMERICA CORPORATION d/b/a CENTERPLATE
FOR
THE MIAMI BEACH CONVENTION CENTER
Dated as of,141( ,s, 2013
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CATERING AND CONCESSIONS SERVICES AGREEMENT
THIS AGREEMENT (this "Agreement") is dated as of the 94Aday of June, 2013,
by and between the CITY OF MIAMI BEACH, a municipal corporation organized and
existing under the laws of the State of Florida, and having its principal office at City Hall,
1700 Convention Center Drive, Miami Beach, Florida 33139 (the "City"), and SERVICE
AMERICA CORPORATION d/b/a CENTERPLATE, a Delaware corporation having an
address at 2187 Atlantic Street, Stamford, CT 06902 ("Centerplate" or
"Concessionaire").
BACKGROUND
The City is the owner of the Miami Beach Convention Center (the "Convention
Center" or "Facility") including, without limitation, all adjacent grounds, sidewalks, rights-
of-way and marshaling areas, but not including the adjacent parking lots, and which
may also include, at a future date, a Ballroom, as defined in Section 4.2 hereof, located
in the City of Miami Beach, Florida. The Facility is currently operated by Global
Spectrum ("Global").
On December 12, 2012, the Mayor and City Commission approved the issuance
of Invitation to Negotiate No. 059-2013ME For Food and Beverage for the Convention
Center (the ITN).
On February 4, 2013 the City issued the ITN and, on April 17, 2013, the City
Commission adopted Resolution No. 2013-28194, authorizing the Administration to
enter into negotiations pursuant to the ITN with the second and third ranked proposers,
Centerplate and Aramark.
On June 5, 2013, the City adopted Resolution No. 2013-28241, accepting the
proposal submitted by Centerplate pursuant to the ITN. Accordingly, the City desires to
engage Centerplate, and Centerplate desires to accept such engagement, to provide
catering and food and beverage services at the Facility on the terms and conditions set
forth herein. The City intends to work in mutual accord with Centerplate in order to
ensure provision of first-class high quality services, thereby enhancing the use and
enjoyment of the Facility.
NOW, THEREFORE, in consideration of the mutual premises, covenants and
agreements herein contained, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties intending to be
legally bound, hereby agree as follows:
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1. DEFINITIONS
For purposes of this Agreement, the following terms have the meanings referred
to in this Section 1:
(a) "Affiliate" shall mean a Person that directly or indirectly, through one or
more intermediaries, controls or is controlled by, or is under common
control with, Concessionaire. For purposes of this definition, "control"
means ownership of equity securities or other ownership interests which
represent more than fifty one percent (51%) of the voting power in
Concessionaire.
(b) "Branded Products" shall mean those nationally branded products and
local, regional or ethnic specialty products sold by Concessionaire
pursuant to Section 6.1(d), except that Branded Products shall not include
any Concessionaire Branded Products. As of the date of the
Commencement Date of this Agreement, the Branded Products sold at the
Facility are listed on Exhibit "A" hereto.
(c) "Branded Products Charges" shall mean the franchise, license and/or
advertising fees, commissions, royalties or other charges actually paid by
Concessionaire to a Branded Products provider, licensor, or franchisor in
connection with the sale of Branded Products.
(d) "Catered Event" shall refer to all sales of Food and Beverage Items at
organized functions at the Facility, where the payment obligation for the
function rests with one individual, group, or company.
(e) "Catering Services" shall mean the preparation and sale of Food and
Beverage Items, including table and banquet type meal service, for
Catered Events at the Facility.
(f) "City" shall have the meaning set forth in the first paragraph of this
Agreement.
(g) "City Commission" shall mean the governing and legislative body of the
City.
(h) "City Manager" shall mean the chief executive officer of the City or such
person as may be, from time to time, designated by such administrative
official to act for him/her with respect to any or all matters pertaining to this
Agreement.
(i) "Concessionaire" shall have the meaning set forth in the first paragraph
of this Agreement.
(j) "Concessionaire Branded Products and Services" shall mean a
product or service branded by Concessionaire.
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(k) "Consumer Price Index" shall mean the then latest available "Consumer
Price Index: All Urban Consumers (Revised Series) (CPI-U), U.S. City
Average — All Items (1982-84=100)", issued by the Bureau of Labor
Statistics of the United States Department of Labor in the Current Labor
Statistics Section of the Monthly Labor Review (final publication only). In
the event that the Index shall cease to use the 1982-84 average of 100 as
the basis of calculation, or if a substantial change is made in terms or
number of items contained in the Index, then the Index shall be adjusted
to the figure that would have been derived had the manner of computing
the Index had not been altered. In the event the Index is published less
frequently than monthly, and any reference or computation is or shall be
made pursuant to this Agreement in which month or other period the Index
is not published, such reference or computation shall be deemed to be the
average of the Index so published immediately preceding and succeeding
such month or other period concerning such reference or computation. In
the event that the Index shall be discontinued or no longer published, the
parties shall substitute a comparable price index or formula and such
substitute price index or formula shall have the same effect as if originally
designated herein as the Index.
(1) "Contract Year" shall mean the twelve (12) consecutive calendar months
commencing on July 1st and ending on June 30th during the Term.
(m) "Default Rate" shall mean a rate per annum equal to the lesser of: (i) a
varying rate per annum equal to two percent (2%) per annum over the
interest rate quoted from time to time by JP Morgan Chase or its
successor, as its prime commercial or similar reference rate (whether or
not such rate is its best lending rate), with adjustments in that varying rate
to be made on the same date as any change in that rate; or (ii) the
maximum non-usurious rate permitted by applicable Florida law, with
adjustments in that varying rate to be made on the same day as any
change in that rate.
n "Event" shall mean any event convention assembly, function meeting or
similar gathering at the Facility at which Services are provided.
(o) "Facility" shall have the meaning set forth in the Background section on
page 1 of this Agreement.
(p) "Facility Goods" shall mean all furniture, fixtures, equipment, leasehold
improvements, Smallwares, uniforms, "tools of the trade," and other
tangible items provided by Concessionaire pursuant to Article 4.
(q) "Fiscal Year" shall mean City's fiscal year, which ends on September 30
of each calendar year, or such other fiscal year period as may from time to
time be established by agreement of the parties.
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(r) "Food and Beverage Items" shall mean (1) foods of all kinds including,
but not limited to, cooked foods, prepared foods, ready to serve foods,
candies, sweets, desserts, ice cream, popcorn, and other food and
refreshment items; (2) beverages of all kinds, including alcoholic
beverages (to the extent permitted by this Agreement and applicable
Governmental Requirements, now or hereafter in effect) and non-alcoholic
beverages; and (3) tobacco products.
(s) "Food and Beverage Sales" shall mean the Gross Receipts from
Services provided at the Facility.
(t) "Governmental Authority" shall mean any and all applicable courts,
boards, agencies, commissions, offices or authorities of any nature
whatsoever for any governmental or quasi-governmental unit (federal,
State, City, County or otherwise), whether now or hereafter in existence.
(u) "Governmental Requirements" shall mean any and all present and
future laws, statutes, ordinances, decisions, decrees, statutes, rulings,
rules, codes, procedures, orders, regulations, permits, certificates,
licenses and other requirements of any Governmental Authority in any
way applicable to Concessionaire, the Facility, the Services, this
Agreement, or the City, including, without limitation, any safety laws,
health laws, environmental laws and laws regarding the rights of and
obligations to the handicapped and disabled including, without limitation,
the Occupational Safe and Health Act "OSHA" and the Americans With
P Safety ("OSHA")
Disabilities Act (the "ADA"); provided, however, that (i) City shall have no
compliance obligations under the ADA, and (ii) Concessionaire's
compliance obligations under the ADA shall apply only with respect to the
Service Areas from and after the Commencement Date of this Agreement.
(v) "Gross Receipts" shall mean the total amounts received by
Concessionaire from the provision of Services hereunder, whether arising
from sales, rentals, license fees, concessions fees or other payments, and
whether evidenced by cash, check, credit, charge account or otherwise,
and shall include, without limitation, the amounts received from the sale of
all Food and Beverage Items at the Facility, together with the amount
received from all orders taken or received at the Facility, whether such
orders be filled from there or elsewhere, less only: (1) the amount of any
federal, State or local sales or other such tax collected in connection with
the sale of Food and Beverage Items and paid to the appropriate
Governmental Authority; (2) the amount of any gross receipts tax, rent tax
or similar tax; (3) gratuities collected by or for the benefit of
Concessionaire's employees; (4) the amount of any Sales made to the
City, or to a third party at the request of the City, (5) service or discount
charges or fees on credit or debit card sales; (6) bulk or other sales not in
the ordinary course of business; (7) sales or rentals made by
Concessionaire at cost; (8) meals consumed by Concessionaire's on-duty
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personnel at no cost to such personnel; (9) amounts received by
Concessionaire for labor billed to third parties; and (10) amounts received
by Concessionaire from wardrobe checking.
(w) "Hazardous Substances" shall mean substances that are defined or
listed in, or otherwise classified pursuant to any Legal Requirement as
"hazardous substances," "hazardous materials," "hazardous wastes,"
"toxic substances," "pollutants," "contaminants," "radioactive material,"
"petroleum or any fraction thereof' or any other formulation intended to
define, list or classify substances by reason of deleterious properties such
as ignitability, corrosivity, reactivity, radioactivity, carcinogenicity,
reproductive toxicity or "EP toxicity."
(x) "Person" shall mean any individual, corporation, limited liability company,
partnership, association, trust, political body, Governmental Authority or
other public or private entity whatsoever.
(y) Quality Operating Standard" shall mean a first-class catering and
concession operation which (i) provides a variety of nutritious fresh foods
that are tastefully prepared and served by knowledgeable staff with
outstanding customer service skills, in an environment' that is clean and
comfortable; (ii) is highly efficient; and (iii) is of a level of quality equal to or
greater than the standards of quality or performance in comparable
facilities in the United States including, but not limited to, the San Diego
Convention Center, the San Antonio Convention Center, Washington DC
Convention Center, Nashville Convention Center, Phoenix Convention
Center, and Moscone Center.
(z) "Renewal Term" shall have meaning set forth in Section 3.
(aa) "Sales" shall mean the sale of Food and Beverage Items and the
provision of Catering Services.
(bb) "Sales Tax Payment" shall mean any ad valorem sales tax imposed,
assessed or levied by the State of Florida, the City, or Miami-Dade County
(or any tax jurisdiction that is a subdivision thereof) on or with respect to
the delivery and payment of the fees by Concessionaire hereunder, or with
respect to of the interest granted to Concessionaire pursuant to this
Agreement including, but not limited to, Concessionaire's rights of use of
the Service Areas and Service Equipment and Facility Goods.
(cc) "Service Area Utility System" means the Utility Systems located at or in,
or primarily serving, the Service Areas and being utilized by the
Concessionaire.
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(dd) "Service Areas" shall mean areas within the Facility and outside the
Facility, which are first approved in writing by the City Manager or his
designee, which approval shall not be unreasonably withheld, conditioned
or delayed, and from which Concessionaire shall perform the Services
hereunder.
(ee) "Service Equipment" shall mean those pieces of equipment at the
Facility heretofore provided by Concessionaire for the provision of the
Services at the Facility.
(ff) "Services" shall mean the preparation and sale of Food and Beverage
Items and the provision of Catering Services at any Event at the Facility.
(gg) "Smallwares" shall mean the kitchen utensils, pots, pans, service pieces,
china, glassware, flatware, linen and serving dishes and wares.
(hh) "Social Catering Events" shall mean local catering events such as
banquets, weddings, single day corporate receptions and/or dinners
without meeting or exhibition components, and single-day non-profit
organization events at the Facility.
(ii) "Subcontractor Sales" shall mean the amounts received by
Concessionaire from any subcontractor of Concessionaire hereunder.
(nn) "Term" shall have the meaning set forth in Article 3.
(oo) "Utility Systems" shall mean all heating, ventilation, air-conditioning,
electrical, water, sewer, gas, plumbing, general lighting, sprinkler and fire
safety, telephone and telecommunications facilities (including, if
applicable, any fiber optics, if any, installed for telecommunications or
security), duct work, fans, exhaust, air filtration, cleansing, and smoke
extraction systems, conduit, wiring, wiring for point of sale outlets, panel
boxes and connections and mechanicals (as applicable) and all elevators
and escalators at the Facility.
2. ENGAGEMENT OF CONCESSIONAIRE
2.1 Grant of Rights.
(a) Subject to the terms and conditions contained in this Agreement,
the City hereby grants to Concessionaire the following:
(i) The exclusive right and privilege to provide the Services at
the Facility;
(ii) The exclusive right and privilege to use and occupy the
Service Areas and to use the Service Equipment, Facility Goods, Smallwares,
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and Service Area Utility Systems in connection with the provision of Services at
the Facility;
(b) Notwithstanding the foregoing, Concessionaire shall not have the
right to provide any Services in any adjacent areas outside of the Facility, except
for the Miami Beach Botanical Garden, and then only if requested by the
customer. The right to provide Services in any and all areas outside of the
Facility is exclusively reserved to the City. All revenue derived from Services
provided to the Miami Beach Botanical Garden shall be included in Gross
Receipts. Concessionaire must provide written notice to City of any instance
when Services are to be provided to the Miami Beach Botanical Garden.
(c) Except with respect to the Botanical Garden in subsection 2.1(b)
hereof, the rights set forth in Section 2.1(a) are limited to the interior areas of the
Facility. The selection of a service provider for outdoor areas of the Facility,
and/or adjacent areas outside of the Facility, shall be determined by the City, in
its sole and exclusive discretion; provided, however, that Concessionaire shall
have the right to provide Services in outdoor areas of the Facility, but only for
events that are extensions of interior Events at the Facility. Concessionaire shall
not otherwise utilize Service Areas or Service Equipment for off-site food
functions without the prior written approval of City Manager, which consent, if
given at all, shall be at the City Manager's sole discretion.
(d) Take-out sales shall be strictly prohibited without the prior written
approval of the City Manager, which consent, if given at all, shall be at the City
Manager's sole discretion. If approval is granted by City for use of Service Areas
and Service Equipment for take-out sales, all revenue derived from approved
take-out sales shall be included in Gross Receipts.
(e) The Parties acknowledge that employee lounge(s) shall not be
areas of exclusive use for Concessionaire and/or its employees.
2.2 Waiver of Exclusivity.
(a) (i) Subject to the limitations set forth below, when reasonably
requested by the City Manager, the Concessionaire shall, not more than four (4) times
per Contract Year, release exclusivity with respect to Catering Services for City-
sponsored Events. In addition, upon request by the City Manager, Concessionaire may,
at its option, release such exclusivity with respect to select non City-sponsored Events.
In releasing its exclusivity, Concessionaire shall incur no costs and shall be entitled to
collect a lump sum fee from such Event, as may be agreed upon in writing among the
Event promoter/producer, Concessionaire, and the City. Such agreed upon lump sum
fee shall, be considered a part of Gross Receipts for purposes of calculating the Step
Tiers in Section 5.3 (a) hereof, but no Commissions shall be payable with respect to
such lump sum fee. Concessionaire shall waive the the lump sum fee (to which
Concessionaire may otherwise by entitled) for City-sponsored Events.
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(ii) Notwithstanding anything to the contrary herein contained, and subject to the
limitations set forth in subsection (d) below, the parties agree that Concessionaire shall
also release its exclusivity with respect to Catering Services for the annual Art Basel US
Corp Event (formally known as "Art Basel Miami Beach" and hereafter referred to as
"Art Basel"); provided, however, that this release shall not preclude Concessionaire from
providing Services at Art Basel should Concessionaire be selected by Art Basel as its
food and beverage (F&B) service provider. In such event, all terms of this Agreement,
including Commission payments to the City, shall apply. Should Art Basel elect to use
outside F&B services, Concessionaire may still provide F&B services to ancillary Art
Basel events, such as Net Jets and UBS, but only if requested by the
promoter/producer of the events. In releasing its exclusivity for Art Basel,
Concessionaire shall incur no costs and shall be entitled to collect ten percent (10%) of
Gross Receipts from Art Basel (or such other lump sum fee as may otherwise be
agreed upon in writing between Concessionaire and the City). Such percentage or other
lump sum fee shall not be considered a part of Gross Receipts for purposes of
calculating the Step Tiers shown in Section 5.3(a) hereof, and no Commissions shall be
payable with respect to such percentage or other lump sum fee.
City shall be entitled to collect ten percent (10%) of Gross Receipts from Art Basel (or
such other lump sum fee as may otherwise be agreed upon in writing among
Concessionaire, Art Basel, and the City).
(b) In connection with any other Event (i.e. not contemplated under
Section 2.2(a) (i) and (ii)) for which Concessionaire has waived its exclusive rights, third
party vendors or service providers shall not have access to, or be permitted to use, the
Service Areas, Service Equipment or Facility Goods without the prior written consent of
Concessionaire, which consent may be withheld in Concessionaire's reasonable
discretion. Concessionaire shall have the right, but not the obligation, to supervise any
third parties' use of the Service Areas, Service Equipment and Facility Goods, and to
require such third parties to provide (i) written indemnification of Concessionaire in form
and content acceptable to Concessionaire; (ii) a reasonable security deposit to be held
by Concessionaire until the conclusion of such Event; and (iii) evidence of adequate in
Concessionaire's reasonable business discretion liability insurance coverage. The City
Y
shall reimburse Concessionaire for all reasonable out-of-pocket expenses incurred by
Concessionaire (including labor costs) (x) in removing Concessionaire's inventory
and/or reasonably preparing the Service Areas, Service Equipment and Facility Goods
areas to be used by a third party; and (y) to repair or replace Service Equipment or
Facility Goods to the extent the same is damaged during use by a third party.
Notwithstanding any provision of this Agreement to the contrary, no third party shall
have the right to use any of the Concessionaire's inventory or those areas of the
Service Areas which are used by Concessionaire for its administrative offices or storage
areas (including, without limitation, liquor and/or cash storage areas).
(c) Notwithstanding anything to the contrary contained in this
Agreement, in no event shall any waiver of Concessionaire's exclusivity in this Section
2.2 include or pertain to the sale of alcoholic beverages, and Concessionaire shall be
the sole provider of alcoholic beverages at the Facility.
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3. TERM
3.1 Term. The initial term of this Agreement (the "Initial Term") shall
commence as of 12:01 AM on July 1, 2013 ("Commencement Date"), and end at
midnight on June 30, 2016 ("Termination Date"), unless earlier terminated pursuant to
the provisions of this Agreement.
3.2 Renewal Term. The parties shall have the option, upon mutual
agreement: (i) to extend this Agreement for up to two (2) successive one (1) year
renewal terms (each 1-year term a "Renewal Term") by delivering written notice to the
other party of such intention not less than one hundred eighty (180) days prior to the
expiration of the Initial Term (or an exercised Renewal Term, as the case may be); or (ii)
to extend the Agreement for both successive Renewal Terms (both Renewal Terms a
"Renewal Option"), by delivering written notice to the other party of such intention not
less than 180 days prior to the expiration of the Initial Term. If so exercised by the
parties, the Initial Term and any Renewal Terms (or the Renewal Option, as the case
may be) shall hereinafter be referred to, collectively, as the "Term."
4. INVESTMENT EXPENDITURES BY CONCESSIONAIRE
4.1 Initial Capital Investment. Concessionaire shall invest $800,000 in the
Facility (the "Initial Capital Investment"). The Initial Capital Investment shall be used for
improvements to the Facility including, without limitation, renovations, changes, and/or
modifications to improve the existing Service Areas and Service Equipment, and/or
purchase and installation of additional Facility Goods ("Initial Capital Investment
Expenditures"). Initial Capital Investment Expenditures shall be made during the twelve
(12) month period immediately following the Commencement Date of this Agreement,
and must be made in accordance with the mutual written agreement of the parties;
which written agreement must be obtained prior to any Expenditure being made.
Should any portion of the Initial Capital Investment remain unspent following the
expiration of the twelve (12) month period, Concessionaire shall make a lump-sum
payment, in the amount of any remainder, to the City, within fifteen (15) days following
receipt of the City's written request therefore.
4.2 Additional Capital Investment. Provided that (i) the parties agree to
exercise the Renewal Option under Section 3.2 hereof, and (ii) the City completes the
Facility's proposed new ballroom space within six (6) months of the commencement
date of the Renewal Option, then Concessionaire shall invest an additional amount, not
to exceed $500,000 ("Additional Investment"), toward marketing, promotion, innovation
initiatives, and food service capital projects ("Additional Investment Expenditures"); with
the nature and scope of such Additional Expenditures to be mutually agreed upon, in
writing, by the parties. "Completion" shall be defined as the issuance of a Temporary
Certificate of Occupancy (TCO) or Certificate of Occupancy (CO) for the ballroom.
Should any portion of the Additional Capital Investment remain unspent following the
expiration of the twelve (12) month period that commences on the completion date,
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Concessionaire shall make a lump-sum payment, in the amount of any remainder, to
the City, within fifteen (15) days following receipt of the City's written request therefore.
4.3 Amortization of Investment Expenditures.
(a) Concessionaire will amortize each Expenditure of the Initial Capital
Investment on a three (3) year schedule commencing on the Commencement Date,
deployment date, or date of installation, whichever is later.
(b) Concessionaire will amortize each Expenditure of the Additional
Capital Investment, on a two-year schedule with such amortization period commencing
on the commencement date of the Renewal Option, deployment date, or date of
installation, whichever is later.
Title to Facility Goods. All costs associated with acquiring the tangible Facility Goods
purchased with the Initial Capital Investment or the Additional Capital Investment shall
be included in such Capital Investment. Title to all such tangible Facility Goods shall
remain in Concessionaire, until the earlier of: (i) the respective Investment
Expenditures are fully amortized (subject to the limitations for amortization as set forth
in subsections (b) and (c) above), or (ii) until payment of the amount required to be paid
by the City pursuant to Section 9.5(a). When the Investment Expenditures have been
fully amortized (subject to the time limitations for amortization as set forth in subsections
(b) and (c) above), or payment of the amount required to be paid by City pursuant to
Section 9.5(a) at which point title to all Facility Goods acquired with the Investments
shall vest in the City.
y
4.4 Payment of Unamortized Investments Upon Termination.
In the event that the Agreement expires or is terminated prior to the conclusion of
the applicable amortization periods, then the City shall pay Concessionaire an amount
equal to the unamortized portion thereof, in accordance with Section 9.5.
4.5 Notice of Ownership and in and to Facility Goods. The City agrees
that Concessionaire shall have the right to file such instruments and documents,
including, without limitation, one or more financing statements, continuation statements
or amendments thereto pursuant to the Uniform Commercial Code, or other notices
appropriate under applicable law in form and substance satisfactory to Concessionaire,
as Concessionaire may deem necessary or desirable to put third parties on notice of its
right, title and interest in and to the Facility Goods.
5. ANNUAL RENT; COMMISSIONS; RESERVE FUNDS
5.1 As consideration for the rights granted by City to Concessionaire
hereunder, during each Contract Year Concessionaire will pay to the City, or its
designee, an annual amount equal to the rg eater of: (i) the Minimum Annual Rent set
forth in Section 5.2; and (ii) the sum of Commissions calculated pursuant to Section 5.3.
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5.2 Minimum Annual Rent. Subject to Section 5.1, for each Contract Year,
Concessionaire shall pay the City a guaranteed minimum annual rent ("Minimum Annual
Rent") of One Million Dollars ($1,000,000). For any partial Contract Year occurring
during the Term, the Minimum Annual Rent shall be pro-rated on a monthly basis.
5.3 Commissions. Subject to Section 5.1, Concessionaire shall pay the
following commissions ("Commissions"):
(a) Food and Beverage Sales. Concessionaire shall pay Commissions
based on Gross Receipts received by Concessionaire from Food and Beverage Sales
during each Contract Year as follows:
Step Tiers Commission
Annual Gross Receipts Percentage
From To %
Zero $ 41000,000 20
$ 4,0001001 $ 5,000,000 25
$ 5,000,001 $ 6,000,000 32
$ 6,000,001 $ 7,000,000 35
$ 7,0009001 $ 8,000,000 36
$ 8,000,001 $ 91000,000 38
$ 9,0001001 Greater 40
[1] The increasing percentages applicable to Gross Receipts are incremental and not
retroactive to the first dollar. The dollar limits of the Step Tiers shall be increased (but
not decreased) annually by the same percent change as the percent change in the
Consumer Price Index for the immediately preceding Contract Year.
[2] With respect to Subcontractor Sales, Gross Receipts shall include only the
percentage of amounts received by Concessionaire from its third party subcontractors,
and not the gross receipts generated by the Subcontractors.
[3] Same percentage rent for branded foods as the rates for Concession Food and
Beverage, provided the Commissions due to the City are decreased dollar for dollar for
the royalty fee (typically at 5.0% to 6.0% of sales) associated with the branded food
concepts.
5.4 Method of Payment; Reports.
(a) On or before the fifteenth (15th) day of the month immediately
succeeding any month during which Services are rendered by Concessionaire as
provided in this Agreement, Concessionaire shall deliver to the City Manager a
complete and accurate report, in sufficient detail and such form as the City Manager
may reasonably require, showing the Concessionaire's Gross Receipts from Services
for such month and the Commissions payable by Concessionaire hereunder, which
Commissions shall be paid contemporaneously therewith to the City.
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(b) In the event that the aggregate of the Commissions paid pursuant
to the above subsection (a) does not equal or exceed the applicable Minimum Annual
Rent for the Contract Year in question, Concessionaire shall, not later than thirty (30)
days following the end of such Contract Year, pay to the City an amount equal to the
difference between the Minimum Annual Rent and the aggregate Commissions paid
during such Contract Year.
(c) All of the reports required pursuant to this Section 5.4 shall be in
such detail and form as reasonably required by the City Manager. Upon written
request, Concessionaire shall provide the City Manager copies of the daily receipts,
daily bank deposits concerning the Events served (including Events at which Catering
Services are provided), the number of meals served at each Event, the total Food and
Beverage Sales at each Event, any amounts uncollected from each Event, and any
other information pertinent to Gross Receipts as the City Manager may reasonably
require.
The acceptance by the City Manager of any payment made by
Concessionaire hereunder shall not be deemed a waiver by the City of the right to
question or dispute the accuracy or correctness of the statement with respect to which
such payment was made and to demand or receive any additional amounts to which it is
entitled if any inaccuracy or incorrectness of such statement is determined or
discovered.
(d) In the event the City Manager reasonably disputes the accuracy of
any report hereunder, the City Manager shall have the right to conduct an audit of
Concessionaire's books and records by auditors selected by the City. Should any such
audit uncover a deficiency in payment by Concessionaire for any period covered,
Concessionaire shall pay to the City the amount of such payment deficiency within thirty
(30) days following receipt of the audit report and interest on the deficiency at the
Default Rate from the applicable due date until paid. Should any such audit uncover an
overpayment by Concessionaire for the period covered, the City shall pay to
Concessionaire the amount of such overpayment within thirty (30) days following receipt
of the audit report and interest on the overpayment at the Default Rate from the date the
overpayment was made by Concessionaire until repaid by the City.
(e) Concessionaire shall maintain books and records for its operations
during the Term, for a period of five (5) years following the last day of the Term of this
Agreement.
5.5 Capital Reserve Fund. Beginning thirty (30) days following the
Commencement Date, and each month thereafter during the Term, Concessionaire
shall contribute an amount to a reserve fund (the "Capital Reserve Fund") equal to one
percent (1%) of Concessionaire's total Gross Receipts from Food and Beverage Sales
on a monthly basis during the Term. Concessionaire shall use the Capital Reserve
Fund for an necessary repairs, maintenance or replacements of the Service
Y rY p p
Equipment, Facility Goods, and Smallwares. Unused amounts of the Capital Reserve
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12
Fund shall be carried forward from year to year. Any funds remaining in the Capital
Reserve Fund at the end of the Term shall be paid to the City. Concessionaire will
furnish the City Manager annually (no later than September 1 of each Contract Year)
with a statement of amounts expended from the Capital Reserve Fund during the
preceding Contract Year.
Investment Expenditures made with the Capital Reserve Fund must be mutually
agreed upon by Concessionaire and City.
5.6 Marketing Reserve Fund. Beginning thirty (30) days following the
Commencement Date, and each month thereafter during the Term, Concessionaire will
contribute an amount to a marketing fund (the "Marketing Reserve Fund") equal to the
greater of an annual contribution of fifty thousand dollars ($50,000) or 1.5% of Gross
Receipts received by Concessionaire from the provision of Catering Services on a
monthly basis. The Marketing Reserve Fund shall be used by Concessionaire to
promote the food and beverage offerings (catering, concessions, etc.) at the Facility.
Expenditures made with the Marketing Reserve Fund must be mutually agreed
upon by Concessionaire and City, in writing, prior to any such expenditure being made.
Unused amounts of the Marketing Fund shall be carried forward from year to
year. Any funds remaining in the Marketing Fund at the end of the Term shall be paid to
the City. Concessionaire will furnish the City Manager annually (no later than
September 1 of each Contract Year) with a statement of amounts expended from the
Marketing Fund during the preceding Contract Year.
5.7 Scholarships. In each Contract Year during the Term, Concessionaire
shall contribute Twenty Thousand Dollars ($20,000), no later than January 31St of each
year, towards the continuation of a scholarship fund the "Scholarship Fund" for
qualifying in-need Miami Beach residents pursuing a career in facility management
and/or the hospitality and tourism industry. The Scholarship fund will be solely
administered by the City;
6. PERFORMANCE OF CONCESSIONAIRE
6.1 General Standards. The Concessionaire hereby represents, warrants,
covenants and agrees that:
(a) Concessionaire shall operate from the Service Areas, which shall
only be used for the purpose of providing the Services, in accordance with the terms of
this Agreement.
(b) The Services shall be of a level of quality equal to or greater than
the Quality Operating Standard. All Food and Beverage Items shall meet the Minimum
Purchase Specification Requirements listed in Exhibit "C." All Food and Beverage
Items dispensed by Concessionaire shall be of high quality, and prepared and
presented in a professional manner; all equal to or greater than the Quality Operating
{0946-168-00005647.DOC-7}
13
Standard. No imitation, adulterated or misbranded article or items shall be sold or kept
for sale and all Food and Beverage Items shall be stored and handled by
Concessionaire in a manner consistent with standards of sanitation, preservation and
purity; all equal to or greater than the Quality Operating Standard. The City Manager
reserves the right to prohibit the sale of certain Food and Beverage Items if the City
Manager concludes, in his/her sole and reasonable discretion, that the quality of such
Items does not meet or exceed the Quality Operating Standard; or if the sale of such
Items would not be otherwise in the best interest of the Facility and/or the City. Title to
all Food and Beverage Items shall remain vested in Concessionaire until time of sale.
(c) During the Term, the City will make available such office space, of
such size and type that the City Manager deems reasonably suitable, to the
Concessionaire, at no additional charge. The use of this office space for purposes other
than provided herein shall result in the immediate revocation of the Concessionaires
use of this space. Concessionaire will be responsible for the furnishing cleaning and
maintenance of this area.
(d) In addition to the Food and Beverage Items typically found at
facilities having a Quality Operating Standard comparable to the Facility,
Concessionaire shall provide such specialty and premium/gourmet Food and Beverage
Items, including Branded Products, local specialties, and "heart healthy" items, as may
be reasonably required by the City Manager , so long as (i) the cost, quality, and sales
prices and other terms of sale of such Branded Products are at least comparable to
other Food and Beverage Items selected by Concessionaire for sale at the Facility; (ii)
Concessionaire's operating profit from the sale of any such Branded Product is not
material) less than the operating profit realized from other Food and Beverage Items
y r � r
selected by Concessionaire for sale at the Facility; and (iii) Branded Products are
reasonably available in quantities needed for the Services. Concessionaire shall not be
required to incur any out-of-pocket expense in connection with Branded Products,
including, without limitation, the cost of selling soft drinks in custom bottles (as opposed
to the cost of selling such drinks as fountain drinks) or the cost of fitting out space or
purchasing equipment in connection with any Branded Products, and shall have the
right to deduct any franchise or other fees and charges required to be paid to the
supplier or vendor, or increased costs associated with the Branded Product, from the
Commissions payable under this Agreement.
Concessionaire acknowledges and agrees that any payments made by a supplier
or vendor for the right to have its Branded Products sold at the Facility shall be retained
by the City and shall not be included in Gross Receipts. In the event that a particular
Branded Product does not meet the requirements of subsections (d)(i) — (iii) hereof, but
the City Manager still desires to use such Branded Product, Concessionaire's obligation
to sell such Branded Product at the Facility shall be subject to the parties' agreement on
an adjustment to the financial arrangements described in Article 5, so that
Concessionaire's sale of that particular Branded Product will not have a materially
adverse effect on Concessionaire's net profits from the performance of Services under
this Agreement. In the event Concessionaire and the City are unable to agree as to
{0946-168-00005647.DOC-7)
14
whether a particular Branded Product meets the requirements of subsections (d)(i) — (iii)
hereof, then the City Manager shall give Concessionaire written notice, and promptly
thereafter the parties will submit the issue for consideration to a mutually agreed upon
independent third party familiar with the food service industry at facilities in the region
where the Facility is located, having a Quality Operating Standard comparable to the
Facility, and the parties agree to abide by the written determination of such independent
third party.
(e) Except for those items, if any, expressly required by this Agreement
to be provided by the City, Concessionaire shall furnish and pay for all working capital,
Concession Items, Services, inventory, personnel, Service Equipment and Facility
Goods as provided for herein, and all applicable licenses (including alcoholic beverage
licenses), permits, and other costs or expenses, as necessary and required to perform
Concessionaire's obligations under this Agreement, including, without limitation, the
performance of Services, and the dispensing of Food and Beverage Items, at the level
of quality equal to or greater than the Quality Operating Standard.
(f) Concessionaire shall be available at the Facility, as reasonably
needed, to meet and work with users of the Facility to meet their individual food and
beverage service needs. Concessionaire hereby agrees that upon reasonable prior
notice it will attend any such meeting with a potential user of the Facility if requested by
the City Manager.
(g) Concessionaire will comply with all Governmental Requirements.
Concessionaire shall be responsible for any violations of Governmental Requirements
as a result of Concessionaire's operations hereunder.
(h) Concessionaire shall conform to all reasonable rules and
regulations at any time promulgated by the City with respect to the Facility, and shall
cause its officers, employees, agents, contractors, and licensees at all times to abide by
and conform to those rules and regulations. which City may at any time affix and
establish for the conduct of Concessionaire's employees, provided that such rules and
regulations shall not violate any applicable laws or the terms and conditions of this
Agreement.
(i) Concessionaire shall keep complete and accurate inventory control
records before and after each Event as well as Sales reports for each Event held at the
Facility.
(j) Concessionaire shall perform its obligations under this Agreement
and conduct the Services at all times with integrity and good faith and in a manner that
is in the best interest of the Facility and consistent with the terms of this Agreement.
The scope of such duty specifically includes, without limitation, the duty to use
commercially reasonable efforts to maintain the quality of Concessionaire's Services to
one which is at least equal to or greater than the Quality Operating Standard, and to
maximize revenues (consistent with the expected level of attendance at the Facility for
{0946-168-00005647.DOC-7}
15
various Events) derived from the operation of the Services. In the event the parties
anticipate low attendance at Events, the City Manager or his designee and
Concessionaire shall mutually agree upon the closure of certain Service Areas taking
into account the presentation to the public of any such closed locations.
(k) Concessionaire shall provide Catering Services to the City, as may
be requested in writing from time to time, at Concessionaire's actual cost plus ten
percent (10%). Such charges shall be excluded from the calculation of Gross Receipts.
(1) Except as otherwise specifically provided in this Agreement, no
competing vendors or sellers of merchandise normally sold by Concessionaire will be
allowed to operate within the Facility at any time, except as may occasionally be
requested in writing by the City Manager or his designee for purposes of special, non-
recurring Events, including, but not limited to City-sponsored events.
(m) City Manager or Convention Center Manager shall provide
Concessionaire with advance notice of any third party catering requests. Reasonable
efforts shall be made by City or Convention Center Manager to notify Concessionaire of
the cancellation of scheduled events, but City or Convention Center Manager assume
no liability for the failure to deliver notice of cancellation. Concessionaire must provide
(i) Services at all Events at the Facility unless City or Convention Center Manager
agrees in writing to the contrary and (ii) Catering Services to all groups holding an Event
at the Facility who request such Services and pay for such services in advance.
Concessionaire shall, at all times, be prepared to cater sufficient meals for a sufficient
number of persons at one sitting in the meeting rooms of the Facility and in the entirety
of the Facility on reasonable advance notice from City or Convention Center Manager.
n Net Performance. Concessionaire shall endeavor to increase its
Net Performance by five (5) percent annually. Net Performance is defined as the gross
revenue generated from any Social Catering Events booked by Concessionaire
resulting in Food and Beverage Sales. Events booked by Concessionaire are those
events where the bookings have not come through the Facility management sales team
or the Miami Beach Visitor and Convention Bureau. In the event of any force majeure
where events are cancelled through no fault of Concessionaire, the projected revenue
will still be counted toward the targeted goal for the year.
(o) Pastry Operation. Concessionaire supports an initiative to
implement and produce fresh baked pastry offerings on-site. Create and implement new
menus and individual menu items for outlets based on current food trends and regional
tastes. Concessionaire agrees to train existing MBCC culinary team members to bake
high quality breads, rolls, pastries, and desserts for use in marketing and serving MBCC
guests. As business dictates, pastry chefs may be sent from other Concessionaire
venues to train and assist production for the larger or more significant events. City
agrees to provide an operational hood system for both the hot line and the previous dish
machine area in the West kitchen and any Concessionaire duties and obligations
{0946-168-00005647.DOC-7}
16
i
pursuant to this subsection shall be contingent upon City making such West kitchen
hood system operational.
(p) Green Initiatives. Concessionaire will provide City with annual
"green" report detailing information on sustainable efforts including but not limited to:
recycling and composting, water and energy efficiency, use of sustainable cleaning
agents, purchase of recyclable and compostable products, purchase of locally-grown,
locally-produced and/or organic foods.
(q) Operating Plan. Concessionaire shall provide by March 1 of each
year, all of what are subject to review and approval by the City and Convention Center
Manager:
a. An annual operating budget for the next Contract Year and a
five (5) year operating budget (for planning purposes only), each
to meet the scope of services and objectives under this
Agreement. The operating budget shall include with it a listing
and detail of all third party contracts for the
inspection/maintenance of equipment that are paid from the
operating budget;
b. Marketing plan;
c. A one (1) year and five (5) year proposed repair, replacement
and improvement plan and budget;
d. one (1) year and five (5) year proposed cleaning and
maintenance program for all Service Areas, Service Equipment,
Smallwares, improvements and fixtures;
e. Safety and emergency management plan as it relates to
potential food and beverage contamination; and
f. Detailed product branding plan.
Assistance with Business Plan. Concessionaire shall cooperate with the City in
connection with the City's preparation of an annual business plan for the Facility. No
later than forty-five (45) days following written request by the City Manager,
Concessionaire will provide City with such items, which may include, without limitation:
(a) A statement of projected Gross Receipts for its Services based on
Events then scheduled on Concessionaire's event calendar; and
(b) An emergency and terrorist prevention plan as it relates to potential
food and beverage contamination.
{0946-168-00005647.DOC-7}
17
(r) Customer satisfaction is essential to the successful operation of
food and beverages services. Concessionaire shall strive to achieve maximum
customer satisfaction based on customer evaluations conducted by the Convention
Center manager and the Greater Miami Convention and Visitors Bureau (GMCVB).
Comparison will be made to the prior Contract of the Term Year of customer satisfaction
in areas under the management and control of Concessionaire for supervision and
monitoring of the food and beverage operations in the Facility, attention to quality
controls, levels of service and performance standards. The City will review all scores in
order to determine overall positive (excellent and good) score, as well as year over year
improvement.
a. Concessionaire shall maintain its food and beverage catering
and concession services at an aggregate positive customer
survey score(s) at or above 93% for each Contract Year-end.
b. Recovery Period: If at any time during this Agreement,
Concessionaire fails to achieve a minimum score of 93% but
achieves at least a score of 85%, , then Concessionaire shall be
provided six (6) months to achieve the minimum 93% score.
Failure to maintain an aggregate positive customer survey
score(s) at or above 93% after such Recovery Period as
described above shall constitute an Event of Default by
Concessionaire.
c. The City agrees that for every Event, a survey shall be mailed.
d. Scores that reference Food and Beverage where no Food and
Beverage service was provided will not be included in tabulated
survey scores.
e. In the event that different methods of customer surveys or
performance thresholds are implemented than had been
implemented for the survey in effect as of the Commencement
Date of this Agreement which survey is attached and
incorporated as Exhibit "D" hereto, Concessionaire and City
shall mutually agree on a fair and reasonable aggregate positive
customer survey score percentage, the parties acting in good
faith.
6.2 Personnel. Concessionaire shall at all times comply with the following
requirements regarding its personnel and its staffing of personnel at the Facility:
(a) Concessionaire shall employ, train and supervise personnel with
appropriate qualifications and experience and in sufficient numbers as is necessary to
provide the Services at a level equal to or greater than the Quality Operating Standard,
and otherwise comply with its obligations hereunder. The Concessionaire shall instruct
all personnel to enter upon and remain on the Facility's premises only during Events at
{0946-168-00005647.DOC-7}
18
the Facility and for a reasonable time prior to and subsequent to Events, and only for
the purpose of exercising during Events the rights and privileges herein provided. For
any Event, Concessionaire shall supply sufficient personnel to staff such Event at a
level equal to or greater than the Quality Operating Standard. For any Event at which
Catering Services are provided, the number of people employed by Concessionaire to
staff such event must be sufficient to properly serve the Event at a level equal to or
greater than the Quality Operating Standard. All persons engaged by Concessionaire in
connection with the performance of this Agreement shall be the sole and exclusive
employees of Concessionaire and shall not, for any purposes, be considered
employees of the City, and Concessionaire shall be solely responsible for their
supervision and daily direction and control, and/or setting and paying their
compensation (and federal income tax withholding and any employee benefits.
Concessionaire shall pay all applicable social security, unemployment, workers'
compensation and other employment taxes related to such personnel.
(b) Concessionaire shall employ at the Facility only trained, neatly
uniformed, clean and courteous personnel. All of Concessionaire's personnel shall
wear appropriate uniforms with a design which is subject to the City Manager's or his
designee's prior written approval, which approval shall not be unreasonably withheld,
conditioned or delayed. Such uniforms shall be provided by Concessionaire at its sole
cost and expense. Concessionaire's employees shall conduct themselves at all times in
a proper and respectful manner and in accordance with the City Manager reasonable
rules and regulations for the Facility. If the City Manager reasonably determines that
any employee of Concessionaire has not complied with the provisions of this Section on
repeated instances or in any material respect, the City Manager or his designee may, in
the exercise of his/her reasonable business judgment, request Concessionaire to
exclude the employee from the Facility, so long as such exclusion is not in
contravention of any applicable Governmental Requirement. Upon such written request
by City Manager, Concessionaire shall remove the employee from the Facility in a
timely manner.
(c) Concessionaire shall provide, subject to City Manager's prior written
approval, a competent general manager, as well as competent management staff,
including, limitation a designated representative or representatives who shall be
g� 9 P p
(i) experienced in the operation and management of catering and food and beverage
concession operations in facilities of similar (or greater) size and nature; (ii) directly
responsible for the oversight of Concessionaire's obligations under this Agreement; and
(iii) available to take calls from and meet with the City Manager, on-site, at the Facility,
during regular business and/or operation hours, and within a reasonable time frame
during non-business hours in the event of emergency. If the City Manager, with or
without cause, requests in writing a change in the general manager and/or any
management personnel, Concessionaire shall have twenty (20) days to provide an
appropriate replacement on a temporary basis and a permanent replacement within an
additional forty (40) days thereafter. Concessionaire's general manager or his
designated representative(s) shall be on-site at the Facility whenever Concessionaire is
providing Services.
{0946-168-00005647.DOC-7 1
19
(d) Should any vacancy occur in the position of Concessionaire's general
manager, Concessionaire will notify the City in writing of the identity and qualifications of
the proposed replacement not later fifteen (15) days prior to hiring such replacement.
Any replacement general manager, executive chef or sales director shall be subject to
the prior approval of the City Manager (with three (3) candidates provided), which
approval shall not be unreasonably withheld, conditioned or delayed.
(e) Concessionaire shall not discriminate against any employee or
applicant for employment because of age, race, creed, sex, color, national origin, sexual
orientation, and/or disability.
(f) Concessionaire shall, at its expense, conduct either itself, or when
required by City, in coordination with the City Manager, regularly scheduled training
sessions, of all personnel employed by Concessionaire at the Facility in the following
areas:
(1) Facility orientation, rules and regulations and emergency
procedures;
(2) first aid;
(3) customer service;
(4) alcohol awareness;
(5) job task training;
(6) standards of dress;
(7) cash handling;
(8) workplace safety;
(9) diversity/harassment sensitivity;
(10) safety; and
(11) health and sanitation practices.
The parties agree that a training session may encompass one or more of the above-
referenced areas at any one time. Concessionaire will permit the City Manager, and/or
City employees, and/or consultants and/or contractors providing services to the City at
the Facility, to participate in any such sessions organized by Concessionaire; provided,
however, the City shall reimburse Concessionaire for its cost of having any such
employee(s) or other individual(s) attend a training session. At least once per each
Contract Year, Concessionaire shall participate, in coordination with the City, in
orientation and training sessions geared toward educating Concessionaire and its
employees, in the expectation and philosophies of the City, City departmental functions,
and City customer service standards.
6.3 No Solicitation or Employment by City. During the Term and for a period
ending one (1) year after the expiration or termination of this Agreement (the "Restricted
Period"), except with Concessionaire's prior written consent (which consent, if given at
all, shall be at Concessionaire's sole and absolute discretion), the City will not, for any
reason, solicit for employment, or hire, the general manager, executive chef or sales
(0946-168-00005647.DOC-7}
20
director employed by Concessionaire at the Facility.. In addition to any other remedies
which Concessionaire may have under this Agreement, specific performance in the form
of injunctive relief shall be available for the enforcement of this Section 6.3.
6.4 Event Duties. With respect to any Event, Concessionaire and City agree
as follows:
(a) The City Manager shall promptly notify Concessionaire in writing of
any Person interested in hosting an Event at the Facility (a "Client"). Thereafter,
Concessionaire will negotiate directly with the Client to agree upon all terms, conditions
and specifications of the Event and to enter into a formal written agreement
memorializing such terms, conditions and specifications (a "Client Contract").
Concessionaire shall promptly notify the City Manager upon execution of a Client
Contract, such notice to contain all pertinent information regarding same.
(b) All Clients using the Facility shall maintain appropriate insurance
coverage including, without limitation, adequate liability coverage. The parties
acknowledge and agree that all Clients other than Social Catering Event Clients shall
deal directly with Convention Center Manager regarding the foregoing requirement. The
parties further acknowledge and agree that Clients hosting Social Catering Events shall
have the option to satisfy this requirement by accepting the general liability insurance
purchased by Convention Center Manager. In the event such Client elects not to accept
the Convention Center Manager insurance, Concessionaire shall require that such
Client separately maintain the coverage required hereunder. In all events, copies of
these certificates shall be furnished to the City Manager prior to any Event and shall be
kept in force at all times by the Client. All liability policies shall name the City and
Concessionaire as additional insureds. Concessionaire shall also require Clients to
execute a written indemnification, indemnifying, defending and holding harmless the
City, the Convention Center Manager and Concessionaire (the form of such indemnity
provisions to be subject to the City Attorney's approval, not to be unreasonably
withheld).
(c) All Service Areas (including sufficient concession stands)
appropriate for operation in connection with any particular Event (based on expected
attendance levels) shall be open for business at the time the Facility is open for such
Event. Concessionaire shall adequately cover each and every section of the Facility in
use for each Event.
(d) During an Event, Concessionaire shall be responsible for bussing
and wiping down the tables and removing any spills, debris in the Service Areas caused
by or resulting from the provision of the Services. Immediately following the completion
of an Event, Concessionaire shall be responsible for cleaning the Service Areas, the
Service Equipment, Smallwares and Facility Goods to the reasonable satisfaction of the
City Manager or his designee, and to maintain the foregoing in a clean and sanitary
condition and in accordance with all Governmental Requirements and the Quality
Operating Standard. Concessionaire shall collect and remove all Food and Beverage
{0946-168-00005647.DOC-7}
21
Item containers, wrappers, and other waste from the Service Areas. Immediately after
any Event, all garbage generated in the Service Areas from such Event shall be
removed by Concessionaire, placed in airtight containers reasonably acceptable to the
City Manager and placed in the area designated for trash storage by the City in the
Facility. Following its use of the Facility's trash storage area, Concessionaire shall
return same to a neat and clean condition, reasonable wear and tear excepted.
(e) Concessionaire shall not use Hazardous Substances at the Facility
except in accordance with all applicable Governmental Requirements, and agrees to
indemnify, defend and hold City or its designee and each of their respective partners,
officers, directors, employees, agents, and representatives (collectively, the "Other
Beneficiaries") harmless from all losses, costs, damages, liabilities and expenses
(including attorney's fees) ("Losses") arising out of Concessionaire's use, generation or
storage of Hazardous Substances at the Facility.
(f) Concessionaire shall utilize the Facility's loading dock and dock
well in a manner consistent with industry practices, and shall use commercially
reasonable efforts to clean and sanitize such areas following use in order to control
rodent infestation.
(g) Concessionaire shall be responsible for arranging pest control
services for the Service Areas to ensure conformity with all applicable Governmental
Requirements. Concessionaire shall provide the City with a receipted copy of the
service agreement with the pest control firm that is so retained.
(h) Except as otherwise provided by the City hereunder,
Concessionaire will, at its sole cost and expense, provide all Smallwares as are
necessary and required to provide the Services at the Facility as contemplated by this
Agreement.
6.5 Food and Beverage Items.
(a) City Manager shall have the right, upon reasonable prior written
notice to Concessionaire, to designate Food and Beverage Items to be sold at the
Facility, including without limitation, the right to grant exclusive pouring rights for non-
alcoholic beverage items and, to the extent permitted by law, alcoholic beverage items,
product delivery and other licensing rights at the Facility, provided that any such
designated items are comparable to the products that would otherwise be sold by
Concessionaire hereunder with respect to quality and cost.
(b) The prices for all Food and Beverage Items sold at the Facility shall
be commensurate with prevailing prices at other facilities in the United States having a
Quality Operating Standard comparable to the Facility. In determining the prices to be
charged and in resolving any disputes which may arise between the parties with respect
to pricing, the parties shall look to prevailing prices charged at such facilities.
{0946-168-00005647.DOC-7}
22
(c) Concessionaire shall present the City Manager with the menus and
the prices to-be charged for all Food and Beverage Items to be sold by Concessionaire
at the Facility at least thirty (30) days prior to the adoption of such menus and prices.
Concessionaire shall have the right to make interim menu and price changes (including,
without limitation, menu deletions), subject to the City Manager's prior written approval,
which must be obtained prior to the Concessionaire implementing any requested menu
or price change(s). The City Manager shall not unreasonably withhold, condition or
delay its approval of the menus, prices, and changes to menus and prices, submitted by
Concessionaire.
(d) Subject to the City Manager prior written approval, which shall not
be unreasonably withheld, conditioned or delayed, Concessionaire shall be entitled to
use and promote any Concessionaire Branded Products & Services.
6.6 Subcontractors. Subject to City Manager's prior written approval, which
approval shall be at its sole and absolute discretion, Concessionaire shall have the right
to subcontract portions of the Services hereunder to a third party.
The following subcontractors are approved ' at the Facility as of the
Commencement Date: Pita Hut Enterprises, Showtime Incorporated, and Chilango's
Incorporated.
Concessionaire's commission received from subcontractors shall be considered
part of Gross Receipts, and City shall receive the prevailing commission rate based on
commission tier structure (between 20% to 40%).
6.7 Sales Tax Payments. In the event that Concessionaire receives any
written notice of any assessment for it to make a Sales Tax Payment in respect of the
fees paid by Concessionaire hereunder, immediate notice thereof shall promptly be
provided by Concessionaire to the City Manager or his designee. Notwithstanding the
preceding sentence, Concessionaire shall pay any such Sales Tax Payment upon
demand by the City and, in any event, not later than the date on which any fine, penalty,
interest or cost may be added thereto or imposed by law for the non-payment thereof.
Concessionaire shall reasonably cooperate with the City, in the event the City Manager
or his designee, in his/her sole discretion and judgment (but not obligation) determines
to oppose or contest (collectively, a "Contest") any such levy or assessment. If
undertaken, the cost and expense of any Contest shall be borne solely by the City.
6.8 Equipment Repairs and Maintenance. The Concessionaire will be
required to repair and maintain, at its sole cost and expense, all Service Equipment and
Facility Goods. Concessionaire will furnish, at its sole cost and expense, all expendable
equipment necessary for the provision of the Services. Concessionaire will be
responsible for all costs requiring repairs and/or servicing to the Facility and/or Facility
infrastructure resulting from Concessionaire's, and/or its employees', contractors', or
agents', negligent acts or omissions.
{0946-168-00005647.DOC-7}
23
6.9 Right of Entry. Employees, contractors, officers, agents, and other
authorized representatives of the City shall have the right, upon reasonable verbal or
written notice to Concessionaire (except in the event of an emergency where no notice
shall be required) to enter all portions of the Facility to inspect same, to observe the
performance of Concessionaire under this Agreement, to install, remove, adjust, repair,
replace or otherwise handle any equipment, utility lines, or other matters in, on, or about
the premises, or to do any act or thing which the City may be obligated or have the right
to do under this Agreement or otherwise, as the owner of the Facility. Nothing
contained in this Section is intended or shall be construed to limit any other rights of the
City under this Agreement. The City shall not unreasonably interfere with the activities
of Concessionaire hereunder, and the City's actions shall be conducted such that
disruption of Concessionaire's work shall be kept to a minimum. Nothing in this Section
shall impose or be construed to impose upon the City any independent obligation to
construct or maintain or make repairs, replacements, alterations, additions or
improvements, or perform any maintenance, or create any independent liability for
failure to do so.
6.10 Hurricane and Emergency Preparations
(a) In the event of a hurricane or other natural disaster or emergency,
the Concessionaire shall be required to be able to provide food, drink and drinking water
for up to 1,400 persons (three meals a day) for a three (3) day period, without electricity
and water available from normal utility services (the "Emergency Preparations"). Part or
all of each meal shall be heated, with hot beverages to be available with each meal.
One half of the meals (700) shall be high energy producing and fifty percent (50%)
larger then the standard meals. The remaining half of the meals shall be standard and
provide normal daily caloric intake, which for purposes of this agreement is agreed to be
two thousand (2,000) calories per day, and 25% to be considered vegetarian.
(b) Concessionaire is to provide food, beverages, utensils, equipment
and supervisory personnel for the Emergency Preparations.
(c) Concessionaire will be required to provide to the City, for the City
Manager's review and approval, a menu using the Concessionaire's normal inventory
plus items normally used by the Concessionaire so that the Concessionaire can assure
delivery of the Emergency Preparations to the Convention Center within twenty-four
(24) hours after order.
All documented costs of supplies, food, labor, and materials used in connection
with the Emergency Preparations, will be repaid to the Concessionaire by the City. The
Concessionaire will be responsible for bearing all costs of possible extra inventory
levels, preparation and planning.
{0946-168-00005647.DOC-7 1
24
7. INDEMNIFICATION AND INSURANCE
7.1 Indemnification.
(a) Concessionaire shall indemnify, hold harmless and defend (with
counsel approved by the City Attorney) the City, its officers, agents, servants and
employees and contractors, from and against any and all third party claims, liabilities,
demands, causes of action, and all related costs and expenses (including reasonable
attorneys' fees at trial and all levels of appeal) of whatsoever kind or nature ("Claims")
arising out of (i) any error, omission or negligent act or willful misconduct of
Concessionaire, and/or its Affiliates, agents, servants, contractors, or employees, or any
other authorized representatives, or (ii) any other Claims arising, directly or indirectly,
from the provision of Services by Concessionaire hereunder, except to the extent such
Claims arise out of or result from the gross negligence or willful misconduct of the City.
(b) The provisions of this Section 7.1 shall survive expiration or
termination of this Agreement.
7.2 Insurance to be Maintained by Concessionaire. Concessionaire shall
secure and keep in force at all times during the Term, the following insurance coverage:
The Concessionaire shall furnish to the City's Human Resources Department, Risk
Management Division, 1700 Convention Center Drive, 3rd Floor, Miami Beach, Florida
33139, Certificate(s) of Insurance which indicate that insurance coverage has been
obtained which meets the requirements as outlined below:
A. Workers' Compensation Insurance for all employees of the Concessionaire
as required by Florida Statute 440. Employers' Liability is also required
with minimum limits of$500,000 each accident.
B. Commercial General Liability on a comprehensive basis in an amount not
less than $1,000,000 combined single limit per occurrence for bodily injury
and property damage. Coverage should include Premises and Operations,
Personal Injury/Advertising Liability, Products/Completed Operations, and
Contractual Liability, including independent Contractors. City of Miami
Beach must be shown as an additional insured with respect to this
coverage.
C. Automobile Liability Insurance covering all owned, non-owned and hired
vehicles used in connection with the work, in an amount not less than
$1,000,000 combined single limit per occurrence for bodily injury and
property damage. City of Miami Beach must be shown as an additional
insured with respect to this coverage.
{0946-168-00005647.DOC-7}
25
D. Liquor Liability Insurance in an amount not less than $1,000,000 (if
applicable). City of Miami Beach must be shown as an additional
insured with respect to this coverage.
E. Umbrella Liability (or Excess Liability) coverage in an amount not less than
$4,000,000 combined single limit per occurrence. City of Miami Beach
must be shown as an additional insured with respect to this
coverage.
The insurance coverage required shall include those classifications, as listed in
standard liability insurance manuals, which most nearly reflect the operations of the
Concessionaire.
All insurance policies required above shall be issued by companies authorized to do
business under the laws of the State of Florida, with the following qualifications:
The company must be rated no less than "B" as to management, and no
less than "Class V" as to financial strength, by the latest edition of Best's
Insurance Guide, published by A.M. Best Company, Oldwick, New Jersey,
or its equivalent, subject to the approval of the City Risk Management
Division.
or
The company must hold a valid Florida Certificate of Authority as shown in
the latest "List of All Insurance Companies Authorized or Approved to Do
Business in Florida" issued by the State of Florida Department of
Insurance and are members of the Florida Guaranty Fund.
Certificates will indicate no modification or change in insurance shall be made without
thirty (30) days in advance notice to the certificate holder.
CERTIFICATE HOLDER MUST READ:
CITY OF MIAMI BEACH
1700 CONVENTION CENTER DRIVE
3rd FLOOR
MIAMI BEACH, FL 33139
Compliance with the foregoing requirements shall not relieve the Concessionaire of his
liability and obligation under this section or under any other section of this Agreement.
7.3 Certificates evidencing the existence of policies referenced in Section 7.2
shall be delivered to the City Manager prior to the Commencement Date. The parties
hereto acknowledge that the above policies may contain exclusions from coverage
which are reasonable and customary for policies of such type. Each such certificate
{0946-168-00005647.DOC-7}
26
shall: (a) contain a valid provision or endorsement stating, "This policy will not be
canceled or materially changed or altered without first giving thirty (30) days' written
notice thereof to the City of Miami Beach, Florida, 1700 Convention Center Drive, Miami
Beach, FL 33139"; and (b) name the City of Miami Beach, Florida, as an additional
insured with respect to the policies referenced in Sections 7.2 (a), (b), (c), (d), (e), (f),
and (g).
7.4 Performance Bond or Alternate Security. Concessionaire shall, on or
before the Commencement Date of this Agreement, furnish to the City Manager 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 Three Hundred Thousand
Dollars ($300,000.00) 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, in his/her reasonable business judgment and
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 Three Hundred Thousand Dollar ($300,000.00) 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. Concessionaire shall be so required to maintain said
Performance Bond or alternate security, as accepted by the City Manager, 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 Performance Bond or
alternate 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, except in an event of default, in which case the City shall be entitled to
all interest that accrues after the date of default.
8. ASSIGNMENT.
8.1 (a) Except as otherwise provided in this Section 8.1, Concessionaire
may not voluntarily or by operation of law assign, encumber, pledge or otherwise
transfer (collectively, "Transfer") all or any part of Concessionaire's interest in this
Agreement (except that Concessionaire may Transfer its financial interests under this
Agreement and otherwise Transfer its interests, provided that no other Person other
than an Affiliate or Permitted Transferee (as defined below) may perform the Services
as a result of any such Transfer), without the City's prior written consent, which may be
granted or withheld in the City's sole and absolute discretion. Concessionaire
specifically recognizes that the City selected Concessionaire to provide the Services at
the Facility as a result of the City's evaluation of Concessionaire's specific qualifications
and experience in performing Services at similar first-class facilities.
(b) Notwithstanding anything to the contrary contained herein,
Concessionaire shall have the right to Transfer this Agreement, without the necessity of
the City's consent, to an Affiliate that has a Net Worth (defined as total assets less total
liabilities) of not less than Twenty-Five Million Dollars ($25,000,000), provided that
Concessionaire and Affiliate execute and deliver to the City an agreement by which the
{0946-168-00005647.DOC-7}
27
Affiliate assumes all of Concessionaire's obligations under this Agreement and
Concessionaire acknowledges that it remains jointly and severally liable for all such
obligations.
(c) Concessionaire shall also have the right to Transfer this Agreement
to any of the following (each a "Permitted Transferee"):
(i) A successor entity arising from the purchase of, or merger or
consolidation with Concessionaire;
(ii) An entity that purchases all or substantially all of the assets
of Concessionaire, provided in either case all of the following conditions
are met:
(1) The Permitted Transferee has a Net Worth in excess
of Twenty-Five Million Dollars ($25,000,000);
(2) Simultaneous with the Transfer, the Permitted
Transferee is acquiring the right to be the food and beverage
service provider at not less than five (5) other facilities then served
by Concessionaire;
(3) The Permitted Transferee has not less than five (5)
years experience in providing Services at facilities with a Quality
Operating Standard comparable to the Facility;
(4) Concessionaire and the Permitted Transferee shall
execute an instrument by which the Permitted Transferee assumes
all of Concessionaire's obligations under this Agreement;
(5) In the City Manager's reasonable determination, the
Permitted Transferee has a good reputation for operating facilities
with a Quality Operating Standard comparable to the Facility and is
an appropriate provider of Services for the Facility. The City
Manager shall use reasonable efforts to advise Concessionaire in
writing whether or not this condition (5) has been met within thirty
(30) days after having received such information as the City
Manager shall reasonably request to make the determination. In
the event the City Manager advises Concessionaire in writing that
this condition (5) has not been met and, if conditions (1), (2) and (3)
have been met, then Concessionaire shall have the right to
terminate this Agreement upon written notice (the "Termination
Notice") to the City Manager delivered within thirty (30) days
following Concessionaire's receipt of the City Manager's notice. If
Concessionaire timely delivers its Termination Notice,
Concessionaire shall nevertheless continue to operate under this
{0946-168-00005647.DOC-7}
28
Agreement and shall pay all amounts and perform all obligations
hereunder until the earlier to occur of: (i) six (6) months following
the date of Concessionaire's Termination Notice; or (ii) the City
delivers written notice to Concessionaire to cease operations.
9. EVENTS OF DEFAULT AND REMEDIES.
9.1 Concessionaire's Defaults. The occurrence of any one or more of the
following events shall constitute an Event of Default by Concessionaire.
(a) The failure by Concessionaire to make any payment required to be
made by Concessionaire as and when due, which continues for more than ten (10) days
after written notice from City;
(b) The failure by Concessionaire to meet the Quality Operating
Standard, as defined in Section 1 (y) hereof;
(c) The failure or inability by Concessionaire to observe or perform any
of the covenants or provisions of this Agreement to be observed or performed by
Concessionaire, which continues for more than thirty (30) days after written notice from
the City; provided, however, if the nature of the failure is such that more than such
period is reasonably required for its cure, then Concessionaire shall not be deemed to
have committed an Event of Default if Concessionaire commences the cure within such
period and thereafter diligently pursues the cure to completion and actually completes
the cure within an additional sixty (60) day period;
(d) Except as permitted pursuant to Section 8. of this Agreement, the
assignment, encumbrance, pledge, or transfer of this Agreement, whether voluntarily or
by operation of law, or any subcontract of Concessionaire's duties hereunder or any
attempt to do any of the foregoing;
(e) Concessionaire's failure to provide and maintain the performance
bond and/or alternate security required by Section 7.4 hereof, if such failure continues
for more than thirty (30) days after written request from the City;
(f) Concessionaire's failure to maintain the required insurance
coverage in Section 7.2 hereon;
(g) The making by Concessionaire of any general assignment for the
benefit of creditors; (ii) the filing by or against Concessionaire of a petition to have
Concessionaire adjudged a Chapter 7 debtor under the Bankruptcy Code or to have
debts discharged or a petition for reorganization or arrangement under any law relating
to bankruptcy (unless, in the case of a petition filed against Concessionaire, the same is
dismissed within sixty (60) days); (iii) the appointment of a trustee or receiver to take
possession of substantially all of Concessionaire's assets located at the Facility or of
Concessionaire's interest in this Agreement, if possession is not restored to
{0946-168-00005647.DOC-7 1
29
Concessionaire within sixty (60) days; or (iv) the attachment, execution or other judicial
seizure of substantially all of Concessionaire's assets located at the Facility or of
Concessionaire's interest in this Agreement, where the seizure is not discharged within
sixty (60) days.
9.2 City's Remedies.
(a) If an Event of Default by Concessionaire occurs, then in addition to
any other remedies available to the.City, the City may exercise the following remedies:
(i) The City may terminate this Agreement by written notice to
Concessionaire, in which case this Agreement shall terminate and
Concessionaire shall immediately remove its property from the
Facility, shall, subject to Section 9.5, deliver to the City the Service
Areas and all property thereon belonging to the City including the
Facility Goods, and shall otherwise surrender possession of the
Facility to City. Upon termination, the City shall be entitled to
recover from Concessionaire any and all amounts that
Concessionaire is required to pay under this Agreement through
the date of termination; and
(ii) The City may seek specific performance of any of
Concessionaire's obligations hereunder or seek injunctive relief;
and
(iii) The City may exercise any other remedies available at law
or in equity.
(b) The various rights and remedies reserved to City in this Agreement
or otherwise shall be cumulative and, except as otherwise provided by Florida law, the
City may pursue any or all of its rights and remedies at the same time.
9.3 City's Default.
The occurrence of any one or more of the following events shall constitute
an Event of Default by the City.
(a) The failure by City to make any payment required to be made by
City (if any) as and when due, which continues for more than ten (10) days after written
notice of default from Concessionaire;
(b) The failure or inability by City to observe or perform any of the
covenants or provisions of this Agreement to be observed or performed by City, which
continues for more than thirty (30) days after written notice from Concessionaire;
provided, however, if the nature of the failure is such that more than such period is
reasonably required for its cure, then City shall not be deemed to have committed an
Event of Default if City commences the cure within such period and thereafter diligently
(0946-168-00005647.DOC-7 1
30
pursues the cure to completion and actually completes the cure within an additional
sixty (60) days.
(c) Cessation of Operations. Except to the extent resulting from force
majeure or damage or destruction, as contemplated in Sections 10.6 and 10.7,
respectively, in the event that the City fails for any reason, at any time during the Term,
to hold an Event at the Facility for a period in excess of ninety (90) consecutive days,
Concessionaire shall have the right to terminate this Agreement upon written notice to
the City.
(d) In the event that the Facility or a material portion of the Facility
becomes inaccessible for a period of sixty (60) days or more or that construction
schedules prevent Event(s) from taking place, pro-rated relief shall be given
Concessionaire with regard to the Minimum Annual Rent set forth in Section 5.2.
9.4 Concessionaire's Remedies.
If an Event of Default by City occurs, then Concessionaire may exercise either of
the following remedies:
(a) Concessionaire may terminate this Agreement by written notice to
City, in which case this Agreement shall terminate and Concessionaire shall
immediately remove its property from the Facility, shall deliver to the City the Service
Areas and all property thereon belonging to the City, including the Facility Goods, and
shall otherwise surrender possession of the Facility to City and, thereupon,
Concessionaire may exercise any other remedies available at law or in equity; or
(b) Concessionaire shall have the right to enforce its rights under
Section 4.6 of this Agreement and to pursue any other remedies available at law or in
equity with respect to said rights
The various rights and remedies reserved to Concessionaire in this Agreement
shall be cumulative and, except as otherwise provided by Florida law, Concessionaire
may pursue any of its rights and remedies at the same time.
9.5 Rights and Duties Upon a Termination. The following provisions shall
apply in the event of a termination of this Agreement for any reason whatsoever,
including the expiration of the Term:
(a) Amortization.
Any amortization provided in Section 4 shall be subject to the amortization
periods in Section 4.3. If, upon termination or expiration of the Agreement,
Concessionaire's amortization periods (as set forth in Section 4.3(a) and (b)) have not
expired, then the City shall pay Concessionaire the pro-rated amount of any
unamortized portion of an Expenditure, pro-rated for the period of the time remaining in
the amortization period.
{0946-168-00005647.DOC-7 1
31
(b) Final Accounting. Concessionaire shall deliver to the City, within
thirty (30) days after the date of termination, a final accounting setting forth all
Commissions due to the City, and shall remit to the City all amounts owed to the City
after setting off any amounts owed by the City to Concessionaire.
(c) Delivery/Surrender of Premises. Concessionaire shall immediately
remove its property from the Facility and shall deliver to the City the Service Areas and
all property thereon belonging to the City, including the Facility Goods.
10. MISCELLANEOUS.
10.1 Use of Facility at Direction of City. The City shall have the right to use the
Facility or any part thereof, upon reasonable advance notice and subject to availability,
for such purposes as meetings, seminars, training classes or other uses without the
payment of any rental or use fee (or at a reduced fee), except that direct out-of-pocket
expenses incurred in connection with such uses shall be paid promptly by the City.
Notwithstanding the foregoing, the City shall not so schedule use of the Facility if such
use will conflict with Events of Concessionaire and shall in all instances be subordinate
thereto in terms of priority of use of the Facility.
10.2 Governing Law; Venue; Waiver of Jury Trial. This Agreement shall be
governed by, and construed in accordance with, the laws of the State of Florida, 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 CONCESSIONAIRE 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.
10.3 No Partnership or Joint Venture. Nothing herein contained is intended or
shall be construed in any way to create or establish the relationship of partners or a joint
venture between the City and Concessionaire. None of the officers, agents or
employees of Concessionaire shall be or be deemed to be employees of the City for
any purpose whatsoever.
10.4 Entire Agreement. This Agreement and all exhibits attached hereto
contains the entire agreement between the parties with respect to the subject matter
hereof and supersedes all prior agreements and understandings with respect thereto.
This Agreement is specifically intended to supercede ITN No. 059-2013ME and
Concessionaire's proposal in response thereto. No other agreements, representations,
warranties or other matters, whether oral or written, will be deemed to bind the parties
hereto with respect to the subject matter hereof.
10.5 Written Amendments. This Agreement may not be altered, modified or
amended in whole or in part, except in writing executed by each of the parties hereto.
0946-168-00005647.DOC-7
32
10.6 Force Majeure. No party will be liable or responsible to the other party for
any delay, damage, loss, failure, or inability to perform caused by "Force Majeure" if
notice is provided to the other party within ten (10) days of date on which such party
gains actual knowledge of the event of "Force Majeure" that such party is unable to
perform. The term "Force Majeure" as used in this Agreement means the following: an
act of God, strike, war, public rioting, lightning, fire, storm, flood, explosions, epidemics,
landslides, lightening storms, earthquakes, floods, storms, washouts, civil disturbances,
explosions, and any other cause whether of the kinds specifically enumerated above or
otherwise which is not reasonably within the control of the party whose performance is
to be excused and which by the exercise of due diligence could not be reasonably
prevented or overcome (it being acknowledged that under no circumstances shall a
failure to pay amounts due and payable hereunder be excusable due to a Force
Majeure).
10.7 Damage or Destruction. In the event of substantial damage to or
destruction of the Facility by reason of fire, storm or other casualty or any eminent
domain action or other regulatory action that, in either case, shall render a substantial
part of the Facility inoperable for a period of at least one (1) year, either party may
terminate this Agreement upon written notice to the other. The City shall receive the
entire amount of all insurance proceeds or eminent domain award as applicable.
Notwithstanding the preceding, the City shall have no duty and/or obligation to repair
and/or restore the Facility.
10.8 Bing Upon Successors and Assigns; No Third-Party Beneficiaries. This
Agreement and the rights and obligations set forth herein shall inure to the benefit of,
and be binding upon, the parties hereto and each of their respective successors and
permitted assigns. This Agreement shall not be construed as giving any person, other
than the parties hereto and their successors and permitted assigns, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any of the
provisions herein contained. This Agreement and all provisions and conditions hereof is
intended to be for the sole and exclusive benefit of the parties and their successors and
permitted assigns and for the benefit of no other person or entity.
10.9 Notices. Any and all notices, consents, approvals, requests and other
communications (collectively, "Notices") required to be given or served by the terms
and provisions of this Agreement, shall be in writing and signed by the party giving the
notice, or by a duly authorized officer or representative of a corporate party, and shall
be given (a) by certified or registered mail and shall be deemed delivered on the second
business day after the date so mailed; (b) by reputable overnight/express carrier, such
as Federal Express, and shall be deemed delivered on the next business day after the
date deposited with the carrier; or (c) by hand, and shall be deemed delivered upon
receipt thereof. Notice on behalf of either party shall be addressed to that party at the
address set forth below, or to such other address as that party hereafter shall furnish by
such form of notice to the other party:
{0946-168-00005647.DOC-7}
33
To the City:
City of Miami Beach
City Manager
1700 Convention Center Drive
Miami Beach, FL 33139
Attn: Jimmy Morales, City Manager
Facsimile:
with copies to:
City of Miami Beach
Tourism and Cultural Department
Attn: Max Sklar, Director
1700 Convention Center Drive
Miami Beach, FL 33139
Facsimile: (786) 394-4560
City of Miami Beach
City Attorney
1700 Convention Center Drive
Miami Beach, FL 33139
Facsimile: (305) 673-7002
To Concessionaire:
Centerplate
2187 Atlantic Street
Stamford, CT 06902
Attention: Legal Department
Facsimile: (203) 975-6979
AND
Centerplate
1901 Convention Center Drive
Miami Beach, FL 33139
Attention: General Manager
Facsimile: (305) 538-4802
10.10 Section Headings and Defined Terms. The section headings contained
herein are for reference purposes only and shall not in any way affect the meaning and
interpretation of this Agreement. The terms defined herein and in any agreement
executed in connection herewith include the plural as well as the singular and the
singular as well as the plural, and the use of masculine pronouns shall include the
feminine and neuter. Except as otherwise indicated, all agreements defined herein refer
{0946-168-00005647.DOC-7)
34
to the same as from time to time amended or supplemented or the terms thereof waived
or modified in accordance herewith and therewith.
10.11 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original copy of this Agreement, and all
of which, when taken together, shall be deemed to constitute but one and the same
agreement.
10.12 Severability. The invalidity or unenforceability of any particular provision,
or part of any provision, of this Agreement shall not affect the other provisions or parts
hereof, and this Agreement shall be construed in all respects as if such invalid or
unenforceable provisions or parts were omitted, provided that neither party is, as a
result thereof, deprived of its substantial benefits hereunder.
10.13 Non-Waiver. A failure by either party to take any action with respect to
any default or violation by the other of any of the terms, covenants, or conditions of this
Agreement shall not in any respect limit, prejudice, diminish, or constitute a waiver of
any rights of such party to act with respect to any prior, contemporaneous, or
subsequent violation or default or with respect to any continuation or repetition of the
original violation or default.
10.14 Certain Representations and Warranties.
(a) The City represents, warrants, and covenants to Concessionaire
the following: (i) all required approvals have been obtained, and the City has full legal
right, power and authority to enter into and perform its obligations hereunder; and (ii)
this Agreement has been duly executed and delivered by the City and constitutes a
valid and binding obligation of the City, enforceable in accordance with its terms, except
as such enforceability may be limited by bankruptcy, insolvency, reorganization or
similar laws affecting creditors' rights generally or by general equitable principles.
(b) Concessionaire represents and warrants to the City the following:
(i) all required approvals have been obtained, and Concessionaire has full legal right,
power and authority to enter into and perform its obligations hereunder, and (ii) this
Agreement has been duly executed and delivered by Concessionaire and constitutes a
valid and binding obligation of Concessionaire, enforceable in accordance with its
terms, except as such enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally or by general equitable
principles; and (iii) Concessionaire has inspected the Facility and has accepted the
Facility "as-is", "where-is", and with "all faults."
(c) The Facility includes only a very limited number of parking spaces
adjacent to the building. Patrons of Events may park in public parking lots and garages
if and to the extent available, upon paying the applicable parking charges.
Concessionaire recognizes that the availability and access to public parking will be
affected from time to time by construction activities, including, without limitation,
construction in connection with City Hall and parking garage(s), on public surface
(0946-168-00005647.DOC-7}
35
parking lots, construction in connection with the Jackie Gleason Theater of the
Performing Arts, and construction in conjunction with the New World Symphony Project.
10.15 Confidentiality. Subject to compliance with applicable Florida Public
Records law, the City agrees to use reasonable efforts to keep confidential all
proprietary, non-public information and records of Concessionaire ("Concessionaire
Confidential Information"). Unless required to do so under applicable Florida Public
Records law, and/or court order, the City shall not use or disclose any Concessionaire
Confidential Information to any person or entity without Concessionaire's prior written
consent in each instance, except that the City may share such information with its
employees and agents who need to know such information in order to perform the
obligations and enforce the rights of the City hereunder.
10.16 Contractor/Consultant's Compliance with Florida Public Records Law. To
the extent that Concessionaire is acting on behalf of the City, as provided under Section
119.011(2), Florida Statutes, this Agreement shall be subject to Florida Public Records
Law including, without limitation, Chapter 119, Florida Statutes, as same may be
amended from time to time.
As required pursuant to Section 119.0701, Florida Statutes, Concessionaire shall
comply with public records law; specifically to:
(a) keep and maintain public records that ordinarily and necessarily would be
required by the public agency in order to perform the service;
(b) provide the public with access to public records on the same terms and
conditions that the public agency would provide the records and at a cost
that does not exceed the cost provided in Chapter 119, Florida Statutes or
as otherwise provided by law;
(c) ensure that public records that are exempt or confidential and exempt from
public records disclosure requirements are not disclosed except as
authorized by law; and
(d) meet all requirements for retaining public records and transfer, at no cost, to
the public agency all public records in possession of the contractor upon
termination of the contract, and destroy any duplicate public records that are
exempt or confidential and exempt from public records disclosure
requirements. All records stored electronically must be provided to the
public agency in a format that is compatible with the information technology
systems of the public agency.
Concessionaire's failure to comply with this Section, or to comply with a public
records request brought pursuant to this Section, may be deemed by the City to be an
event of default under this Agreement.
{0946-168-00005647.DOC-7}
36
10.17 NAMING RIGHTS AND SPONSORSHIPS. City reserves sole right of
approval over all naming and sponsorship opportunities, and shall retain all revenues
derived therefrom.
The City has entered into an agreement with Coca-Cola Bottling, effective September 1,
2011 — September 1, 2021, to be the exclusive provider of non-alcoholic beverages and
coffee products for all City owned and operated facilities, including the Facility.
However, Coca-Cola allows for the Convention Center to contract someone to serve
espresso shots or cortaditos that are freshly brewed on premises. This does, however,
exclude any other coffee in any other form whether bottled or brewed.
10.18 Use of the Facilities / CMB "Brand". The primary purpose of this
Agreement is for provision of food and beverage services for the Miami Beach
Convention Center. Concessionaire shall not, under any circumstance use and/or
otherwise exploit the logo, trademark, identity, and overall "brand" of MBCC and/or the
City, without the prior written consent of the City Manager, which consent, if given at all,
shall be the at the Manager's sole discretion and judgment.
{0946-168-00005647.DOC-7}
37
IN WITNESS WHEREOF, this Agreement has been duly executed by the parties
hereto as of the day and year first above written.
ATTEST. CITY OF MIAMI BEACH, FLORIDA
.... �v,�--��� Na e:/y!q i i�re $vwer
Title: M4 o,"
'�niC0r1 p
A�C! -r _ Cj
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ATTEST. � �.� �-SERVICE AMERICA CORPORATION
d/b/a CENTERPLATE
By:
Title: v1sp 3 c 4-0
APPROVED AS TO
FORM & GUAGE
&FOR E UTION
i
�p 3
cit o ey ate
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38
EXHIBIT "A99
Branded Products
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EXHIBIT "B"
Permitted charges in connection with Concessionaire Events
1. Additional Charges. The following additional items will be charged at the
convention center management's then-prevailing rates in accordance with the Miami
Beach Convention Center Event Guide (all rates listed below are current as of 7/11/07):
• Additional move-in/move-out days:
- exhibit halls: $3,250/day
- meeting rooms 5,000 sq. ft. or larger: $1,000/day
• Air conditioning during additional move-in/move-out:
• Exhibit Halls $500/hour
• Ballrooms $300/Hour
o Meeting Rooms $250/Hour
• Equipment Rentals*
- Forklift Driver: $50/day
- 35' Boom Lift Operator: $200/day
- 45' Boom Lift Operator: $200/day
- 66' Boom Lift Operator: $300./day
- One man lift/Scissor Lift Operator: $150/day
* Based on availability. Use of Facility equipment is not required, and Concessionaire
may procure equipment from other sources.
3. Production Labor. In accordance with the convention center management's
Agreement with IATSE Local 500, all production-related labor required for setup,
operation, and tear-down of banquet events shall be provided by the convention center
management at its then-prevailing rates.
4. Miscellaneous. Concessionaire will be charged for any additional items or
services provided by City/ convention center management that are not typically provided
gratis to Event Sponsors at then-prevailing rates and with prior written notification to
Concessionaire.
5. Increase In Charges. All of the charges referenced in this Exhibit C may be
adjusted (not more frequently than annually) upon reasonable advance notice to
Concessionaire. Any such increase shall be reasonable and shall not exceed the
convention center management's standard increase for the item in question, if
applicable.
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EXHIBIT 9&C99
Minimum Purchase Specification Requirements
BEEF GRADE: USDA Top Choice
Heifer or Steer YIELD: 3 or under
CONDITION: Fresh or Frozen
GROUND BEEF: Chuck,20%fat content
PORK GRADE: US No.1
YIELD: 1
CONDITION: Fresh or Frozen
VEAL GRADE: USDA Choice
Calf CONDITION: Fresh or Frozen
LAMB GRADE: USDA Choice
Under one year old CONDITION: Fresh or Frozen
POULTRY GRADE: USDA Inspected Grade A
CONDITION: Hens—Fresh or Frozen
Fryers—Fresh or Frozen
Duckling—Fresh or Frozen
Turkey Breast—Fresh or Frozen
FISH&SHELLFISH GRADE: When grade—A,otherwise top quality
CONDITION: Fresh when available,frozen if cost and
Availability warrant
EGGS GRADE: USDA A, 100%candied
SIZE: Large
CONDITION: Fresh
BUTTER GRADE: USDA AA
MILK&MILK PRODUCTS GRADE: US Grade A pasteurized
NONFAT DRY MILK GRADE: US Extra
BULK ICE CREAM GRADE: Minimum 12%milk fat,80-100%overrun
FRESH VEGETABLES GRADE: US No. 1 or better
&FRUIT
FROZEN VEGETABLES GRADE: A
CANNED FRUIT GRADE: US Grade A or Fancy in natural syrup
CANNED VEGETABLES GRADE: US Grade A or Fancy
DRY GOODS RICE: Fancy or US No.2
BEANS: Grade A
BAKED PRODUCTS At the City/Convention Center Manager's Approval
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EXHIBIT "D"
Customer Survey
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