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RESOLUTION 90-20044 RESOLUTION NO. 90-20044 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AUTHORIZING THE MAYOR AND THE CITY CLERK TO EXECUTE A SECOND AMENDMENT TO THE CONCESSION AGREEMENT BETWEEN THE CITY OF MIAMI BEACH AND SERVICE AMERICA CORPORATION. WHEREAS, the City of Miami Beach ("City") and Service America Corporation ("Concessionaire") entered into an Agreement on December 17, 1986 (the "Agreement") for concession services at the Miami Beach Convention Center and TOPA; and WHEREAS, the City and Concessionaire have entered into a First Amendment to the Agreement on May 8, 1987 ; and WHEREAS, pursuant to Change Order No. 42 of the contract between the City and George Hyman Construction Company (the "Contractor") , for construction of the Convention Center, the City on March 2 , 1989 authorized payment to the Contractor for kitchen changes in total amount of $394, 462 . 00; and WHEREAS, Concessionaire has already made payment of $251, 189. 00 against Change Order No. 42, leaving a balance of $143 , 273 . 00; and WHEREAS, the City negotiated Change Order No. 80 dated July 13 , 1988, with Contractor for a delay claim arising out of kitchen changes and underground utilities of $325, 000. 00; and WHEREAS, the City and Concessionaire wish to settle their differences relating to Change Order No. 42 and Change Order No. 80 ; and WHEREAS, the City entered into a construction contract with Contractor on December 21, 1988 for the "West Wraparound" portion of the Convention Center, and the parties wish to clarify Concessionaire' s commitment to food service furnishings, fixtures and equipment for the West Wraparound; and WHEREAS, the Concessionaire has requested the City to authorize a food court or "branding concept" in a portion of the West Wraparound food service area, whereby the Concessionaire would serve name brand food products at several locations within the West Wraparound food service area, but also continue to offer a cafeteria style service serving various hot meals, sandwiches, salads and other items; and WHEREAS, the City and Concessionaire have negotiated a percentage rental rate of 18% for the food court area in the West Wraparound; and WHEREAS, the parties wish to provide that in the event of termination of the Agreement prior to the expiration of the term, that any successor concessionaire would be required to pay Concessionaire the undepreciated balance of Concessionaire ' s $2 . 45 million investment in FF&E; and 1 WHEREAS, an appropriate Second Amendment to the Concession Agreement has been negotiated, the City Manager has recommended its execution and the City Attorney has approved it as to form. NOW, THEREFORE, BE IT DULY RESOLVED BY THE CITY COMMISSION OF THE CITY OF MIAMI BEACH that the Mayor and the City Clerk are hereby authorized to execute the Second Amendment to the Concession Agreement between the City of Miami Beach and Service America Corporation. PASSED and ADOPTED this 25th day of July, 1990. 411°AtA‘.wwr r• OR ATTEST: FORM APPROVED t*Wu/v/6 in,i "�� o`"" LEGAL DEPT. �,;�,�CITY C RIK By 27.6, PNB/lm Date 7�Z/90 2 • &re/ /%èm I Fead PMS 0 , FLORIDA 3 3 1 3 9 R' '4N i*(, *5 1ND/ "VACATIONLAN ) U. S. A. " s3 fes. OFFICE OF THE CITY MANAGER CITY HALL ROB W.PARKINS 1700 CONVENTION CENTER DRIVE CITY MANAGER TELEPHONE: 673-7010 '-9D COMMISSION MEMORANDUM NO. July 25, 1990 DATE: TO: Mayor Alex Daoud - • Members of th Ity Commi : • 0 FROM: Rob W. Par ins ,,'1P--4 �. City Manager ,�1 ,/,� " aA SECOND AME ' ENT TO THE CONCESSION AGREEMENT BETWEEN THE SUBJECT: CITY OF MIAMI BEACH AND SERVICE AMERICA CORPORATION FOR FOOD SERVICE AT THE MIAMI BEACH CONVENTION CENTER. BACKGROUND INFORMATION: The City of Miami Beach and Service America Corporation entered into an Agreement on December 17 , 1986 for Concession Services at the Miami Beach Convention Center and the Jackie Gleason Theater of the Performing Arts. On May 8, 1987 the City and Service America entered into a First Amendment to this Agreement. Pursuant to the Amendment and Change Order No. 42 of the Contract between the City and George Hyman Construction Company for construction of the Convention Center, the City on March 2 , 1989 authorized payment to the Contractor, George Hyman, for kitchen changes for Service America Corporation in the total amount of $394.462.00. Service America Corporation has already made payment of $251, 189 . 00 against Change Order No. 42 , leaving a balance of $143,273. 00. The City negotiated Change Order No. 80 dated July 13 , 1988 , with George Hyman for a delay claim arising out of kitchen changes and underground utilities of $325, 000. 00. The City and Service America wish to settle their differences relating to Change Order No. 42 and Change Order No. 80 . The City entered into a Construction Contract with George Hyman on December 21, 1988 for the West Wraparound portion of the Convention Center and the parties wish to clarify Service America ' s commitment to food service furnishings, fixtures and equipment for the West Wraparound. Service America has requested the City to authorize a food court or "branding concept" in a portion of the West Wraparound food service area, whereby the Concessionaire would serve name brand food products at several locations within the West Wraparound, but also continue to offer a cafeteria style service serving various hot meals, sandwiches, salads and other items. The City and Service America have negotiated a percentage rental rate of 18% for the food court area in the West Wraparound. The parties wish to provide that in the event of termination of the Agreement prior to the expiration of the term, that any successor concessionaire would be required to pay Service America the undepreciated balance of Service America ' s $2 .45 million investment in FF & E. An appropriate Second Amendment to the Concession Agreement has 1 been negotiated and is attached for City Commission approval. AGENDA 0,-- 2.1..._ A ITEM DATE 7- 5 - 90 COMMISSION MEMORANDUM PAGE TWO JULY 25, 1990 ADMINISTRATION RECOMMENDATION: The City Administration recommends that the City Commission approve and authorize the Second Amendment to the Concession Agreement between the City of Miami Beach and Service America Corporation. RWP:WHH:blb Attachment .,, ti CITY OF MIAMI BEACH To: Elaine M. Baker City Clerk From: Patrick N. Brow Ae First Assistant City Attorney Date: October 3, 1990 Subject: Second Amendment to Service America Contract At the City Commission Meeting of July 25, 1990, the City Commission passed the Second Amendment subject to clarifying the termination clause. Enclosed is an amended page 5 of the contract adding language thereto for the purpose of clarifying that the City would have no liability to pay the undepreciated FF&E balance in the event there is no successful bidder, which change has been negotiated with and agreed to by Service America. Please insert this page 5 in lieu of the present page 5 and have the contracts executed. cc: William Harrison Executive Assistant to City Manager Norman Litz Convention Center Director Vince Grimm Convention Center Project Coordinator PNB: lm SECOND AMENDMENT TO AGREEMENT BETWEEN CITY OF MIAMI BEACH AND SERVICE AMERICA CORPORATION FOR CONCESSION SERVICES AT THE MIAMI BEACH CONVENTION CENTER AND TOPA THIS Second Amendment to Agreement made and entered into this 8th day of October , 1990 by and between the CITY OF MIAMI BEACH, a Florida municipal corporation (hereinafter called "City") , having its principal offices at 1700 Convention Center Drive, Miami Beach, Florida 33139 , and Service America Corporation, a Delaware Corporation, duly authorized to do business in Florida, with offices at 88 Gate House Road, Stamford, Connecticut 06904 (hereinafter called "Concessionaire") . WITNESSETH WHEREAS, the City and Concessionaire entered into an Agreement on December 17, 1986 (the "Agreement") for concession services at the Miami Beach Convention Center and TOPA; and WHEREAS, the City and Concessionaire have entered into a First Amendment to the Agreement on May 8, 1987 ; and WHEREAS, pursuant to Change Order No. 42 of the contract between the City and George Hyman Construction Company (the "Contractor") , for construction of the Convention Center, the City on March 2 , 1989 authorized payment to the Contractor for kitchen changes in total amount of $394, 462. 00; and 1 WHEREAS, Concessionaire has already made payment of $251, 189. 00 against Change Order No. 42, leaving a balance of $143 , 273 . 00; and WHEREAS, the City negotiated Change Order No. 80 dated July 13 , 1988, with Contractor for a delay claim arising out of kitchen changes and underground utilities of $325, 000. 00; and WHEREAS, the City and Concessionaire wish to settle their differences relating to Change Order No. 42 and Change Order No. 80; and WHEREAS, the City entered into a construction contract with Contractor on December 21, 1988 for the "West Wraparound" portion of the Convention Center, and the parties wish to clarify Concessionaire' s commitment to food service furnishings, fixtures and equipment for the West Wraparound; and WHEREAS, the Concessionaire has requested the City to authorize a food court or "branding concept" in a portion of the West Wraparound food service area, whereby the Concessionaire would serve name brand food products at several locations within the West Wraparound food service area, but also continue to offer a cafeteria style service serving various hot meals, sandwiches, salads and other items; and WHEREAS, the City and Concessionaire have negotiated a percentage rental rate of 18% for the food court area in the West Wraparound; and WHEREAS, the parties wish to provide that in the event of termination of the Agrement prior to the expiration of the term, 2 that any successor concessionaire would be required to pay Concessionaire the undepreciated balance of Concessionaire's $2 . 45 million investment in FF&E. NOW, THEREFORE, the City and the Concessionaire, in consideration of the mutual covenants and agreements herein contained and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, agree as follows: 1. The above recitations are true and correct and are incorporated herein by reference. 2 . Concessionaire hereby authorizes payment in full in the amount of $394 , 462 . 00 paid by the City to George Hyman for the kitchen changes under Change Order No. 42 . Since Concessionaire previously paid $251, 189 . 00 against this account, the balance of $143 , 273 . 00 is authorized by Concessionaire to be deducted from the $2 . 3 million Convention Center FF&E account held by the City, and which as of June 21, 1990 has a balance of $675, 514 . 14 . 3 . The City hereby waives any claim against Concessionaire arising out of or relating to the delay claim which the City paid the Contractor pursuant to Change Order no. 80 in the amount of $325, 000. 00 for work performed by the Contractor prior to July 13 , 1988 . 4 . Section 6.A. of the Agreement is hereby amended to read as follows: A. As additional consideration for the granting of the exclusive rights granted to 3 Concessionaire under this Agrement, Concessionaire shall invest the sum of $2, 300. 00 ('I - ' - - - - - - . - : - = - - - - - DeIlars) $2 ,450, 000 (Two Million Four Hundred Fifty Thousand Dollars) in FF&E for the expanded Convention Center. The Concessionaire agrees to allocate $150, 000.00 of the $2 . 45 million to FF&E for the West Wraparound portion of the Convention Center. The equipment owned by Concessionaire and in use in the Convention Center at an approximate cost of $256, 000, which is included in this Agreement as Exhibit C, shall not be included in computing the investment requirement herein. The additional $150, 000 in FF&E shall be paid over to the City in cash within thirty (30) days of execution of this Second Amendment, and shall be held by the City and administered in accordance with Section 6 of the Agreement. 5. Section 25 of the Agreement is hereby amended to read as follows: 25. Termination. If the Concessionaire is in default pursuant to Section 24 hereof, the City may terminate this Agreement and revoke the privilege of the Concessionaire to come upon the City's property for purposes of which this Concession was granted and may oust and remove all parties who may be present upon or occupying any part of the premises for the purpose of exercising any rights so revoked, in accordance with the procedures set forth in Section 24. In the event of termination of this agreement by City or abandonment by Concessionaire, Concessionaire shall thereby waive and forfeit all its investment in FF&E and all general construction payment, whether or not disbursed. In the event that this Agreement is terminated prior to the expiration of the initial term or Concessionaire abandons the premises, and Concessionaire thereby forfeits its FF&E, and general construction support payment, then City shall use it efforts to re-bid the contract in substantially the same manner as the bidding process for this Agreement, subjectto then prevailing market conditions, and City shall require in the request for bids that any successor Concessionaire shall pay to Concessionaire the undepreciated balance of Concessionaire' s $2 . 45 4 million investment in the FF&E. For the Purposes of this Agreement depreciation of the FF&E shall mean straight line depreciation based on a 10-year life; provided further, however, that in the event that no bidder responds to the request for bidsthere shall not be any obligation on the part of the City to pay or require any other party to pay Concessionaire the undepreciated balance of the FF&E. - - -4er ' ndep ee FF&E and/©r general - • 6. The City hereby authorizes Concessionaire to Implement a food court branding concept in aortion of the p Wraparound food service area, whereby the Concessionaire will serve brand name food products at several locations in the West Wraparound p nd food service area, but also continue to offer a cafeteria style service ervice serving various hot meals, sandwiches, salads and other offerings similar to those offered in the cafeteria on the ' east side of the Convention Center. 7. Section 20A of the Agreement is hereby amended to read as follows: A. Consideration. For the exclusive right to operate perate the food, beverage and catering concessions in the City of Miami Beach Convention Center complex and • p City of Miami Beach Theater of the Performing Arts, the Concessionaire re expressly agrees to pay to the City (in addition to the general construction support payment and the investment in furnishings, fixtures and equipment) • the following monetary consideration, whichever sum may be greater: 5 Minimum Annual Rental Three Hundred Thousand ($300, 000. 00) Dollars until the Convention Center Expansion is substantially complete per the Architect's plans (Both new east side and existing west side substantially completed and available for use by Convention Center lessees. ) After the Convention Center expansion is complete Five Hundred Thousand ($500, 000. 00) Dollars. OR Percentage Rentals Twenty-five (25%) per cent of all gross receipts for concession sales, and miscellaneous sales; and Eighteen (18%) per cent of all gross receipts for the food court sales in the West Wraparound food service area; and Ten (10%) per cent of all gross receipts for catering sales; and Twenty-five (25%) per cent of all gross receipts for sales of alcoholic beverages; and Ten (10%) of all gross receipts for cafeteria sales; and Ten (10%) per cent of gross receipts for sales of tobacco products. 8 . The parties agree to revise in a mutually agreeable format the forms set forth as Exhibit H to the Agreement to reflect the inclusion of the food court sales. 9. This Second Amendment shall supercede the Agreement and the First Amendment and in the event of any inconsistencies between the terms and conditions of the Agreement or the Fist Amendment, and this Second Amendment shall prevail. 6 IN WITNESS WHEREOF, the parties hereto have caused these presents to be signed and their corporate seals to be affixed, attested by their witnesses and the City Clerk this 8th day of October 1990. CITY OF MIAMI BEACH B LIK / MAYOR FORM APPROVED ATTEST: LEGAL DEPT. By 1 :74.4.*:;4.4. ?po �c.1.MCITY CLERK Date ��/81-1?`' SERVICE AMERICA CORPORATION BY: _,„,og eI,, - PRES af,NT ATTEST: dIZVA 195:.7 SECRET PNB:lm REF:SERVAME.AME 062590 7 ORTCINAL RESOLUTION NO. 90-20044 Authorizing the Mayor and the City Clerk to execute a second amendment to the concession agreement between the City of Miami Beach and Service America Corporation.