90-20044 RESO
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
percentage rental rate of 18%
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
concessionaire have negotiated a
for the food court area in the West
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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,
PASSBD and ADOPTBD this
ATTEST:
~~~~~Ji<~C:,~
PNB/lm
FORM APPROVED
LEGAL DEPT.
BY~~/Z6...
7hZ./9~
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Date
2
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SECOND AMENDMENT TO AGREEMENT BBTWEEN CITY OP MIAMI BEACH AND
SBRVICE AMERICA CORPORATION POR CONCBSSION SERVICBS AT THE MIAMI
BEACH CONVENTION CBNTBR 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").
. I T N B S S B T H
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
$251,189.00 against Change Order No,
$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,
already made payment of
42, leaving a balance of
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 reci tations 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
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Concessionaire under this Agrement,
Concessionaire shall invest the sum of
$2,300,00 (T;..'e Uilliel'l Three Iltlftarsa 'l'ftetlsafta
Dellars) $2.450.000 (Two Million Four Hundred
Fiftv 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 WraDaround Dortion
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
Alnendment, 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 tlSS its eeet
sfferts te re-bid the contract in SUbstantially
the same manner as the bidding process for this
Agreement, subject to then prevailing market
conditions, and citv shall reauire in the
reauest for bids that anv successor
Concessionaire shall Dav to Concessionaire the
undeDreciated balance of Concessionaire's $2,45
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million investment in the FF&E. For the
Durooses of this Aareement deDreciation of the
FF&E shall mean straiaht line deDreciation
based on a lO-vear life: Drovided further.
however. that in the event that no bidder
resDonds to the reauest for bids. there shall
not be anv obliaation on the Dart of the citv
to Dav or reauire anv other Dartv to Dav
Concessionaire the undeDreciated balance of the
FF&E. ci t.y shall pay 87C.:r t:e eSJ\sc.ssisnaire. any
paymeJ\~ rc.ec.i~ed tram t.he. flew CSJ\66ssieftairc
fer ~h6 HJ\ac.preeiat.ed FF&E ana/ey ~eJ\c.ral
eeJ\s~ruet.ieJ\ a~pper~ paymeJ\~, lees any aHa all
clfPc.J\ses iftel:lrrca 8lul/er lesses sliffe.rc.a ey
Cit.y, iBelusiJ\g flit.l:lre pc.reeJ\~agc rCBt.al
lesses, resl:11 tiftg tram t.lic de.fa'tll t. er
abaruiefllllcJ\t. .
6, The City hereby authorizes Concessionaire to implement
a food court branding concept in a portion of the Wraparound food
service area, whereby the Concessionaire will serve brand name food
products at several locations in the West Wraparound food service
area, but also continue to offer a cafeteria style service 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 the
food, beverage and catering concessions in the city of
Miami Beach Convention Center complex and City of Miami
Beach Theater of the Performing Arts, the concessionaire
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 mav be areater:
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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
Percentaqe Rentals
Twenty-five (25%) per cent of all
gross receipts for concession sales,
and miscellaneous sales; and
Eiqhteen (18%) Der cent of all qross
receiDts for the food court sales in
the West WraDaround 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.
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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 ~ day of
October
, 1990,
ATTEST:
fORM APPROVED
LEGAL DEPT.
By c;;7~7?~
DIte 7 II B /90
, I
1i~~.1;Ju.,vk~K:J.....-.A t.~~
~OCITY CLERK '
SERVICE AMERICA CORPORATION
BY:~~
vice.. PRES Jt'NT
ATTEST:
~~
/Jss', S~CRET Y
PNB: 1m
REF:SERVAME.AME
062590
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