HomeMy WebLinkAboutService America Corp/Centerplate Agreement
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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 March 1, 2007
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CATERING AND CONCESSIONS SERVICES AGREEMENT
THIS AGREEMENT (this "Agreement") is dated as of the 1St day of March, 2007,
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 South Carolina corporation having
an address at 201 East Broad Street, Spartanburg, SC, 29306 ("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 SMG.
The City entered into an Agreement with Service America Corporation for the
preparation and delivery of food and beverage services for the Convention Center and
the Jackie Gleason Theatre ("JGT"), dated December 17, 1986 (the "Original
Concession Agreement"). The Original Concession Agreement provided an initial
fifteen (15) year term, commencing on March 1, 1987, and ending on February 28,
2002.
On May 16, 2001, the City Commission adopted Resolution No. 2001-24393,
which exercised a renewal option to the Original Concession Agreement for an
additional five (5) year term, which expired February 28, 2007.
On April 11, 2006, the City issued Request for Proposals No. 22-05/06, to
Provide Professional Food and Beverage Facilities Management Services at the Facility
(the "RFP") .The RFP reflected the City's decision to remove the current prohibition
restricting the City's food and beverage concessionaire from hosting local catering
events such as banquets, weddings, and large non-profit organization events at the
Convention Center, when those events do not book an exhibit hall and are not
conventions, trade shows, public shows, entertainment events, or consumer shows.
Thus, the RFP allowed for the concessionaire to host local catering events such as
banquets, weddings, single event day corporate receptions and/or dinners without
meeting or exhibition components, and single-day large non-profit organization events
at the Facility (collectively, Social Catering Events").
On September 6, 2006, the City adopted Resolution No. 2006-26316, accepting
the proposal submitted by Centerplate. 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
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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:
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) "Ballroom Services" shall mean, collectively, all Services performed by
Concessionaire at Events held in the Ballroom.
(c) "Barton G" shall mean BGW Design, Limited, Inc. d/b/a Barton G.
(d) "Barton G Agreement" shall mean that certain agreement with respect to
the provision of select social and corporate Events at the Facility by and
between Concessionaire and Barton G dated as of 2007,
which shall be made available for inspection upon request by the City.
(e) "Barton G Event" shall mean Events conducted pursuant to the Barton G
Agreement consisting of: (1) Social Catering Events, designed and
conducted by Barton G (hereinafter, "Barton G Social Catering Events");
and (2) Events conducted by Barton G in conjunction with any other Event
(etc.., in conjunction with a trade show, convention, corporate meeting,
etc.) at the Facility.
(f) "Barton G Receipts" shall mean the amount received by Barton G from
food and beverage sales at Barton G Events excluding: (1) the amount of
any federal, State or local sales or other such tax collected in connection
with a Barton G Event; (2) the amount of any gross receipts, rent or similar
tax; (3) gratuities collected by Barton G and for the benefit of Barton G's
employees; (4) service or discount charges or fees on credit or debit card
sales; (5) bulk or other sales not in the ordinary course of business; (6)
sales made by Barton G at cost; (7) meals consumed by Barton G's on-
duty personnel at no cost to such personnel; (8) amounts received for
labor billed to third parties; and (9) amounts received from wardrobe
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checking. The parties acknowledge that food and beverage sales shall
exclude any amounts charged or received with respect to aspects of a
Barton G Event other than food and beverages (e.g., entertainment,
decor, flowers, linens, etc.).
(g) "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 execution of
this Agreement, the Branded Products sold at the Facility are listed on
Exhibit "A" hereto.
(h) "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 hereunder.
(i) "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.
(j) "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.
(k) "City" shall have the meaning set forth in the first Background paragraph
of this Agreement.
(I) "City Commission" shall mean the governing and legislative body of the
City.
(m) "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.
(n) "Concessionaire" shall have the meaning set forth in the first paragraph
of this Agreement.
(o) "Concessionaire Branded Products and Services" shall mean a
product or service branded by Concessionaire or an Affiliate of
Concessionaire.
(p) "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
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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.
(q) "Contract Year" shall mean twelve (12) consecutive calendar months
commencing on October 1st and ending on September 30th during the
Term. Notwithstanding the foregoing, the first Contract Year of the
Agreement shall commence on the Commencement Date, and end on
September 30th, 2007, and such period shall be considered a partial
Contract Year for purposes of calculating Minimum Annual Rent pursuant
to Section 5.2.
(r) "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; and (ii) the
maximum non-usurious rate permitted by applicable law, with adjustments
in that varying rate to be made on the same day as any change in that
rate.
(s) "Event" shall mean any event, convention, assembly, function, meeting or
similar gathering at the Facility at which Services are provided.
(t) "Facility" shall have the meaning set forth in the Background section of
this Agreement.
(u) "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.
(v) "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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(w) "Food and Beverage Items" shall mean (1) foods of all kinds, including,
but not limited to, candies, cooked foods, prepared foods, ready to serve
foods, 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.
(x) "Food and Beverage Sales" shall mean the Gross Receipts from
Services provided at the Facility, exclusive of Barton G Receipts.
(y) "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.
(z) "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, 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
Safety and Health Act ("OSHA") and the Americans With 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 date hereof.
(aa) "Gross Receipts" shall mean the total amounts received by
Concessionaire or its Affiliates 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 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 its designee, or a third party at the request of the City or its
designee in accordance with Section 6.1(k); (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
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Concessionaire at cost; (8) meals consumed by Concessionaire's on-duty
personnel at no cost to such personnel; (9) amounts received by
Concessionaire for labor billed to third parties; (10) amounts received by
Concessionaire from wardrobe checking; and (11) Barton G Receipts.
(bb) "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."
(cc) "Person" shall mean any individual, corporation, limited liability company,
partnership, association, trust, political body, Governmental Authority or
other public or private entity whatsoever.
(dd) "Quality Operating Standard" shall mean a first-class catering and
concession operation which is highly efficient and of a level of quality
equal to or greater than the standards of quality or performance at
comparable venues in the United States of America.
(ee) "Renewal Term" shall have meaning set forth in Section 3.
(ff) "Sales" shall mean the sale of Food and Beverage Items and the
provision of Catering Services.
(gg) "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 in
respect 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.
(hh) "Service Area Utility System" means the Utility Systems located at or in
or primarily serving the Service Areas and being utilized by the
Concessionaire.
(ii) "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.
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(jj) "Service Equipment" shall mean those pieces of equipment at the
Facility heretofore provided by Concessionaire for the provision of the
Services at the Facility.
(kk) "Services" shall mean the preparation and sale of Food and Beverage
Items and the provision of Catering Services at any Event at the Facility.
(II) "Smallwares" shall mean the kitchen utensils, pots, pans, service pieces,
china, glassware, flatware, linen and serving dishes and wares.
(mm) "Social Catering Events" shall have the meaning set forth in the
preamble of this Agreement.
(nn) "Social Catering Surcharge" shall mean a non-commissionable fee
charged by the City or SMG for items and services provided by the City in
connection with Social Catering Events in accordance with Exhibit "B"
attached hereto. The parties acknowledge and agree that the Social
Catering Surcharge shall be paid in lieu of the usual space rental fee
charged by the City or SMG in connection with Events. The Social
Catering Surcharge shall be based on actual persons served or
guaranteed for such Social Catering Event, whichever is greater, and in
accordance with final client settlement by Concessionaire or Barton G, as
the case may be, for such Social Catering Events. The Social Catering
Surcharge is $5.00 per person, subject to adjustment as provide in Exhibit
<<B „
(oo) "Subcontractor Sales" shall mean the amounts received by
Concessionaire from any subcontractor of Concessionaire hereunder.
The parties acknowledge and agree that for purposes of this Agreement,
Barton G shall not be deemed a subcontractor of Concessionaire.
(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:
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(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,
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 the confines of the Facility.
The right to provide Services in such areas is reserved to the City. The rights set forth
in Section 2.1(a) are limited to interior of facilities unless otherwise provided for herein.
The selection of a Service provider for outdoor activities at the Facility shall be
determined by the City, in its sole discretion; provided, however, that Concessionaire
shall have exclusive rights to outdoor Events and activities that are extensions of interior
Events at the Facility.
2.2 Waiver of Exclusivity.
(a) Subject to the limitations set forth in subsection (d) below, when
reasonably requested by the City Manager or his designee, the Concessionaire shall,
from time to time, release exclusivity with respect to Catering Services for City-
sponsored Events. In addition, upon request by the City Manager or his designee,
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 fifteen percent (15%) of Gross Receipts from such Event
(or such other lump sum fee as may otherwise be agreed upon in writing between the
Concessionaire and the City). Such percentage or other lump sum fee shall be
considered a part of Gross Receipts for purposes of calculating the Step Tiers shown in
Section 5.3(a) below, but no Commissions shall be payable with respect to such
percentage or other lump sum fee. Notwithstanding the foregoing, the fifteen percent
(15%) commission to which Concessionaire may otherwise by entitled with respect to
City-sponsored Events shall be waived, upon request by the City Manager or his
designee.
(b) Notwithstanding anything to the contrary herein contained and
subject to the limitations set forth in subsection (d) below, the parties agree that
Concessionaire shall release its exclusivity with respect to Catering Services for the Art
Basel Miami Beach Event; provided, however, that this release shall not preclude
Concessionaire from providing Services at the Art Basel Miami Beach Event should
Concessionaire be selected by Art Basel Miami Beach as its food and beverage service
provider. In such event, all terms of this Agreement, including commission payments,
shall apply.
(c) In connection with any Event for which Concessionaire has waived
its exclusive rights, third party vendors or service providers shall not have access to or
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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 sole and absolute 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 liability insurance coverage in Concessionaire's
reasonable business discretion. The City 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).
(d) Notwithstanding anything to the contrary contained in this
Agreement, in no event shall any waiver of any exclusive right granted to
Concessionaire include or pertain to the sale of alcoholic beverages, and
Concessionaire shall be the sole provider of alcoholic beverages at the Facility.
3. TERM
3.1 Term. The initial term of this Agreement (the "Initial Term") shall
commence as of March 1, 2007 ("Commencement Date"), and end at midnight on
September 30, 2012, unless earlier terminated pursuant to the provisions of this
Agreement. Notwithstanding the preceding, the first Contract Year of the Term shall
commence on the Commencement Date, and end on September 30t", 2007; thereafter
each Contract Year during the Term shall commence on October 1St, and end on
September 30t"
3.2 Renewal Term. The City shall have the option, in its sole and absolute
discretion: (i) to extend this Agreement for up two (2) successive five (5) year terms
(each option a "Renewal Option," and each 5-year period a "Renewal Term") by
delivering written notice to Concessionaire 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, subject to the provisions of Section 4.2. If so exercised by the City, the Initial
Term and any Renewal Terms shall hereinafter be referred to, collectively, as the
"Term."
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4. INVESTMENT BY CONCESSIONAIRE
4.1 Initial Capital Investment. Concessionaire shall invest an amount not to
exceed Eight Hundred Thousand Dollars ($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 (together with expenditures pursuant to Section
4.2 below, "Investment Expenditures"). Investment Expenditures made with the Initial
Capital Investment shall be made during the twelve (12) month period immediately
following execution of this Agreement, in accordance with the mutual written agreement
of the parties, acting reasonably and in good-faith. Should any portion of the Initial
Capital Investment remain unspent following the expiration of such twelve (12) month
period, Concessionaire shall make a lump-sum payment, in the amount of such
remainder, to the City, within fifteen (15) days following receipt of the City's written
request therefor.
4.2 Additional Capital Investment. Provided that prior to the expiration of the
Initial Term the City: (i) undertakes to complete the proposed ballroom/multi-purposes
space expansion within the Convention Center Complex (which, for purposes of this
Section 4.2 is defined as the Facility and all adjacent publicly (City) owned land in the
area bounded by Washington Avenue to the east; 17th Street to the south; Meridian
Avenue to the west; and Dade Boulevard to the north) (the "Ballroom"); and (ii)
simultaneously exercises both Renewal Options set forth in Section 3.2, thereby
extending this Agreement for aten-year period following the Initial Term (the conditions
set forth in items (i) and (ii) shall be referred to together as the "Ballroom Option"),
Concessionaire shall invest an additional amount, not to exceed Two Million Dollars
($2,000,000), in the Facility (the "Additional Capital Investment"). The Additional Capital
Investment shall be allocated and used as follows: (x) One Million Five Hundred
Thousand Dollars ($1,500,000) toward improvements and equipment for the Ballroom,
which Investment Expenditures shall commence/be made no sooner than the twelve
(12) month period immediately prior to the scheduled grand opening of the Ballroom
and which, in any event, shall be completed/spent on or before said scheduled grand
opening; and (y) Five Hundred Thousand Dollars ($500,000) toward marketing and
promotional initiatives at the Facility, all as shall be mutually agreed by the parties in
writing, acting reasonably and in good-faith. Should any portion of the Additional
Capital Investment in subsection (x) remain unspent by the scheduled grand opening
date of the Ballroom, and/or should any portion of the Additional Capital Investment in
subsection (y) remain unspent at the conclusion of the Term, Concessionaire shall remit
a lump-sum payment, in the amount of such remainder, to the City, within fifteen (15)
days following receipt of the City's written request therefore. Notwithstanding the
foregoing, Concessionaire shall have no obligation to make the Additional Capital
Investment, or any portion thereof, unless and until the conditions for the Ballroom
Option have been met.
4.3 Carry-Over of Existing Investment. The parties hereby acknowledge that,
pursuant to the Third Amendment to the Original Concession Agreement, dated May 16,
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2001, Concessionaire invested One Million Two Hundred Fifty Thousand Dollars
($1,250,000) in the Facility (the "Existing Capital Investment"), which was to be
amortized over the ten (10) year period ending February 28, 2012. The parties agree
that the unamortized portion of the Existing Capital Investment, as of the
Commencement Date of this Agreement (the "Carry-Over Capital Investment"), shall be
incorporated into this Agreement and subject to its terms.
4.4 Amortization of Carry-Over Investment and Investment Expenditures.
(a) Concessionaire will amortize the Carry-Over Capital Investment
monthly on a straight-line basis over a five (5) year period, commencing on the
Commencement Date and ending no later than the expiration of the Initial Term.
(b) Concessionaire will amortize each Investment Expenditure of the
Initial Capital Investment monthly on a straight-line basis, each such period to
commence on the date Concessionaire incurs the expense for such Investment
Expenditure and ending no later than upon expiration of the Initial Term. If the
Investment Expenditure relates to Facility Goods to be installed at the Facility,
Concessionaire may begin the amortization for such Investment Expenditure on the
date of installation of such item, rather than the date it incurs the expense; provided,
however, that no Investment Expenditure pursuant to this subsection (b) shall be
amortized beyond expiration of the Initial Term.
(c) Concessionaire will amortize each Investment Expenditure of the
Additional Capital Investment monthly on a straight-line basis over a period equal to the
lesser of: (i) ten (10) years; or (ii) the then remaining portion of the Term; provided,
however, that no Investment Expenditure pursuant to this subsection (c) shall be
amortized beyond expiration of the Term of this Agreement.
4.5 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) has been made, title to all Facility Goods shall
vest in the City.
4.6 Payment of Unamortized Investments Upon Termination. If, upon the
expiration or termination of this Agreement, Concessionaire has not fully amortized the
Carry-over Capital Investment and the Investment Expenditures, the City shall pay
Concessionaire an amount equal to the unamortized portion thereof.
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4.7 Notice of Ownership and Rights 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 reater of: (i) the Minimum Annual Rent set
forth in Section 5.2; and (ii) the sum of Commissions calculated pursuant to Section 5.3.
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 Two Hundred Fifty Thousand Dollars ($1,250,000). 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, but excluding Ballroom Gross Receipts (which are
separately commissionable in accordance with Section 5.3(c)), as follows:
Ste Tiers Commission
Annual Gross Recei is 1] Percentage [2]
From To
Zero $ 4,000,000 25.5%
$ 4,000,001 $ 7,000,000 27.5%
$ 7,000,001 $ 8,500,000 30.0%
$ 8,500,001 $10,000,000 32.5%
$10,000,001 Greater 33.0%
[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.
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(b) Barton G Receipts. Concessionaire shall pay Commissions on
Barton G Receipts during each Contract Year at the rate of Twenty-Two and One-Half
percent (22.5%).
(c) Ballroom Services. In the event the City exercises the Ballroom
Option in accordance with Section 4.2, Concessionaire shall pay Commissions on
Gross Receipts received by Concessionaire from the provision of Ballroom Services
during each Contract Year as follows:
Step Tiers Ballroom
Annual Ballroom
Gross Recei is 1 Services
From To
Zero $ 1,000,000 25.0%
$ 1,000,001 $ 2,000,000 27.5%
$ 2,000,001 $ 3,000,000 30.0%
$ 3,000,001 $ 4,000,000 32.5%
$ 4,000,001 $ 5,000,000 35.0%
$ 5,000,001 Greater 36.0%
[1] The increasing percentages applicable to Ballroom 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.
5.4 Minimum Annual Rent During Renewal Terms. In the event the City
exercises one or more Renewal Options, the City and Concessionaire shall, prior to the
commencement of each Renewal Term, negotiate in good faith with respect to the
Minimum Annual Rent payable during such Renewal Term. Notwithstanding the
foregoing, this Section 5.4 shall not apply in the event the City exercises the Ballroom
Option in accordance with Section 4.2. In such event, Section 5.5 shall apply.
5.5 Minimum Annual Rent Upon Exercise of Ballroom Option.
(a) In the event the City exercises the Ballroom Option in accordance with
Section 4.2, the Minimum Annual Rent payable during the Renewal Terms shall be as
follows:
Minimum Annual Rent: First Renewal Term: $1,350,000
Second Renewal Term: $1,450,000
(b) In the event the City exercises the Ballroom Option, the parties agree
that the above increase in Minimum Annual Rent shall not be effective until the earlier to
occur of: (i) the date of the first Event in the Ballroom; or (ii) the commencement of the
first Renewal Term.
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13
(c) In the event that pursuant to subsection (b) above, the Minimum
Annual Rent becomes effective on the date of the first Event in the Ballroom, and such
Event does not coincide with the beginning of the Contract Year, the Minimum Annual
Rent for the then-current Contract Year shall be pro-rated so that the increase in
Minimum Annual Rent provided in subsection (a) above applies only commencing with
the month in which the first Event in the Ballroom is held.
5.6 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 or his
designee a complete and accurate report in sufficient detail showing the
Concessionaire's Gross Receipts, and Barton G Receipts, if any, from Services for such
month and the Commissions payable by Concessionaire hereunder, which
Commissions shall be paid contemporaneously therewith to the City Manager or his
designee.
(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 5.6 shall be in a
form reasonably acceptable to the City Manager or his designee. Upon written request,
Concessionaire shall provide the City Manager or his designee copies of the daily
receipts, daily bank deposits and information concerning the Events served (including
Events at which Catering Services are provided), the number of meals served at each
catered Event, the total Food and Beverage Sales at each Event, any amounts
uncollected from each Event, and any other information pertinent to Gross Receipts the
City Manager or his designee may reasonably require. The acceptance by the City
Manager or his designee 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) Concessionaire shall maintain books and records for its operations
hereunder for a period of five (5) years following the expiration of each Contract Year. In
the event the City Manager or his designee reasonably disputes the accuracy of any
report hereunder, the City Manager or his designee shall have the right to conduct an
audit of Concessionaire's books and records related to any such report, including all
backup documentation by auditors selected by the City. Should any such audit uncover
a deficiency in payment by Concessionaire for any period covered, Concessionaire shall
{0946-168-00005647. DOC - 7 }
14
pay to the City or its designee 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 or its designee.
5.7 Capital Reserve Fund. Beginning October 1, 2007 and for each Contract
Year thereafter, Concessionaire shall contribute an amount to a reserve fund (the
"Capital Reserve Fund") equal to one and one-half percent (1.5%) of Concessionaire's
total Gross Receipts from Food and Beverage Sales for the immediately concluded
Contract Year. Concessionaire shall use the Capital Reserve Fund for any necessary
repairs, maintenance or replacements of the Service Equipment, Facility Goods, and
Smallwares. Unused amounts of the Capital Reserve Fund shall be carried forward
from year to year. Any funds remaining in the Capital Reserve Fund at the end of the
Initial Term (and/or a Renewal Term, as the case may be) shall be paid to the City.
Concessionaire will furnish the City Manager or his designee annually (no later than
April 1St of each Contract Year) with a statement of amounts expended from the Capital
Reserve Fund during the preceding Contract Year.
5.8 Marketing Reserve Fund. Beginning October 1, 2007 and for each
Contract Year thereafter, Concessionaire will contribute an amount to a marketing fund
(the "Marketing Reserve Fund") equal to the greater of an annual contribution of twenty
thousand dollars ($20,000) or 1.5% of Gross Receipts received by Concessionaire
from the provision of Catering Services in the immediately concluded Contract Year.
The Marketing Reserve Fund shall be used by Concessionaire to promote the food and
beverage offerings (catering, concessions, etc.) at the Facility. Within thirty (30) days
following the execution of this Agreement by both parties, Concessionaire will make a
one-time deposit of Fifty Thousand Dollars ($50,000) in the Marketing Reserve Fund as
an advance towards Concessionaire's annual contributions due under this Section 5.8.
Any funds remaining in the Marketing Reserve Fund at the end of any Contract Year,
shall be transferred to the City within fifteen (15) days following receipt of the City's
written request therefore.
5.9 Scholarships. In each Contract Year of the Term, Concessionaire shall
contribute Twenty Thousand Dollars ($20,000) 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 administered by the City and applicants will be reviewed and
recommended by Concessionaire. In the event the aggregate of Gross Receipts
received by Concessionaire from Food and Beverage Sales for the period beginning on
the Commencement Date and ending September 30, 2010, are greater than Twenty
Million Dollars ($20,000,000), Concessionaire shall, in addition to its annual
contribution, make a one-time contribution of Fifty Thousand Dollars ($50,000),
following October 1, 2010.
(0946-168-00005647.DOC - 7 }
15
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 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 Standard. No imitation,
adulterated or misbranded article or items shall be sold or kept for sale and all food and
beverages 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 or his designee reserves the right to prohibit the
sale of certain Food and Beverage Items by Concessionaire if the City Manager or his
designee concludes, in his/her sole and reasonable discretion, that the quality of such
product(s) sold by Concessionaire does not meet or exceed the Quality Operating
Standard, or if the sale of such product(s) by Concessionaire would not be in the best
interest of the Facility. Title to all food and beverages shall remain vested in
Concessionaire.
(c) During the Term, the City will provide office space to the
Concessionaire at no additional charge. The use of this office space for purposes other
than provided herein shall result in the revocation of this space. Concessionaire will be
responsible for the cleaning and maintenance of this area.
(d) In addition to the types of food and beverage products typically
found at facilities comparable to the Facility, Concessionaire shall provide such
specialty and premium/gourmet items, including Branded Products and local specialties
and "heart healthy" items, as shall be reasonably required by the City Manager or his
designee, so long as (i) the cost, quality, 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 materially less than the operating profit realized
from competing Food and Beverage Items selected by Concessionaire for sale at the
Facility; and (iii) Branded Products are reasonably available in quantities needed for the
Services. Concessionaire acknowledges and agrees that any payments made by a
supplier 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 or his designee 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
{0946-168-00005647.DOC - 7 }
16
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 whether a particular Branded Product meets the requirements of
subsections (d)(i) - (iii) hereof, then the City Manager and/or his designee 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 comparable facilities in the region where the Facility is located,
and the parties agree to abide by the written determination of such independent third
party. Any such independent third party shall not be any Person that competes with
Concessionaire. Any such independent third party shall be required to sign a non-
disclosure agreement and shall not be any Person that competes with Concessionaire.
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 sponsor, or increased costs associated with the Branded
Product, from the Commissions payable under this Agreement.
Notwithstanding the foregoing, Concessionaire shall not be obligated to
sell any Branded Products, with the exception of Coca-Cola, at or in connection with a
Barton G Event.
(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 or his designee.
(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 affiliates, respective officers, employees, agents, independent contractors,
and licensees at all times to abide by and conform to those rules and regulations which
{0946-168-00005647.DOC - 7 }
17
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.
Q) 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 maximize revenues (consistent with the expected
level of attendance at the Facility for various Events) derived from the operation of the
Services and to maintain the quality of Concessionaire's Services at a level equal to or
greater than the Quality Operating Standard. 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 a discounted price equal to fifty percent
(50%) of Concessionaire's regular menu pricing cost.
(I) 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 or Convention Center Manager shall provide Concessionaire
with advance notice of any such third party catering requests. Reasonably satisfactory
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 assumes
no liability for the failure to deliver notice of cancellation. Concessionaire must provide
(i) Services at all public 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) Concessionaire shall strive to achieve maximum customer
satisfaction based on customer evaluations conducted by SMG and the Greater Miami
Convention and Visitors Bureau (GMCVB). Comparison will be made to the prior year
of customer satisfaction in areas under the management and control of Concessionaire
{0946-168-00005647.DOC - 7 }
18
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.
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
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 or his
designee's reasonable rules and regulations for the Facility. If the City Manager or his
designee 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 or his designee,
Concessionaire shall remove the employee from the Facility in a timely manner.
(c) Concessionaire shall provide, subject to City Manager or his
designee's prior written approval, a competent general manager, as well as competent
management staff, including, without limitation, a designated representative or
{0946-168-00005647.DOC - 7 }
19
representatives who shall be (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 or his designee, 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 or his designee, 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.
(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 shall be subject to the prior approval of the City
Manager or his designee, 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 or his designee, regularly
scheduled training sessions, subject to the mutual approval of Concessionaire and City,
of all personnel employed by Concessionaire at the Facility in the following areas:
(1) Facility orientation, rules and
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.
regulations and emergency
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 or his
designee, and/or City employees, and/or consultants and/or contractors providing
{0946-168-00005647.DOC - 7 }
20
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 (I) 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, any of the management level personnel
employed by Concessionaire at the Facility, including, without limitation, the general
manager. 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 or his designee 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 or his designee 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 SMG 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 SMG as part of the Social Catering Surcharge imposed by SMG with respect to such
Event. In the event such Client elects not to accept the SMG 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 or his/her
designee 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 and Concessionaire (the form of
such indemnity provisions to be subject to the City Attorney's approval, not to be
{0946-168-00005647.DOC - 7 }
21
unreasonably withheld). For Barton G Event(s) at the Facility, Client Contracts entered
into by Barton G shall also require compliance with this Section 6.4(b).
(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
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 or his designee 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.
{0946-168-00005647.DOC - 7 }
22
6.5 Food and Beverage Items.
(a) City Manager or his designee 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, cost and other terms.
(b) The prices for all Food and Beverage Items sold at the Facility shall
be commensurate with prevailing prices at comparable facilities in the United States of
America where operators are charged commissions similar to those that Concessionaire
is charged pursuant to this Agreement. 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.
(c) Concessionaire shall present the City Manager or his designee 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), upon written request to the City
Manager or his designee, and then subject to the City Manager or his designee's prior
written approval. The City shall not unreasonably withhold, condition or delay its
approval of the menus, prices and changes to menus and prices submitted by
Concessionaire. In the event that the City fails to deliver to Concessionaire its written
approval or denial of the menus, prices or changes to menus and prices within fourteen
(14) days after written submission to the City by Concessionaire, the City shall be
deemed to have approved them. Nothing in this Agreement shall be deemed to give the
City the right to require Concessionaire to provide the Services in a manner which is
inconsistent with customary and reasonable practices in the food service industry or to
provide Food and Beverage Items below reasonable and customary prices.
(d) Subject to the City Manager or his designee's 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's or its designee's prior written approval,
which approval shall be at City's sole and absolute discretion, Concessionaire shall
have the right to subcontract portions of the Services hereunder to a third party
(including both private and charitable and/or not-for-profit organizations).
6.7 Assistance with Business Plan. Concessionaire shall cooperate with the
City Manager or his designee's, reasonable requests 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 or his designee, Concessionaire will
provide City with such items, which may include, without limitation:
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23
(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.
6.8 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.
6.9 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.
6.10 Right of Entry. Representatives, contractors and employees of the City
shall have the right, upon reasonable advance notice to Concessionaire (except in the
event of an emergency) to enter all portions of the Facility during normal business hours
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.
6.11 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.
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24
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.
(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 or his designee'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.
6.12 Barton G Events. The parties acknowledge and agree that Barton G may
render Services at select Events at the Facility pursuant to the Barton G Agreement,
and that for each Barton G Event, Barton G will be responsible for negotiating and
entering into the Client Contract and performing all the duties set forth in this Article 6
with respect to such Barton G Event including, without limitation, compliance with
Section 6.4(b). The City agrees that, except as set forth on Exhibit "C" attached hereto,
neither the City nor SMG shall charge Barton G for use of the Facility or any Facility
Services in connection with a Barton G Event. For the avoidance of doubt, the parties
acknowledge and agree that if a Barton G Event is held in connection with a trade show,
convention, corporate meeting or other such Event, the party booking the Event will be
required to book all rooms (including any space used for the Barton G Event) through
the City or SMG and the usual space rental fee will apply. In such case, the City shall
not require the payment of the Social Catering Surcharge specified on Exhibit "B."
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 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 (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 negligent act(s) or willful
misconduct of the City, its officers, agents (excluding Concessionaire), contractors
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25
(excluding Concessionaire) and employees, or the use of the Facility by the City, its
officers, agents (excluding Concessionaire), and employees.
(b) The provisions of this Section 8.1 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:
(a) Commercial General Liability including public liability and property
damage, covering its operations hereunder, in the amount of One Million Dollars
($1,000,000.00) for bodily injury and One Million Dollars ($1,000,000.00) for property
damage;
(b) Excess Liability insurance in umbrella form with limits of not less
than Five Million Dollars ($5,000,000) combined single limit bodily injury and property
damage liability, per occurrence;
(c) Comprehensive Automotive Bodily Injury and Property Damage
Insurance for business use covering all vehicles operated by Concessionaire, its agents
and employees in connection with its performance hereunder, whether owned by
Concessionaire, the City, or otherwise, with a combined single limit of not less than One
Million Dollars ($1,000,000.00) per occurrence (including an extension of hired and non-
owned coverage).
(d) Professional liability insurance with coverage of at least One Million
Dollars ($1,000,000) for claims of negligent errors, acts or omissions by
Concessionaire;
(e) Employment practices liability insurance with coverage of at least
One Million Dollars ($1,000,000) for claims relating to the employment practices of
Concessionaire at the Facility pertaining to its employees;
(f) Dram Shop (Liquor) Liability Insurance (liability for the service of
intoxicating beverages), with a coverage limit of One Million Dollars ($1,000,000) per
occurrence;
(g) Personal advertising liability insurance in the amount of One Million
Dollars ($1,000,000); and
(h) Workers Compensation Insurance (including occupational disease
hazards) with an authorized insurance company or through the Florida State
Compensation Insurance Fund or through an authorized self-insurance plan approved
by the State of Florida, insuring its employees at the Facility in amounts equal to or
greater than required under law.
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7.3 Certificates evidencing the existence of policies referenced in Section 7.2,
shall be delivered to the City Manager or his designee 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 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 or his
designee a Performance Bond, in the penal sum as stated below, for the payment of
which Concessionaire shall bind itself for the faithful performance of the terms and
conditions of this Agreement. A Performance Bond in the amount of 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 or his designee, 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
or his designee, 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.
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27
(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
Affiliate assumes all of Concessionaire's obligations under this Agreement arising
subsequent to the Transfer, 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 similar first-class
facilities;
(4) Concessionaire and the Permitted Transferee shall
execute an instrument by which the Permitted Transferee assumes
all obligations thereafter arising;
(5) In the City Manager's reasonable determination, the
Permitted Transferee has a good reputation for operating venues
similar to the Facility and is an appropriate provider of Services for
the Facility. The City Manager shall 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. If the
City Manager does not advise Concessionaire that the Permitted
Transferee is unacceptable within such thirty (30) day period, time
being of the essence, this condition (5) shall be deemed satisfied.
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28
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
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; and (ii) the City
delivers written notice to Concessionaire to cease operations.
8.2 The provisions of Section 8.1 above shall not prevent Concessionaire, in
the performance of its duties hereunder, to negotiate and enter into Client Contracts for
Events at the Facility.
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 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;
(c) Except as permitted pursuant to Section 8.2 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;
(d) 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;
(e) 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
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29
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
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
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30
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
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) Impairment of Facility Goods. In the event the City transfers any of
the Facility Goods which have not been fully amortized in accordance with the terms of
this Agreement, except as otherwise expressly provided herein or consented to by
Concessionaire in writing, Concessionaire shall have the right to terminate this
Agreement upon written notice to the City.
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. In the event that Concessionaire has not fully
amortized the Carry-over Capital Investment or the Investment Expenditures pursuant
to Section 4, Concessionaire shall submit to the City a statement of the total amount
outstanding and the City shall pay such amount to Concessionaire within ten (10) days
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31
after receipt of such statement; provided, however, that any amortization provided in
Section 4 shall be subject to the time limitations in Section 4.2 thereof unless expressly
requested by Concessionaire, and approved by the City Manager or his designee (as
provided in subsection 4.6).
(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 supersede RFP No. 33-02/03, 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.
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32
10.5 Written Amendments. This Agreement may not be altered, modified or
amended in whole or in part, except in a writing executed by each of the parties hereto.
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 year, or in Concessionaire's
reasonable business judgment, the Facility can no longer be operated in a reasonably
profitable manner as a result of the damages or action for a period of at least one year
from the happening of the fire, other casualty or regulatory action, either party may
terminate this Agreement upon written notice to the other. Upon any such termination,
the provisions of Section 9.5 shall apply. 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 Binding 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
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33
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:
To the City:
City of Miami Beach
City Manager
1700 Convention Center Drive
Miami Beach, FL 33139
Attn: Jorge Gonzalez, 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:
Service America Corporation d/b/a Centerplate
201 East Broad Street
Spartanburg, SC 29306
Attention: General Counsel
Facsimile: (864) 598-8694
AND
Service America Corporation d/b/a Centerplate
1901 Convention Center Drive
Miami Brach, FL 33139
Attention: General Manager
Facsimile: (305) 538-4802
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34
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
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."
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35
(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
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. Notwithstanding the foregoing,
in the event the City is required to disclose any Concessionaire Confidential Information
pursuant to the Freedom of Information Act, the Florida Government-in-the-Sunshine
Law, or any similar law, the City agrees that, to the extent permitted under such laws, it
will use reasonable efforts to redact the financial terms or other confidential proprietary
information contained in this Agreement and/or Concessionaire's response to the RFP
to the extent the City, in its sole judgment and discretion, deems that such terms or
information are expressly exempt from disclosure pursuant to the City's review and
interpretation of such laws.
10.16 Information Technology. In the event that, in connection with performance
of its services, Concessionaire will share the City computer network to transmit credit
card transaction information from patrons and customers, the City agrees to comply with
all standard requirements of financial institutions (for example, using firewall protection
and encryption) to ensure the security of customers' personal and financial data. In
addition, if the City will provide a-mail access to Concessionaire's employees at the
Facility, Concessionaire will have the right to review and retrieve stored a-mail records
of Concessionaire's employees upon reasonable advance request, at a mutually
agreeable time during regular business hours, in order to properly supervise and
manage its employees. Any expense incurred by the City in connection with such
review or retrieval shall be reimbursed by Concessionaire.
10.17 Relationship with Barton G. The parties herein acknowledge that
Concessionaire's selection of Barton G was a consideration in the City's decision to
enter into this Agreement with Concessionaire. Concessionaire shall promptly notify the
City Manager or his designee in the event that Concessionaire and Barton G end their
contractual association at any time during the Term of this Agreement. Concessionaire
acknowledges and agrees that any replacement for Barton G shall be subject to the
prior written approval by the City Manager or his designee.
{0946-168-00005647.DOC - 7 }
36
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
/~ ~ ~~~~
~'`~~ By:
CITY CLERK nJarpe; MATTI BOWER
Tltle: F~IAYOR
ATTEST:
SERVICE AMERICA CORPORATION
d/b/a CENTERPLATE
B:
Name: . Steinmayer
Title: P sident and CEO
APPROVED AS TO
FORM & LANGUAGE
& FOFj~ECUTION
~Z ~? C~
at
{0946-168-00005647. DOC - 7 }
37
}
~ ~
EXHIBIT "A"
Branded Products
NONE
{0946-168-0000564~.DOC - 7 }
EXHIBIT "B"
Social Catering Surcharge
For all Social Catering Events, Concessionaire or Barton G, as the case may be, will
pay the City, or its designee, the Social Catering Surcharge, which will cover the
following costs:
• One move-in day prior to the day of the Social Catering Event;
• One event day;
• Move-out and cleanup on the day following the Social Catering
Event, as the Facility schedule permits;
• Air-conditioning during the Social Catering Event, with appropriate
cool-down time as determined by SMG;
• One trash compactor or open-top dumpster pull;
• Setup and tear-down labor for the Base Room Set Up (set forth on
Exhibit B-1);
• Pre- Social Catering Event cleaning;
• Social Catering Event cleaning;
• Post-Social Catering Event cleaning (in accordance with facility
being left in "broom-swept" condition);
• One Miami Beach Police Officer for up to six (6) hours during the
Social Catering Event;
• One Fire Watch for up to six hours during the Social Catering
Event;
• Loading Dock gate security as required for the run of the Social
Catering Event; and
• Liability Insurance covering the Social Catering Event.
The Social Catering Surcharge may be adjusted (not more frequently than annually)
upon reasonable advance notice to Concessionaire and Barton G. Any such increase
shall be reasonable and shall be based on any increase in the City's costs for the items
and services provided.
{0946-168-00005647.DOC - 7 }
EXHIBIT B-1
Base Room Setup
Each room setup shall include:
• Attendee tables and chairs setup in an amount no more than 5% over the
client guarantee
• All buffet and service tables as required by the caterer
• Up to 24 skirted and draped 8' x 30" tables for registration and auction
requirements
• Raised head table for up to 12 persons with associated steps, lifts, and
railings as required, and one standing lectern
• Performance staging up to 40' x 24'
• Sound/light mix platforms as required
• Dance floor up to 36' x 36'
All items subject to available MBCC inventory.
{0946-168-0000564~.DOC - 7 }
~~ ~ f
EXHIBIT "C"
Permitted charges to Barton G in connection with Barton G Events
1. Social Catering Surcharge (set forth on Exhibit "B") (for Social Catering Events
only)
2. Additional Charges. The following additional items will be charged at SMG'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: $200/hr
• Equipment Rentals*
- Forklift: $75/day
- 35' Boom Lift: $150/day
- 45' Boom Lift: $150/day
- 66' Boom Lift: $250./day
- One man lift/Scissor Lift: $75/day
- Such additional equipment that may be made available by SMG
for use by Barton G from time to time.
* Based on availability. Use of Facility equipment is not required, and Barton G may
procure equipment from other sources.
3. Production Labor. In accordance with the SMG Agreement with IATSE Local
500, all production-related labor required for setup, operation, and tear-down of banquet
events shall be provided by SMG at its then-prevailing rates.
4. Miscellaneous. Barton G will be charged for any additional items or services
provided by City/SMG that are not typically provided gratis to Event Sponsors at then-
prevailing rates and with prior written notification to Barton G.
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 Barton
G. Any such increase shall be reasonable and shall not exceed SMG's standard
increase for the item in question, if applicable.
{0996-168-00005647.DOC - 7 }