Miami Beach Golf Club PCM Agmt~~a 7-~~ ~ ~,~
CONCESSION AGREEMENT
BETWEEN
CITY OF MIAMI BEACH, FLORIDA
AND
PROFESSIONAL COURSE MANAGEMENT II, LTD
FOR FOOD AND BEVERAGE AND PRO SHOP MERCHANDISE SALES AT THE
MIAMI BEACH GOLF CLUB
Jrti- day of , 2007, by and between
THIS AGREEMENT, made and executed on this ~ ~~~~_
the CITY OF MIAMI BEACH, a municipal corporation organized and existing under the laws
of the State of Florida (hereafter called "City"), and PROFESSIONAL COURSE
MANAGEMENT II, LTD, a Florida limited partnership, with offices at 10500 Pembroke Pines,
Florida 33026 (hereinafter called "PCM" and/or Concessionaire").
WITNESSETH
RECITALS:
WHEREAS, City and Professional Course Management II, Ltd (PCM) are parties to that
certain Agreement for Operation and Management of the Miami Beach Golf Club, dated
S'~1 ~~ S, ~vo7 ,for the Management and Operation of the City's golf courses and
Related Facilities, pursuant to Request for Proposals No. 125-99/00 (the Management
Agreement); and
WHEREAS, pursuant to the aforestated Management Agreement, the City has granted
PCM (acting as Concessionaire) the exclusive concession for food and beverage and pro shop
merchandise sales at the Miami Beach Golf Club; and
WHEREAS, Concessionaire assures the City that it has developed the expertise with
respect to the successful and efficient management of pro shops and golf courses food and
beverage operations.
NOW THEREFORE, in consideration of good and other valuable consideration the
parties hereto agree as follows:
The City grants to Concessionaire, and Concessionaire hereby accepts from the City, the
exclusive right to operate and manage the food and beverage service and pro shop merchandise
sales (including golf club rentals} at the Miami Beach Golf Club, in conformance with the
purposes and for the period stated herein, and subject to all the terms and conditions herein
contained.
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ARTICLE 1
General Scope of Services
1.01 Merchandise. Subject to the terms of this Agreement and the Management
Agreement, Concessionaire shall have the exclusive right to operate the pro shop merchandise
sales concession at the Miami Beach Golf Club.
1.01.1 Concessionaire shall maintain such inventory as is deemed necessary by the
Director, as said term is defined pursuant to Section 1.01 of the Management Agreement, to
service the needs of the golfing public, golf outings and tournament play. Inventory shall
include, at a minimum, the following: clothing with the Miami Beach Golf Club logo for men
and women; golf shoes; clubs and bags; and accessories such as balls, hats, gloves, tees, etc.
1.01.2 Concessionaire shall offer for sale only goods of premium quality. For such
goods, Concessionaire shall charge fair and reasonable prices. Prices shall be set by the
Concessionaire and shall be in conformance with the range of prices for the same or similar
operations at similar establishments in the South Florida area and its environs such as Doral or
the Diplomat golf courses. When an item has a suggested retail price pre-marked and established
by the manufacturer or distributor, Concessionaire shall not charge the public a price higher than
such suggested retail pre-marked price.
1.01.3 City reserves the right to prohibit the sale or rental of any item of merchandise
which is deemed objectionable or beyond the scope of this Agreement, as determined by the
Director in his sole discretion.
1.01.4 Concessionaire shall at all times post prices for all items offered for sale and all
services offered.
1.01.5 Concessionaire shall display and merchandise all items in an attractive manner
and insure that goods are properly rotated so as to always present a fresh and appealing
appearance.
1.01.6 If, in the sole opinion of the Director, Concessionaire is charging too high a retail
or rental price for any permitted item, Concessionaire shall reduce the price to no more than that
stipulated by Director. Director shall stipulate price based on that price charged at comparable
first class golf facilities in the South Florida area and its environs such as Doral or the Diplomat
golf courses.
1.01.7 At the end of the term of this Agreement, or any renewed term, or other
termination thereof, City agrees to purchase from Concessionaire Miami Beach Golf Club
logoed merchandise at the cost paid by Concessionaire for the product, in an aggregate amount
not to exceed $30,000. Should the value of the inventory being held by the Concessionaire
exceed $30,000 in value the Concessionaire agrees to negotiate with the City for remaining
inventory.
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1.02 Food and Beverage. Subject to the terms of this Agreement and the Management
Agreement, Concessionaire shall have exclusive rights to operate the food and beverage
concession at the Miami Beach Golf Club.
1.02.1 Concessionaire shall sell food and beverages, including beer, wine and other
alcoholic beverages, on the golf course and within the clubhouse restaurant and bar in
accordance with the provisions of this Agreement. Concessionaire shall also provide catering
services for tournaments, outings and groups using the Miami Beach Golf Club. All food and
beverage operations and services shall be of first-class quality and provided in a first class
manner, comparable to other first class golf operations in a resort golf club comparable to other
golf resorts in the South Florida market.
1.02.2 Concessionaire shall maintain and provide the necessary inventory of food and
beverage products required to satisfy the public demand therefore. All such products sold or kept
for sale by Concessionaire shall be first-class in quality, wholesome and pure, and shall conform
to the Federal, State and City food laws, ordinances and regulations in all respects. No
adulterated, misbranded or impure articles shall be sold or kept for sale by Concessionaire, and
all food and beverage products kept on hand by Concessionaire shall be stored and handled with
due regard for sanitation . In the event that the food and beverage products are deemed by the
Director to be of less than first-class in quality, Concessionaire may be ordered to, and if so
ordered shall, improve the quality of any such food or beverage product kept or offered for sale.
1.02.3 Concessionaire shall meet all requirements and obtain appropriate licenses
(liquor, occupational, Health Dept., etc.). Concessionaire shall be solely responsible for the
payment of all costs and expenses required to complete the transfer of such licenses and to
maintain such licenses for the duration of the term of this Agreement.
1.02.4 Concessionaire shall open for service no less than thirty minutes before the first
tee time each and every day and shall close no sooner that thirty minutes after the last golfer has
finished play. If the golf course is closed for the day or an extended period the Concessionaire
may elect to close the food and beverage service for that period, provided Concessionaire shall
first notify the Director of same in writing (email is acceptable). The hours of operation may be
modified as determined to be in the best interest of the City and Concessionaire, but only upon
prior written request of the Concessionaire to the Director, and written approval thereof by the
Director.
1.02.5 Concessionaire shall staff the facility in a manner consistent with afirst-class
operation, as defined in Section 1.02.1. Said cost of staffing and all related costs shall be paid by
the Concessionaire.
1.02.6 Concessionaire shall be responsible, at its sole cost, to provide cleaning and
sanitation services for the kitchen, bar, and dining room.
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ARTICLE 2
Agreement Term and Renewal Term
2.01 The initial term of this Agreement shall be for a period of three years,
commencing on October 1, 2007, and expiring at midnight on September 30, 2010, unless earlier
terminated, as provided herein.
2.02 Provided Concessionaire is not in default under this Agreement or as Manager
under the Management Agreement, the City shall have the right, at its sole option and discretion,
to extend this Agreement for two successive one year terms (each a renewal term), by giving
written notice to Concessionaire of such intention no less than ninety days prior to the expiration
of the initial term or an exercised Renewal Term..
2.03 Notwithstanding subsections 2.01 and 2.02, the term of this Agreement shall run
concomitantly with the Management Agreement. A termination and/or expiration of this
Agreement shall also result in a termination of the Management Agreement.
ARTICLE 3
Insurance
3.01 Concessionaire shall procure and maintain at its sole cost throughout the Term of
this Agreement the following insurance coverage with respect to the operation of the food and
beverage and pro shop merchandise sales concessions:
a. Comprehensive General liability in the minimum amount of one million dollars
($1,000,000) per occurrence for bodily injury and property damage;
b. Liquor Liability in the minimum amount of One Million Dollars ($1,000,000) per
occurrence; and
c. Workers Compensation as required under the laws of the State of Florida.
3.02 The policies of insurance referred to above shall not be subject to cancellation or
change in coverage except upon at least thirty (30) days written notice to City, and then subject
to the prior written approval of Director. The Concessionaire shall provide Director with a
Certificate of Insurance for each such policy, which shall name the City of Miami Beach,
Florida, as an additional named insured. All such policies shall be obtained from companies
authorized to do business in the State of Florida with an A.M. Best's Insurance Guide (latest
edition) rating and acceptable to the City's Risk Manager. Any replacement or substitute
company shall also be subject to the approval of the City's Risk Manager. Should the
Concessionaire fail to obtain, maintain or renew the policies of insurance referred to above, in
the required amounts, the City may, at its sole discretion, obtain such insurance, and any sums
expended by City in obtaining said insurance, shall be repaid by Concessionaire to City, plus ten
percent (10%) of the amount of premiums paid to compensate City for its administrative costs.
If the Concessionaire does not repay City's expenditures within fifteen (15) days of demand, the
total sum owed shall accrue interest at the rate of twelve percent (12%) until paid, and such
failure shall be deemed an event of default hereunder.
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ARTICLE 4
Payment to City
4.01 Concessionaire shall pay City five percent (5%) of the monthly gross revenues
for food and beverage and merchandise sales; respectively.
4.02 Payment shall be due on the first day of each month throughout the Term of this
Agreement.
4.03 Concessionaire shall submit a detailed sales report accompanying its monthly
payment, but in any event no later than the tenth day of the following month.
4.04 In addition to the sum set forth in Section 4.01, it is further understood that the
required Florida State Sales and Use Tax shall be added to Concessionaire's payments and
forwarded to the City as part of said payment.
4.05 In the event payment as provided herein is not received by the City by the fifth
day of each respective month, Concessionaire agrees to pay a service charge of ten (10%)
percent of the total amount outstanding plus a late fee in the amount of Twenty Five ($25)
Dollars per day until all sums due are received by the City.
ARTICLE 5
Records
5.01 Concessionaire shall record all sales by means of cash registers which publicly
display the amount of each sale and automatically issue apre-numbered receipt. Such registers
shall have in all cases locked-in sales totals and transaction counters which continuously
accumulate and which cannot, in any case, be reset and, in addition thereto, a tape located with
in the register on which transaction numbers and sales details are imprinted. Beginning and
ending cash register readings shall be made a matter of daily record.
5.02 Concessionaire shall prepare and maintain an adequate set of records according
to generally accepted accounting principles, documenting all of Concessionaire's gross
revenues which shall include:
a. Cash register tapes. Daily tapes may be separate but shall be retained so
that from day the sales can be identified.
b. Cash receipt journals.
5.03 If at any time the Director deems the Concessionaire's accounting practices
inadequate or not in accordance with generally accepted accounting principles, Concessionaire
shall make requested adjustments to its practices and procedures.
5.04 Concessionaire shall retain all its books and records detailing gross revenues for
the term thereof for no less than two calendar years following the last day of such term. Such
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records shall be maintained according to generally accepted accounting principles and shall show
Concessionaire's gross receipts and other income derived from its operations pursuant to this
Agreement. Concessionaire agrees to make available and give the City full access to any and all
records related to this Agreement upon 24 hours written notice from Director and/or such other
designee, as Director may deem necessary.
ARTICLE 6
City's Responsibilities
6.01 City shall perform the following:
a. Administer all terms and conditions of this Agreement.
b. Monitor standards and specifications.
c. Provide or make provisions for all initial furniture, fixtures and
equipment needed to operate the food and beverage and pro shop
facilities to include: restaurant and bar tables and chairs, kitchen
equipment, pots, pans, small wares, china, silver, glassware, pro shop
display fixtures, banquet equipment, office furniture, point of sale
system (with sufficient back office capabilities to support the financial
reporting requirements of the Agreement), office equipment, telephone
equipment, etc. Concessionaire shall be responsible for any and all
replacement due to breakage, theft (unless documented by a City Police
report) or employee negligence; all paper goods and disposable items
such as plastic wares, cups; and costs related to printing of menus,
display boards or other promotional materials relating directly to the
Concessionaire's operations.
d. Provide for utilities needed to operate the food and beverage and pro shop
facilities including electric, gas, water and sewer, telephone, waste
removal and pest control.
e. Maintenance and repairs of buildings, parking lots, fixtures and
equipment.
f. Capital improvements, as deemed necessary by Director.
g. Payment of real estate taxes, if levied.
ARTICLE 7
Default and Termination
7.01 If Concessionaire fails to perform in accordance with any of the terms and
conditions of this Agreement, and such default is not cured within ten (10) calendar days after
written notice from Director, this Agreement shall terminate; provided, however, that in the
event that the default is not reasonably susceptible to being cured within such ten (10) day
period, Manager shall not be considered in default if it shall, within such period, commenced
with due diligence and dispatch to cure, and thereafter completes with dispatch and due diligence
the curing of such default but in no event shall such extended cure period exceed ninety (90)
days from the date of initial written notice thereof.
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7.02 Cross Default. A default by the Concessionaire, as Manager, under the
Management Agreement, shall also be considered an event of default under this Agreement.
ARTICLE 8
Termination for Convenience
If the Management Agreement is terminated for convenience, as provided in Section 21.4
therein, then this Concession Agreement shall also be terminated for convenience.
ARTTf T .F. 9
Not a Lease
It is expressly understood and agreed that no part, parcel, building, structure, equipment
or space on the Miami Beach Golf Club is leased to the Concessionaire; that this Agreement is a
concession agreement and not a lease; and that the Concessionaire's right to use the Miami Beach
Golf Club for the purposes contemplated herein and in the Management Agreement shall
continue only so long as the Concessionaire complies with the undertakings, provisions,
agreements, stipulations and conditions of this Agreement.
ARTICLE 10
Alterations, Maintenance and Repair
10.1 Concessionaire herein accepts any facilities and/or premises to be used for the
concession operation contemplated herein, in their "AS IS" condition at the Miami Beach Golf
Club.
10.2 Concessionaire shall maintain and-operate the Premises in a clean, safe,
wholesome, and sanitary condition, free of trash, garbage, or obstructions of any kind, and in
compliance with any and all applicable present and future laws, general rules and regulations of
any governmental authority in force now or at anytime during the term of this Agreement
relating to sanitation, public health, safety, or welfare.
10.3 Concessionaire shall perform acceptable day-to-day housekeeping and maintain
and perform all repairs on the kitchen, dining rooms, bar and pro shop that are necessitated as a
result of Concessionaire's or its agents' negligence. City shall be responsible for all other repairs
and maintenance. All such maintenance, repairs and replacements shall be of quality equal to or
better than the original in materials and workmanship.
10.4 The Director may, at any time, without notice, enter upon the golf course,
clubhouse or other related facilities, to determine if repairs, housekeeping and maintenance
satisfactory to City are being performed.
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ARTICLE 11
Assignment/Sublet
The Concessionaire may not sublet or assign this Agreement, or any part thereof, without
the prior written approval of the Director, which approval shall be given, if at all, at the sole
discretion of the Director.
ARTICLE 12
Permits; Licenses; Taxes
The Concessionaire agrees to obtain and pay for all permits and licenses necessary for the
conduct of its business and agrees to comply with all laws governing the responsibility of an
employer with respect to persons employed by the Concessionaire. In addition, the
Concessionaire shall comply with all rules, regulations and laws of the City; Miami-Dade
County; the State of Florida; and the U.S. Government now in force or hereafter to be adopted.
ARTICLE 13
Inspection
Concessionaire agrees that its concession operations may be inspected at any time upon
reasonable notice by authorized representatives of the City, or by any other State, County,
Federal or municipal officer or agency having responsibilities for inspections of such operations
and/or facilities. The Concessionaire agrees to undertake immediately the correction of any
deficiency cited by such inspectors in the operations, which is properly the responsibility of the
Concessionaire pursuant to this Agreement.
ARTICLE 14
Waiver of Interference
Concessionaire hereby waives all claims for compensation for loss or damage sustained
by reasons of any interference with its concession operation by any public agency or official as a
result of their enforcement of any laws or ordinances or of any of the rights reserved to the City
herein. Any such interference shall not relieve the Concessionaire from any obligation
hereunder.
ARTICLE 15
Indemnification
15.1 Concessionaire shall indemnify, hold harmless and defend the City, its agents,
servants and employees from and against any claim, demand or cause of action of whatsoever
kind or nature arising out of error, omission, or negligent act of the Concessionaire, its agents,
servants or employees arising out of or otherwise under this Agreement.
15.2 In addition, the Concessionaire shall indemnify, hold harmless and defend the
City, its agents, servants and employees from and against any claim, demand or cause of action
of whatever kind or nature arising out of any misconduct of the Concessionaire not included in
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the paragraph in the subsection above and for which the City, its agents, servants or employees
are alleged to be liable. This subsection shall not apply, however, to any such liability as may be
the result of the willful misconduct of the City, its agents, servants or employees.
15.3 Subro ag tion. The terms of insurance policies referred to in Article 3 shall
preclude subrogation claims against the Concessionaire, the City and their respective officers,
employees and agents.
ARTICLE 16
No Liens
Concessionaire agrees that it will not suffer, or through its actions or anyone under its
control or supervision, cause to be filed upon the golf courses and Related Facilities any lien or
encumbrance of any kind. In the event any lien is filed, the Concessionaire agrees to cause such
lien to be discharged within ten (10) days there from, and in accordance with the applicable law
and policy. If this is not accomplished, the City may automatically terminate this Agreement,
without further notice to the Concessionaire.
ARTICLE 17
Concessionaire's Employees and Managers
The City and the Concessionaire recognize that in the performance of this Agreement, it
may be necessary for the Concessionaire to retain employees and/or managers to effectuate and
optimize Concessionaire's operations. Any employees, agents, independent contractors,
volunteers, and/or other individuals and/or entities retained by the Concessionaire for the
purpose(s) set forth herein shall not be deemed to be agents, employees, partners, joint ventures
or associates of the City and shall not obtain any rights or benefits under the civil service or
pension ordinances of the City or any rights generally afforded classified or unclassified
employees of the City. Further, they shall not be deemed entitled to the Florida Worker's
Compensation benefits as employees of the City. Additionally, the Concessionaire and any
persons employed by it, or volunteers acting under the authority and/or with the permission of
Concessionaire, shall never have been convicted of any offense involving moral turpitude or
felony. Failure to comply with this provision shall constitute a default of this Agreement. Any
criminal activity caused by or knowingly permitted by the Concessionaire shall result in
automatic termination of this Agreement and the Management Agreement.
ARTICLE 18
No Improper Use
Concessionaire will not use, nor suffer or permit any person to use in any manner
whatsoever, its concession operations for any improper, immoral or offensive purpose, or for any
purpose in violation of any Federal, State, County, or municipal ordinance, rule, order or
regulation, or of any governmental rule or regulation now in effect or hereafter enacted or
adopted. The Concessionaire shall not use the concession operations for any unlawful purpose
and shall comply with all laws, permitting, and licensing requirements now in force or hereafter
adopted, applicable to the concession operations contemplated herein. The Concessionaire
agrees not to use the concession operations for, or to permit operation of any offensive or
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dangerous activity, nuisance or anything against public policy. Except as may result from acts of
force majeure, as defined in Section 29.5 of the Management Agreement, the Concessionaire
agrees that it will not allow the concession operations to become unoccupied or vacant.
ARTICLE 19
No Dangerous Materials
Concessionaire agrees not to use or permit in the concession operations the storage of
illuminating oils, oil lamps, turpentine, gasoline, benzene, naphtha, or other similar substances,
or explosives or any kind, or any substance or thing prohibited in the standard policies of fire
insurance companies in the State of Florida.
ARTICLE 20
No Claim Against City Officers, Employees, Individuals
It is expressly understood and agreed by and between the parties hereto that all
individuals, employees, officers, and agents of the City are acting in a representative capacity
and not for their own benefit; and that neither the Concessionaire nor any occupant shall have
any claim against them or any of them as individuals in any event whatsoever in conjunction
with any acts or duties which are reasonably related to the performance of their duties.
ARTICLE 21
Notices
All notices, consents, waivers, directions, requests or other instruments of communications
provided for under this Agreement, shall be deemed properly given if, and only if, delivered
personally or sent by registered or certified U.S. mail, postage pre-paid, as follows:
IF TO THE CITY:
With copies to:
IF TO CONCESSIONAIRE:
Kevin Smith, Director,
Parks and Recreation
2100 Washington Avenue
Miami Beach, Florida 33139
Robert C. Middaugh
Assistant City Manager
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
Johnny La Ponzina, President
Professional Course Management II, Ltd.
10500 Pembroke Pines, Florida 33026
With copies to: Alberto Pozzi, General Manager Professional
Course Management II, Ltd.
10000 Biscayne Boulevard
Miami Shores, Florida 33138
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The Concessionaire and the City may change the above mailing address at any time upon giving
the other party written notification. All notices under this Agreement must be in writing.
ARTICLE 22
No Discrimination
Concessionaire agrees that there shall be no discrimination as to race, sex, color, creed,
national origin, physical handicap, or sexual orientation in the operations referred to by this
Agreement; and further, there shall be no discrimination regarding any use, service, maintenance
or operation of the concession. All concession premises on the Miami Beach Golf Club shall be
made available to the public; subject to the right of Concessionaire to establish and enforce
reasonable rules and regulations to provide for the safety, orderly operation and security of the
said premises.
ARTICLE 23
Venue
This Agreement shall be enforceable in Miami-Dade County, Florida, and if legal action
is necessary by either party with respect to the enforcement of any or all of the terms or
conditions herein exclusive venue for the enforcement of same shall lie in Miami-Dade County,
Florida. 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.
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IN WITNESS WHEREOF, the parties hereto have caused their names to be signed and their
seals to be affixed; all as of this day and year first written above.
Attest:
City Clerk
WITNESSES:
CITY OF MIAMI BEACH
r
at H. Bower, ayor
PROFESSIONAL COURSE MANAGEMENT
AppROVED AS TO
~OFpR E~ECUTIC~N
~ z~
53
STATE OF FLORIDA )
SS:
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowle ged before me this l_S' day of
J (~~- (' ~, 200, by d R ert P rcher Cit Clerk, on behalf
of the CITY OF MIAMI BEACH, and by on behalf of
PROFESSIONAL COURSE MANAGEMENT II L ,known to me to be the persons
described in and who executed the foregoing instrument, and acknowledged to and before me
that they executed said instrument for the purposes therein expressed.
WITNESS my hand and official seal, this \~j day of , Q.~y,(1~~ , 200.
~e~~~.~~~~ ~~.
Notary Public, State of Florida at Large
Commission No.: 4 4 (~ 51~4~ ~
My Commission Expires: MQy t;1, Z~ 1 ~
{ , ~%t`::'i~, RESA SiRICIMND
_.. ,: MY COMMISSION N DD 656487
y,..~ a EXPIRES: May t t, 2011
Bonded Thru Notary Public Underntlrote
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