HomeMy WebLinkAboutSpecifications
REQUEST FOR
PROPOSALS
RFP NO. 09-04-01
PROFESSIONAL SERVICES TO
DESIGN, BUILD OUT AND OPERATE
A RESTAURANT AT THE HISTORIC
FISHING PIER AT PIER PARK
CITY OF
SUNNY ISLES BEACH
MIAMI-DADE COUNTY, FLORIDA
TABLE OF CONTENTS
RFP NO. 09-04-01
Public Notice ................... ....... ....... ...................... .............................. ......... ........ ...... ......................... ............. I
Section 1.1 Introduction.. ....... ....... ...................... .............. .................. ........ ............... ..................... ............... 3
Section 1.2 Background.................................................................................................................... .............3
Section 1.3 - Project Description...... .......................... ................................................. .............. ......... ........... 3
Section 1.4 - Quality Assurance.................................................................................................................... 6
Section 1.5 -Potential Additional Services ............. ..................... .................... ....... ....... .................. ..............6
Section 1.6 - Submittal Requirements........................................................................................................... 7
Section 1.7 - Submission Date and Pre-RFQ Submission Conference......................................................... 10
Section 1.8 - Additional Information or Clarification.................................................................................. II
Section 1.9 - Selection, Award, and Protest Procedures............................................................................... II
Section 1.10- Contract Execution ................................................................................................................ II
Section 1.11 - Schedule of Commencement and Completion Dates for Design, Construction, and
Operational Dates .............................................................................................................................. ........... 12
Section 1.12 - Instructions. ....... .......... ....................... ............ ................ ....... ................. .................... ............ 12
Section 1.13 - Changes/Alterations...... ................... .................... ................................................... ......... ...... 12
Section 1.14 - Sub-Contractor(s). ........................... ........................ .......................... .................... ................. 12
Section 1.15 - Discrepancies, Errors, and Omissions ...................................................................................13
Section 1.16 - Disqualifications..................................................................................................................... 13
Section 1.17 - Submission Receipt...... ........................ ......................... ................. ........................ ........... ...... 13
Section 1.18 - Capital Expenditures.... ..................... ........... .................................. ................... ..................... 13
Section 1.19 - Waiver of City Building Fees .................................................................................................14
Section 1.20 - Hold Harmless and Indemnification...................................................................................... 14
Section 1.21 - Payment Bond........ .................... ................ ................. ............... ........................... ........... ....... 14
Section 1.22 - Liability Insurance .................... ................ ................ .......... ....... ..................... ............ ........... 15
Section 1.23 - Rent and Other Payments to the City ....................................................................................16
Section 1.24 - Reservation of Rights............................................................................................................. 18
Section 1.25 - Additional Information.......................................................................................................... 18
Section 1.26 - Exhibits................................................................................................................................... 19
Public Entity Crime Affidavit............... ................. ....................... .......................... ...................................... "A"
Non-Collusive Affidavit ........................................ ........................... ........................ ......... ............. .......... ...... "B"
Agreement between City and successful proposer ........................................................................................ "c"
Aerial of location of existing Pier ......................... ............................ ................ ........ ............. .......... ......... ..... "D"
Schematic/artistic rendering of reconstructed Pier...................................................................................... "E"
Minimum Operating Standards for food service ......................................................................................... "F"
Pro Forma statement ....................................................................................................................................... "G"
PUBLIC NOTICE
NOTICE IS HEREBY GIVEN that the CITY OF SUNNY ISLES BEACH is seeking
proposals to design, build out and operate a restaurant at the historic Fishing Pier at Pier
Park, 16501 Collins Avenue.
Interested firm/individuals ("Proposer(s) or Contractor(s)") may pick-up a copy of Request
for Proposals ("RFP") No. 09-04-01 to be issued on Monday, April 6, 2009, at Sunny Isles
Beach Government Center, 18070 Collins Avenue, City Clerk's Office, Fourth Floor, Sunny
Isles Beach, Florida, 33160. The RFP contains detailed and specific information about the
scope of services, Submission requirements and selection procedures. The RFP package will
also be available on Demand Star at www.demandstar.com
One (1) original, four (4) copies of the completed and executed Submissions must be
delivered to the following address no later than Wednesday, May 6, 2009 at 10:00 a.m.:
Sunny Isles Beach Government Center
18070 Collins Avenue, City Clerk
First Floor Meeting Room
Sunny Isles Beach, Florida, 33160
The City reserves the right to accept or not accept late submitted proposal in the sole
discretion of the City Manager or his designee.
The envelope containing the sealed Submission must be clearly marked as follows:
"SEALED BID"
RFP NO. 09-04-01 PROFESSIONAL SERVICES TO DESIGN, BUILD OUT AND
OPERATE A RESTAURANT AT THE HISTORIC FISHING PIER
OPENING DATE AND TlME: Wednesday, May 6, 2009, 10:00 a.m.
A mandatory Pre-RFP Submission Conference is scheduled for Tuesday, April 21, 2009
at 10:00 a.m. at the Sunny Isles Beach Government Center, 18070 Collins Avenue, First
Floor Meeting Room, Sunny Isles Beach, Florida. All contractors planning to submit
Submissions are required to attend this meeting. Contractors should allow sufficient time to
ensure arrival prior to the indicated time, those arriving after the discussion has begun will
not be considered to be in attendance. Submissions from those who have failed to attend will
not be accepted.
The City of Sunny Isles Beach (the "City") intends to secure a lease agreement with an
experienced contractor to design, build out and operate a restaurant at the historic Fishing
Pier at Pier Park, 16501 Collins Avenue, with restroom and fishing pier facilities. The
successful Proposer will be responsible for providing a food service operation with a high
level of customer service and quality to pier patrons, tourists, locals and visitors to the City
for ten (10) years with two (2) optional renewal periods of five (5) years each based upon the
Proposer's election to exercise these option periods and the consent of the City, which
consent shall not be umeasonably withheld if the Proposer has previously complied with all
terms and conditions set forth in the Request for Proposal and the Lease Agreement. The
successful Proposer will have the sole and exclusive right to sell or rent, in or from the
project site, food, alcoholic and non-alcoholic beverages, fishing products and equipment,
and gifts.
The contract will be awarded by the City to the Proposer whose proposal best serves the
interests of, and represents the best value to, the City in accordance with the criteria set forth
in Section 62-8 of the City Code.
The City reserves the right to reject any or all proposals, with or without cause, to waive
technical errors and informalities, and to accept the proposal which best serves the interest of
the City.
Any questions regarding RFP No. 09-04-01 are to be directed in writing to Rick Conner,
Acting City Manager, at the following address: 18070 Collins Ave., Fourth Floor, Sunny
Isles Beach, Florida 33160. Alternatively, any questions may be sent via email to:
rconner@sibfl.net
Any questions or clarifications concerning the proposal specifications must be received by
Rick Conner, Acting City Manager, at least seven (7) business days prior to the date of the
proposal opening.
For further information, please contact Rick Conner, Acting City Manager, at 305-792-1928.
Jane A. Hines, CMC, City Clerk
City of Sunny Isles Beach
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CITY OF SUNNY ISLES BEACH, FLORIDA
REQUEST FOR PROPOSAL NO. 09-04-01
PROFESSIONAL SERVICES TO DESIGN, BUILD OUT AND OPERATE A
RESTAURANT AT THE HISTORIC FISHING PIER AT PIER PARK
1.1 INTRODUCTION
Pursuant to Chapter 62 of the City Code, the City of Sunny Isles Beach, Florida, (the "City")
a municipality located in Miami-Dade County, Florida, requests qualified contractors
("contractors") to submit proposals to design, build out and operate a restaurant at the
historic Fishing Pier at Pier Park, 16501 Collins Avenue. The contract will be awarded by
the City to the Proposer whose proposal best serves the interests of, and represents the best
value to, the City in accordance with the criteria set forth in Section 62-8 of the City Code.
1.2 BACKGROUND
The City of Sunny Isles Beach, located between the Atlantic Ocean and the Intracoastal
Waterway in Northeast Miami-Dade County, surrounded by Aventura, Golden Beach, Miami-
Dade Haulover Park and Marina, and Bal Harbour, is owner to the only public fishing pier in
Miami-Dade County, a historic pier. As the existing pier is being rebuilt, a shell for a larger,
5,000 square foot, restaurant, with seating for at least 200, will be included. An aerial of the
location of the existing Pier is included in this package. (See Attachment "D") The design
plans for the pier and this shell are near completion and permitting has commenced. A
schematic is included in this package (See Attachment "E") and the specific plans are available
upon request.
Interior design and layout is the responsibility of the Proposer and must meet with approval by the
City. The City will consider all types of design and atmosphere but requires minimum operating
hours of 12 hours per day, 7 days per week.
1.3 DESCRIPTION OF THE PROJECT
The Project shall be divided into three phases: (1) Design Phase, (2) Construction Phase and (3)
Operation Phase. The selected Proposer shall complete all three phases of the Project and shall be
the sole prime Contractor with the City. The selected Proposer wishing to use subcontractors to
perform anyone or more than one phase of the Project shall be responsible for engaging the
professional(s) or firm(s) that will serve as subcontractors. The subcontractors (if any) shall meet
all City subcontractor requirements prior to the start of the Contract. The three phases of the
Project are more particularly described as follows:
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1. Desi2n Phase
A. Conceptual Plans
After contract award, and prior to any construction beginning, the selected Proposer shall
prepare, and submit for City approval, a proposed Conceptual Plan for the design of the
Restaurant including restrooms. The Conceptual Plan must incorporate elements which make
the Restaurant compatible with the design of the Pier and oceanfront setting. The appearance
of the Restaurant is subject to approval by the City, at its sole discretion, which will not be
umeasonably withheld. Extra consideration will be given to Proposers that include a
description of the Conceptual Design or intended theme in the RFP package but is not
necessary.
B. Design
The Proposer shall incorporate into the Restaurant design as many features of the Leadership in
Energy and Environmental Design for New Construction (LEED-NC) Green Building Rating
System as necessary to fulfill the requirement s to meet the criteria of LEED-NC.
The Proposer shall submit all renderings, photographs, floor plans, specification sheets, cut
sheets, proposed paint schemes and graphics for all furnishings, fixtures, equipment, and soft
goods to the City for approval.
The Restaurant design must comply with all the design parameters and building requirements
of the City's Code of Ordinances and South Florida Building Codes.
2. Construction Phase
A. Restaurant and Restroom
1. The selected Proposer shall have access to the premises for build out once that portion of the
pier and the shell are substantially complete.
2. The selected Proposer shall perform all construction and improvements in compliance with
the Building Code and with all necessary permits and approvals. City approval of the design
and plans must be obtained prior to submission to the Building Department.
3. The Proposer shall submit to the City a cost estimate of the build out of the Restaurant,
including all furnishings, fixtures and proposed equipment, and a comprehensive timeline for
the start-up of the Restaurant including the construction phase. The Proposer shall bear all
costs associated with all improvements of, and fixtures and equipment installations at, the
Restaurant. All such improvements and installations shall become the property of the City at
the time of termination or default of the Lease Agreement by either party. This cost estimate
is due within 30 days after approval of design and concept.
4. The selected Proposer shall be expected to complete the build out of the Restaurant before
the Restaurant's anticipated full operational date of June 1,2010. In the case that delays are
beyond the reasonable control of the selected Proposer, the City may, at its sole discretion,
grant a written extension. Failure to comply with this provision may result in termination of
the contract.
5. The selected Proposer shall have access to the number of parking spaces required per City
Code to be shared with the Pier, Park and Newport Beachside Hotel and Resort. The selected
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Proposer will contract with the Newport Beachside Hotel and Resort for valet services for the
Restaurant. The total number of spaces is approximately 200.
6. The restroom will be built out and maintained by the selected Proposer but will be for the
benefit of Pier patrons and City employees as well.
7. The City will provide to the selected Proposer a completed shell with stub out of plumbing
and electrical.
3. Operation Phase
A. Management and Operation Services and Foodservice
The selected Proposer shall operate the Restaurant and related activities in a manner associated
with high quality foodservice standards. The selected Proposer shall provide the following
servIces:
B. Management and Operation Services
1. The selected Proposer will have utilization of the Restaurant area as shown on Attachment
"E". The Pier is open and subject to uncontrolled entry twenty-four hours a day, seven days
a week. The selected Proposer shall secure the Restaurant and provide twenty-four (24) hour
protection service. The City will not accept any responsibility for the loss or damage of the
selected Proposer's equipment or supplies.
2. The Restaurant shall have a family atmosphere and may have live entertainment. At no time
may the Restaurant operate as a night dub, as determined by the City.
3. The selected Proposer's staff shall be distinctively uniformed so as to be distinguishable as
the selected Proposer's staff and not as employees of the City.
4. The selected Proposer shall take good care of the Restaurant and shall use the same in a
careful manner. The selected Proposer shall, at its own cost and expense, repair City
property damaged by the selected Proposer's operations.
5. The walkways leading up to and around the Restaurant shall be properly maintained by the
selected Proposer.
6. The selected Proposer will be responsible for the proper maintenance of the Pier and
Bait/Gift Shop if Proposer chooses to operate those under this agreement.
7. The City shall be given special pricing and consideration when using the Restaurant and
selected Proposer for City sponsored Special Events at the Pier, up to four (4) events per
year.
8. The selected Proposer shall furnish high quality, prompt and efficient service, adequate to
meet all reasonable demands, including establishing minimum schedule and hours of
operation, subject to approval by the City.
9. The selected Proposer shall provide an operation that will be safe, customer oriented with
prompt service, complaint resolution, effective employee performance and training and
timely initiation and completion of all work.
10. The selected Proposer shall be diligent in ensuring the safety of the patrons of the Restaurant
by conducting official national background checks on all owners, employees, and volunteers
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who will have direct contact with patrons. The City may request to review documentation of
such at any time during the contract term.
C. Foodservice and Sale of Goods
1. At a minimum, the selected Proposer shall provide foodservice at the Restaurant during the
regularly scheduled operating hours as approved by the City, and indude breakfast at a
minimum on weekends and holidays, lunch and dinner type service, with alcoholic beverage
to Pier patrons and the general public seven days a week. The selected Proposer shall be
responsible for any and all licenses.
2. The selected Proposer may provide additional services and fees, such as birthday parties,
catering, group sales, banquets, etc., only as it does not affect the general operation and
operating hours of the restaurant without express written consent by the City, of which
consent will not be unreasonably withheld.
3. All services and resale items shall be provided at a price approved by the City. Such
services, fees and charges may be modified only by written request of the selected Proposer
to the City and approval by the City. Soft goods such as tee-shirts, coffee mugs, hats, etc.,
would be allowed as a small percentage of goods to be sold.
4. The selected Proposer shall maintain all food service amenities and equipment in a safe and
careful manner as outlined in the Minimum Operating Standards for Foodservice (See
Attachment "F").
1.4 QUALITY ASSURANCE
Work will be dosely monitored by City personnel and/or designated representatives. The
selected Proposer must cooperate with all monitors representing the City.
The Contractor shall ensure that wherever non-English speaking crews are utilized, at least one
crew supervisor must be fluent in English.
1.5 POTENTIAL ADDITIONAL SERVICES
It is the intent of the City to provide a Restaurant, with the best possible service to the public.
The City will assist in the promotion of this Restaurant as an amenity to the Pier. However, the
City makes no guarantee that this project will be a financial success for the City or for the
selected Proposer. Possible additional services indude operating the fishing Pier and the
Bait/Gift Shop located at the Pier entrance. Management of the Pier and collection of admission
fees, as well as management of the Bait and Gift Shop are optional, but will be considered in the
overall evaluation of the Proposer. Each Proposer must complete the information requested in
the third column below:
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Type of Rent Description Proposed Rent
(to be completed by Proposer)
Base Monthly Rent * Base rent, based on square
* Proposals less than $25 per footage of Restaurant (5,000),
square foot will not be as proposed by the Proposer.
considered. Base Rent is due monthly as
per the Lease Agreement.
Percentage Rent Amount of rent offered by the
Proposer based on the net sales
of restaurant revenues. This
amount will be due quarterly
when Percentage Rent exceeds
Base Rent as per the Lease
Agreement.
Admission Fee Percentage ** A percentage of the Pier
** Management of the Pier and admission fees collected by the
collection of admission fees is Proposer. Fees will be
optional but will be considered established in accordance with
in the overall evaluation of the City approval. Percentage is
Proposer. proposed by the Proposer in
the third column.
Bait/Gift Shop Revenue A percentage of the net sales
Percentage *** of bait/gift shop items will be
*** Management of the Bait payable by the Proposer to the
and Gift Shop is optional but City. Percentage is proposed
will be considered in the overall by the Proposer in the third
evaluation of the Proposer. column.
1.6 SUBMITT AL REQUIREMENTS
All submittals by contractors shall contain no more than fifteen (15) pages specifically
addressing the following issues. All other required documentation (except for 5 and 6
below) will not be considered a part of the fifteen (15) pages. Any contractor wishing to
provide the services described in Sections 1.3 and 1.5 above must submit one (1) original
and four (4) additional complete copies that include, at a minimum, the following
documentation:
1. Name, address and company, including, but not limited to, a business overview,
financial state of the business, annual revenue for past two years, and names and
addresses of persons having financial interest in the firm. Include a schedule of the
minimum guaranteed annual income and/or revenue percentage the Proposer will
agree to provide the City during the term of the lease agreement. This minimum
guaranteed annual income and/or revenue percentage includes but is not limited to
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revenues generated from rent, licenses, leases, conceSSIOns, vending equipment,
admissions and parking fees.
2. Provide a narrative description of current and previous experience managing a
municipal fishing pier, food and beverage, retail/entertainment facilities, and tourist
destination/visitor attraction activities that qualifies your business entity to be selected
for this Project. Provide a narrative description of current and previous experience
managing facilities or business entities owned or controlled by municipalities, public
authorities or other governmental agencies.
3. A list of all projects (including government projects) completed or in process for the
past five (5) years, and a corresponding list of client references with contact names
and telephone numbers.
4. Identify if Proposer has taken any exception to the terms of this Solicitation. If so, indicate
what alternative is being offered and the cost implications of the exceptiones).
5. Construction/Build Out Phase
Provide detailed description of the project team (i.e., identify the entity(ies) that are the
developer, builder, and operator), the Proposer's role, and how the Proposer will manage the
project team. Describe form of agreement (or anticipated form of agreements) between all
parties involved in the project team.
Describe Proposer's design and construction schedule.
Provide a narrative description and drawings or photographs of the proposed Restaurant, and
the dominant design theme in sufficient detail to facilitate evaluation of the quality and
design of the proposed Restaurant.
Indicate Proposer's investment cost of proposed improvements including kitchen
equipment, furniture, fIxtures, etc. that Proposer will install.
Provide Proposer's procedures for coordinating design and construction, including but not
limited, field inspection and tenant assistance, as well as, Proposer's understanding of the
City and County Building Department's permitting process. Include conceptual site
plans, architectural elevations and drawings, sufficient to illustrate the components of
your proposal. Outline the project implementation schedule, identifying events and
the estimated number of calendar days required to achieve completion.
6. Operation of Restaurant Phase
Describe Proposer's unique capabilities to develop and operate the Restaurant.
Describe Proposer's approach in providing the Restaurant Management and Operation
Services including:
i) project plan (i.e., Restaurant theme, style, type of food, etc.);
ii) specific policies and procedures or techniques to be used in providing food
servIces;
iii) plan on how the Proposer will ensure that service is provided in an expedient
manner;
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iv) standards for providing excellent customer service;
v) overall approach in meeting the restaurant operations objectives described in
Scope of Services; and
vi) why the proposed concept is the best suited for the City Pier site.
Submit proposed sample menus indicating the variety of food and beverage offerings and
the prices to be charged to consumers.
Describe Proposer's approach to food preparation and food display to the customer.
Describe Proposer's approach to comply with the Minimum Operating Standards for
Foodservice (see Attachment "F').
Describe Proposer's approach in developing and implementing an on-going marketing
program which shall be designed to expand and maintain a customer base from the
surrounding area and throughout the region. Describe what means of advertisement the
Proposer will be utilizing.
Describe Proposer's approach to project organization and management, and the
responsibilities of Proposer's management and staff that will manage and operate the
restaurant.
Describe how the Proposer will screen and complete a nationwide criminal background
check for its prospective staff (employees and volunteers).
Describe the estimated number of calendar days required to achieve completion.
7. Financial Information
Provide a Pro Forma statement showing 10 years of projected sales and expenses. Inflated
statement or statements skewed outside normal operating ranges may be evaluated as less
desirable or reasonable Pro Forma statements. (See sample Pro Forma attachment "G".)
Indicate Proposer's investment cost of proposed improvements including kitchen
equipment, furniture, fIxtures, etc. that Proposer will install.
Describe Proposer's ability to access and/or provide all the necessary funding to complete
proposed improvements, if any, and all start up activities proposed.
Provide documentation demonstrating Proposer's fmancial strength and fmancial capability
to provide services. Such documentation should indude Proposer's most recent certified
fmancial statements as of a date not earlier than the end of the Proposer's preceding official
tax accounting period, with a statement in writing, signed by a duly authorized
representative, stating that the present fmancial condition is materially the same as that
shown on the balance sheet and income statement submitted, or with an explanation for a
material change in the fmancial condition. If certified fmancial statements are not available,
provide latest available fmancial statements (balance sheet and income statement) and letters
of credit availability from accredited fmancial institutions, or other relevant documentation.
8. Provide a description of your approach to operational functions including Pier
parking, valet parking, operation of the Bait/Gift Shop, custodial, maintenance,
security and related functions. Provide a description of your approach to a staffing
plan for this Project, including a proposed organization chart and position description
for each staff classification.
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9. Provide a narrative describing your approach to developing marketing and
promotional opportunities for this Project through print, radio, television and related
media, event sponsorships and related partnering opportunities.
10. Proof of authorization to transact business in Florida from the Florida Secretary of
State, from the prime as well as supporting firms.
11. The name, title, qualifications, experience, and all contact information of the
proposed contact person.
12. A listing of the proposed personnel to be assigned to this Project, including their
qualifications and experience.
13. Sworn statement pursuant to Section 287. 133(3)(A), Florida Statutes, on Public
Entity Crime, a copy of which is attached hereto.
14. Non-collusive Affidavit, a copy of which is attached hereto as Attachment "A".
1.7 SUBMISSION DATE AND MANDATORY PRE-RFP SUBMISSION
CONFERENCE
Submittals must be received by the City Clerk's Office no later than 10:00 a.m. on
Wednesday, May 6, 2009, at the Sunny Isles Beach Government Center, Attn: City Clerk,
First Floor Conference Room, 18070 Collins Avenue, Sunny Isles Beach, FL 33160. One
(1) original, and four (4) copies of the completed and executed Submission must be delivered
by this deadline. Submittals will be opened publicly and read aloud at this time. The City
reserves the right to accept or not accept late submitted bids based on the sole discretion of
the City Manager or his designee.
The envelope containing the sealed Submission must be clearly marked as follows:
"SEALED BID"
RFP NO. 09-04-01 PROFESSIONAL SERVICES TO DESIGN, BUILD OUT AND
OPERATE A RESTAURANT AT THE HISTORIC FISHING PIER AT PIER PARK
OPENING DATE AND TIME: WEDNESDAY, MAY 6, 2009 AT 10:00 A.M.
A mandatory Pre-RFP Submission Conference is scheduled for Tuesday, April 21, 2009
at 10:00 a.m., at the Sunny Isles Beach Government Center, 18070 Collins Avenue,
First Floor Meeting Room, Sunny Isles Beach, Florida. All contractors planning to
submit a Submission are required to attend this meeting. Contractors should allow
sufficient time to ensure arrival prior to the indicated time, those arriving after the
discussion has begun will not be considered to be in attendance. Submittals from those
who have failed to attend will not be accepted.
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1.8 ADDITIONAL INFORMATION OR CLARIFICATION
Requests for additional information or clarifications must be made in writing and received by
the City Manger specified in the Public Notice section of this RFP, in accordance with the
deadline for receipt of questions also specified in the Public Section of this RFP. The request
for additional information and clarification must contain the RFP number and title,
contractor's name, name of contractor's contact person, address, phone number, and
facsimile number.
Electronic facsimile requesting additional information must be received by Rick Conner,
Acting City Manager, for this RFP at the fax number (305) 792-1561. Facsimiles must have
a cover sheet which includes, at a minimum, the contractor's name, name of contractor's
contact person, address, number of pages transmitted, phone number, facsimile number, and
RFP number and title.
The City will issue responses to inquiries and any other corrections or amendments it deems
necessary in written addenda issued prior to the Submission deadline. Contractors should not
rely on any representations, statements or explanations other than those made in this RFP or
in any written addendum to this RFP. Where there appears to be conflict between the RFP
and any addenda issued, the last addendum issued shall prevail.
1.9 SELECTION. AWARD. AND PROTEST PROCEDURES
The City will select the proposer the City determines to be the proposer whose proposal best
serves the interests of and represents the best value to the City based on the criteria set forth
in Section 62.8 of the City Code. The City will act, at its sole discretion, in what it considers
to be in the best interest of the City. The City will evaluate the comparable experience,
capability, project management, workload, financial strength, and other factors the City
deems pertinent and will select the firm that it deems to be most qualified. The City will be
the sole judge in determining the most qualified firm in accordance with the criteria set forth
in Section 62-8 of the City Code.
Any protests or objections to the City's Request for Proposals and/or the selection of the
selected proposer must be submitted in writing in accordance with Section 62-15 of the City
Code.
If the City and selected proposer are unable to negotiate a mutually acceptable contract, the
City may terminate the contract negotiations and begin negotiations with the other qualified
firms. This process may continue until a contract has been executed or all Submissions have
been rejected. No proposer shall have any rights in the subject project or against the City
arising from such negotiations.
1.10 CONTRACT EXECUTION
A contract will be negotiated and executed between the selected proposer and the City in
substantially the same form as Attachment "C". The successful operation of this contract
requires that the selected proposer act in good faith in all matters relating to carrying out the
project and the interpretation of the contract documents.
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1.11 SCHEDULE OF COMMENCEMENT AND COMPLETION DATES FOR THE
DESIGN. CONSTRUCTION AND OPERATIONAL DATES
The Design Phase must commence within 30 (thirty) days after execution of the agreement
between the parties. The Construction/Build Out Phase shall commence immediately once
substantial completion of the restaurant shell has been completed. Finally, the restaurant
must be complete and operational, with a certificate of occupancy being issued, no later
than June 1, 2010, without the express written consent of the City, which will only be granted
should there be circumstances beyond the reasonable control of the selected proposer.
1.12 INSTRUCTIONS
Careful attention must be given to all requested items contained in this RFP. Contractors are
invited to submit Submissions in accordance with the requirements of this RFP. PLEASE
READ THE ENTIRE SOLICIT AITON BEFORE SUBMITTING A SUBMITTAL.
Contractors shall make the necessary entry in all blanks provided for the responses.
The entire set of documents, together with all attachments hereto, constitutes the RFP. The
proposer must return these documents with all information necessary for the City to properly
analyze the response in total and in the same order in which it was issued. Proposer's notes,
exceptions, and comments may be rendered on an attachment, provided the same format of
this RFP text is followed. All responses to this RFP shall be returned in a sealed envelope or
package with the RFP number and opening date clearly noted on the outside of the envelope.
Proposers must provide a response to each requirement of the RFP. Responses should be
prepared in a concise manner with an emphasis on completeness and clarity.
1.13 CHANGES/ALTERATIONS
Proposers may change or withdraw a response at anytime prior to the submission deadline;
however, no oral modifications will be allowed. Written modifications shall not be allowed
following the submission deadline.
1.14 SUB-CONTRACTOR(S)
A Sub-Contractor is an individual or firm contracted by the proposer or proposer's firm to
assist in the performance of services required under this RFP. A Sub-Contractor shall be
paid through the proposer or proposer's firm and shall not be paid directly by the City. Sub-
Contractors are allowed by the City in the performance of the services delineated within this
RFP. However, the proposer must clearly reflect in its Submission the major Sub-
Contractors to be utilized in the performance of the required services. The City retains the
right to accept or reject any Sub-Contractors proposed in the response of selected proposer at
anytime prior to contract execution.
Any and all liabilities regarding the use of a Sub-Contractor shall be borne solely by the
selected proposer and insurance for each Sub-Contractor must be maintained in good
standing. Neither successful proposer nor any of its Sub-Contractors are considered to be
employees or agents of the City. Failure to list all Sub-Contractor(s) and provide the
12
required information may disqualify any proposed Sub-Contractors from performing work
under this RFP.
Proposers shall include in their responses to this RFP the requested Sub-Contractor
information and include all relevant information required of the proposer. In addition, within
five (5) working days after the identification of the award to the selected proposer, the
selected proposer shall provide a list confirming the Sub-Contractors that the selected
proposer intends to utilize in the contract, if applicable. The list shall include, at a minimum,
the name, location of the place of business of each Sub-Contractor, the services Sub-
Contractor will provide relative to any contract that may result from this RFP, as well as any
applicable licenses, references, ownership, and other information required of the proposer.
1.15 DISCREPANCIES. ERRORS. AND OMISSIONS
Any discrepancies, errors, or ambiguities in the RFP or addenda (if any) should be reported
in writing to the City Manager or his designee. Should it be necessary, a written addendum
will be incorporated to the RFP. The City will NOT be responsible for any oral instructions,
clarifications, or other communications.
1.16 DISQUALIFICA TION
The City reserves the right to disqualify responses before or after the submission deadline,
upon evidence of collusion with intent to defraud or other illegal practices on the part of the
proposer. The City also reserves the right to waive any immaterial defect or informality in
any responses to this RFP; to reject any or all responses in whole or in part; or to reissue an
RFP for the services described herein.
1.17 SUBMISSION RECEIPT
Sealed responses will be accepted in accordance with the instructions detailed on the cover of
this RFP. The proposer shall file all documents necessary to support its response and shall
include them with its Submission. Proposer shall be responsible for the actual delivery of
responses during business hours to the exact address indicated in this RFP. The City reserves
the right to accept or not accept late submitted bids in the sole discretion of the City Manager
or his designee.
1.18 CAPIT AL EXPENDITURES
The selected proposer understands that any capital expenditures that the selected proposer
makes, in order to perform the services required in this RFP is a business risk. The City,
however, is not and shall not payor reimburse any capital expenditures or any other
expenses, incurred by any proposer, in anticipation neither of a contract award nor to
maintain the approved status of the selected proposer if a contract is awarded.
13 I
1.19 WAIVER OF CITY BUILDING FEES
The City hereby agrees to waive City building fees to the successful proposer. However, this
waiver does not apply to any building fees that may apply from any other governmental
agencies, including those of federal, state or county governments.
1.20 HOLD HARMLESS AND INDEMNIFICATION
All proposers shall hold the City, its officials and employees harmless and covenant not to
sue the City, its officials and employees in reference to their decisions to reject, award, or not
award a RFP, as applicable.
Additionally, the selected proposer shall indemnify and save harmless the City, its officers,
agents and employees, from or on account of any injuries or damages, received or sustained
by any person or persons during or on account of any operations connected with the
construction of this Project, or by or in consequence of any negligence (excluding the sole
negligence of City), in connection with the same; or by use of any improper materials or by
or on account of any act or omission of the said selected proposer or his Sub-Contractor,
agents, servants or employees. The selected proposer will indemnify, defend and hold
harmless the City and their agents or employees from and against all claims, damages, losses
and expenses including attorneys' fees arising out of or resulting from the performance of the
work described in the RFP, provided that any such claim damage, loss or expense (a) is
attributable to bodily injury, sickness, disease or death, or to injury to or destruction of
tangible property (other than work itself) including the loss of use resulting wherefrom and
(b) is caused in whole or in part by any negligent act or omission of the selected proposer,
Sub-Contractor, anyone directly or indirectly employed by any of them or anyone for whose
acts any of them may be liable, regardless of whether or not it is caused by a party
indemnified hereunder. In the event that a court of competent jurisdiction determines that
Sec. 725.06 (2), F.S. is applicable to this Project, then in lieu of the above provisions of this
section the parties agree that selected proposer shall indemnify, defend and hold harmless the
City, their officers and employees, to the fullest extent authorized by Sec. 725.06 (2) F.S.,
which statutory provisions shall be deemed to be incorporated herein by reference as if fully
set forth herein. In the event that any action or proceeding is brought against City by reason
of any such claim or demand, the selected proposer, upon written notice from City shall
defend such action or proceeding by counsel satisfactory to City. The indemnification
provided above shall obligate selected proposer to defend at its own expense or to provide for
such defense, at City's option, any and all claims of liability and all suits and actions of every
name and description that may be brought against City, excluding only those which allege
that the injuries arose out of the sole negligence of City, which may result from the
operations and activities described in this RFP whether the construction operations be
performed by selected proposer, its Sub-Contractors, or by anyone directly or indirectly
employed by either.
1.21 PAYMENT BOND
The City shall require the successful Proposer to furnish a Payment Bond in the amount of
Five Hundred Thousand ($500,000.00), which shall be provided to the City as the Obligee, as
14
security for payment of all persons performing labor or furnishing materials in connection
herewith.
Within ten (10) calendar days of being notified of the award, the selected proposer shall
furnish an executed agreement (in substantially the same form as the Agreement attached
hereto) and attach a Payment Bond (containing all the provisions of the Payment Bond
herein). The Payment Bond shall be in an amount of Five Hundred Thousand ($500,000)
guaranteeing to City the full payment of all suppliers, material, laborers, or Sub-Contractors
employed pursuant to the work described in this RFP. The Payment Bond shall be with a
Surety company meeting the qualifications of this document and shall continue in effect for
one and one half years after final completion and acceptance of the Work. Pursuant to the
requirements of Section 255.05(1), Florida Statutes, the selected proposer shall ensure that
the Payment Bond referenced herein shall be recorded in the public records of Miami-Dade
County and provide City with evidence of such recording.
The Payment Bond must be executed by a Surety company authorized to do business in the
State of Florida as a surety, having a resident agent in the State of Florida and having been in
business with a record of successful continuous operation for at least five (5) years. The
Surety company shall hold a current certificate of authority as acceptable surety on federal
bonds in accordance with the United States Department of Treasury Circular 570, current
Revisions. The City will accept a surety bond from a company with a rating B+ or better.
Failure of the successful Proposer to execute and deliver the Agreement and deliver the
required bond and Insurance Certificates as stipulated in this RFP shall be cause for the City
to annul the Notice of A ward and declare the Proposal and any security therefore forfeited.
1.22 LIABILITY INSURANCE
The selected proposer shall provide and maintain in force until all the work to be performed
under this RFP has been completed and accepted by City (or for such duration as is otherwise
specified hereinafter), the insurance coverage set forth:
Worker's Compensation insurance at the statutory amount to apply for all employees in
compliance with the "Workers' Compensation Law" of the State of Florida and all applicable
federal laws. In addition, the policy (ies) must include: Employers' Liability at the statutory
coverage amount. The Contractor shall further insure that all of its Sub-Contractors maintain
appropriate levels of worker's compensation insurance.
Comprehensive General Liability with minimum limits of Five Million Dollars ($5,000,000)
per occurrence combined single limit for Bodily Injury Liability and Property Damage
Liability. Coverage must be afforded on a form no more restrictive than the latest edition of
the Comprehensive General Liability policy, without restrictive endorsements, as filed by the
Insurance Services Office, and must include:
Premises and Operation
Independent Contractors
Products and/or Completed Operations Hazard
15
Business Interruption, not less than six months installments of Base Monthly Rent,
loss of earnings by at least the perils of fire and lightning, extended coverage,
vandalism, malicious mischief and sprinkler leakage
Broad Form Property Damage
Broad Form Contractual Coverage applicable to this specific Contract, including any
hold harmless and/or indemnifi,cation agreement.
Personal Injury Coverage with Employee and Contractual Exclusions removed, with
minimum limits of coverage equal to those required for Bodily Injury Liability and
Property Damage Liability.
Before starting the work, the selected proposer will file and make sure that all certificates of
insurance required by this document and by the Agreement are in the City's possession.
These certificates shall contain a provision that the coverage afforded under the policies will
not be canceled or materially changed until at least thirty (30) days prior written notice has
been given to the City by certified mail. The City shall be named as an additional insured on
the above-referenced policies.
The selected proposer agrees that if any part of the work under the Agreement is sublet, they
will require the Sub-Contractor(s) to carry insurance as required, and that they will require
the Sub-Contractor(s) to furnish to them insurance certificates similar to those required by
the City in this section.
If any insurance should be canceled or changed by the insurance company or should any
insurance expire during the period of the Agreement, the selected proposer shall be
responsible for securing other acceptable insurance to provide the coverage specified in this
section to maintain coverage during the life of the Agreement. All deductibles must be
declared by the selected proposer and must be approved by the City. At the option of the
City, either the selected proposer shall eliminate or reduce such deductible or the selected
proposer shall procure a Bond, in a form satisfactory to the City, covering the same.
1.23 RENT AND OTHER PAYMENTS TO THE CITY
The selected proposer will pay to the City, the rent as described in the Agreement, and
proposed by the selected proposer in Section 1.5 above, due the first of each month. City
will grant a waiver of initial rent of up to three (3) months during the construction period and
up to the first three (3) months of restaurant operation.
However, the percentage rent will be in effect from the date of "beneficial occupancy"
(defined herein as the date on which substantial completion of the restaurant has occurred
and the appropriate code enforcement and/or building department of the City has issued a
certificate of occupancy or a temporary certificate of occupancy) and payable to the City
provided the percentage of net sales exceed the base monthly rent. Payments to the City
once the waiver period is expired will be due on the first of each month thereafter. The City
will notify the selected proposer in writing as to the expiration date of the waiver period.
The waiver of base monthly rent is an incentive intended to provide the selected proposer a
period in which to establish clientele, adjust menu items to meet demand, and dedicate funds
16
to marketing. City shall have the right to increase or decrease the waiver period based on the
expediency of the build out.
The term "net sales" shall include the entire gross receipts of every kind and nature from the
sales and services made in, upon, or from the premises, and promotional events, whether
upon credit, for cash or credit.
The waiver period does not include agreed percentage of pier admission fees, as proposed in
Section 1.5 above.
The selected proposer may choose to operate the pier and bait/gift shop in addition to the
restaurant, as provided for in Section 1.5. In so choosing, the proposer" will include the
percentage of entrance fees and bait/gift shop sales in the rent quote.
Initial Rent
Initial rent is the rent due during the design and constructionlbuild out period. The City will
waive the initial rent for up to three (3) months after substantial completion of the restaurant
shell as an incentive to the selected proposer to constructlbuild out the Project and market the
restaurant during the design and construction phases.
Base Monthly Rent, Percentage of Rent and Percentage of Entrance Fees
After the date of beneficial occupancy (as defined in Section 1.22 above) and through the
termination date of the agreement, the selected proposer shall pay the City:
1. Base monthly rent
2. Percentage of rent
And optionally
3. Percentage of Pier entrance fees and percentage of bait/gift shop net sales
The selected proposer will pay to the City, the rent as described in the Agreement, and
proposed by the selected proposer in Section 1.5, due the first of each month. The
percentage of rent, also as described in the Agreement and proposed by the selected proposer
in Section 1.5, will be calculated based on net sales and due quarterly. In addition, the
selected proposer shall be responsible for preparing and remitting quarterly reports to the
City evidencing the percentage of rent collected, based on net sales.
In addition to the waiver of the initial rent of up to three (3) months, the City will offer to the
selected Proposer a waiver of base monthly rent for up to three (3) months, as an incentive to
provide the selected proposer a period in which to establish clientele, adjust menu items to meet
demand, and dedicate funds to marketing. These combined waivers will not exceed six (6)
months total.
In consideration of an early constructionlbuild out, the City may extend the waiver of base
monthly rent up to the total of six (6) months combined. The percentage rent will be in effect
from the date of beneficial occupancy only if net sales exceed the base rent amount at the end
of the financial quarter. The City will notify the selected proposer in writing as to the
expiration date of the waiver period.
17
Payments to the City, once the waiver period is expired, will be due on the first of each
month thereafter. The City will notify the selected proposer in writing as to the expiration
date of the waiver period.
Percentage of Pier entrance fees and bait/gift shop net sales, as described in the Agreement,
and proposed by the selected proposer in Section 1.5, shall be calculated by the selected
proposer and due on the fifteenth of each month for actual sales the month prior.
1.24 RESERVATION OF RIGHTS
While pursuing this RFP process, the City reserves the right to:
· Accept any or all responses, and the right, in its sole discretion, to accept the proposer
who will best serve the interests of, and represent the best value to, the City in
conformity with the criteria set forth in Section 62-8 of the City Code.
· Reject any and all qualifications and to seek new qualifications when such a
procedure is reasonably in the best interest of the City.
· Investigate the financial capability, integrity, experience, and quality of performance
of each proposer, including officers, principals, senior management, and supervisors,
as well as staff identified in the response to RFP.
· Investigate the proposer's qualifications or any of its agents, as it deems appropriate
· Conduct personal interviews of any or all proposers prior to selection (the City shall
not be liable for any costs incurred by the proposer(s) in connection with such
interviews).
· Waive any of the conditions or criteria set forth in this RFP.
· The City reserves the right on any advertised selection process to decide whether to
select a firm based on submission received in response to this RFP or whether to hold
interviews with the firms the City deems best qualified for the Project.
1.25 ADDITIONAL INFORMATION
· The Submission must clearly be marked on the front of the envelope:
"SEALED BID"
RFP NO. 09-04-01PROFESSIONAL SERVICES TO DESIGN, BUILD OUT AND
OPERATE A RESTAURANT AT THE HISTORIC FISHING PIER AT PIER PARK
OPENING DATE AND TIME: WEDNESDAY, MAY 6, 2009 AT 10:00 A.M.
· Questions regarding this RFP must be directed, no later than seven (7) calendar days
before the opening of the RFP, to:
Rick Conner
Acting City Manager
City of Sunny Isles Beach
18070 Collins Avenue
Sunny Isles Beach, FL 33160
Telephone: (305) 792-1928
Email: rconner@sibfl.net
18
· Responses to this RFP must be delivered by the stated deadline to:
Attn: Jane A. Hines, CMC
City Clerk
Sunny Isles Beach Government Center
18070 Collins Avenue
First Floor Meeting Room
Sunny Isles Beach, FL 33160
· The opening of the Submissions will be in the First Floor Meeting Room, 18070
Collins Avenue, Sunny Isles Beach, Florida 33160 at the stated time.
· Submissions will be opened publicly and read aloud at this time.
· The City is under no obligation to return the Submissions.
· The City will not be liable for any cost incurred in the preparation of the response to
RFP.
· The Submissions shall be prima facie evidence that the proposer has full knowledge
of the scope, nature, quantity and quality of work to be performed; the detailed
requirements of the specifications; and the conditions under which the work is to be
performed.
· The contractors shall furnish the City with such additional information as the City
may reasonably require.
· Under no circumstance should any prospective proposer or anyone acting on their
behalf, seek to influence or to gain the support of any member of the City
Commission or City Staff favorable to the interest of the prospective proposer.
Likewise, contact with the City Commission or City Staff against the interest of other
prospective proposers is prohibited. Any such activities may result in the exclusion
of the prospective proposer from consideration by the City.
1.26 EXHIBITS
The Exhibits to this RFP are as follows:
Exhibit "A" Public Entity Crime Affidavit
Exhibit "B" Non-Collusive Affidavit
Exhibit "C" Agreement between Landlord and Tenant
Exhibit "D" Aerial of location of existing Pier
Exhibit "E" Schematic/artistic rendering of reconstructed Pier
Exhibit "F" Minimum Operating Standards for food service
Exhibit "G" Pro Forma statement
19
SWORN STATEMENT PURSUANT TO SECTION 287.133(3)(a)
FLORIDA STATUTES, ON PUBLIC ENTITY CRIMES
THIS FORM MUST BE SIGNED AND SWORN TO IN THE PRESENCE OF A NOT AR Y
PUBLIC OR OTHER OFFICIAL AUTHORIZED TO ADMINISTER OATHS.
1. This sworn statement is submitted
to
by
for
whose business address is
and (if applicable) its Federal Employer Identification Number (FEIN)
(If the entity had no FEIN, include the Social Security Number of the individual signing
this sworn statement:
2. I understand that a "public entity crime" as defined in Paragraph 287. 133 (l)(g), Florida
Statutes, means a violation of any state or federal law by a person with respect to and
directly related to the transaction of business with any public entity or with an agency or
political subdivision of any other state or of the United States, including, but not limited
to, any bid or contract for goods or services to be provided to any public entity or an
agency or political subdivision of any other state or of the United States and involving
antitrust, fraud, theft, bribery, collusion, racketeering, conspiracy, or material
misrepresentation.
3. I understand that "convicted" or "conviction" as defined in Paragraph 287.133(l)(b),
Florida Statutes means a finding of guilt or a conviction of a public entity crime, with or
without an adjudication of guilt, in any federal or state trial court of record relating to
charges brought by indictment or information after July I, 1989, as a result of a jury
verdict, nonjury trial, or entry of a plea of guilty or nolo contenders.
4. I understand that an "affiliate" as defined in Paragraph 287. 133 (l)(a), Florida Statutes,
means:
a. A predecessor or successor of a person convicted of a public entity crime; or
b. An entity under the control of any natural person who is active in the management of
the entity and who has been convicted of a public entity come. The term "affiliate"
includes those officers, directors, executives, partners, shareholders, employees,
members, and agents who are active in the management of an affiliate. The
ownership by one person of shares constituting a controlling interest in another
person, or a pooling of equipment or income among persons when not for fair market
EXHIBIT "A"
value under an arm's length agreement, shall be a prima facie case that one person
controls another person. A person who knowingly enters into a joint venture with a
person who has been convicted of a public entity crime in Florida during the
preceding 36 months shall be considered an affiliate.
5. I understand that a "person" as defined in Paragraph 287. 133(1)(e), Florida Statutes,
means any natural person or entity organized under the laws of any state or of the United
States with the legal power to enter into a binding contract and which bids or applies to
bid on contracts for the provision of goods or services let by a public entity, or which
othelWise transacts or applies to transact business with a public entity. The term
"person" includes those officers, directors, executives, partners, shareholders, employees,
members, and agents who are active in management of any entity.
6. Based on information and belief, the statement which I have marked below is true in a
relation to the entity submitting this sworn statement. (Please indicate which one (I) of
the following three (3) statements is applicable.)
_ (1) Neither the entity submitting this sworn statement, nor any of its officers,
directors, executives, partners, shareholders, employees, members, or agents who are active
in the management of the entity, or any affiliate of the entity has been charged with and
convicted of a public entity crime within the past 36 months.
_(2) The entity submitting this sworn statement, or one or more of its officers,
directors, executives, partners, shareholders, employees, members, or agents who are active
in the management of the entity, or any affiliate of the entity has been charged with and
convicted of a public entity crime within the past 36 months.
_(3) The entity submitting this sworn statement, or one or more of its officers,
directors, executives, partners, shareholders, employees, members, or agents who are active
in the management of the entity, or agents who are active in management of the entity, or
any affiliate of the entity has been charged with and convicted of a public entity crime
within the past 36 months. However, there has been a subsequent proceeding before a
Hearing Officers of the State of Florida, Division of Administrative Hearings and the Final
Order by the Hearing Officer determined that it was not in the public interest to place the
entity submitting this sworn statement on the convicted vendor list. (Attached is a copy of
the final order.)
I UNDERSTAND THAT THE SUBMISSION OF THIS FORM TO THE
CONTRACTING OFFICER FOR THE PUBLIC ENTITY IDENTIFIED IN
PARAGRAPH 1 (ONE) ABOVE IS FOR THE PUBLIC ENTITY ONLY AND, THAT
THIS FORM IS VALID THROUGH DECEMBER 31 OF THE CALENDAR YEAR IN
WHICH IT IS FILED AND FOR THE PERIOD OF THE CONTRACT ENTERED INTO,
WHICHEVER PERIOD IS LONGER. I ALSO UNDERSTAND THAT I AM REQUIRED
TO INFORM THE PUBLIC ENTITY PRIOR TO ENTERING INTO A CONTRACT IN
EXCESS OF THE THRESHOLD AMOUNT PROVIDED IN SECTION 287.017,
FLORIDA STATUTES FOR THE CATEGORY TWO OF ANY CHANGE IN THE
INFORMATION CONTAINED IN THIS FORM.
SIGNATURE OF AFFIANT
(Printed or Typed Legal Name of Affiant)
STATE OF FLORIDA )
)ss.
COUNTY OF MIAMI-DADE)
The foregoing Agreement was acknowledged before me this_ day of ,2009, by
,u ~
, a Florida corporation, on behalf of said corporation and
limited partnership. He personally appeared before me and is personally known to me.
{ NOTORIAL SEAL }
Notary:
Print Name:
Notary Public, State of Florida
My Commission Expires:
NON-COLLUSION AFFIDA VIT
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
The undersigned being first duly sworn as provided by law, deposes, and says:
8.1. This Affidavit is made with the knowledge and intent that it is to be filed with the City of
Sunny Isles Beach City Commission and that it will be relied upon by said County, in any
consideration which may give to and any action it may take with respect to this proposal.
8.2. The undersigned is authorized to make this Affidavit on behalf of,
(Name of Corporation, Partnership, Individual, etc.) a,
formed under the laws of
(Type of Business)
of which he is
(State)
(Sole Owner, Partner, President, etc.)
8.3. Neither the undersigned nor any person, firm, or corporation named in above Paragraph
8.2, nor anyone else to the knowledge of the undersigned, have themselves solicited or employed
anyone else to solicit favorable action for this proposal by the City, also that no head of any
department or employee therein, or any officer of the City of Sunny Isles Beach, Florida is directly
interested therein.
8.4. This proposal is genuine and not collusive or a sham; the person, firm or corporation
named above in Paragraph 8.2 has not colluded, conspired, connived or agreed directly or
indirectly with any proposer or person, firm or corporation, to put in a sham proposal, or that such
person, firm or corporation, shall refrain from Proposing, and has not in any manner, directly or
indirectly, sought by agreement or collusion, or communication or conference with any person,
firm or corporation, to fix the prices of said proposal or proposals of any other proposer; and all
statements contained in the proposal or proposals described above true; and further; neither the
undersigned, nor the person, firm or corporation named above in Paragraph 8.2, has directly or
indirectly submitted said proposal or the contents thereof, or divulged information or data relative
thereto, to any association or to any member or agent thereof.
AFFIANT'S NAME
AFFIANT'S TITLE
EXHIBIT "B"
The foregoing Agreement was acknowledged before me this_ day of ,2009,
by , as of
, a Florida corporation, on behalf of said corporation and limited
partnership. He personally appeared before me and is personally known to me.
{ NOTORIAL SEAL}
Notary:
Print Name:
Notary Public, State of Florida
My Commission Expires:
~
THE HISTORIC FISHING PIER
AT PIER PARK
CITY OF
SUNNY ISLES BEACH
MIAMI-DADE COUNTY, FLORIDA
EXHIBIT "C"
TABLE OF CONTENTS
Page
ARTICLE 1 ..........FUNDAMENTAL LEASE PROVISIONS ..................................................... I
ARTICLE 2 TERM AND RENT........................................................................................ 2
2. 1 ....... Term..................................................................................................................... 2
2.2 Rent/Percentage Rent/Admission Fee PercentageIBait & Gift Shop Revenue
Percentage and Quarterly Reporting Requirements................................................. 3
2.3 Imposition ... ..... ..................... ............. ............. ......... ....... ...... ........ ................. ......4
2.4 Late Charge.......................................................................................................... 4
2.5 Interest on Overdue Amounts..... ................ ............ ...... ....... ........ ..................... .....4
2.6 Net Lease.............................................................................................................. 5
ARTICLE 3 USE OF THE PREMiSE................................................................................ 5
3. I Use.. . . . . ..... . . . .... . . . ..... . . . . . . . . . . . . . . . . ......... . . . . . . . . . . . . . . ...... . . . ... . . . . ... . . . . ... . . . . . . . . . . . .. . .. ............ 5
3.2 Condition of Premises.................. ...... ................ ........ ....... ....... .............................5
3.3 Compliance With Law............ ............. .................. ........ ....... .................... ............5
3.4 Environmental Compliance .................................................................................. 5
3.5 Permits and Licenses............................................................................................ 7
ARTICLE 4 T AXES AND UTILITIES ............................................................................. 7
4. 1 Payment of Taxes ................................................................................................. 7
4.2 Definition of "Taxes" ............... ...................... .......... ....... ......... ....................... ...... 7
4.3 Tenant's Right to Contest Taxes............................................................................ 8
4.4 Payment of Util ities ..............................................................................................................................................................................9
4.5 Interruption in Utility Service............................................................................... 9
ARTICLE 5 INSURANCE, INDEMNIFICATION, AND PAYMENT BOND .............. ............9
5 .1 Tenant's Insurance................................................................................................ 9
5.2
5.3
5.4
5.5
5.6
5.7
ARTICLE 6
6.1.
6.2.
Policy Form.......................................................................................................... 10
Subrogation Waiver ................ ................. ............... ................ .................. ............ 11
Payment of Insurance............................................................................................ 11
Insurance Use Restrictions..... ................................. ...... ......... ........ ........... ............ 11
Indemnification................................................................................................. . ..12
Payment Bond................................................................................ .12
MAINTENANCE AND REPAIRS.............................................................. ...13
Tenant's Obligations................. ............................. .................... ................... ..... ...13
Landlord's Obligations .................................... ... ....... ..... .......................... ......... . ..13
TABLE OF CONTENTS
(Continued)
Page
6.3. Landlord I s Rights ............................................................................................................................................. 13
ARTICLE 7 ALTERATIONS........................................................................................... .14
7.1 Consent to Alterations .................................................................................................................................. 14
7.2 Owners hi p of Alterations ............................................................................................................................................ 14
7.3 Alterations Required by Law................................................................................ .14
7.4 General Conditions Relating to Alterations ..................................................................................................14
7.5 Liens ........................................................................................................................................................................ 15
ARTICLE 8 DAMAGE, DESTRUCTION, OBLIGATION TO REBUILD ...................... 15
8.1 Obligation to Rebuild .................................................................................................................................... 15
8.2 Casualty During Last Twelve Months.................................................................. 15
ARTICLE 9 EMINENT DOMAIN ................................................................................... 16
9 .1 Total Taking ........................................................................................................................................................................... 16
9.2 Partial Taking ........................................................................................................................................................................ 16
9.3 Distribution of Award.......................................................................................... 16
ARTICLE 10 ASSIGNMENT AND SUBLETTING........................................................... 17
10.1 Landlord's Consent Required ....................................:............................................................................. 17
10.2 No Release of Tenant............................................................................................... 17
ARTICLE 11 DEFAULT; REMEDIES............................................................................... 18
11. 1 Default ......................................................................................................................................................................................... 18
11.2 Remedies ......................................................................................................................................................................................... 19
11.3 Cumulative Remedies .......................................................................................................................................................... 19
ARTICLE 12 REPRESENTATIONS AND WARRANTIES; FINANCIAL REPOR......19
12.1 Representations and Warranties ............................................................................................................................ 19
ARTICLE 13 RESERVED.... ................ ............................... .................................. ............ 20
13. 1 Li ens .............................................................................................................................................................................................. 20
13.2 Prohibition and Indemnity Against Mechanic's and Materialman's Liens.............................. 20
ARTICLE 14 BANKRUPTCY OR INSOLVENCy................................................................... 21
14.1 Liquidation ....................................................................................................................................................................................................... 21
14.2 Reorganization .................................................................................................................................................................................................... 21
ARTICLE 15 GENERAL PROVISIONS............................................................................ 21
TABLE OF CONTENTS
(Continued)
Page
15.1 Quiet Enj oyment ...... ........................... .................. .............. ......... ..... ....... ......... ..........21
15.2 Definition of Rent......... ............................ ........................ .................. .................. ...........21
15.3 Subordination ........ ................ ........................................................... .......................... .22
15.4 Encumbrances.............................................................................. ....22
15.5 Surrender of Premises ....... ..... ............................... .................. ........... .......................... ...22
15.6 Estoppel Certificates.. ........................... .............. ........ ........ .............. ........................ .22
15.7 Severability........ .................. ............................. ................... ............. ........ ................ .22
15.8 Entire Agreement... ................... .................... ............ ....... ........ ........ ............................... .23
15.9 Notices ...... ......... ..................... ...................... ............. ....... ......... ................ ..... ............23
15.1 0 Waivers ....... ........ ......... ................... ........................... ........ ......... .......... .............. ............23
15.11 Recording....... ........ ................................................ ....................... ................. ................23
15.12 Holding Over......... ....... ........... ............................. .......... .................. ................ ..... .........23
15.13 Choice of Law...... ....................... .......................................... ......... ................. ...............23
15.14 Attorneys' Fees............................................................................................. 23
15.15 Waiver of Jury Trial, Arbitration and Mediation .......................................................24
15.16 Liability of Landlord.. ....................... ............................... ......... .................................. ..24
15 .17 No Merger..................................................................................................................... .24
15.18 Interpretation. ........................................... .............. ......... ........ ............. ............. ............25
15.19 Relationship of the Parties........................................................................................... .25
15. 20 Successors..................................................................................................................... .25
15.21 Modifications................................................................................................................ .25
15.22 Brokerage Fees ......... ............................................ ......... ............. ............ ............ .......... .25
15 .23 Waiver of Redemption ......................................... .................................... .............. .......25
15. 24 Not Binding Until Executed....................................................................................... ..25
15.25 Counterparts....... ............................. ................. ................................... .................... .......25
In consideration of the rents and covenants set forth below, Landlord (as hereinafter
defined) hereby leases to Tenant (as hereinafter defined), and Tenant hereby leases
from Landlord, the Premises (as hereinafter defined), upon the following terms and conditions:
ARTICLE 1
FUNDAMENTAL LEASE PROVISIONS
The provisions in this Article shall be referred to in this Lease as the "Fundamental Lease
Provisions." Unless otherwise defined herein, capitalized terms used in this Lease shall have the
meanings listed in the Fundamental Lease Provisions.
Commencement Date:
Landlord:
City of Sunny Isles Beach
18070 Collins Avenue
Sunny Isles Beach, Florida 33160
Tenant:
Tenant's EID No.:
Premises:
1650 I Collins Avenue
Sunny Isles Beach, Florida 33160
Initial Term:
10 years, commencing on the Commencement Date
Renewal Terms:
2 terms of 5 year(s) each, with rent due thereunder at the then
existing fair market as determined by Landlord in its sole
reasonable discretion.
Base Monthly Rent:
Percentage Rent:
Admission Fee Percentage:
(if applicable)
Bait/Gift Shop Revenue Percentage
(if applicable)
Permitted Use:
Pier restaurant
ARTICLE 2
TERM AND RENT
2.1 Term. The Initial Term of this Lease shall be as set forth in the
Fundamental Lease Provisions. Provided Tenant is not then in default under this Lease, Tenant
shall have the option to extend the Initial Term by the number of successive Renewal Terms
described in the Fundamental Lease Provisions by giving Landlord written notice of its election
to extend the term of this Lease by the succeeding Renewal Term not less than 90 days prior
to expiration of the Initial Term or the then running Renewal Term, as the case may
be. The terms and conditions of this Lease shall apply during each Renewal Term. The Initial
Term, as it may be extended by one or more Renewal Terms shall be hereinafter referred to as
the "Lease Term." Landlord hereby grants a Lease Agreement to Tenant for a term of ten
(l0) years, the premises described in this Lease Agreement to be operated as a Restaurant. The
term and Commencement Date of this Lease Agreement, herein referred to as the Lease
Effective Date, shall begin on the date indicated in Article 1 above. There shall also be two (2)
optional renewal periods of five (5) years, based upon the Tenant's election to exercise these
option periods and the consent of the Landlord, which consent shall not be unreasonably
withheld if the Tenant has previously complied with all terms and conditions set forth in the
Request for Proposal and this Lease Agreement.
2.2 Rent.
2.2.1 Base Monthly Rent. For the use and occupancy of the Premises, Tenant
shall pay Landlord the Base Monthly Rent, in advance, commencing on the Commencement
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Date and continuing on the first day of each calendar month thereafter during the Lease Term,
without any offset or deduction. Should the Lease Term commence on a day other than the first
day of a calendar month, then the rental for such first fractional month shall be computed on a
daily basis for the period from the Commencement Date to the end of such calendar month
at an amount equal to 1I30th of the Base Monthly Rent for each day. Should the Lease
Term end on a day other than the last day of a calendar month, then the rental for such
fractional month shall be computed on a daily basis at an amount equal to 1I30th of the Base
Monthly Rent for each day. Tenant shall pay Landlord the Base Monthly Rent in lawful money
of the United States without deduction, setoff or counterclaim. Any waiver of initial rent or
other base monthly rent shall be in accordance with Section 1.23 of the Request for Proposal.
2.2.2 Percentage Rent and Quarterly Reporting Requirements.
(i) In addition to the Base Monthly Rent, Tenant shall pay to
Landlord Percentage Rent equal to the amount by which percent ( %) of all Net Sales
(as hereinafter defined) during each full or partial calendar year exceed the total annual
Base Rent provided under Paragraph 2.1.1. of this Lease for such year. Percentage Rent
shall be payable on a quarterly basis during the calendar year, on or before the thirtieth
(30th) day of the month following the end of each quarter, such Percentage rent to be
equal to eight percent (8%) of Tenant's Net Sales for the same lease quarter.
(ii) The term "Net Sales" as used in this Lease shall include the entire
gross receipts of every kind and nature from the sales and services made in, upon, or from (e.g.
catering services) the premises, and promotional events, whether upon credit, for cash or credit;
excepting there from sales and similar taxes attributable to such sales which are charged to and
collected from the customer, customer discounts, refunds, voids, all complimentary
or promotional meals, and all meals of employees, management or corporate personnel
attendant to the extent no money is received for any of them.
(iii) Tenant shall, in connection with all sales, utilize point of
sale equipment which properly records all such sales. Tenant shall keep in the demised
premises or at some other location a permanent and accurate set of books and records of all sales
and revenues derived from business conducted in the demised premises, including: catering
records; records of voids and refunds; tax reports; liquor tax returns; and such other records as
may be needed to permit an effective audit of sales. All such records shall be retained and
preserved for at least twenty-four (24) months after the end of the calendar year to which
they relate, and shall be subject to inspection and audit by Landlord and its agents at all
reasonable times..
(iv) In addition, the Tenant shall prepare and remit quarterly reports
to Landlord on or before the thirtieth (30th) day of the month following the end of each
quarter, evidencing the percentage of rent collected based on net sales, and in such form as
Landlord may require, certified to be correct by Tenant or Tenant's authorized
representative.
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(v) In the event Landlord desires to audit the reports of
Net Sales submitted by Tenant (not to exceed one (1) time per year) Landlord shall
have the right to cause its auditors to audit all books and records, wherever located,
pertaining to sales made in or upon the demised premises. Tenant shall promptly pay
to Landlord any deficiency or Landlord shall promptly refund to Tenant any
overpayment, as the case may be, which is established by such audit.
2.2.3 Admission Fee Percentage. The management of the Pier and collection of
admission fees is optional. However, if previously agreed to by Tenant in response to the
Landlord's Request for Proposal, Tenant shall remit to Landlord the agreed upon percentage of
the Pier admission fees collected by Tenant during the Lease Term and any subsequent renewal
periods.
2.2.4 Bait/Gift Shop Revenue Percentage. The management of the Bait and Gift shop
is optional. However, if previously agreed to by Tenant in response to the Landlord's Request
for Proposal, Tenant shall remit to Landlord the agreed upon percentage of the net sales of
bait/gift shop item fees collected by Tenant during the Lease Term and any subsequent renewal
periods.
2.3 Impositions. In addition to the Rent, Tenant shall pay to the parties
respectively entitled thereto all impositions, insurance premiums and Taxes (as
defined in Article 4), (collectively, the "Impositions"). If any such Impositions are
allocated to Tenant, rather than charged directly against Tenant or the demised
premises, Landlord shall provide Tenant with such support for such charges as
Tenant may reasonably request. Tenant shall furnish to Landlord, promptly upon
request of Landlord official receipts or other satisfactory proof evidencing payment
of such Impositions.
2.4 Late Charge. If any installment of the Base Minimum Rent, any
Imposition or any other payment provided for under this Lease which is payable by
Tenant is not received by Landlord within five (5) days after notice, Tenant shall
immediately pay Landlord the amount of Five Hundred ($500) Dollars as a late charge
(the "Late Charge"). Landlord and Tenant agree that the Late Charge represents a
fair and reasonable estimate of the costs that Landlord will incur by reason of any
such late payment by Tenant. Acceptance of the Late Charge by Landlord shall not
constitute a waiver of Tenant's default with respect to the overdue amount, nor prevent
Landlord from exercising any other rights and remedies available to Landlord under this Lease.
2.5 Interest on Overdue Amounts. The Basic Monthly Rent and all other
amounts due Landlord under this Lease which are not paid when due shall bear
interest at a per annum rate equal to the "federal funds rate" (or substantial
equivalent) announced from time to time (as adjusted monthly) plus two percent
(2%), from the date due until paid; provided, however, that if such rate shall exceed
the lawful rate of interest which Landlord is entitled to charge under applicable law, then the per
annum rate of interest on any such overdue amounts shall be the maximum rate permitted by
applicable law.
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2.6 Net Lease. This Lease is what is commonly called a "triple net lease," it
being understood that Landlord shall receive the Base Monthly Rent free and clear of
any and all Taxes, other Impositions, liens, charges, or expenses of any nature
whatsoever incurred in connection with the ownership and operation of the Premises.
ARTICLE 3
USE OF THE PREMISES
3.1 Use. Tenant shall use the Leased Premises solely for the Permitted Use.
Tenant may not use the Premises for any other purpose without obtaining the prior written
consent of Landlord, which consent shall not be unreasonably withheld.
3.2 Condition of Premises. Landlord will construct the foundation, building shell
and roof of the Leased Premises and deliver the Leased Premises to Tenant for finish out.
Such finish out shall be solely at Tenant's cost.
3.3 Compliance With Law.
3.3.1 Tenant shall, at Tenant's sole expense, comply in all material
respects with all applicable laws, ordinances, orders, rules, regulations, of any
governmental authorities and with any directive of any public officer which shall impose any
violation, order or duty upon Landlord or Tenant with respect to the Premises or the use or
occupation thereof or signage thereon, including, without limitation, any governmental
law or statute, rule, regulation, ordinance, code, policy or rule of common law now or
hereafter in effect relating to the environment, health or safety.
3.3.2 Tenant shall not use or permit the Premises to be used in any
manner which will result in waste or the creation of a nuisance, and Tenant shall maintain
the Premises free of any objectionable noises, odors, or disturbances.
3.4 Environmental Compliance.
3.4.1 Tenant shall, at its sole cost and expense at all times during the
Term, comply in all respects with the Environmental Laws (as defined below) in its use and
operation of the Premises.
3.4.2 Tenant shall not use the Premises for the purpose of storing
Hazardous Materials (as defined below) except in full compliance with the Environmental
Laws and other applicable law, and shall not cause the release of any Hazardous Material.
3.4.3 Tenant shall notify Landlord promptly and in reasonable detail in
the event that Tenant becomes aware of or suspects (i) the presence of any Hazardous
Material on the Premises (other than any Permitted Hazardous Materials, as defined below), or
(ii) a violation of the Environmental Laws on the Premises.
5
3.4.4 If Tenant uses or permits the Premises to be used so as to subject
Tenant, Landlord or any occupant of the Premises to a claim of violation of the
Environmental Laws (unless contested in good faith by appropriate proceedings), Tenant
shall, at its sole cost and expense, immediately cease or cause cessation of such use or
operations and shall remedy and fully cure any conditions arising therefrom.
3.4.5 At its sole cost and expense, Tenant shall (i) immediately pay, when
due, the cost of compliance with the Environmental Laws within the Premises, and (ii)
keep the Premises free of any liens imposed pursuant to the Environmental Laws. Tenant
shall, at all times, use, handle and dispose of any Permitted Hazardous Material in a
commercially reasonable manner and in compliance with the Environmental Laws and
applicable industry standards. Tenant shall cooperate with Landlord in any program between
Landlord and any governmental entity for proper disposal and/or recovery of any Permitted
Hazardous Material.
3.4.6 Tenant shall indemnify, save and hold Landlord harmless from
and against any claim, liability, loss, damage or expense (including, without limitation,
reasonable attorneys' fees and disbursements) arising out of any violation of the
covenants of Tenant contained in this Section by Tenant, or out of any violation of the
Environmental Laws by Tenant, its owners, employees, agents, contractors, customers,
guests and invitees, which indemnity obligation shall survive the expiration or termination of
this Lease.
3.4.7 In the event that Tenant fails to comply with any of the
foregoing requirements of this Section, after the expiration of the cure period
permitted under the Environmental Laws, if any, Landlord may, but shall not be obligated to
(i) elect that such failure constitutes a default under this Lease; and/or (ii) take any and all
actions, at Tenant's sole cost and expense, that Landlord deems necessary or desirable to
cure any such noncompliance. Tenant shall reimburse Landlord for any costs incurred by
Landlord in exercising its options under this subsection within 5 (five) days after receipt of a
bill therefore.
3.4.8 The provisions of this Section shall survive the expiration or termination of
the Lease Term.
Capitalized terms used in this Section and not otherwise defined herein shall have the
following meanings:
"Hazardous Materials" means any of the following as defined by
the Environmental Laws: solid wastes; medical or nuclear waste or materials;
toxic or hazardous substances; natural gas, liquefied natural gas or synthetic fuel gas;
petroleum products or derivatives, wastes or contaminants (including, without
limitation, polychlorinated biphenyls); paint containing lead; urea-formaldehyde foam
insulation; asbestos (including, without limitation, fibers and friable asbestos);
explosives, and discharges of sewage or eflluent.
6
"Environmental Laws" means all requirements of environmental,
ecological, health, or industrial hygiene laws or regulations or rules of common law
related to the Property, including all requirements imposed by any law, rule, order, or
regulation of any federal, state, or local executive, legislative, judicial, regulatory, or
administrative agency, board, or authority, which relate to (i) noise; (ii) pollution or
protection of the air, surface water, ground water, or land; (iii) solid, gaseous, or liquid
waste generation, treatment, storage, disposal, or transportation; (iv) exposure to
Hazardous Materials; or (v) regulation of the manufacture, processing, distribution and
commerce, use, or storage of Hazardous Materials.
"Permitted Hazardous Material" means any Hazardous Material which is
necessary and commercial reasonable for the provision of any good or service related to
the Permitted Use.
3.5 Permits and Licenses. Tenant shall be solely responsible to apply for and secure
any building permit or permission of any duly constituted authority for the purpose of doing any
of the things which Tenant is required or permitted to do under the provisions of this Lease.
ARTICLE 4
TAXES AND UTILITIES
4.1 Payment of Taxes. Tenant shall pay the Taxes (as defined in the following
Section) applicable to the Premises during the Lease Term. Landlord shall provide Tenant with
copies of any tax bills applicable to the Premises promptly after receipt of such bills. All such
payments shall be made at least 10 days prior to the delinquency date of such payment. Tenant
shall promptly furnish Landlord with satisfactory evidence that such Taxes have been paid. If any
such Taxes paid by Tenant shall cover any period of time prior to or after the expiration of the
Lease Term, Landlord shall reimburse Tenant to the extent required. If Tenant shall fail to pay
any such Taxes, Landlord shall have the right (but not the obligation) to pay the same, in which
case Tenant shall repay such amount plus any penalties and interest resulting therefrom to
Landlord within 5 days after receipt of a bill therefore.
4.2 Definition of "Taxes". As used herein, the term "Taxes" shall include:
4.2.1 any form of real estate tax or assessment, ad valorem tax or gross receipts
tax, imposed by any authority having the direct or indirect power to tax, including any city,
county, state, or federal government, or any school, agricultural, sanitary, fire, street, drainage, or
other improvement district thereof, on, against or with respect to the Premises, this Lease, any
legal or equitable interest of Landlord or any superior landlord in the Premises or in the real
property of which the Premises are a part, Landlord's right to rent or other income therefrom, and
Landlord's business of leasing the Premises;
4.2.2 any tax, fee, levy, assessment, penalty, interest or other charge (i) in
substitution of, partially or totally, any tax, fee, levy, assessment, or charge hereinabove included
7
within this definition of Taxes, or (ii) any tax or increase in any tax which is imposed as a result of
a transfer, either partial or total, of Landlord's interest in the Premises to Tenant, or (iii) which is
imposed by reason of this transaction, any modifications or changes thereto, or any transfers
hereof; and
4.2.3 all inspection fees, taxes, bonds, permits, certificates, assessments
and sales, use, property or other taxes, fees or tolls of any nature whatsoever (together
with any related interest or penalties) now or hereafter imposed against Landlord or Tenant by
any federal, state, county or local governmental authority upon or with respect to the
Premises or the use thereof or upon the possession, leasing, use, operation or other
disposition thereof or upon the rents, receipts or earnings arising therefrom or upon or with
respect to this Lease; and
4.2.4 all taxes assessed against and levied upon trade fixtures,
furnishings, equipment, and all other personal property of Tenant contained in the
Premises or elsewhere, which Tenant shall cause to be separately assessed and billed directly
to Tenant.
Tenant shall pay when due or reimburse and indemnify and hold Landlord harmless from
and against any Taxes. Notwithstanding the foregoing, the term "Taxes" shall not
include any general income taxes, inheritance taxes, and estate taxes imposed upon Landlord.
4.3 Tenant's Right to Contest Taxes.
4.3.1 Tenant shall have the right, at its sole cost and expense, to contest
the amount or validity, in whole or in part, of any Taxes by appropriate proceedings
diligently conducted in good faith, but no such contest shall be carried on or maintained by
Tenant after the time limit for the payment of any Taxes unless Tenant shall (i) pay the
amount involved under protest; (ii) procure and maintain a stay of all proceedings to enforce
any collection of any Taxes, together with all penalties, interest, costs and expenses, by a
deposit of a sufficient sum of money, or by such undertaking, as may be required or
permitted by law to accomplish such stay; or (iii) deposit with Landlord, as security for the
performance by Tenant of its obligations hereunder with respect to such Taxes, 100% of
such contested amount or such other reasonable security as may be demanded by Landlord to
insure payment of such contested Taxes and all penalties, interest, costs and expenses which
may accrue during the period of the contest. Upon the termination of any such proceedings,
Tenant shall pay the amount of such Taxes or part thereof, as finally determined in such
proceedings, together with any costs, fees (including all reasonable attorneys' fees and
expenses), penalties or other liabilities in connection therewith; provided, however, that if
Tenant has deposited cash or cash equivalents with Landlord as security under clause
(iii) above, then, so long as no default exists under this Lease, Landlord shall arrange to
pay such Taxes (or part thereof) together with the applicable costs, fees and liabilities as
described above out of such cash or cash equivalents and return any unused balance, if any, to
Tenant. Otherwise, Landlord shall return to Tenant all amounts, if any, held by or on behalf
of Landlord which were deposited by Tenant in accordance with such clause (iii).
8
4.3.2 Tenant shall have the right, at its cost and expense, to seek a reduction
in the valuation of the Premises as assessed for tax purposes and to prosecute any
action or proceeding in connection therewith. Provided Tenant is not in default hereunder,
Tenant shall be authorized to retain any tax refund of any tax paid by Tenant.
4.3.3 Landlord agrees that whenever Landlord's cooperation is required in any
proceeding brought by Tenant to contest any tax, Landlord will reasonably cooperate therein,
provided same shall not entail any cost, liability or expense to Landlord. Tenant shall pay,
indemnify and save Landlord harmless of and from, any and all liabilities, losses,
judgments, decrees, costs and expenses (including all reasonable attorneys' fees and expenses)
in connection with any such contest and shall, promptly after the final settlement, fully pay and
discharge the amounts which shall be levied, assessed, charged or imposed or be
determined to be payable therein or in connection therewith, and Tenant shall perform and
observe all acts and obligations, the performance of which shall be ordered or decreed as a
result thereof. No such contest shall subject Landlord to the risk of any civil liability or the
risk of any criminal liability, and Tenant shall give such reasonable indemnity or security to
Landlord as may reasonably be demanded by Landlord to insure compliance with the foregoing
provisions of this Section.
4.4 Payment of Utilities. Tenant shall pay to the utility companies or other
parties entitled to payment the cost of all water, heat, air conditioning, gas, electricity,
telephone, and other utilities and services provided to or for the Premises, including,
without limitation, connection fees and taxes thereon.
4.5 Interruption in Utility Service. Landlord shall not be liable in damages or otherwise
for any failure or interruption of any utility or other service being furnished to the
Premises, and no such failure or interruption shall entitle Tenant to any abatement of, set off or
reduction in the amounts payable to Landlord hereunder or otherwise entitle Tenant to
terminate this Lease.
ARTICLE 5
INSURANCE AND INDEMNIFICATION
5.1 Tenant's Insurance. From and after taking possession of the Premises,
Tenant shall carry and maintain, at its sole cost and expense, the following types and
amounts of insurance:
Tenant shall provide and maintain in force until all the work to be performed under this Lease
Agreement has been completed and accepted by Landlord (or for such duration as is otherwise
specified hereinafter), the insurance coverage set forth:
Worker's Compensation insurance at the statutory amount to apply for all employees in
compliance with the "Workers' Compensation Law" of the State of Florida and all applicable
federal laws. In addition, the policy (ies) must include: Employers' Liability at the statutory
9
coverage amount. Tenant shall further insure that all of its Sub-Contractors maintain appropriate
levels of worker's compensation insurance.
Comprehensive General Liability with minimum limits of Five Million Dollars ($5,000,000) per
occurrence combined single limit for Bodily Injury Liability and Property Damage Liability.
Coverage must be afforded on a form no more restrictive than the latest edition of the
Comprehensive General Liability policy, without restrictive endorsements, as filed by the
Insurance Services Office, and must include:
Premises and Operation
Independent Contractors
Products and/or Completed Operations Hazard
Business Interruption, not less than six months installments of Base Monthly Rent, loss
of earnings by at least the perils of fire and lightning, extended coverage, vandalism,
malicious mischief and sprinkler leakage
Broad Form Property Damage
Broad Form Contractual Coverage applicable to this specific Contract, including any hold
harmless and/or indemnification agreement.
Personal Injury Coverage with Employee and Contractual Exclusions removed, with
minimum limits of coverage equal to those required for Bodily Injury Liability and
Property Damage Liability.
Before starting the work, Tenant will file and make sure that all certificates of insurance required
by this Lease Agreement are in Landlord's possession. These certificates shall contain a
provision that the coverage afforded under the policies will not be canceled or materially
changed until at least thirty (30) days prior written notice has been given to Landlord by certified
mail. Landlord shall be named as an additional insured on the above-referenced policies.
Tenant agrees that if any part of the work under the Agreement is sublet, they will require the
Sub-Contractor(s) to carry insurance as required, and that they will require the Sub-Contractor(s)
to furnish to them insurance certificates similar to those required by the City in this section.
If any insurance should be canceled or changed by the insurance company or should any
insurance expire during the period of the Lease Agreement, Tenant shall be responsible for
securing other acceptable insurance to provide the coverage specified in this section to maintain
coverage during the life of the Lease Agreement. All deductibles must be declared by Tenant
and must be approved by Landlord. At the option of Landlord, either the Tenant shall eliminate
or reduce such deductible or the selected proposer shall procure a Bond, in a form satisfactory to
Landlord, covering the same.
5.2 Policy Form.
5.2.1 Tenant shall obtain all policies of insurance required by Section
5.1 issued in the names of Tenant and Landlord, as their respective interests may appear. In
addition, all such policies providing coverage for physical damage shall include a loss payee
endorsement in favor of Landlord. The Tenant shall cause copies of such policies of insurance
10
or originally executed certificates thereof to be delivered to Landlord prior to Landlord's
execution of this Lease, and not less than 30 days prior to any renewal thereof As often as
any such policy shall expire or terminate, Tenant shall procure and maintain renewal or
additional policies with like terms. None of such policies shall contain any co-insurance
requirements and all such policies shall provide for written notice to Landlord not less
than 10 days prior to any modification, cancellation, lapse, or reduction in the amounts of
insurance, and shall further provide that any loss otherwise payable thereunder shall be
payable notwithstanding any act or negligence of Landlord or Tenant which might, absent
such provision, result in a forfeiture of all or part of the payment of such loss. All general
liability, property damage, and other casualty policies shall be written on an occurrence basis as
primary policies, not contributing with or in excess of coverage which Landlord may carry.
5.2.2 Tenant's obligations to carry the insurance provided for above may
be brought within the coverage of an "umbrella" policy or policies of insurance carried
and maintained by Tenant; provided, however, that such policy or policies shall (i) have limits
of not less than $5,000,000 (five million dollars), (ii) name Landlord and any mortgagee
or beneficiary of Landlord as additional insureds as their interests may appear, and (iii)
provide that the coverage afforded Landlord will not be reduced or diminished by reason of
the use of such blanket policies. Tenant agrees to permit Landlord at all reasonable times to
inspect any policies of insurance of Tenant which Tenant has not delivered to Landlord.
5.3 Subrogation Waiver. Landlord (for itself and its insurer) hereby waives
any rights, including rights of subrogation, and Tenant (for itself and its insurer) hereby
waives any rights, including rights of subrogation, each may have against the other on account
of any loss or damage occasioned to Landlord or Tenant, as the case may be, to their respective
property, the Premises or its contents that are caused by or result from risks insured
against under any insurance policies carried by the parties hereto and in force at the time of
any such damage. The foregoing waivers of subrogation shall be operative only so long as
available in the jurisdiction where the Premises are located and so long as no policy of insurance
is invalidated thereby.
5.4 Payment of Insurance. In the event. that Tenant shall fail to obtain the
insurance policies required hereunder or to pay the premiums due for the insurance
policies required hereby, Landlord shall have the right, but not the obligation, to pay the
same in which case Tenant shall repay such amount plus any penalties or additional amounts
resulting there from to Landlord within 5 days after receipt of a bill therefor.
5.5 Insurance Use Restrictions. Any insurance the Landlord may maintain shall not
cover Tenant's improvements and betterments, contents, or other property of Tenant. Tenant shall
not violate, or permit the violation of, any condition imposed by any of the Landlord's insurance
policies, and shall not do, or permit anything to be done, or keep or permit anything to be keptin
the Restaurant which would increase the fire or other property or casualty insurance rate on the
building or buildings in which the Restaurant is located or the property therein over the rate
which would otherwise then be in effect (unless Tenant pays the resulting increased amount of
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premium(s) as provided under the further terms hereof), or which would result in insurance
companies of good standing refusing to insure the same or any of such property in amounts
and at normal rates reasonably satisfactory to the Landlord. If, by reason of any act or
omission on the part of Tenant, the rate of property insurance on the Restaurant or Pier Park or
equipment or other property of the Landlord shall be higher than it otherwise would be, Tenant
shall reimburse the Landlord, on demand, for that part of the premiums for property insurance paid
by the Landlord because of such act or omission on the part of Tenant, which sum shall be
deemed additional rent for purposes of collection only.
5.6 Indemnification. Tenant shall indemnify Landlord for, defend Landlord
against, and save Landlord harmless from, any liability, loss, cost, injury, damage or other
expense or risk whatsoever that may occur or be claimed by or with respect to any person(s)
or property on or about the Premises and resulting directly or indirectly from:
5.6.1 the use, misuse, occupancy, possession or disuse of the
Premises by Tenant or other persons claiming through or under Tenant, or their respective
agents, employees, licensees, invitees, guests or other such persons;
5.6.2 Tenant's maintenance of the condition of the Premises;
5.6.3 any work or thing done in respect of construction of, in or
to the Premises or any part of the improvements now or hereafter constructed on the
Premises (other than work by or on behalf of Landlord);
5.6.4 any use, possession, occupation, operation, or management of
the Premises or any part hereof;
5.6.5 any failure to, or to properly, use, possess, occupy, operate, maintain
or manage the Premises or any part thereof;
5.6.6
any part thereof;
the condition, including environmental conditions, of the Premises or
5.6.7 any negligence on the part of Tenant or any of its agents, contractors,
servants, employees, licensees or invitees;
5.6.8 any accident, injury or damage to any person or property occurring in,
on or about the Premises;
5.6.9 any failure on the part of Tenant to perform or comply with any of
the covenants, agreements, terms or conditions contained in this Lease on its part to be
performed or complied with.
5.7 Payment Bond. Landlord shall require Tenant to furnish a Payment Bond. The
Payment Bond, in the amount of Five Hundred Thousand ($500,000.00), shall be provided to
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Landlord as the Obligee, as security for the payment of all persons performing labor or
furnishing materials in connection herewith.
Within ten (10) calendar days of being notified of the award, Tenant shall execute this Lease
Agreement and attach a Payment Bond. The Payment Bond shall be in an amount of Five
Hundred Thousand ($500,000) guaranteeing to Landlord the full payment of all suppliers,
material, laborers, or Sub-Contractors employed pursuant to the work described in the Request
for Proposal and this Lease Agreement. The Payment Bond shall be with a Surety company
meeting the qualifications of the Request for Proposal and this Lease Agreement. The Payment
Bond shall continue in effect for one and one half years after final completion and acceptance of
the Work. Pursuant to the requirements of Section 255.05(1), Florida Statutes, Tenant shall
ensure that the Payment Bond referenced above shall be recorded in the public records of Miami-
Dade County and provide Landlord with evidence of such recording.
The Payment Bond must be executed by a Surety company authorized to do business in the State
of Florida as a surety, having a resident agent in the State of Florida and having been in business
with a record of successful continuous operation for at least five (5) years. The Surety company
shall hold a current certificate of authority as acceptable surety on federal bonds in accordance
with the United States Department of Treasury Circular 570, current Revisions. Landlord will
accept a surety bond from a company with a rating B+ or better.
Failure of Tenant to execute and deliver the Lease Agreement and deliver the required payment
bond and Insurance Certificates as stipulated in the Request for Proposal and this Lease
Agreement shall be cause for Landlord to annul the Notice of Award and declare Tenant and any
security therefore forfeited.
ARTICLE 6
MAINTENANCE AND REPAIRS
6.1. Tenant's Obligations. Tenant shall, at its sole cost and expense, maintain in
good repair, order, and serviceable condition the interior of the Premises and every part
thereof; including, without limitation, all plumbing, ventilation, heating, air conditioning, and
electrical systems and equipment in, on, or exclusively serving, the Premises; and all windows,
doors, plate glass, interior walls, and ceilings which are part of the Premises.
6.2 Landlord's Obligations. Landlord have the obligation to repair and maintain
the foundation, exterior walls, roof and utilities beyond connection to the building on the
Premises, including structural or nonstructural, ordinary or extraordinary.
6.3 Parties' Rights. If either party refuses or neglects to make repairs or maintain
the Premises, or any part thereof, in a manner reasonably satisfactory to the other, without
prejudice to any other remedy, upon giving 10 days prior written notice, such party shall have
the right to perform such maintenance or make such repairs on behalf of and for the account of
the other. In the event a party so elects, the other shall pay the cost of such repairs,
maintenance, or replacements within 5 days following receipt of a bill therefor. Tenant
agrees to permit Landlord or its agent to enter the Premises, upon reasonable notice by
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,
Landlord, during normal business hours for the purpose of inspecting the Premises.
ARTICLE 7
ALTERATIONS
7.1 Consent to Alterations. Subject to the prior written consent of Landlord,
which consent shall not be unreasonably withheld, Tenant may, at its sole cost and
expense, make alterations, replacements, additions, changes, and improvements (collectively
referred to in this Article as "Alterations") to the Premises as it may find necessary or
coq.venient for its purposes, but only after giving Landlord written notice thereof, together
with copies of all architectural plans and specifications relating to any such Alteration.
7.2 Ownership of Alterations. All Alterations made on the Premises shall become the
property of Landlord at the expiration or termination of the Lease Term and shall be surrendered
with the Premises.
7.3 Alterations Required by Law. Tenant shall, at its sole cost and expense, make any
Alteration to or on the Premises, or any part thereof, which may be necessary or required
by reason of any law, rule, regulation, or order promulgated by competent government authority.
7.4 General Conditions Relating to Alterations. Any Tenant Alteration shall be
subject to the following conditions:
7.4.1 No Alteration shall be undertaken until Tenant shall have procured
and paid for all required permits and authorizations of all municipal departments and
governmental subdivisions having jurisdiction.
7.4.2 Any Alteration involving an estimated cost of more than $100,000.00
(one hundred thousand dollars) shall be conducted under the supervision of a licensed
architect or engineer selected by Tenant and satisfactory to Landlord, and shall be made in
accordance with detailed plans and specifications and cost estimates prepared by such architect
or engineer and approved in writing in advance by Landlord.
7.4.3 Any Alteration shall be made promptly and in a good
workmanlike manner, by properly qualified and licensed personnel, and in compliance
with all applicable permits and authorizations and building and zoning laws and all laws, and in
accordance with the orders, rules and regulations of the Board of Fire Insurance Underwriters, if
applicable, and any other body hereafter exercising similar functions having or asserting
jurisdiction over the Premises.
7.4.4 No Alteration shall tie-in or connect any improvements to any
building on the Premises with any property outside the Premises without the prior
written consent of Landlord.
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7.4.5 No Alteration shall reduce the value of the Premises or impair
the structural integrity of any building comprising a part of the Premises.
7.5 Liens. In connection with Alterations or otherwise, Tenant shall do all
things necessary to prevent the filing of any mechanic's or materialman's liens against the
Premises, or any part thereof, or upon any interest of Landlord by reason of labor,
services or materials supplied or claimed to have been supplied to Tenant, or anyone holding
the Premises, or any part thereof, through or under Tenant. If any such lien shall at any time
be filed against all or any portion of the Premises, Tenant shall either cause same to be
discharged of record within 30 days after the date of filing of same or, if Tenant in good
faith determines that such lien should be contested, Tenant shall either (i) bond over such lien
in accordance with applicable law, or (ii) furnish such security as Landlord shall determine to be
necessary and/or required to prevent any foreclosure proceedings against all or any portion of
the Premises during the pendency of such contest. If Tenant shall fail to discharge or bond
over such lien or fail to furnish such security within such period, then, in addition to any other
right or remedy of Landlord resulting from said default of Tenant, Landlord may, but shall
not be obligated to, discharge the same either by paying the amount claimed to be due or by
procuring the discharge of such lien by giving security or in such other manner as is, or may
be, prescribed by law, and Tenant agrees to reimburse Landlord within 5 days after demand
for all costs, expenses, and other sums of money spent in connection therewith.
ARTICLE 8
DAMAGE, DESTRUCTION, OBLIGATION TO REBUILD
8.1 Obligation to Rebuild. If any portion of the Premises is damaged or destroyed
by fire or other casualty, Tenant shall forthwith give notice thereof to Landlord. Tenant shall
obtain an estimate from a licensed architect or contractor of the cost to complete such repair,
restoration, rebuilding or replacement, and Tenant shall, at its sole cost and expense, promptly
repair, restore, rebuild or replace the damaged or destroyed improvements, fixtures or
equipment, and complete the same as soon as reasonably possible, to the condition they were in
prior to such damage or destruction, except for such changes in design or materials as may
then be required by law. In such event, Landlord shall, to the extent and at the times the
proceeds of the insurance are made available to Landlord, and only so long as Tenant shall not
be in default under this Lease, deliver such funds to Tenant for the making such repairs,
restoration, rebuilding and replacements.
8.2 Casualty During Last Twelve Months. Notwithstanding the foregoing, if the
Premises is damaged or destroyed by fire or other casualty during the last twelve (12) months
of the Initial Term or the then-running Renewal Term, Tenant may elect not to rebuild
and to terminate this Lease; provided that Landlord shall receive insurance proceeds in the full
amount of the casualty loss. In the event that Tenant elects to terminate this Lease and the
insurance proceeds are less than the amount of the unpaid rent for the balance of the Lease
Term, Tenant agrees to pay the difference to Landlord in cash (or cash equivalent) within 5 (five)
days after receipt of a bill from Landlord.
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ARTICLE 9
EMINENT DOMAIN
9.1 Total Taking. If the entire_Premises are taken under the power of eminent domain by
any public or quasi-public authority, this Lease shall terminate and expire as of the date of
such taking, and Tenant shall be entitled to make a claim for the loss of business and investment,
Landlord and Tenant shall each thereafter be released from any further liability accrued under
this Lease. In the event that Tenant shall have paid any rent for any period beyond the date of
such taking, Landlord shall reimburse same, pro rata.
9.2 Partial Taking. In the event that (i) more than 25% of the floor area of the
Premises, or of the parking area serving the Premises and owned by the Landlord, is taken under
the power of eminent domain by any public or quasi-public authority, (ii) by reason of any
appropriation or taking, regardless of the amount so taken, the remainder of the Premises is not
one undivided parcel of property, or (iii) as a result of any taking, regardless of the amount
so taken, the remainder of the premises is rendered unsuitable for the continued operation
of Tenant's business, Tenant shall have the right to terminate this Lease as of the date Tenant
is required to vacate a portion of the Premises, by giving the other notice of such election within
30 days after receipt by Tenant from Landlord of written notice that the Premises have been
so appropriated or taken. Landlord agrees immediately after learning of any appropriation or
taking to give to Tenant notice in writing thereof In the event of such termination, both Landlord
and Tenant shall thereupon be released from any liability thereafter accruing hereunder. If
Tenant elects not to terminate this Lease, Tenant shall remain in that portion of the Premises not
so taken and Tenant, at Tenant's sole cost and expense, shall restore the remaining portion of the
Premises as soon as possible to a complete unit of like quality and character as existed prior to
such taking. Landlord agrees to reimburse Tenant for the cost of restoration, but in no event shall
Landlord's obligation to reimburse Tenant for the cost of restoring the remaining portion of
the Premises exceed the amount of award of compensation that Landlord receives for a partial
taking of that portion of the Premises resulting in the need for restoration. So long as this
Lease is not terminated in the manner provided above, there shall be an equitable adjustment
of the rent payable by Tenant hereunder by reason of such partial taking. Tenant hereby
waives any statutory rights of termination which may arise by reason of any taking of the
Premises under the power of eminent domain unless Landlord is the condemning authority.
9.3 Distribution of Award. The entire award or compensation in such eminent
domain proceeding, whether for a total or partial taking or for diminution in the value of the
leasehold or for the fee shall be distributed to Landlord, provided however, that Tenant may
apply for award of the value of Tenant's personal property, loss of income, relocation costs,
improvements and the value of the leasehold interest created hereby, according to the law in
effect in the jurisdiction where the Premises are located. This provision shall not apply if
Landlord is the condemning authority.
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ARTICLE 10
ASSIGNMENT AND SUBLETTING
10.1 Landlord's Consent Required.
10.1.1 Tenant shall not assign this Lease or Tenant's interest in and to
the Premises without obtaining the prior written consent of Landlord, which consent shall not
be unreasonably withheld. Any attempted assignment without such consent shall be void, and
shall constitute a default by Tenant under this Lease. For purposes of this Article, the terms
"assign" and "assignment" shall include any (i) act attempting to, or document purporting
to, assign, transfer, enter into license or concession agreements for, change ownership of,
or hypothecate this Lease or Tenant's interest in and to the Premises or any part thereof,
(ii) change in the majority ownership of Tenant.
10.1.2 Notwithstanding the foregoing subsection, Tenant shall have the right
to assign this Lease without the consent of, but with notice to, Landlord, to any entity which is
an affiliate or a wholly-owned subsidiary of Tenant.
10.1.3 Any permitted assignee, transferee, licensee, concessionaire,
or mortgagee shall agree for the benefit of Landlord to be bound by, assume, and perform all of
the terms, covenants, and conditions of this Lease.
10.1.4 Notwithstanding anything contained herein to the contrary and except
for any arrangement for the provision of liquor service, Tenant shall not sublet, assign or enter
to a management arrangement for the Premises on any basis such that the rent or other amounts
to be paid by any subtenant, assignee or manager thereunder would be based, in whole or in
part, on the income or profits derived from the business activities of such subtenant, assignee
or manager on the Premises.
10.2 No Release of Tenant.
10.2.1 No assignment shall release Tenant of Tenant's obligation or alter
the primary liability of Tenant to pay the rent and to perform all other obligations to be
performed by Tenant hereunder. The acceptance of rent by Landlord from any other
person shall not be deemed to be a waiver by Landlord of any provision hereof. In the
event of default by any assignee of Tenant or any successor Tenant, in the performance
of any of the terms hereof, Landlord may proceed directly against Tenant without the
necessity of exhausting remedies against such assignee. Landlord may consent to
subsequent assignments of this Lease or amendments or modifications to this Lease with
assignees of Tenant, upon notice to Tenant, or any successor of Tenant, and after obtaining
Tenant's or such successor's consent thereto, and such action shall not relieve Tenant of
liability under this Lease.
10.2.2 Notwithstanding the foregoing subsection, in the event of an assignment
otherwise in compliance with this Article, Landlord may, but shall have no obligation to, release
Tenant from its primary liability under this Lease. In order to obtain such release, Tenant
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shall submit a written request to Landlord therefor, together with the following information for
the proposed assignee: name; most recently prepared annual and quarterly financial
statements (including a balance sheet and an income statement); and a description of the
length and nature of the experience of the proposed assignee and its principals (if a closely
held entity) in the business proposed to be conducted by the assignee on the Premises. In the
event that Landlord consents to such release, Landlord shall so notify Tenant in writing.
ARTICLE 11
DEFAULT; REMEDIES
11.1 Default. The occurrence of anyone or more of the following events
shall constitute a default by Tenant under this Lease:
11.1.1 Unless previously consented in wntmg by Landlord, the failure of
Tenant to operate the Premises with the Permitted Use for more than 30 consecutive days,
other than failure to operate caused, in the reasonable opinion of Landlord, by a casualty to the
Premises.
11.1.2 The failure by Tenant to make any payment of Base Monthly
Rent, Impositions or any other payment required to be made by Tenant hereunder, where
such failure shall continue for a period of7 (seven) days.
11.1.3 Except as otherwise provided in this Lease, the failure by Tenant
to observe or perform any of the non-monetary covenants, conditions, or provisions of this
Lease to be observed or performed by Tenant, where such failure shall continue for a period
of 30 days after written notice thereof from Landlord to Tenant; provided, however, that if
the nature of Tenant's noncompliance is such that more than 30 days are reasonably required
for its cure, then Tenant shall not be deemed to be in default if Tenant commences such cure
within said 30-day period and thereafter diligently prosecutes such cure to completion and the
final determination thereof
11.1.4
The admission by Tenant of its inability to pay debts as they mature.
11.1.5 Institution by or against Tenant of any bankruptcy,
insolvency, reorganization, receivership or other similar proceeding involving the creditors
of Tenant which, if instituted against Tenant is not dismissed within 60 days after the
commencement thereof;
11.1.6 The issuance or filing of any judgment, attachment, levy, garnishment
or the commencement of any related proceeding or the commencement of any other judicial
process upon or with respect to Tenant, all or substantially all of the assets of Tenant or the
Premises.
11. 1.7 Sale or other disposition by Tenant of substantially all of its assets
or property.
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11.1.8 Dissolution, merger, consolidation, termination of existence, insolvency,
business failure or assignment for the benefit of creditors of or by Tenant.
11.1.9 Any material statement, representation or information made or
furnished by or on behalf of Tenant to Landlord in connection with or to induce Landlord to
enter into this Lease shall prove to be materially false or misleading when made or furnished.
11.2 Remedies. Upon the occurrence of a default by Tenant pursuant to the
foregoing Section or otherwise in under this Lease, Landlord may at any time thereafter,
with or without notice or demand and without limiting Landlord in the exercise of any
right or remedy which Landlord may have by reason of such default:
11.2.1 Terminate Tenant's right to possession of the Premises by any
lawful means, in which case this Lease and the term hereof shall terminate and Tenant shall
immediately surrender possession of the Premises to Landlord. In such event, Landlord shall be
entitled, at its option, and without notice to Tenant, to accelerate the remaining rent due and
to recover from Tenant all damages incurred by Landlord by reason of Ten ant's default.
11.2.2 Maintain Tenant's right to possession of the Premises by any
lawful means, in which case this Lease and the term hereof shall continue in effect
whether or not Tenant shall have vacated or abandoned the Premises. In such event Landlord
shall be entitled to enforce all of Landlord's rights and remedies under the Lease, including
the right to recover the rent as it becomes due hereunder 12.1.4 Tenant has all required
certificates of occupancy, building permits, certificates of environmental impact approval,
all zoning, building, housing, safety, fire and
11.2.3 Pursue any other remedy now or hereafter available to Landlord
under the laws or judicial decisions of the jurisdiction where the Premises are located.
11.3 Cumulative Remedies. No remedy or election hereunder shall be
deemed exclusive but shall, wherever possible, be cumulative with all other remedies
provided in this Section or otherwise available at law or in equity.
ARTICLE 12
REPRESENTATIONS AND WARRANTIES;
FINANCIAL REPORTING
12.1 Representations and Warranties. To induce Landlord to enter into this
Lease, Tenant represents and warrants to Landlord as follows:
12.1.1 This Lease is an enforceable obligation of Ten ant.
12.1.2 Tenant is not a foreign corporation, foreign partnership, foreign trust
or foreign estate (as such terms are defined in the Internal Revenue Code of 1986, as
amended) and the regulations promulgated thereunder).
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12.1.3 There are no actions, suits or proceedings pending, or to the best
of Tenant's knowledge, threatened, against or affecting it or the Premises which, if
adversely determined, would materially impair the ability of Tenant to satisfy its
obligations under or relating to this Lease. health approvals and all other material permits
and licenses required by any governmental authority and necessary or advisable to
operate, occupy or use the Premises for the Permitted Use, all or which are unexpired, and to
the extent obtainable, permanent and unconditional, and, without cost or risk to Landlord, are
hereby assigned, to the extent assignable, to Landlord.
ARTICLE 13-RESERVED
13.1 Liens. Landlord shall have a lien against all of the property of the Tenant
which may be located on the Lease Premises, for unpaid rent or other charges. Tenant
hereby pledges and assigns to Landlord all the furniture, fixtures, goods and chattels of
Tenant which shall or may be brought or put on said Premises as additional security for
the payment of Tenant's monetary obligation under this Lease. Notwithstanding the
foregoing, Landlord agrees that his lien shall be subordinate to the lien of any financing or
lease hereafter obtained (other than from any parent, subsidiary or affiliated entity of Tenant)
for the purpose of acquiring or leasing any equipment, machinery or trade fixtures for use in
the operation of Tenant's business on the Premises. Tenant agrees that Landlord's lien
may be enforced by distress, foreclosure or otherwise at the election of the Landlord. This
provision shall be deemed to constitute a security agreement as that term is defined and
utilized in the Uniform Commercial Code in force in the State of Florida.
13.2 Prohibition and Indemnity Against Mechanic's and Materialman's Liens.
(a) Landlord and Tenant shall use their best efforts to prevent the creation of any
lien against the Premises on account of labor or materials furnished in connection
with any construction, maintenance, repairs or alterations each shall undertake. If any such
lien is filed against the Premises, the party contracting for such work (the "Contracting
Party") shall cause such lien to be released within ninety (90) days after actual notice of the
filing thereof or within thirty (30) days of actual notice shall furnish to the other party a
bond or other security reasonably satisfactory to the other, conditioned to indemnify the other
against the foreclosure of such lien. The Contracting Party shall have the right, after notice to
the other, to contest in good faith and with all due diligence any such lien and shall not be
required to pay any claim secured by such lien; provided that (i) such lien would not impair
the rights or be satisfied out of the interest of the other in the Premises by reason of such
delay, and (ii) the Contracting Party will, at its expense, defend the other and pay all costs
reasonably incurred by the other relating to the contest if the other is joined in any suit
pertaining thereto or if any such lien is placed upon the other's interest in the Premises.
(b) In no event shall anything contained in this Paragraph, or elsewhere in this
Lease, be deemed to subject Landlord's interest in the Premises to the lien of any person
doing work for or furnishing materials at the instance and request of Tenant. Tenant shall
20
have no authority to create any liens for labor or materials on or against the Landlord's
interest in the Premises and all persons contracting with Tenant for the erection, installation,
alteration or repair of any building or other improvement in, on or to the Premises, and all
materialmen, contractors, subcontractors, sub subcontractors, mechanics and laborers are hereby
charged with notice that they must look solely and only to the Tenant's interest in the
Premises to secure the payment of any bill for work done or material furnished during the
Term of this Lease and, specifically, not to Landlord or Landlord's interest.
ARTICLE 14
BANKRUPTCY OR INSOLVENCY
14.1 Liquidation. In the event that Tenant shall become a debtor under Chapter 7
of the Bankruptcy Reform Act of 1978, as amended (the "Bankruptcy Code"), and Tenant's
trustee or Tenant shall elect to assume this Lease for the purpose of assigning the same or
otherwise, such election and assignment may be made only if the provisions of this Section are
satisfied. If Tenant or Tenant's trustee shall fail to assume this Lease within 120 days after
the entry of an order for relief, this Lease shall be deemed to have been rejected.
Immediately thereupon, Landlord shall be entitled to possession of the Premises without
further obligation to Tenant or Tenant's trustee and this Lease, upon the election of Landlord,
shall terminate, but Landlord's right to be compensated for damages shall survive, whether or
not this Lease shall be terminated.
14.2 Reorganization. In the event that a voluntary petition for reorganization is filed by
Tenant, or an involuntary petition is filed against Tenant under Chapter II of the
Bankruptcy Code, or in the event of the entry of an order for relief under Chapter 7 in a case
which is then transferred to Chapter II, Tenant's trustee or Tenant, as debtor-in-
possession, must elect to assume this Lease within 120 days from the date of the filing of the
petition under Chapter 11 or the transfer thereto, or Tenant's trustee or the debtor-in-
possession shall be deemed to have rejected this Lease. Immediately thereupon, Landlord
shall be entitled to possession of the Premises without further obligation to Tenant or
Tenant's trustee, and this Lease, upon the election of Landlord, shall terminate. Landlord's
right to be compensated for damages under the Bankruptcy Code, shall survive, whether or not
this Lease shall be terminated.
ARTICLE 15
GENERAL PROVISIONS
15.1 Ouiet Enioyment. Subject to the terms and conditions of this Lease, Tenant shall
have the quiet and peaceful possession of the Premises.
15.2 Definition of Rent. All monetary obligations of Tenant to Landlord under
the terms of this Lease, including, without limitation, the Taxes, insurance premiums and
other Impositions payable hereunder shall be deemed to be "rent".
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15.3 Subordination. Subject to Article 13 hereof this Lease shall be subordinate to any
superior lease, mortgage, deed of trust, or any other hypothecation or security now existing or
hereafter placed upon the Premises and to any and all advances made on the security thereof
and to all renewals, modifications, consolidations, replacements, and extensions thereof and
Tenant hereby agrees, upon request by Landlord, to execute and deliver to Landlord and its
lender(s) a subordination, non-disturbance and attornment agreement in the form reasonably
prescribed by such lender(s) with respect to any such superior lease, mortgage, deed of trust,
hypothecation, or security.
15.4 Encumbrances. The tenant shall not mortgage, pledge, assign as collateral,
encumber, or in any manner transfer, convey, or dispose of the leased premises or improvements
thereon or any interest therein for any purpose or intent without the prior written consent of the
Landlord. The encumbrance of land is expressly prohibited under any circumstances.
15.5 Surrender of Premises. Except for changes resulting from eminent
domain proceedings and Landlord approved alterations, at the expiration or sooner
termination of the Lease Term, Tenant shall surrender the Premises in good condition,
reasonable wear and tear excepted, and shall surrender all keys for the Premises to Landlord at
the place then fixed for the payment of rent and shall inform Landlord of all combinations on
locks, safes and vaults, if any, in the Premises. Tenant may at such time remove all of
Tenant's moveable equipment, machinery, trade fixtures and other personal property,
and restore to original condition any Alterations not previously approved by Landlord, and
shall repair any damage to the Premises caused thereby, and any or all of such property
not so removed shall become the exclusive property of Landlord or be disposed of by
Landlord, without further notice to or demand upon Tenant.
15.6 Estoppel Certificates. Each party (each a "Responding Party") shall at any
time upon not less than 10 days' prior written notice from the other party (each a "Requesting
Party") execute, acknowledge, and deliver to the Requesting Party a statement in a form
prescribed by Landlord certifying and acknowledging the following: (i) that this Lease
represents the entire agreement between Landlord and Tenant, and is unmodified and in full
force and effect (or, if modified, stating the nature of such modification and certifying that this
Lease, as so modified, is in full force and effect) and the date to which the Minimum Monthly
Rent and other charges are paid in advance, if any; and (ii) that there are not, to the
Responding Party's knowledge, any uncured defaults on the part of the Requesting Party,
or specifying such defaults if any are claimed. Any such statement may be conclusively
relied upon by any prospective purchaser or encumbrances of the Premises or of the business of
the Requesting Party.
15.7 Severability. The invalidity of any provision of this Lease as determined
by a court of competent jurisdiction shall in no way affect the validity of any other provision
hereof
15.8 Entire Agreement. This Lease constitutes the entire agreement between
Landlord and Tenant and supersedes all prior agreements between them with respect to
the Premises, whether written or oral.
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15.9 Notices. Any notice required or permitted to be given hereunder shall
be in writing and may be given by facsimile, personal delivery, certified mail, return receipt
requested or by nationally recognized overnight courier service delivered to Tenant or to
Landlord, as the case may be, at the FAX numbers or addresses for each set forth in the
Fundamental Lease Provisions. Either party may by notice to the other specify a different
FAX number or address for notice purposes. A copy of all notices required or
permitted to be given to Landlord hereunder shall be concurrently transmitted to such party
or parties at such addresses as Landlord may from time to time hereafter designate by notice to
Tenant.
15.10 Waivers. No waiver by Landlord of any prOVISIOn hereof shall be
deemed a waiver of any other provision hereof or of any subsequent default by Tenant of the
same of any other provision. Landlord's consent to, or approval of, any act shall not be deemed
to render unnecessary the obtaining of Landlord's consent to or approval of any subsequent act
by Tenant. The acceptance of rent hereunder by Landlord shall not be a waiver of any preceding
default by Tenant hereunder, other than the failure of Tenant to pay the particular rent so
accepted, regardless of Landlord's knowledge of such preceding default at the time of
acceptance of such rent.
15.11 Recording. Either Landlord or Tenant shall, upon request of the other, execute,
acknowledge, and deliver to the other a "short form" memorandum of this Lease for recording
purposes. Such memorandum shall be in the form prescribed by Landlord. In addition,
any termination agreement shall be similarly recorded, which agreement shall survive the
termination of this Lease.
15.12 Holding Over. If Tenant remains in possession of the Premises or any part
thereof after the expiration or termination of the Lease Term, such occupancy shall be a tenancy
from month-to-month upon all the provisions of this Lease pertaining to the obligations of
Tenant and Tenant shall thereby waive its rights of notice to quit, but Tenant's right as to any
Renewal Term shall terminate. The monthly rent due during such hold-over period shall be
equal to 150% (one hundred and fifty percent) of the Minimum Monthly Rent then in effect,
and Tenant shall continue to be obligated to pay all Impositions and other amounts required to
be paid by the terms of this Lease.
15.13 Choice of Law. The laws of Florida shall govern the validity, performance, and
enforcement of this Lease.
15.14 Attorneys' Fees. Should either party institute any action or proceeding to enforce
any provision hereof or for a declaration of such party's rights or obligations hereunder, the
prevailing party shall be entitled to receive from the losing party such amounts as the court may
adjudge to be reasonable attorneys' fees and expenses for services rendered to the party
prevailing in any such action or proceeding, and such fees shall be deemed to have accrued upon
the commencement of such action or proceeding and shall be enforceable whether or not such
action or proceeding is prosecuted to judgment.
15.15 Waiver of Jury Trial. Mediation and Arbitration. LANDLORD AND
23
TENANT EACH HEREBY WAIVE ALL RIGHT TO A TRIAL BY JURY IN ANY
CLAIM, ACTION, PROCEEDING OR COUNTERCLAIM BY EITHER LANDLORD OR
TENANT AGAINST THE OTHER ON ANY MATTERS ARISING OUT OF OR IN ANY
WAY CONNECTED WITH TillS LEASE, THE RELATIONSHIP OF LANDLORD AND
TENANT AND/OR TENANT'S USE OR OCCUPANCY OF THE PREMISES.
The merits of any dispute arising under, out of, in connection with, or in relation to this
agreement, or the making or validity thereof, or its interpretation, or any breach thereof, shall be
determined and settled by Arbitration before an Arbitrator in the State of Florida, pursuant to the
Commercial Arbitration Rules then obtaining of the American Arbitration Association. If the
parties hereto are unable to agree upon the selection of an arbitrator, such arbitration shall be
held before the American Arbitration Association. Any award rendered shall be final and
conclusive upon the parties hereto and a judgment thereon may be entered in the highest court of
the State of Florida having jurisdiction.
Before submitting a dispute to Arbitration, the parties shall first attempt to resolve the
dispute amicably. In the event that the parties hereto are unable to resolve the dispute amicably,
either party may give notice for a Mediation session before a Mediator appointed by mutual
agreement (hereinafter the "Mediator"). If the parties are unable to agree upon the selection of a
mediator, such mediation shall be held before the American Arbitration Association. The
Mediator shall make a recommendation to the parties in the form of a written mediated
settlement agreement. Each party to the dispute shall sign such agreement after receipt of the
same or immediately file a demand for Arbitration, in which event the parties shall proceed to
Arbitration in accordance with the previous paragraph.
All costs of the Arbitration, including Mediation and the legal action to confirm and
enforce the arbitrator's award, as the case may be, including the reasonable legal fees of both
parties shall be paid by the non-prevailing party, or, if neither party prevails on the whole, each
party shall be responsible for a portion of the costs of Arbitration and Mediation as may be
determined by the court on confirmation.
15.16 Liability of Landlord. In the event of any sale or other transfer of
Landlord's interest in the Premises, Landlord shall be relieved of all liabilities and obligations
of Landlord hereunder arising after the date of such transfer. Notwithstanding anything
contained herein to the contrary, Landlord shall have no personal liability in respect of any of
the terms, covenants, conditions or provisions of this Lease, and in the event of a breach or
default by Landlord of any of its obligations under this Lease, Tenant and any persons claiming
by, through or under Tenant shall look solely to the equity of the Landlord in the Premises
for the satisfaction of Tenant's and/or such persons' remedies and claims for damages.
15.17 No Merger. There shall be no merger of this Lease, or the leasehold estate
created by this Lease, with any other estate or interest in the Premises, or any part
thereof, by reason of the fact that the same person, firm, corporation or other entity may
acquire or own or hold, directly or indirectly, (i) this Lease or the leasehold estate created by
24
this Lease, or any interest in this Lease or in any such leasehold estate, and (ii) any such other
estate or interest in the Premises or any part thereof; and no such merger shall occur unless
and until all persons, corporations, firms and other entities having an interest (including a
security interest) in (1) this Lease or the leasehold estate created by this Lease; and (2) any such
other estate or interest in the Premises, or any part thereof, shall join in a written instrument
effecting such merger and shall duly record the same.
15.18 Interpretation. The captions by which the Articles and Sections of this Lease are
identified are for convenience only and shall have no effect upon the interpretation of this
Lease. Whenever the context so requires, singular numbers shall include the plural, the plural
shall refer to the singular, the neuter gender shall include the masculine and feminine genders,
and the terms "Landlord" and "Tenant" and "person" shall include corporations, limited liability
companies, partnerships, associations, other legal entities, and individuals.
15.19 Relationship of the Parties. Nothing in this Lease shall create a partnership, joint
venture, employment relationship, borrower and lender relationship, or any other relationship
between Landlord and Tenant, other than the relationship oflandlord and tenant.
15.20 Successors. This Lease shall be binding upon and inure to the benefit of
the parties hereto and their respective personal and legal representatives, heirs,
successors, and assigns.
15.21 Modifications. This Lease may not be altered, amended, changed,
waived, terminated, or modified in any manner except by a written instrument executed by
Landlord and Tenant.
15.22 Brokerage Fees. Landlord and Tenant each represent and warrant that they
have not employed a broker in connection with the execution of this Lease. Landlord and
Tenant shall each indemnify and hold the other harmless from and against any claim or
claims for brokerage or other commissions arising from such party having employed a
broker contrary to its representation in this Section.
15.23 Waiver of Redemption. To the extent permitted by law, Tenant hereby
waives any and all rights of redemption with respect to this Lease. Tenant hereby waives
any rights it may have to any notice to cure or vacate or to quit provided by any current
or future law; provided that the foregoing shall not be deemed to waive any notice
expressly provided in this Lease.
15.24 Not Binding Until Executed. This Lease does not constitute an "offer" and is
not binding until fully executed and delivered by Landlord.
15.25 Counterparts. This Lease may be executed in one or more counterparts, each of
which shall be an original, and all of which together shall constitute one and the same
instrument.
25
IN WITNESS WHEREOF, Landlord, and Tenant have executed this Lease as of the
date first set forth above.
WITNESSES:
TENANT
Signature
Print Name
BY:
Name & Title
WITNESSES:
Signature
Print Name
ATTEST:
CITY OF SUNNY ISLES BEACH
BY:
Jane A. Hines, CMC, City Clerk
BY:
Norman S. Edelcup, Mayor
APPROVED AS TO FORM AND
LEGAL SUFFICIENCY
BY:
Hans Ottinot, City Attorney
26
EXHIBIT "D"
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Minimum Operating Standards for Foodser.vice
FOOD HANDLING AND PRODUCTION
Contract Officer or Park/Facility Manager
· May direct the Foodservice Contractor to improve the quality of his offerings and the
method In which they are produced, held, and served.
· At all times the Contract Officer andlor the Facility or Park Manager shall have access to
all food service facilities and areas.
Foodservice Employee Hygiene
· Employees with boils, infected wounds, respiratory infectfons, or other communicable
diseases shall be prohibited in areas where there is a likelihood of transmission of
disease to patrons or to other employees.
· Employees shall be prohibited from smoking or using other tobacco products in any form
while In food production or service areas.
· Employees shall thoroughly wash their hands and exposed portions of their arms with
soap and warm water before starting work. during work. or as often as necessary to
keep them clean, especially after smoking, eating, drinking, or using the restroom.
· Employees shall keep their fingernails clean and trimmed.
· Employees will consume food only in designated areas.
· Employees will wear hairnets or hats to keep hair from contaminating food.
· Uniforms shall be kept clean. One contact with soiled clothing is enough to start the
contamination cycle: from clothing to hands to food.
· Employees who may come Into contact with food shall use disposable latex or plastic
food handler's gloves. They are to be changed after each task with hand washing and
sanitizing in between glove changes.
Minimum Purchase Specifications
· All meats, meat products, poultry, poultry products, and fish must be U.S. Government
inspected.
· Beef, iamb. and veal shall be U.S.D.A. Grade Choice or beUer.
. Pork shall be U.S. No.1.
· Poultry shall be U.S. Government Grade A.
· Fresh fish and seafood shall be top grade; frozen fish and seafood shall be a nationally
distributed brand, packed under continuous inspection of the U.S.D.A.
. Dairy products:
o Eggs~ fresh U.S.D.A. or state graded "A".
o Butler- U.S.D.A. Grade "A" (92) score.
o Cheese- U.S.D.A. Grade "A" for all graded cheese.
o Milk and milk products- U.S.D.A. Grade "A".
· Fresh fruits and vegetables- U.S.D.A. fancy to U.S.D.A. Number "1" shall be used for all
graded fresh vegetables and fruit as a minimum specification.
EXHIBIT "F"
. Dry stored items and canned goods- Grade liP\' fancy.
. Frozen fruits and vegetables. U.S.D.A. Grade "A".
Cross-Contamination Prevention of Food 1
· Raw meats, fish, and poultry shall be prepared in separate areas from produce or
cooked and ready-to-eat foods. (If space is unavailable, these items shall be prepared
at dffferent times.)
. Specific equipment shall be assigned (cutting boards, utensils. and containers) to each
type of food product.
. After each task, all work surfaces, equipment, and utensils used shall be cleaned and
sanitized.
· Cloths or towels used for wiping spillS shall not be used for any other purpose.
· All transportation of food will be made In enclosed containers.
Thawing of Food 2
· Foodservice Contractor shall utilize only the following procedures (one or more) to thaw
food. Any other means wlll be unacceptable.
o In a refrigerator at a temperature of 41<>F (50C) or lower.
o Submerged under actively running potable water at a temperature of 700F (210C) or
lower.
o In a microwave oven.
o As part of a cooking procedure, given the product meets the required minimum
internal cooking temperature.
Cooking of Food 3
. Prior to cooking, food will be handled properly.
. Minimum internal cooking standards shall be reached and held for the specified amount
of time per food product. (All thermometers utilized shall be properly calibrated.)
o Poultry- 1650F (740C) for 15 seconds.
o Stuffing, Stuffed Meats, Casseroles and dishes that combine raw and cooked food-
1650F (740C) for 15 seconds.
o Pork- 1450F (630C) for 15 seconds.
o Ground or Flaked Meats-1550F (680C) for 15 seconds.
o Beef or Pork Roasts- 1450F (630C) for 3 minutes.
o Beef Steak. Veal, Lamb, or Commercially Raised Game Animals- 1450F (630C) for
15 seconds.
o Fish or Food Containing Fish-1450F (630C) for 15 seconds.
o Shell Eggs (for immediate service)- 1450F (630C) for 15 seconds.
Cooling of Food 4
· Food that will not be served Immediately shall be cooled as quickly as possible. The
Foodservlce Contractor shall utilize only the below means to cool food: any other means
will be unacceptable.
o One stage method- cool hot cooked food from 1400F to 410F (600C to 50C) within
four hours.
, National Restaurant AssocJallon. ServeSafe0 Essentials. U.S.A. 1999.
~Ibid,
~ Ibid.
4 'bid.
o Two stage method- cool hot cooked food from 1400F to 700F (600C to 210C) within
two hours, and then to 410F (50C) or lower in additional four hours (total cooling time
of six hours).
. Food that cannot cool within the aforementioned time parameters shall be discarded,
without exception.
Food Time and Temperature Control 5
. Thermometers shall be available in areas where needed and employees shall be trained
to use them properly.
. Time and temperature controls shall be built into each recipe.
. Only freshly prepared products shall be served. Cook. hold and cool (if necessary). No
leftovers will be used.
. Food will be discarded if It spends more than four hours total in the temperature danger
zone, which is defined as 41 OF to 1400F (5DC to 60oC).
Food Packaging
. Foodservice Contractor shall comply with Department poliCY prohibiting the use the below
items:
o Straws
o Glass Bottles
o Metal Cans
o Glass Containers
Contractor shall adhere to a Hazard Analysis Critical Control Point plan (HACCP), which is
outlined In subsequent Sanitation and Food Safety section. The Contract Officer must approve
this HACCP plan.
SANITATION AND FOOD SAFETY
Upon receipt, the Foodservice Contractor shall make available all heath department inspections
to the Contract Officer and or Park/Facility Manager.
All foodservice employees shall possess current food handlers' certification from the governing
local or state jurisdiction.
All foodservlce managers shall possess a valid National Restaurant Association ServSafe@)
certificatIon.
Foodservice Contractor will implement a physical plant cleaning schedule for all outlets operated.
This plan must be submitted to and approved by the Contract Officer.
HACCP Plan 8
Although HACCP plans currently are not mandated by every health department, many are
beginning to require them. Therefore, the Foodservice Contractor shall create and codify a
HACCP plan. This plan will describe the procedures to be followed in order to:
. Identify foods and procedures most likely to cause food borne illness.
~ Ibid.
o Ibid.
. Develop procedures that will reduce the risk of a foodborne illness outbreak.
. Monitor procedures to keep food safe.
. Verify that the food served will be consistently safe.
Plan PrInciples
The plan created, written, and strictly followed by the Foodservice Contractor shall consist of the
seven basic HACCP principles.
. Conduct a Hazard Analysis.
. Determine Critical Control Points.
. Establish Critical Limits.
. Monitor Critical Control Points (regularly).
. Perform Corrective Action (as necessary).
. Verify Procedures (regularly).
· Establish Record-Keeping and Documentation Procedures (on-going).
Plan Implementation
Once the HACCP plan has been submitted and approved by the Contract Officer, the
Foodservice Contractor will implement it.
Logbooks shall be created and consistently used to regularly document activities. Examples of
records include time-temperature logs, procedures for taking temperatures, standard operating
procedures, calibration records, corrective actions, monitoring schedules. employee hand
washing, and product specifications.
Contract Officer and/or Park/Facility Manager shall have full access to these logbooks.
CUSTOMER STANDARDS AND PROCEDURES
In addition to service standards agreed to by the Foodservice Contractor (Second Amendment to
License and Concession Agreement dated 4 March 1986 section 6 titled Service Standards), the
Foodservlce Contractor will:
· Regularly conduct quarterly customer service seminars with all foodservlce employees.
· Recognize and accommodate the needs and preferences of a diverse customer base by
providing through varied men51 u chofces.
· Ensure customers will be greeted with a courteous greeting and thanked for each sale.
· Provide sufficient resources to insure that no walt in line is longer than 5 minutes from the
lime of entry until an order is taken and not more than 4 minutes from the placing of an
order for the delivery of food.
· Develop a marketing plan with monthly promotions and submit to Contract Officer in
advance.
PREVENTIVE MAINTENANCE PROGRAMS
Foodservlce Contractor will provide and pay for routine maintenance and repairs for all
Contractor-owned equipment.
Client will provide and pay for routine maintenance and repairs for all foodservice equipment.
Equipment Records
. For each piece of equipment, the Foodservice Contractor shall prepare and maintain
equipment records as part of the preventive maintenance program. Records may be
prepared and maintained either manually or electronically (computerIzed).
· Contract Officer shall have full access to these equipment records.
· The equipment record shall be the comprehensive record of history for each piece of
equipment.
o The initial step In this preventive maintenance program will be to comprehensively
inventory all foodservice equipment.
o Each piece of equipment shall have an equipment record filled out completely.
o These records shall be regularly maintained
· The following items shall be included on the equipment record card for each piece of
equipment.
o Maintenance Service Log number.
o Maintenance Service Log location.
o Equipment type.
o Inventory number.
o Date purchased.
o Date installed.
o Manufacturer.
o Model number.
o Serial number.
o New/used at date of purchase.
o Company/person purchased from.
o Utility Information.
o Standard warranty information.
o Safety requirements.
o Additional warranty/service contract information.
o Services and parts manual location.
o Preventive maintenance information location.
o Replacement paris log.
o Additional information/comments.
Maintenance Service Log
· The purpose of this Log shall be to record all service performed for each piece of
equipment.
· Foodservice Contractor shall maintain and update (as needed) this detailed specific
record of service performed on each piece of equipment.
· Information contained within this Maintenance Service Log shall Include:
o Extent and frequency of repair.
o Evaluation of preventive maintenance costs (parts and labor).
o Adjustment of preventive maintenance schedules respective of cost Impact.
o Parts and labor costs to assist in developing financial projections.
o Information to determine equipment deprecIation and replacement costs (to make
decisions on whether to repair or buy new).
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EXHIBIT "G"