Exhibit 10 (q)
MANAGEMENT AGREEMENT
RECITALS
THIS AGREEMENT, made as of August 20th, 2004 between BAYSHORE
RAWBAR, LLC, a Florida limited liability company ("RAWBAR") and HMG
Advisory Bayshore Inc., a Florida corporation ("the Manager"). RAWBAR is
the owner of that certain leasehold restaurant property located in
Coconut Grove Florida (the "property')and known as "Montys Rawbar",
located on the first floor of the building and the Patio Area (the
"Restaurant") defined in the Sublease. Manager desires to be engaged to
provide accounting and cash management controls and services to any
tenant or operator of any Restaurant owned by Rawbar under the terms and
conditions herein contained.
ARTICLE I
ENGAGEMENT OF MANAGER AND RENTAL RESPONSIBILITY
1.1 Engagement as Manager. Rawbar hereby engages the Manager as an
independent contractor to provide the services described herein
and Manager hereby accepts such engagement, all on the terms and
conditions and subject to the limitations and restrictions
hereinafter provided.
ARTICLE II
DUTIES OF MANAGER
2.1 Manager shall have the following duties and authority pursuant to
this Management Agreement.
Manager shall consult with any tenant or operator of the
Restaurant in areas of maintenance of books and records, statement
preparation and implementation of Raw Bar's working capital
requirements and controls. In addition, Manager will consult with
tenant or operator in matters of payroll and insurance coverage.
2.2 At the request of Rawbar, Manager shall also assist in the
implementation of Rawbar's restaurant operations from any tenant
or operator to a newly appointed tenant or operator for a
reasonable period following such appointment.
2.3 At the request of Rawbar, Manager shall assist any tenant or
operator in the screening of qualified personnel to serve as
Cashier for the Restaurant provided approval of the Cashier
position is a requirement imposed by Rawbar or its owners upon any
tenant or operator of the restaurant.
ARTICLE III
GENERAL PROVISIONS
3.1 Manager's agents and employees shall at all times, while upon the
premises of Restaurant and while engaged in the performance of any
provisions of this agreement, conduct themselves in a proper and
professional manner and refrain from any conduct detrimental to
restaurant or subjecting restaurant to criticism.
3.2 Compensation for Management. The compensation that Manager shall
be entitled to receive for services performed as Manager under
this Agreement shall be a fee computed and payable in arrears on
the first day of each month commencing on the effective date of
this Agreement, in an amount equal to $2,083.00. S
3.3 Term. This Agreement shall commence as of the date first set forth
above and shall thereafter continue for a period equal to the
lesser of (i) expiration the Rawbar's lease at the Property ; or
(ii) Courtland Bayshore Raw Bar LLC. no longer owns an interest in
Raw Bar.
Upon a sale of the Restaurant to a third party or the sale of the
assets of Raw Bar to a third party, Rawbar may terminate this
Agreement by giving the Manager thirty (30) days prior written
notice.
Upon termination of this Agreement under this Section 3.3, Manager
shall be entitled to receive any management fees already accrued
and due to manager under this Agreement., but shall not be
entitled to any termination fee or other compensation.
3.4 Assignment. Rawbar may assign its rights and obligations to any
successor in the title to the Property (i.e., its leasehold
interest) and upon such assignment shall be relieved of all
liability accruing after the effective date of such and the
assignee assumes the obligations of Rawbar under this Agreement.
Upon any such assignment by Rawbar, Manager shall have the right
to terminate this Agreement after 30 days prior written notice to
Rawbar. Manager may not assign its obligations hereunder, without
the express prior written consent of Rawbar except to an entity
which is controlled by HMG Advisory Bayshore Inc. (with similar
accounting experience to Xxxxx Xxxxxxxxx) and only after written
notice of such assignment has been given of the obligations or
duties required to be kept or performed by it hereunder and such
assignee has assumed the obligations of Manager hereunder.
3.5 Notice. All notices required or permitted by this Agreement shall
be in writing and shall be sent by personal delivery or registered
or certified mail, return receipt requested, or facsimile
addresses in the case of:
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Rawbar:
Bayshore Rawbar, LLC
000 Xxxxx Xxxx
Xxxxx 000
Xxxxx Xxxxx, Xxxxxxx 00000
ATTN: Xx. Xxxxxx Xxxxxxxxx, Xx.
Facsimile: 000-000-0000
with a copy to:
Courtland Bayshore Rawbar LLC
1 000 X. Xxxxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
ATTN: Xxxxx Xxxxxxxxx
Facsimile: 000-000-0000
and a copy to:
Bilzin Xxxxxxx Xxxxx Price & Axeirod LLP
000 Xxxxx Xxxxxxxx Xxxxxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 3313 1-5340
ATTN: Xxxxxxx X. Xxxxxxxx, Esq.
Facsimile: 000-000-0000
Manager:
HMG Advisory Bayshore Inc.
1 000 X. Xxxxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
ATTN: Xxxxx Xxxxxxxxx
Facsimile: 000-000-0000
3.6 Indemnificaticion. (a) Manager hereby indemnifies and agrees to
save Rawbar, its successors, assigns, employees, offices,
directors, shareholders and attorneys harmless from all
liabilities, obligations, damages, penalties, claims, costs,
charges, and expenses, including, without limitation, attorney's
fees and costs of investigation, which may be imposed upon or
incurred by or asserted against Rawbar, its principals or
affiliates by third parties resulting from, incidental to, or in
connection with (a) the operation, maintenance, or use of Property
or Restaurant or arising from any activity at the Property, due to
any act or omission which constitutes gross negligence or willful
misconduct on the part of Manager or action by Manager which is
beyond the scope of Manager's authority under this Agreement
and/or any other approval or consent given by Rawbar to Manager.
In the event at that any action or proceeding is brought against
Rawbar or its principals or affiliates by reason of any such
claim, Manager shall, upon notice from Rawbar, and at Manager's
sole cost and expense, retain competent legal counsel, which
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legal counsel shall be subject to approval by Rawbar as a result
of actions taken by Manger if Rawbar has given prior written
approval of such actions, unless the loss suffered by Rawbar
results from the gross negligence or willful misconduct of Rawbar
in its performance of such actions. Rawbar shall indemnify and
save Manager, its permitted assigns, employees, officers,
directors, shareholders and its affiliated corporations and their
employees, officers, directors, shareholders and attorneys
harmless from all liabilities, obligations, damages, penalties,
claims, costs, charges and expenses, including, without
limitation, attorney's fees and costs of investigation, incurred
by Rawbar or claimed against Rawbar, by any governmental agency or
third party unless such actions are caused by Manager's gross
negligence or willful misconduct.
3.7 Miscellaneous.
(a) This Agreement shall constitute the entire agreement
between the parties hereto and no modification thereof
shall be effective unless made by supplemental agreement in
written executed by the parties hereto. Any prior written
or verbal agreements and understandings are merged into,
and are superseded by, this Agreement.
(b) Neither this Agreement nor any part hereof nor any service,
relationship, or other matter alluded to herein are
intended for the benefit of any third party.
(c) If anyone or more or the provisions of this Agreement, or
the applicability of any such provision to a specific
situation shall be help invalid or unenforceable, such
provision shall be modified to the minimum extent necessary
to make it or its application valid and enforceable, and
the validity and enforceability of all other provisions of
this Agreement and all other application of such provisions
shall not be affected thereby.
(d) Unless the context clearly requires otherwise, the singular
number herein shall include the plural, the plural number
shall include the singular, any gender shall include all
genders. Titles and captions herein shall not affect the
construction of this Agreement.
(e) This Agreement shall be governed by, and construed under
and in accordance with the laws of the State of Florida,
and Manager and Rawbar hereby agree that the exclusive
forum for any dispute arising under this Agreement shall be
a federal or state court situated in Miami Dade County,
Florida.
(f) In the event of any litigation between the parties under
this Agreement, the prevailing party shall be entitled to
reasonable attorney's fees and court costs and other
reasonable costs at all trial and appellate levels.
3.8 Representations and Warranties. Each of the parties represents to
the other that (i) it is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its formation
and is duly qualified to transact business in the State of
Florida, (ii) it has duty executed and delivered this Agreement,
(iii) this Agreement is binding on itself and
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enforceable against itself in accordance with its terms, and (iv)
no consent by any third party is required for the execution,
delivery and performance of this Agreement by said party. Manager
further represents and warrants to Rawbar that Manager, and all
employees and agents of Manager, has, and at all time, shall
maintain in good standing, all licenses, permits and approvals
necessary for Manager's performance under this Agreement. Manager
further represents and warrants to Rawbar that, in the performance
of its duties, Manager shall comply with all federal, state and
local laws, ordinances and regulations applicable to the Property
and its operation of the Property pursuant to this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be duly executed by their duly authorized representatives on the dates set forth
below their respective signature lines, to be effective as of August 20, 2004.
MANAGER:
HMG Advisory Bayshore, Inc. a Florida
corporation
By: /s/ Xxxxx Xxxxxxxxx
Xxxxx Xxxxxxxxx, President
OWNER:
BAYSIIORE RAWBAR, LLC, a Florida limited
liability company
By: /s/ Xxxxxx X. Xxxxxxxxx, Xx.
Xxxxxx X. Xxxxxxxxx, Xx., Manager
By: /s/ Xxxxx Xxxxxxxxx
Xxxxx Xxxxxxxxx, Manager
STATE OF FLORIDA )
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me this 20th day of
August, 2004, by Xxxxx Xxxxxxxxx, President of HMG Advisory Bayshore, Inc, a
Florida corporation, on behalf of the corporation. He is personally known to me
or who produced a Florida drivers license as identification.
/s/ Xxxxxxxxx Xxxxxxxx
My Commission Expires: 0-00-00 XXXXXX XXXXXX, Xxxxx xx Xxxxxxx
Print Name: Xxxxxxxxx Xxxxxxxx
[NOTARY LOGO OMITTED]
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STATE OF FLORIDA )
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me this 20th day of
August, 2004, by Xxxxxx X. Xxxxxxxxx, Xx., Manager of BAYSHORE RAWBAR, LLC, a
Florida limited liability company, on behalf of the company. He is personally
known to me or who produced a Michigan drivers license as identification.
/s/ Xxxxxxxxx Xxxxxxxx
My Commission Expires: 0-00-00 XXXXXX XXXXXX, Xxxxx xx Xxxxxxx
Print Name: Xxxxxxxxx Xxxxxxxx
[NOTARY LOGO OMITTED]
STATE OF FLORIDA )
COUNTY OF MIAMI-DADE )
The foregoing instrument was acknowledged before me this 20th day of
August, 2004, by Xxxxx Xxxxxxxxx, Manager of Bayshore RAWBAR, LLC, a Florida
limited liability company, on behalf of the company. He is personally known to
me or who produced a Florida driver's license as identification.
/s/ Xxxxxxxxx Xxxxxxxx
My Commission Expires: 0-00-00 XXXXXX XXXXXX, Xxxxx xx Xxxxxxx
Print Name: Xxxxxxxxx Xxxxxxxx
[NOTARY LOGO OMITTED]
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