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RESOLUTION 89-19675 RESOLUTION NO. 89-19675 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF MIAMI BEACH AUTHORIZING THE MAYOR AND THE CITY CLERK TO EXECUTE A CONCESSION AGREEMENT BETWEEN THE CITY OF MIAMI BEACH AND GOLD STAR, INC. FOR THE OPERATION OF A VALET PARKING CONCESSION IN THE CITY OF MIAMI BEACH WHEREAS, the City Administration, through the Department of Purchasing and Property Management, solicited a Request for Proposal 156-88/93 for the Operation of a Valet Parking Concession in the City of Miami Beach; and WHEREAS, a Proposal was received from Gold Star, Inc; and WHEREAS, a Concession Agreement has been recommended by the City Manager and approved as to form by the City Attorney. NOW, THEREFORE, BE IT DULY RESOLVED BY THE CITY COMMISSION OF THE CITY OF MIAMI BEACH that the Mayor and the City Clerk are hereby authorized to execute the Concession Agreement between the City of Miami Beach and Gold Star, Inc. for the operation of a valet parking concession in the City of Miami Beach. PASSED AND ADOPTED THIS 26th day of July , 1989 . ATTEST: 51/(-- 21"-A1-41 "°::;1111!11/ 7 CITY CLERK vYOR APPROVED AS TO FORM: 4 ... ,. ...27 LEGAL DEPARTMENT DATE: 9/ ?/ PNB:HCM: ses CONCESSION AGREEMENT BETWEEN THE CITY OF MIAMI BEACH AND GOLD STAR, INC. THIS AGREEMENT made the 14th day of September , 1989 between the City of Miami Beach, a Municipal Corporation of the State of Florida (hereinafter called the "City") and Gold Star, Inc. , a Florida Corporation, with offices at 12355 N.E. 13th Avenue, Suite 103 , Miami, Florida 33161 (hereinafter called the "Concessionaire") . WITNESSETH WHEREAS, the City Manager' s Office is vested with jurisdiction over and control of all City owned property in the City of Miami Beach and is responsible for the operation and maintenance of such facilities on city owned property under its jurisdiction as may be necessary, desirable or convenient for the use of the public for healthful recreation or enjoyment, and WHEREAS, the Concessionaire desires to obtain from the City the privilege of operating valet parking concession(s) at various locations on city property in the City of Miami Beach, to provide services as hereinafter described, and the City desires to enter into Agreement with the Concessionaire for operation of said concessions: NOW THEREFORE, in consideration of the premises and the mutual covenants and conditions herein contained, it is agreed by the parties hereto as follows: 1. The City hereby grants to the Concessionaire, and the Concessionaire hereby accepts from the City, exclusive agreement to operate valet parking concession on city property at various locations within the City of Miami Beach in conformance with the purpose and for the period stated herein and subject to all the terms and conditions herein contained and fairly implied by the terms hereinafter set forth. a. TERM. THIS AGREEMENT SHALL COMMENCE ON THE 15th day of September A. D. , 1989 and shall end on the 14th day of September A. D. , 1994 for a term of five (5) years. -1- The City may, at its sole discretion, extend the Agreement term under all of the terms and conditions contained in this Agreement for up to five (5) additional years following expiration of the original five year term. The City must give the concessionaire written notice of its intention to extend the Agreement term not less than ninety (90) days prior to the end of the Agreement term then in effect. b. USES. The Concessionaire is hereby authorized to conduct the following kinds of business and to provide the following services, and only such business and services, at the locations as set forth below: (1) Operate a valet parking concession at the Jackie Gleason Theatre of the Performing Arts, (TOPA) , Stephen Muss Convention Center, Colony Theatre and such other locations on City property which the City Manager may specifically authorize in writing. (2) The Concessionaire may use levels one and two of the southwest corner of the two level municipal parking garage located immediately south of TOPA or at such other locations as the City Manager may specifically designate in writing. No charge shall be made to the concessionaire for the use of the metered parking facilities referenced above. c. RFP INCORPORATED. The Request for Proposal No. 156-88/93 together with any and all amendments thereto, and the Concessionaire' s Proposal in response thereto are hereby incorporated by reference into this agreement to the extent that they are not inconsistent with any terms herein. In the event of any inconsistency, this Agreement shall prevail . 2 . NOTICES. All notices from the City to the Concessionaire shall be deemed duly served if mailed by registered or certified mail to the Concessionaire at the following addresses: Gold Star, Inc. Attention: Arthur J. Schultz, President 12355 N.E. 13th Avenue, Suite 103 Miami, Florida 33161 All notices from the Concessionaire to the City shall be deemed duly served if mailed to: The City Manager The City of Miami Beach 1700 Convention Center Drive Miami Beach, FL 33139 -2- • The Concessionaire and the City may change the above mailing address at anytime upon giving the other party written notification. All notices under this Concession Agreement must be in writing. 3 . NOT A LEASE. It is expressly understood and agreed that no part, parcel, building, structure, equipment or space is leased to the Concessionaire; that he is a Concessionaire and not a Lessee; that the Concessionaire' s right to operate the concession shall continue only so long as the concession operation complies with the undertakings, provisions, agreements, stipulations and conditions of this Concession Agreement. 4 . NO PARTNERSHIP. Nothing herein contained shall create or be construed as creating a co-partnership between the City and the Concessionaire or to constitute the Concessionaire as an agent of the City. 5. MAINTENANCE. The City agrees to make available to the Concessionaire the previously identified metered parking facilities for use under this agreement. The City agrees to provide the assigned facilities in their "as is" condition and the concessionaire agrees to return them to the City in at least as clean a condition as they were found. 6. EXECUTORY AS TO APPROPRIATIONS. The City' s responsibilities which require annual appropriations are deemed executory only to the extent that funds are available for the purpose in question. 7 . ASSIGNMENT; SUBLET. The City may, by amendment to the Concession Agreement, authorize the Concessionaire to expand the services provided. To encourage continuity of successful operations, the City may give preference to the existing Concessionaire in the extension or renewal of this Agreement. The Concessionaire may not assign this Concession Agreement, or any part thereof, without prior written approval of the City Manager, which approval will not be unreasonably withheld or delayed. The City may consider the following matters in determining whether to withhold a grant approval of a proposed assignment: (1) the financial worthiness of the proposed buyer; (2) the character and background of the officers, directors and stockholders of the proposed buyer; and (3) the prior experience of the proposed buyer in conducting concessions of the nature set forth herein. In the event Concessionaire is a corporation, Concessionaire agrees that no shareholder shall sell , assign, transfer or convey his stock (except by operation of law) nor shall the corporation issue any additional shares of stock without the prior written consent of the City Manager. -3- Provided, however, the shareholders shall have the right to convey between themselves and their spouses and children, without consent. Granting of subconcession agreements is solely within the discretion of the City and may be unreasonably withheld. 8 . IMPROVEMENTS. The Concessionaire accepts the space provided under this Agreement in their present condition. The Concessionaire must first obtain the City' s concurrence for any alteration or additions or improvements to physical facilities and then must pay for such modifications, which become City assets upon completion. Detailed plans for any contemplated leasehold improvements shall be submitted to the City within sixty (60) days following the signing of this Agreement. The Concessionaire must provide, install and maintain, at its own cost and expense, all equipment required to operate the concession. The Concessionaire shall have the right to use the City equipment, furnishings, and fixtures that may be presently used in conjunction with the operations. The Concessionaire shall maintain said equipment, furnishings, and fixtures, if there are any, during the term of this Agreement at its sole cost and expense. In the event any of the aforesaid items are lost, stolen, or damaged, they shall be replaced or repaired at the cost and expense of the Concessionaire, ordinary wear and tear excepted. Upon the expiration of the Agreement, the Concessionaire shall quietly and peacefully redeliver said equipment, furnishings and fixtures to the City. 9 . SECURITY. The Concessionaire must provide any security measures which may be required to protect his area, his equipment, materials and facilities and the equipment of his patrons. Said security measures may not violate other restrictions of this Agreement. 10. PERMITS; LICENSES TAXES. The Concessionaire agrees to obtain and pay for all permits and licenses necessary for the conduct of the business and agrees to comply with all laws governing the responsibility of an employer with respect to persons employed by the Concessionaire. The Concessionaire shall also be solely responsible for payment of any and all taxes levied on the concession operation. In addition, the Concessionaire shall comply with all rules, regulations and laws of the City of Miami Beach, Dade County, the State of Florida, or the U.S. Government now in force or hereafter to be adopted. 11. UTILITIES. The City agrees to pay for all electricity used in the concession operation. The Concessionaire agrees to supply all other utilities, including but not limited to electric, water, gas, telephone and garbage disposal. -4- 12 . SIGNAGE. Concessionaire shall provide, at his sole cost, required signs at all public approaches to his concessions. All advertising, signage and postings shall be approved prior to their installation or use by the City Manager or his designee. 13 . TRASH AND GARBAGE REMOVAL. With respect to trash, rubbish and garbage removal, the Concessionaire shall provide at his expense, trash receptacles in any area where valet parking tickets are distributed. The Concessionaire shall instruct and monitor his employees to assure that litter associated with the concession operation is minimized. Clean up of litter, dumping of receptacles, and removal of trash and garbage in connection with this project shall be the responsibility of the Concessionaire. 14 . PERFORMANCE SECURITY. The Concessionaire shall post a Performance Bond, Irrevocable Letter of Credit or cash deposit in the alternative in the amount of two thousand dollars ($2 , 000) with the City upon the execution of this Agreement. Said Performance Bond shall be issued by a surety company authorized to do business in the State of Florida and shall be refundable at the termination of this Agreement if all terms and conditions of the Agreement accepted by the Concessionaire have been satisfied. The form and substance of the Performance Bond is subject to the approval of the City. If the Performance Bond is on an annual coverage basis, renewal for each succeeding year shall be submitted to the Director of Purchasing and Property Management, thirty (30) days prior to termination date of existing Performance Bond. 15. RENTAL. The Concessionaire shall pay to the City without demand, monthly rental sums as follows: Percentage Rental in accordance with the following schedule: 35% of gross receipts up to $8, 000. 00 per month 38% of gross receipts from $8, 001. 00 to $12 , 000. 00 per month. 41% of gross receipts over $12 , 001. 00 per month, or a Minimum Monthly Guarantee in accordance with the following schedule: $700. 00 per month during the First Year of this Agreement. $900. 00 per month during the Second Year of this Agreement. $1, 000. 00 per month during the Third Year of this Agreement. $1, 100. 00 per month during the Fourth Year of this Agreement. $1, 200. 00 per month during the Fifth Year of this Agreement. $1, 400. 00 per month during the Sixth through the Tenth Years, if the option to extend this Agreement is exercised in accordance with the provisions of Paragraph la hereof. -5- Rent begins to accrue on the following date: September 15, 1989 . Said rental percentage shall be paid to the City by the 15th of each month for the preceding month, and said payment shall be accompanied by a statement of gross receipts for the preceding month. It is also understood that the applicable Florida State Sales and Use Tax on rental payments shall be added to the Concessionaire' s rental payment and forwarded to the City as part of said payments. It is the intent of the City that it is to receive the rental amount as net, free and clear of all costs and charges arising from, or relating to, said demised premises and that the minimum monthly guarantee or the percentage rent, whichever is greater, be paid monthly. The term "gross receipts" is understood to mean all income collected or accrued, derived by the Concessionaire under the privileges granted by his Agreement or other document entered into with the City, excluding amounts of any Federal, State, or City sales tax, or other tax, collected by the Concessionaire from customers and required by law to be remitted to the taxing authority. All gross receipts generated as a result of any subconcession agreement entered into pursuant to this agreement shall be deemed to be gross receipts of the Concessionaire for the purposes of calculating the fee payable to the City. 16. DEFAULT IN PAYMENT. A monthly report of gross receipts, the rental payment computed on that amount, and any other fees due must be submitted to the City, through the Director of Purchasing and Property Management, to be received no later than fifteen (15) days after the close o f each month. In the event Concessionaire fails to pay this consideration within five (5) days of such due date, there shall be a late charge of $50. 00 for such late payment, in addition to interest at the rate of 12% per annum. If the commission payment and accumulated daily penalties are not received within thirty (30) days after the normal monthly payment due date, then the City may take possession of the Concessionaire's assets on City property, may cancel this Concession Agreement, and may begin procedures to collect the Performance Bond required in Paragraph 14 above. A monthly report of activities shall be submitted to the Director of Purchasing and Property Management by the 15th of each month. This report can be in the form developed by the Concessionaire and approved by the Director of Purchasing and Property Management. This report shall accompany the monthly statement of gross revenues and will be subject to audit. . -6- 17 . FORCE MAJEURE. If closure of the facilities or loss of equipment is due to fire damage, flood, civil disorder, acts of God, etc. , to some-- but not all-- of the facilities and equipment, the City will allow prorata adjustment of monthly payments up to the time the damage is repaired. 18 . CITY LIEN. It is expressly agreed that the City shall have a continuing lien on all personal property of the Concessionaire on the premises, for all sums which may from time to time become due and unpaid to the City under this Agreement, and upon default of payment by the Concessionaire and failure to cure after the expiration of the applicable grace period, the City shall have the right to take possession of and retain the same until the full amount due shall be paid, or to sell the same at public auction and, after deducting the expense of such sale, apply the balance of the proceeds to such payment and if there should be any deficiency, to resort to any other legal remedy available to it. 19. CONCESSIONAIRE NOT TO REMOVE PROPERTY. The Concessionaire agrees not to remove from the City property any personal property brought thereon or any replacements thereto by the Concessionaire for the purpose of this Concession Agreement, except such items as may be removed with the express permission of the City. Upon expiration of the term specified in Paragraph 1-a above, if the Concessionaire has made full payment under this Concession Agreement, and has fully complied with the terms of this Agreement, he may remove his personal property including equipment from the city property and shall do so within two (2) weeks following the expiration of this Agreement, provided such personal property and equipment can be removed without damage to the premises. On failure to do so, the City may cause same to be removed and stored at the cost and expense of the Concessionaire, and the City shall have a continuing lien thereon in the amount of the cost and expense of such removal and storage until paid, and may sell such personal property and reimburse itself for such cost and expense, plus the expense of the sale. 20. RECORDS; AUDIT. The Concessionaire agrees to establish and maintain such records as may be prescribed by the City in the future to provide evidence that all terms of this Agreement have been and are being observed. The Concessionaire grants to the City the right and authority to audit all records, documents, and books pertaining to the concession operation. -7- Such audit will be conducted at locations and at a frequency determined by the City and communicated to the Concessionaire. The Concessionaire agrees to provide materials for the audit at the designated place within three (3) business days after the City's notice is received. Within sixty (60) days after each fiscal year, Concessionaire shall deliver to the City a written annual statement of the gross receipts for such fiscal year. Said statement shall be certified as true, accurate and complete by the Concessionaire and by a Certified Public Accountant. The Concessionaire agrees to use point-of-sale machines or other accounting control equipment for the proper control of cash and payments. All financial records are to be maintained during the entire term of this Agreement and for a period of three years following the termination of this Agreement. 21. COOPERATION. The Concessionaire agrees to cooperate with the City in the conduct of surveys, to provide reports of visitor contacts, and to respond to department inquiries about public usage of concession services. Further, the City agrees to provide the Concessionaire with advance notice of any special event and to coordinate with the Concessionaire regarding same. City also agrees to provide Concessionaire with notice of the availability of plans for any remodeling of the facilities. 22 . INSPECTION. The Concessionaire agrees that the concession facilities and premises may be inspected at anytime by authorized representatives of the City Manager or his designee or by any other state, county, or municipal officer or agency having responsibilities for inspections of such operations. The Concessionaire agrees to undertake immediately the correction of any deficiency cited by such inspectors. 23 . WAIVER OF INTERFERENCE. The Concessionaire hereby waives all claims for compensation for loss or damage sustained by reason of any interference with the concession operation by any public agency or official in enforcing their duties or any laws or ordinances any such interference shall not relieve the Concessionaire from any obligation hereunder. 24 . WAIVER OF LOSS FROM HAZARDS. The Concessionaire hereby expressly waives all claims for loss or damage sustained by the Concessionaire resulting from fire, water, tornado, civil commotion or riot; and the Concessionaire hereby expressly waives all rights, claims, and demands and forever releases and discharges the people of the City of Miami Beach, Florida, from all demands, claims, actions and causes of action arising from any of the aforesaid causes. -8 • - 25. NO LIENS. Concessionaire agrees that it will not suffer or through its actions or anyone under its control or supervision, cause to be filed upon the property any lien or encumbrance of any kind. In the event any lien is filed, Concessionaire agrees to cause such lien to be discharged within ten (10) working days and in accordance with the applicable law and policy. The Concessionaire agrees to provide the authorized services to the public at all hours as requested by the Director of the Stephen Muss Convention Center. 26. ORDERLY OPERATION, ETC. The Concessionaire shall have a neat and orderly operation at all times and shall be solely responsible for the necessary housekeeping services to properly maintain the premises. The Concessionaire shall make available all areas of the premises under his control for examination at anytime by the City Manager or his authorized representative. 27 . EMPLOYEES;MANAGERS;HOURS OF OPERATION. The Concessionaire shall employ people to work in his operations who are literate, neat, clean, well-groomed and courteous. The Concessionaire and any persons employed by him, shall never have been convicted of any offense involving moral turpitude or felony. Failure to comply with this provision will be grounds for refusal to hire by the City Manager or his designee. All employees shall observe all the graces of personal grooming. All employees shall wear City of Miami Beach identification badges or uniforms supplied by the Concessionaire whenever on City property. The Concessionaire shall have an experienced manager or managers overseeing the concession operations at all times. Conduct of the employees of the Concessionaire shall be subject to reasonable regulation by the City Manager or his designee. During the term of the Agreement the Concession shall be open and properly staffed to support scheduled events as designated by the City Manager or his designee. 28 . NO IMPROPER USE. The Concessionaire will not use, nor suffer or permit any person to use in any manner whatsoev:r, the City property for any improper, immoral or offensive purpose, or for any purpose in violation of any federal, state, county, or municipal ordinance, rule, order or regulation, or of any governmental rule or regulation now in effect or hereafter enacted or adopted. The Concessionaire will protect, indemnify, and forever save and keep harmless the City and individual members thereof and their agents, from and against damage, penalty, fine, judgment, expense or charge suffered, imposed, assessed or incurred for any -9- violation, or breach of any law, ordinance, rule, order or regulation occasioned by any act, neglect or omission of the Concessionaire or any employee, person or occupant. In the event of any violation by the Concessionaire or if the City or its authorized representative shall deem any conduct on the part of the Concessionaire to be objectionable or improper, the City shall have the right to suspend the operation of the concession should the Concessionaire fail to correct any such violation, conduct, or practice to the satisfaction of the City within twenty-four (24) hours after receiving notice of the nature and extent of such violation, conduct, or practice, such suspension to continue until the violation is cured. The Concessionaire further agrees not to commence operation during the suspension until the violation has been corrected to the satisfaction of the City. 29. PRICES. Concessionaire agrees that prices and fees charged for valet parking shall not exceed those established by the City Commission of the City of Miami Beach. 30. NO DANGEROUS MATERIALS. The Concessionaire agrees not to use or permit in the facility the storage of illuminating oils, oil lamps, turpentine, benzine, naphtha, or other similar substances, or explosives of any kind, or any substance or thing prohibited in the standard policies of fire insurance companies in the State of Florida. 31. NO CLAIM AGAINST CITY OFFICERS, EMPLOYEES, INDIVIDUALS. It is expressly understood and agreed by and between the parties hereto that the members constituting the City Manager's Office of the City of Miami Beach, and its officers and agents are acting in a representative capacity and not for their own benefit; and that neither the Concessionaire nor any occupant shall have any claim against them or any of them as individuals in any event whatsoever. 32 . DEFAULT AND TERMINATION. If the Concessionaire fails to comply with any of the terms and conditions hereof except for non-payment of rent which is separately treated in Paragraph ' 18 hereof, and such default is not cured within fifteen (15) days after written notice is given to Concessionaire, the City may cancel this Agreement and revoke the privilege of the Concessionaire to come upon the City' s property for purposes for which this concession was granted and may oust and remove all parties who may be present upon or occupy any part of the premises for the purpose of exercising any rights so revoked. Continued occupancy of the facility after termination of the privilege shall constitute trespass by the Concessionaire, and may be prosecuted as such. -10- . In addition, the Concessionaire shall pay to the City one hundred dollars ($100) per day as liquidated damages for such trespass and holding over. 33 . PRIVILEGE. It is the intent of the City, concurred in by the Concessionaire, that this Agreement shall not, as against the City, vest any right in the Concessionaire; and shall be deemed only the grant of a privilege to the Concessionaire to carry out the terms of this Agreement on property of the City so long as such Agreement or privilege shall be in force. 34 . NO DISCRIMINATION. The Concessionaire agrees that there shall be no discrimination as to race, sex, color, creed or national origin in the operations referred to by this Concession Agreement; and further, there shall be no discrimination regarding any use, service, maintenance, or operation of the premises. All facilities located on the premises shall be made available to the public, subject to the right of the Concessionaire to establish and enforce rules and regulations to provide for the safety, orderly operation and security of the facilities. 35. INDEMNIFICATION OF CITY; INSURANCE. The Concessionaire hereby agrees to indemnify, defend and hold the City harmless the City of Miami Beach, a municipal corporation, its officers, agents, and employees from all claims for bodily injuries to the public in and up to the amount of $500, 000. 00 for each occurrence and for all damages to the property of others in and up to the amount of $500, 000. 00 for each occurrence including costs of investigation, all expenses of litigation, including reasonable attorney fees and the cost of appeals arising out of any such claims or suits because of any and all acts of omission or commission of any by the concessionaire, his agents, servants, or employees, or through the mere existence of the project under contract. The foregoing indemnity agreement shall apply to any and all claims and suits other than claims and suits arising out of the sole and exclusive negligence of the City of Miami Beach, its officers, agents, and employees, as determined by a court of competent jurisdiction. This indemnification shall not be limited in any way by the type or amount of insurance carried by the Concessionaire. The Concessionaire shall carry and maintain in full force and effect at all times during his operation on City property the following insurance coverages: -11- • a. Comprehensive General Liability (occurrence form) , limits of liability $500, 000 . 00 per occurrence for bodily injury property damage to include Premises/Operations ; Products and Completed Operations ; Independent Contractors; Broad Form Property Damage Endorsement and Contractual Indemnity (Hold Harmless endorsement exactly as written in "insurance requirements" of specifications) . b. Garage Liability Garagekeepers liability insurance in the minimum amount of $500, 000. 00 must be carried. c. The City must be named as an additional insured on the policies required above. All Certificates of Insurance shall state: This insurance coverage is primary to all other coverages provided by the City of Miami Beach. d. Workers ' Compensation and Employers ' Liability to meet the statutory requirements of the State of Florida. e. Thirty (3 0) days written cancellation notice to the City is required. f. All insurance policies shall be issued by companies authorized to do business under the laws of the State of Florida and must have a rating of B+:VI or better per A.M. Best' s Key Rating Guide, latest edition. g. The Concessionaire shall furnish original certificates of insurance, evidencing the required coverage, and receive approval of same, prior to the commencement of operations. h. Certificates of Insurance shall be approved by the City' s Risk Manager and kept on file in the Finance Department, Insurance and Safety Division. 38 . STORAGE. Concessionaire agrees that there will be no storage of any kind of supplies or materials for vaiet parking operations. 39 . JURISDICTIONAL DISPUTES . Any jurisdictional disputes concerning the Concessionaire ' s rights under this Agreement versus other concessionaires rights under other agreements shall be resolved by the City Manager. 40. FLORIDA LAW. This Agreement shall be governed by and construed in accordance with the law of the State of Florida. -12- IN WITNESS WHEREOF, the parties hereto have caused their names to be signed and their seals to be affixed; all as of the day and year first above written. CITY OF MIAMI BEACH Be/ i,,, 40$$$$11i i• ATTEST: -12-1i. - 7-}? f CITY CLERK WITNESSES: GOLD STAR, INC. c;)II-24-2-_> -(D(... ._;21.---- ..20•fri C_Ap,__L„-a-Yr ii'Li,k -C_Eit --- BY: I 4,11P1111 71.0-4, `'T SIDENT AFFI% APPROVED AS TO FORM: (CORPORATE SEAL) ; ›47(Z,..„,..-,- EGAL DEPARTMENT DATE: 9/ 7/ n PNB:HCM:ses -13- ORIGINAL RESOLUITON NO. 89-19675 Authorizing the Mayor and the City Clerk to execute a concession agreement between the City of Miami Beach and Gold Star,Inc. for the operation of a valet parking con- cession in the City of Miami Beach. • ;