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RESOLUTION 90-20011 RESOLUTION NO. 90-20011 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 INTERNATIONAL POOL MANAGEMENT, INC., FOR THE OPERATION OF A BEACHFRONT CONCESSION AT 36TH STREET OPEN SPACE (PANCOAST PARK) WHEREAS, the City Administration, through the Department of Purchasing and Property Management, issued a Request for Proposals (No. 87-89/94) for the Operation of Concessions on the Beachfront at Various Locations; and WHEREAS, a Proposal was received from International Pool Management, Inc. to operate beachfront concessions at 36th Street Open Space (Pancoast Park) ; 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 International Pool Management, Inc., for the operation of a beachfront concession at 36th Street Open Space (Pancoast Park) in the City of Miami Beach. PASSED AND ADOPTED THIS 6th day of June , 1990. ATTEST: , „.404k6, CITY CLERK VICE- MAYOR FORM APPROVED LEGAL, DEPT. e ta PNB:H CM: s e s Date ( 96 &re/ /44m e &ad FLORIDA 3 3 1 3 9 *IINCORP ORATED *; "VACA TIONLANL) U. S. A. " OFFICE OF THE CITY MANAGER CITY HALL ROB W.PARKINS 1700 CONVENTION CENTER DRIVE CITY MANAGER TELEPHONE: 673-7010 COMMISSION MEMORANDUM NO, 6 -Q 0 • DATE: June 6, 1990 TO: Mayor Alex Daoud a Members of the ' Commission n FROM: -Or Rob W. Parkins Ars City Manager V y CONCESSION AGREE ENT WITH INTERNATIONAL POOL MANAGEMENT, SUBJECT: INC. FOR OPERATION OF A BEACHFRONT CONCESSION AT 36TH STREET OPEN SPACE (PANCOAST PARK) ADVERTISEMENT DATE: April 3, 1990 RFP OPENING DATE: May 1, 1990 NOTICES MAILED: Two Hundred Twenty-Seven (227) SPECIFICATIONS ISSUED: Twenty-Five (25) PROPOSALS RECEIVED: Six (6) BACKGROUND: The City Administration, through the Department of Purchasing and Property Management, issued a Request for Proposals (RFP No. 87- 89/94) for the Operation of Beachfront Concessions as follows: 17th Street End; 36th Street Open Space (Pancoast Park) ; and 64th Street Park. This award pertains to 36th Street only, the proposals for the other areas require additional review prior to recommendation for award. For a five year term, plus an option for the City to renew for an additional five years, the proposed Beachfront Concession Agreement assigns beachfront space for the Concessionaire to operate all three (3) activities which are permitted under the Management Agreement between the City of Miami Beach and the State of Florida as follows: 1. Food and Beverage service, including the sale of food and/or beverage items from permanent or transportable locations. 2 . Beach Equipment Rental, including the rental by the hour/day of equipment such as chairs, umbrellas, rafts or other flotation devices. 3 . Water Recreational activities, including the rental of such water recreational equipment as surfboard, windsails, catamarans, wave runners, etc. . The RFP invited proposers to offer rental payments based on the greater of (1) a monthly guaranteed minimum rent or (2) a percentage of gross receipts. In addition, proposers were encouraged to include estimates of capital improvement which would be completed on City property at the Concessionaire's expense. S6 AGENDA ITEM DATE 6- 6) - Qo CONCESSION AGREEMENT FOR BEACHFRONT CONCESSIONS WITH INTERNATIONAL POOL MANAGEMENT, INC. FOR 36TH STREET OPEN SPACE June 6, 1990 Page -2- PROPOSAL TABULATION: (36th Street Open Space - Pancoast Park) Monthly Percentage Capital Proposer Minimum Rent Imps. International Pool $1, 000 25 $32,500 Dawn Becerra 625 15 -0- Beach Sports Int' l 500 10 62 , 500 George Merchak 325 15 -0- Michelle's Beachft 300 14 -0- NOTE: The capital improvements proposed by Beach Sports International for this location were found to be not feasible for the limited space available at the site. The proposal submitted by International Pool Management, Inc. was found to be complete and in order. The applicant submitted the required financial and background information, which confirmed and supported its ability to implement the concession agreement effectively. The principals (Michael F. Kerr, President and Donato P. Masucci, Vice President) of the applicant have operated beachfront concessions in Miami Beach successfully for approximately ten (10) years and currently operate beach equipment rental and water recreational rental concessions at three large hotels (Fontainebleau Hilton, Doral and Shawnee) . ADMINISTRATION RECOMMENDATION: The City Administration recommends that the City Commission approve a Resolution authorizing the Mayor and City Clerk to execute a Beachfront Concession Agreement with International Pool Management for Operation of a Beachfront Concession at 36th Street Open Space (Pancoast Park) . RWP:EJD:HCM:ses 57 CONCESSION AGREEMENT BETWEEN THE CITY OF MIAMI BEACH AND INTERNATIONAL POOL MANAGEMENT, INC. THIS AGREEMENT made the 14th day of June , 1990 between the City of Miami Beach, a Municipal Corporation of the State of Florida (hereinafter called the "City") and International Pool Management, Inc. , a Florida Corporation, with offices at 4441 Collins Avenue, Miami Beach, Florida 33150 (hereinafter called the "Concessionaire") . WITNESSETH WHEREAS, the City Manager' s Office is vested with jurisdiction over and control of all City parks in the City of Miami Beach and is responsible for the operation and maintenance of such facilities in the parks under its jurisdiction as may be necessary, desirable or convenient for the use of the public for healthful recreation, and WHEREAS, the Concessionaire desires to obtain from the City the exclusive privilege of operating the concession on the beach at the 36th Street Open Space Park (Pancoast Park) in the City of Miami Beach, to provide goods and services as hereinafter described, and the City desires to enter into Agreement with the Concessionaire for operation of said concessions, and WHEREAS, the Commission of the City of Miami Beach authorized this Concession Agreement by the adoption of Resolution No. 90-20011 a copy of said Resolution is made a part hereof as if set forth in full herein: 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 the following described concession on the beach at the 36th Street Open Space Park (Pancoast Park) 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. -1- a. TERM. THIS AGREEMENT SHALL COMMENCE ON THE 1st day of July A. D. , 1990 and shall end on the 30th day of June A. D. , 1995 for a term of five (5) years. 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 (5) 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. FACILITIES. The City hereby provides to the Concessionaire the following facilities and space: (1) Concession Operations space located on beachfront at 3501-3599 Collins Avenue, Miami Beach, Florida (2) Concession Operations space located on beachfront at 3313-3319 Collins Avenue, Miami Beach, Florida. (3) The Concessionaire shall have the use, in accordance with the limitations of paragraph 1 (c) below, of the beachfront as follows: The boundaries of the 36th Street Open Space Park being the extension of 36th Street on the North and the extension of 35th Street on the South. The boundaries of the 34th Street Parking Lot being the property lines of Municipal Parking Lot #P-16D. The boundaries are further described on the drawing on Exhibit A, attached hereto and made a part hereof. (4) The Concessionaire is also authorized to add temporary concession stands in accordance with the market demand presented to the Concessionaire subject to the restrictions of Paragraphs 39 and 40 below. c. 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: -2- (1) FOOD AND BEVERAGE SERVICE. This involves the sale of food and/or beverages, and ice cream products from pushcarts, mobile, or permanent designated locations on the beachfront in accordance with the provisions of this Concession Agreement. (2) BEACH EQUIPMENT AND RENTALS. This involves the rental by hour/day of beach equipment such as chairs, umbrellas, rafts, or other floatation devices in accordance with the provisions of the Concession Agreement. (3) WATER RECREATIONAL EQUIPMENT. Rental/lease of special recreational equipment on the beach including, but not limited to, surfboards, windsailing, catamarans, and jet skis, in accordance with the provisions of the Concession Agreement. Any special water recreational activity is subject to the prior approval of the Marine Authority and shall be available upon the Concessionaire' s ability to acquire required insurance coverage at a reasonable cost and with the approval of the City Manager. d. RFP INCORPORATED. The Request for Proposal No. 87-89/94 together with any and all amendments thereto, and the Concessionaire' s Proposal in response 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: International Pool Management, Inc. 4441 Collins Avenue Miami Beach, Florida 33140 Attn: Michael Kerr, President 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 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- 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 furnish to the Concessionaire the previously identified physical facilities and space. The City agrees to provide the assigned facilities in their "as is" condition and to perform necessary exterior maintenance on the facilities assigned to the Concessionaire as well as to maintain the below ground level connection lines for water and sewer utilities. Exterior maintenance of the facilities does not include daily removal of litter in the immediate fifty (50) foot area of the concession facility which removal is the responsibility of the Concessionaire. 6. NON-EXCLUSIVE FOR SPECIAL EVENTS. The City reserves the right to allow other Concessionaires to operate upon the designated premises during special events as may be approved by the City Manager. During authorized special events, the Concessionaire will be allowed to have in operation his normal daily complement of equipment and staff. Normal shall be defined as equipment and staff that the Concessionaire has available at the premises on a normal day, 365 days per year, Holidays excepted. Such equipment or staff shall not be increased or altered during special events without the prior express written permission of the City Manager. -4- 7 . 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. 8 . 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 sublet or 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. 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. Provided, however, the shareholders shall have the right to convey between themselves and their spouses and children, without consent. 9 . USE OF THE BEACH IS PRIMARY. The park is for the use of the public for recreation and other public purposes and the public' s right to such use shall not be infringed upon by any activity of the Concessionaire. However, this does not preclude the Concessionaire from scheduling promotional events, including events which might temporarily limit access to the event site subject to the prior approval of the City Manager. 10. IMPROVEMENTS UTILITIES. The Concessionaire accepts the facilities and space provided in this Agreement in their present condition, and is responsible for all interior modifications and maintenance, including entrance doors, windows and screens. -5- 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 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. 11. SECURITY. The Concessionaire must provide any security measures which may be required to protect his area and his equipment, materials and facilities. Said security measures may not violate other restrictions of this Agreement. 12 . 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. -6- 13 . UTILITIES. The Concessionaire agrees topay a for all utilities used with in the concession operation, including but not limited to electric, water, gas, telephone andarba e g g disposal . 14 . 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 by the City Manager or his designee. 15. TRASH AND GARBAGE REMOVAL. With respect to trash, rubbish and garbage removal, the Concessionaire shall provide at his expense receptacles within the confines of his area and shall provide a sufficient number of these receptacles for his own use and for the use of the public. Dumping of receptacles and removal of trash, rubbish and garbage shall be the responsibility of the Concessionaire. 16. PERFORMANCE SECURITY. The Concessionaire shall post a Performance Bond, Irrevocable Letter of Credit or cash deposit in the alternative in the amount of five thousand dollars ($5, 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. 17 . RENTAL. The Concessionaire shall pay to the City rental sums as follows: Monthly Rental of twenty-five (25%) percent of gross receipts, or a minimum monthly guarantee in the amount of One Thousand Dollars and No cents, whichever is greater. _7_ Rent begins to accrue on July 1, 1990. Said rentalerce p ntage shall be paid to the City by the 15th of each month for the preceding month, and said payment shall be by accompanied a p 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. 18 . 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 of 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 highest rate allowable by law. 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 15 above. -g- 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. 19 . 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. 20. 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. 21. CONCESSIONAIRE NOT TO REMOVE PROPERTY. The Concessionaire agrees not to remove from the park 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 park and shall do so within two (2) weeks following the expiration of this -9- 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. 22 . 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. 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. 23 . 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. -10- 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. 24 . 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. 25. 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 such interference shall not relieve the Concessionaire from any obligation hereunder. 26. 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. 27 . 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) days of Receipt of Notification from City and in accordance with the applicable law and policy. -11- The Concessionaire agrees to provide the authorized services to the public throughout the daily hours the park is open, or as otherwise approved by the City Manager. Business hours shall be posted by the Concessionaire near the main entrance to the concession facilities. 28 . 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. There shall be no living quarters nor shall anyone be permitted to live on 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. 29. EMPLOYEES; MANAGERS; HOURS OF OPERATION. The Concessionaire shall employ people to work at this facility 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 Director of Purchasing and Property Management. All employees shall observe all the graces of personal grooming. All employees shall wear City of Miami Beach identification badges or identification badges prepared by the Concession during all hours of operation. 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 Director of Purchasing and Property Management. During the term of the Agreement the Concession shall be open and properly staffed seven (7) days per week. Operation hours shall be submitted to the City Manager for approval. -12- 30. NO IMPROPER USE. The Concessionaire will not use, nor suffer or permit any person to use in any manner whatsoever, the assigned concession facilities 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 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. 31. PRICES. Concessionaire agrees that prices and fees charged for concession merchandise and services will be competitive with those charged for similar merchandise and services in the general vicinity of the park(s) . The City shall have the final right of approval for all such prices, fees and changes, but said right shall not be arbitrarily or unreasonably exercised. -13- All approvals and changes must be approved in writing by the City Manager or his designee. The Concessionaire agrees to refrain from the sale or rental of any item identified as prohibited by the City and to sell or rent only those categories of merchandise and equipment recommended by the City. The Concessionaire agrees to maintain an adequate supply pp Y of any merchandise which the City deems necessary to accommodate park visitors. The Concessionaire will ensure that • all merchandise and services offered to the public are of acceptable quality and are safe and clean. 32 . 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. 33 . 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. 34 . 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. -14- Continued occupancy of the facility after termination o f the privilege shall constitute trespass by the Concessionaire,re, and may be prosecuted as such. In addition, the Concessionaire shall pay to the City one hundred dollarsper day as liquidated damages for such trespass and holding over. 35 . PRIVILEGE. It is the intent of the City, concurred in by the Concessionaire, that this Agreement shall not,t, 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. 36. 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. 37. INDEMNIFICATION OF CITY; INSURANCE. The Concessionaire shall indemnify, defend and hold the City harmless from any and all claims, liability, losses, and causes of action which may arise out of the Concessionaire ' s operation under this Agreement and shall pay all claims and losses of any nature whatsoever in connection therewith and shall defend all suits, in the name of the City when applicable, and shall pay all costs (including attorney fees) and judgments which may issue thereon. This indemnification shall not be limited in any way by the type or amount of insurance carried by the Concessionaire. -15- The Concessionaire shall carry and maintain in full force and effect at all times during his operation on City property the following insurance coverages: a. Comprehensive General Liability in the minimum amount of Five Hundred Thousand ($500, 000. 00) per occurrence for bodily injury and property damage. This policy must also contain coveragefor premises operations, products and contractual liability. b. If this operation includes the sale of alcoholic beverages, liquor 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. 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. f. The Concessionaire shall furnish original certificates of insurance, evidencing the required coverage, and receive approval of same, prior to the commencement of operations. g. Certificates of Insurance shall be approved by the City's Risk Manager and kept on file in the Finance Department, Insurance and Safety Division, Third Floor, City Hall. 38 . CITY CONTROLS BEACH. Nothing in this contract will preclude the City from using the public areas of the beach for public and/or civic purposes as deemed necessary. 39 . VEHICLES IN PARK. Vehicles are allowed in areas only where roadways are provided and vehicles will park only in areas designated for vehicle parking. -16- Provided the Concessionaire shall have the right to use vehicles on the beach only for the purposes of loading and unloading its equipment and supplies. 40. STORAGE. Concessionaire agrees that there will be no overnight storage of any kind east of the "Dune Line. " 41. BIODEGRADABLE CONTAINERS. The sale of beverages from cans, bottles, or plastic containers is not permitted. . Beverages must only be dispensed in paper cups or other biodegradable containers, in accordance with applicable State and County requirements. The use of plastic straws is also prohibited. 42 . 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. 43 . CITY WITHDRAWAL OF CITY PROPERTY. The City retains the right to withdraw all or any portion of the City property and the beach adjacent thereto from the terms and conditions of the Concession Agreement. The City shall give the Concessionaire ninety (90) days written notice in the event of such withdrawal . In the event the City withdraws all of the City property, the agreement automatically terminates. In the event the City withdraws less than all of the property, then the remaining property shall continue within the scope of this agreement and the City agrees to make a proportionate adjustment in the minimum rent, but no adjustment in the percentage rental shall be made. 44 . FLORIDA LAW. This Agreement shall be governed by and construed in accordance with the law of the State of Florida. -17- 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. ATTEST: CITY OF MIAMI BEACH • / _ B Y� moi, L � 'SIO CITY CLERK V 'CE-MAYOR WITNESSES: INTERNATIONAL POOL MANAGEMENT> N C adY, #11-GiCel BYCWL;Zf'6 PY2E8ID T r . (CORPORATE SEAL) FORM APPROVED L L DEPT. By #—(-1, 27/g Date 6 / �o HCM: ses -18- If • -....../ -"'... 11 1 L_J re at....-i, -v. • , I R_ al 40 1/1*ill 4 4 Itourfile LI :!: . ii a •- 49•..? it:0, CAVIVArr,•04, 0 4 .10 - 90.,FA,rev, e 4 11 3a ....:.....:...i.......,.111111111111. 1 I I I I I I I I I I I I I I 11111 I , ) ... • cis.r. ..0-1. r•e '40' Sr,dpeer 4t ii.:g.i?i.i 41 iiialii . le • Cxic, .a $ .\ , • •••••• . ....•••• ••••••• •••••• V Al LI ity - - • > - • /7 . 41 ,i'c.....„ Li) 4 1 Zki 4 ...I 4. rAkkrA1%. Qi •- .eo s• I•N • 111111 .9 -6, LOT ::I,.i.N.ii . , pi.iiiiii ... 0. Lipimsfro, 4' 1. 1. 1\1":""\ISI7.7."':"\... ........................... ‘t i‘iAg IC Q IM t, 4:w: • 4 4 Q tio .3.5'. r4.4 i ii::•fi:: to j riPee.p. 1 t '41• //.. • /3 9 •-o. • • .•••••• 5 .:`------------is-7--jii- :!::::::::•:- • ••••. ••..•• I • 4 ----- 11 f? i ......4111111 I Concession . , .... ...iiio. tZ ,ror LNICIPPIPAIIIIII 1 Area 0 k ......, 4:-...11111111111111 4 I ti \ /7 k 34,44 . to e. ; ,1 I 4) V o . tel ki 3ft s 7: ! ...‘,Ihhi. INITIMP__I II II III lin.— I 0, tiezvicw,, ........ iti.:,i: . -amr • lab. 4 ie 7 fila . 14'11 — miq 4 07 21 e. • ,D ..1b • , ) Ap. . • YINNI 4° 2 1 J:30 vt OMNI Ma..3-va• J34....... 1,:r ir 3k. . $ 4 ....a.--1 I • 4,1r .. • II 4it i . . .t - 1111WIttli <Tr 4. II; 411110, 0) .4- ,S iit 11111, ,, if . (3, . v y,„ pi / 4,44wite CI 4 ilioitie 0 .t,. , tialm, ...._ . u t 4' 1 .1 . a, gl • / 1 , . . 1 EXHIBIT A . , ORIGINAL RESOLUTI.N NO. 90-20011 Authorizing the Mayor and the City Clerk tp execute a concession agreement between the C.M.B. and International Pool operation Manage- ment, Inc. , for the o p ion of a Beach- front Concession at 36th Street Open Space (Pancoast Park) .