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RESOLUTION 92-20515 RESOLUTION NO. 92-20515 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 CONCESSION ON THE BEACHFRONT ADJACENT TO THE 46TH STREET PARKING LOT (INDI p_N BEACH PARK) WHEREAS, the City of Miami Beach issued a Request for Proposals (No. 38-91/96) for the Operation of Concessions on the Beachfront at Various Locations ; and WHEREAS, a Proposal was received from International Pool Management, Inc. to operate concessions on the beachfront adjacent to the 46th Street Parking Lot (Indian Beach Park) ; and WHEREAS, the City Commission at its meeting on March 18 , 1992 approved the award of the concession on the beachfront adjacent to the 46th Street Parking Lot to International Pool Management, 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 International Pool Management, Inc. for the operation of a concession on the beachfront adjacent to the 46th Street Parking Lot (Indian Beach Park) in the City of Miami Beach. PASSED AND ADOPTED THIS 3rd day of June , 1992 . ATTEST: 400/ (AAA c-"Sk- CITY CLERK �" y� MAYv ! '0' APPROVED LE DEPT. Date c/e2--- HCM:m CITY OF MIAMI BEACH CITY HALL 1700 CONVENTION CENTER DRIVE MIAMI BEACH FLORIDA 33139 OFFICE OF THE CITY MANAGER TELEPHONE: (305) 673-7010 FAX: (305) 673-7782 COMMISSION MEMORANDUM NO. 33 94-92., DATE: May 20, 1992 TO: Mayor Seymour Gelber and Members of the City Commission FROM: Roger M. Ca City Manager SUBJECT: CONCESSION AGREEMENT BETWEEN THE CITY AND INTERNATIONAL POOL MANAGEMENT, INC. FOR OPERATION OF CONCESSIONS ON THE BEACHFRONT ADJACENT TO 46TH STREET PARKING LOT (INDIAN BEACH PARK) ADMINISTRATION RECOMMENDATION: The Administration recommends that the City Commission approve a Resolution authorizing the Mayor and the City Clerk to execute a Concession Agreement between the City and International Pool Management, Inc. for the operation of concessions on the beachfront adjacent to the 46th Street Parking Lot (Indian Beach Park) . BACKGROUND: For a five year term, with an option for the City to renew on a year to year basis for up to an additional five years, the Beachfront Concession Agreement assigns beachfront space for the Concessionaire to operate two (2) of the activities which are permitted under the Management Agreement between the City of Miami Beach and the Florida Department of Natural Resources as follows: 1. Food and Beverage service, including the sale of food and beverage items from permanent or transportable locations. 2 . Beach Equipment Rentals, including the rental by the hour/day of equipment such as chairs, umbrellas, :-afts or other flotation devices. (Note: The third permissible activity wider the Management Agreement, Water Recreational Equipment Rentals, is not authorized at this location due to the lack of sufficient space (i . e. 400 ' from the nearest City lifeguard stand) . ANALYSIS: The City Administration issued a Request for Proposals (RFP #38- 91/96) for the Operation of Beachfront Concessions at the following oceanside locations: 16th Street End, 17th Street End, 20th Street End, 36th Street Parking Lot, 46th Street Parking Lot and 53rd Street Parking Lot. ADVERTISEMENT DATE: January 14, 1992 RFP OPENING DATE: January 13, 1992 NOTICES MAILED One Hundred Eich 1,t (108) PROPOSALS RECEIVED: Five (5) 6 AGENDA ITEM DATE . r CONCESSION AGREEMENT WITH INTERNATIONAL POOL MANAGEMENT, INC. FOR OPERATION OF BEACHFRONT CONCESSIONS AT 46TH STREET PARKING LOT May 20, 1992 Page -2- Analysis (Cont' d) : 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 improvements which would be completed to City property at the Concessionaire ' s expense. All of the proposals received were found to be responsive and responsible. Each applicant submitted required financial and background information which confirmed and supported its ability to implement the resulting concession agreement effectively. In addition to the beachfront concession space, a city-owned facility will be assigned to the concessionaire at the 46th Street location. The proposers outlined capital improvements to this location, as indicated below. Interviews with the proposers were conducted on Friday, February 21, 1992 with representatives of the Beach Patrol , Historic Preservation and Urban Design and Parks and Recreation Departments. The resulting recommendation for award is based upon the outcome of these interviews. The proposals submitted for the 46th Street location included the following: Monthly Min. Percentage Capital Imprvnts For 46th Street Parking Lot: Internat ' l . Pool Mgmt, Inc. $2 , 050 . 00 15 $ 8 , 550 Beachsports Int' l . , Inc. 1, 510. 00 11 . 5 200, 000 Boucher Bros. Bch. Mgmt. Inc. 1 , 000. 00 15 332 , 000 Pedro Becerra 1 , 000. 00 10 -0- Europe Guesthouse, Inc. 700 . 00 10 28 , 000 Recommend award to: International Pool Mgmt. , Inc. CONCLUSION: The proposal from International Pool Management, Inc. was recommended for award by the City Administration and such award was approved by the City Commission at its meeting on March 18 , 1992 (City Commission Memorandum #149-92) . The City Commission authorized the preparation of contract documents implementing the award. The proposed contract documents include the provisions as advertised in the Request for Proposals, as well as provisions subsequently suggested by the City Attorney ' s Office and the City Commission, specifically the inclusion of clauses providing for Limitation of Liability, Arbitration and Termination for Convenience (in the event of hotel development) . The Concession Agreement is for a five-year term, beginning May 21, 1992 , with the option for the City to renew the Agreement on a year to year basis for up to five additional years ; at its sole discretion, the City may withdraw all or any portion of the concession area upon ninety (90) days notice. The Agreement will authorize the Concessionaire to operate beachfront concessions including food and beverage service and beach equipment rental . The Agreement also includes assignment of the concession stand area within the comfort station located adjacent to the 46th Street Parking Lot. The Concessionaire will make monthly payments to the City as follows (monthly minimum or percentage of gross receipts, whichever is higher) : Minimum Percentage 46th Street Parking Lot $2 , 050 . 00 12 . 5 RMC` :hm h CONCESSION AGREEMENT BETWEEN THE CITY OF MIAMI BEACH AND INTERNATIONAL POOL MANAGEMENT, INC. THIS AGREEMENT made the 5th day of June , 1992 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 Ave. , Miami Beach, FL 33139 (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 beachfront adjacent to the 46th Street Parking Lot 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. 92-20515 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 . BEACHFRONT CONCESSIONS . The City hereby grants to the Concessionaire, and the Concessionaire hereby accepts from the City, exclusive authorization to operate the concession activities on the beachfront adjacent to the City of Miami Beach 46th Street Parking Lot located at 4621 Collins Ave . , 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 twenty first (21st) day of May A. D. , 1992 and shall end on the twentieth (20th) day of May A. D. , 1997 for a term of five (5) years. The City may, at its sole discretion and provided that this Agreement is not in a condition of default, extend the Agreement term under all of the provisions and conditions contained in this Agreement for a series of up to five (5) additional one (1) year terms following the expiration of the original five year term. b. FAC=LITIE$. The City hereby provides to the Concessionaire the following designated Concession Area including open space and a facility: (1) Concession operations area located on the beachfront located adjacent to the 46th Street Parking Lot, as more • particularly described in Exhibit "A" attached hereto and made a part hereof. (2) Comfort Station facility located immediately adjacent to the concession area, at 4 621 Collins Ave. for concession and snack bar/refreshment stand. In addition to the foregoing, the Concessionaire may use temporary facilities in accordance with the following: (1) Temporary concession stands, which are readily removable and subject to the specific prior approval of the City Manager or his designee, may be placed for a specified temporary period on the sandy area between the boardwalk and the parking lot to provide services in accordance with the uses authorized under this Agreement. (2) The Concessionaire is also authorized to add to the permanent concession facilities provided by the City, tem- porary concession stands for a specified temporary period, in order to respond to market demand presented to the Concessionaire, subject to the prior approval of the City Manager and the restrictions of Paragraphs 40 , 41 and 42 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 pre-prepared and/or site-prepared food items and beverage service products from pushcarts, mobile or permanently designated locations within the concession area. (2) ; . =C, 4 . This involves the rental by hour/day of beach equipment such as lounges, cabanas, chairs, umbrellas, rafts, or other floatation devices in accordance with the provisions of the Concession Agreement. d. RFP INCORPORATED. Request for Proposals No. 38-91/96 together with any and all amendments thereto, and the Conces- sionaire ' 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, except • that no specific schedule of capital improvements is incorporated into this Agreement. 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 certified mail to the Concessionaire at the following addresses : INTERNATIONAL POOL MANAGEMENT, INC. Attention: Michael Kerr, President 4441 Collins Avenue Miami Beach, FL 33140 All notices from the Concessionaire to the City shall be deemed duly served if mailed to: City Manager 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 notifica- tion. 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. 3 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" condi- tion and to perform necessary exterior maintenance on the faciliti- es assigned to the Concessionaire as well as to maintain the below ground level connection lines for water and sewer utilities. 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. 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 opera- tions, 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 beachfront 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 4 activity of the Concessionaire. However, this does notp reclude 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. IMBROVEMEMS. 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. The Concessionaire must first obtain the City ' s approval in writing any alteration Y or additions or improvements to physical facilities and then must pay for such modifications, which become City assets upon completion. In the event the Concessionaire makes improvements to the facility, the number of rest room fixtures available to the public shall not be reduced from the number available to the public at the time of execution 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, in good operating condition 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 equip- ment, 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 conces- sion 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. 5 13 . UTILITIES. The Concessionaire agrees to pay for all utilities used with in the concession operation, including but not limited to electric, water, gas, telephone and garbage 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. Concessionaire shall have the sole responsibility for daily removal of all litter, trash, and garbage within a fifty (50) foot radius of the concession operations. With respect to trash, rubbish and garbage removal , the Concessionaire shall provide at its sole expense receptacles within the confines of its area and shall provide a sufficient number of these receptacles for its own use and for the use of the public. T h e City reserves the right to expand the area and increase the frequency of trash and garbage removal in order to ensure that the beachfront is cleaned of litter, trash and garbage on a daily basis. Dumping of receptacles and removal of trash, rubbish and garbage shall be the responsibility of the Concessionaire. 16 . PERFORMANCE SECURITY. The Concessionaire shall post an Irrevocable Letter of Credit or, in the alternative, a cash deposit in the amount of five thousand dollars ($5, 000) with the City upon the execution of this Agreement. 17 . RENTAL. The Concessionaire shall pay to the City rental sums as follows: Percentage Rental of fifteen (15%) percent of gross receipts, or in the alternative, a minimum monthly guarantee in the amount of Two Thousand Fifty and no/100 dollars, whichever is greater. Rent begins to accrue on June 1, 1992 . 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 6 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 Manager or his designee, to be received no later than fifteen (15) days after the close of each month. nI 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 Security required in Paragraph 16 above. A monthly report of activities shall be submitted with the rental payment by the 15th of each month. This report may be in the form developed by the Concessionaire so long as it contains all the information provided for in the sample report form displayed in Exhibit "B" attached hereto and made a part hereof for all purposes. 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 7 of the proceeds to such payment and if there should be any deficie- ncy, 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 Agreement, provided such personal property and equipment can be removed without damage to the premises. Upon failure of the Concessionaire 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 much coot and expense, plug 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. In the event the requirement for certification by a Certified Public Accountant imposes a financial hardship, the Concessionaire may request that the City, in its sole discretion, approve the certification by an independent third party accounting firm, which is not 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 . 8 • 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. 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 respon- sibilities 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 any 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) Agreement and in accordance with the applicable law and policy . 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. 9 28 . ORDERLY OPERATION, ETC. The Concessionaire shall have a neat and orderly operation at all times and shall supply equipment to the concession which is in good working condition and with a uniform aesthetic appearance, subject to the prior approval of the City Manager or his authorized representative. The Concessionaire shall have the sole responsible for the necessary housekeeping P g 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 any time bythe City Y 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 cause for termination of this Concession Agreement. All employees shall observe all the graces of personal grooming. All employees shall wear identifying uniforms or badges supplied by the Concessionaire and bearing the name of the Concessionaire, 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 City Manager or designee. During the term of the Agreement the Concession shall be open and properly staffed seven (7) days per week, weather permitting. Operational hours shall normally be from 10: 00 a.m. until sunset, weather permitting, with any exceptions or deviations submitted to the City Manager for approval . 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 10 II 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 products and services in the general vicinity of the park(s) . The City shall have the final right of review and approval for all such prices, fees and changes, but said right shall not be arbitrarily or unreasonably exercised. 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 permitted by the City. The Concessionaire agrees to maintain an adequate supply of any merchandise which the City deems necessary to accommodate beachfront 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 Conces- 11 sionaire 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. In addition, the Concessionaire shall pay to the City one hundred dollars ($100) per day as liquidated damages for such trespass and holding over. 35 . PRIVILXQE. 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. 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. 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 coverage for 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. 12 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, latzst 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 . V 4 0► 0.. 4 = . The City desires to enter into this Agreement only if in so doing the City can place a limit on the City ' s liability for any cause of action for money damages due to an alleged breach by the City of this Agreement, so that its liability for any such breach never exceeds the sum of Five Thousand Dollars and no/100 ($5 , 000 . 00) . Concessionaire hereby expresses its willingness to enter into this Agreement with Concessionaire ' s recovery from the City for any damage action for breach of contract to be limited to a maximum amount of $5, 000 . 00. Accordingly, and notwithstanding any other term or condition of this Agreement, Concessionaire hereby agrees that the City shall not be liable to the Concessionaire for damages in an amount in excess of $5, 000 . 00 for any action or claim for breach of contract arising out of the performance or non-performance of any obligations imposed upon the City by this Agreement. Nothing contained in this paragraph or elsewhere in this Agreement is in any way intended to be a waiver of the limitation placed upon City ' s liability as set forth in Florida Statutes, Section 768 . 28 . 39 . ARBITRATION. Any controversy or claim for money damages arising out of or relating to this Agreement, or the breach hereof, shall be settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and the arbitration award shall be final and binding upon the parties hereto and subject to no appeal , and shall deal with the question of the costs of arbitration and all matters related thereto. In that regard, the parties shall mutually select one arbitrator, but to the extent the parties cannot agree upon the arbitrator, then the American Arbitration Association shall appoint one. Judgement upon the award rendered may be entered into any court having jurisdiction, or application may be made to such court for an order of enforcement. Any controversy or claim other than a controversy 13 or claim for money damages arising out of or relating to this Agreement, or the breach hereof, including any controversy or claim relating to the right to eviction or ejectment shall be settled by litigation and not arbitration. 40. 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. 41. VEHICLES ON THE BEACHFRONT. Vehicles are generally not allowed on the beachfront. The Concessionaire may apply for an identifying sticker to permit one ( 1) vehicle to access the beachfront at the nearest established crossover point for the sole purpose of servicing the beachfront concession. Such access to service the concession is limited to two entries to the beachfront each business day, 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. 42 . STORAGE. Concessionaire agrees that there will be no overnight storage of any kind east of the "Dune Line. " 43 . 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. 44 . 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. 45. CITY WITHDRAWAL OF CITY PROPERTY . THE CITY RETAINS THE RIGHT, AT ITS SOLE OPTION AT ANY TIME FOR CONVENIENCE, WITHOUT CAUSE AND WITHOUT PENALTY, WHEN IN ITS SOLE DISCRETION, IT DEEMS SUCH WITHDRAWAL TO BE IN THE BEST INTEREST OF THE CITY, TO WITHDRAW ALL OR ANY PORTION OF THE CITY PROPERTY AND THE BEACH ADJACENT THERETO FROM THE TERMS AND CONDITIONS OF THIS 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 14 • f adjustment in the minimum rent, but no adjustment in the percentage rental shall be made. 46 . FLORIDA LAW. This Agreement shall be governed by and con- strued in accordance with the law of the State of Florida. 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 44( CA..!1 \ CITY CLERK /VW— 'd . YOR % EXHIBIT ”Au This beachfront location extends from the property lines of municipal parking lot #P-19 (4621 Collins Avenue) and contains approximately six hundred (600) linear feet of beachfront space. Vehicular access for the concessionaire to service the beachfront concession is available at the boardwalk crossover at the 46th Street Parking lot. One facility (a comfort station housing a concession stand located on the North side of the structure) is available for assignment to the concessionaire at this location. Concessionaire will make capital improvements to the faviiity, in accordance with its Proposal to the City pursuant to RFP #38-91/96 and subject to the prior approval of the City and State authorities as necessary. Concessionaire may place temporary concession stands, which are readily removable and subject to the specific prior approval of the City Manager or his designee, on the sandy area west of the boardwalk to provide service in accordance with the uses authorized under this Agreement. The concessionaire may provide only food and beverage and beach equipment rentals as the authorized concession activities at this location; no water recreational activity may be provided. A general sketch of the beachfront concession area appears below, although the sketch shows only the North-South boundaries; the beachfront concession activities must be confined to within one hundred (100) feet of the mean high water mark on the East side of the boardwalk and only as noted above West of the boardwalk. allOrillir i �� I . ,6aZ" i Beachfrontyrs Concession ' Area / /P\ comfort i// ill cz /1. Station with ConcessionOlt,..: Stand ai i, ,k, \------\V-1-- t,a‘ .)4. o / ( z 1\/ I\N: \ t\ � � Q Cz 1111115*Itt!!!lill (1 1111. 6 : amul"11111111.1iiiir .moi.,, 1 Beachfront N/ via, Concession V Area 10 C4sto -' ,' I • • EXHIBIT - B Page 1 of 2 CONCESSIONAIRES SUMMARY MONTHLY REPORT Concessionaire: Month/Year: MONTHLY GROSS RECEIPTS Food/ Beach Water Location Beverage Equipment Sports Other TOTAL $ $ $ $ $ $ $ $ $ $ $ $ $ $ $ Total Gross Receipts $� X = $ Monthly Minimum $ Rental Due (Whichever is greater) $ Applicable Sales Tax % $ Payment Enclosed $ COMMENTS: * Gross Receipts are not to include sales tax ** Other, please specify activity, date and location in comments section * ** * * -- City Use -- = $ -1 011: 8000 . 369XXX 6011.7000 . 229068 601.7000 .229032 Beachfront Management Plan Sales Tax Concession Escrow 4 Exhibit - B Page 2 of 2 CONCESSIONAIRES MONTHLY REPORT Concessionaire: Location: Month: DATE DAY HOURS OPEN WEATHER GROSS RECEIPTS 1. 2 . 3. 4 . 5. 6. 7 . 8. 9 . 10. 11. 12 . 13 . 14 . 15. 16. 17 . 18 . 19 . 20 . 21. 22 . 23 . 24 . 25. 26. 27 . 28. 29. 30 . 31. TOTAL $ * EXAMPLE: Sunny/80 ' s, Rain/50 ' s, Cloudy/70 ' s, Windy/70 's; if necessary to close, indicate what part of day, i .e. ** closed 1/2 day. GROSS RECEIPTS: Are not to include sales tax. r��-rn-r�T,►T �L\1TJL1:nL RESOLUTION NO. 99-20515 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 concession on the beachfront adjacent to the 46th Street parking lot (Indian Beach Park)