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99-23242 RESO RESOLUTION NO. 99-23242 A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE A CONCESSION AGREEMENT BETWEEN THE CITY OF MIAMI BEACH AND THE MIAMI BEACH GARDEN CONSERVANCY, INC. FOR THE PURPOSE OF PROVIDING VOLUNTEER PUBLIC INFORMATION AND HORTICULTURAL, EDUCATIONAL AND CONSERVATIONAL SERVICES AND SUPPORTING THE CAPITAL IMPROVEMENTS; PROGRAMMING; AND BUILDING/GROUNDS MAINTENANCE NEEDS AT THE MIAMI BEACH BOTANICAL GARDEN; FOR AN INITIAL TERM OF ONE (1) YEAR, WITH AN OPTION TO RENEW FOR UP TO FIVE (5)YEARS, ON A YEAR-TO-YEAR BASIS, UNDER THE TERMS AND CONDITIONS CONT AINED WITHIN THE ATTACHED CONCESSION AGREEMENT. WHEREAS, after several years in decline, the Miami Beach Botanical Garden (Botanical Garden) has experienced a resurgence as a focal point of pride for our residents, tourists and day guests; and WHEREAS, an important reason for this resurgence is the significant contributions being made by various groups and individuals volunteering to restore the Miami Beach Botanical Garden to its past splendor and its future potential; and WHEREAS, over the past eighteen months, the Miami Beach Garden Clubs, the Mayor's Ad Hoc Botanical Garden Committee, and the Miami Beach Garden Conservancy, Inc. have been working, in conjunction with the City Administration, to improve the appearance of the Garden, as well as generate a physical and operational comprehensive master plan for the Botanical Garden's future development; and WHEREAS, throughout this process, a core volunteer group of the Miami Beach Garden Conservancy, Inc, has been present daily at the Garden, staffing a "Welcome Center," working on the garden grounds, and cooperatively hosting classes and horticultural training to interested citizens; and WHEREAS, additionally, the Miami Beach Conservancy, Inc, has conducted fund raising activities and sought donations and grant funds to further the development of the Botanical Garden; and WHEREAS, the Miami Beach Conservancy, Inc, has requested authorization for the use of the gift shop and two (2) orchidariums to further provide programs and services at the Botanical Garden; and WHEREAS, this Concession Agreement is for the use of the area commonly referred to as the gift shop (Welcome Center), an area of approximately 480 square feet, and the two (2) orchidariums respectively. (See Areas I and II, indicated on Exhibit "A"); and WHEREAS, the Miami Beach Conservancy, Inc,'s request further includes approval to have access to all other facilities within the Botanical Garden during regularly established operational hours, on a space available basis, when coordinated and approved in advance by the City's designated representative within the Parks and Recreation Department; and WHEREAS, the Botanical Garden will remain under the direction and operation of the City's Parks and Recreation Department and will remain open to and available for visitation, use and reservation by the general public at all times. NOW THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City Clerk are authorized to execute the attached Concession Agreement between the City of Miami Beach and the Miami Beach Garden Conservancy, Inc. for the purpose of providing volunteer public information and horticultural, educational and conservational services and supporting the capital improvements; programming; and building/grounds maintenance needs at the Miami Beach Botanical Garden; for an initial term of one (1) year, with an option to renew for up to five (5) years, on a year- to- year basis, under the terms and conditions contained within the attached Agreement. PASSED AND ADOPTED this 7th day of July, 1999. ~~ MAYOR ATTEST: _~f p~ CITY CLERK SR/JAG/CC/KS T:\AGENDA \ 1999\JUL0799\REGULAR\CONAGMT.RES APPROVED pS TO FORM & LANGUAGE & FOR EXECUTION 1.J~~r,,/ lA/'ll- ~ DC!tlt ~ITY OF MIAMI BEACH ITY HALL 1700 CONVENTION CENTER DRIVE MIAMI BEACH, FLORIDA 33139 :tp:\\cLm iam i-beach. fl. us COMMISSION MEMORANDUM NO. 508 .9~ TO: Mayor Neisen O. Kasdin and Members of the City Commission DATE: July 7,1999 FROM: Sergio Rodriguez City Manager SUBJECT: A RESOLUT ON OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE A CONCESSION AGREEMENT BETWEEN THE CITY OF MIAMI BEACH AND THE MIAMI BEACH GARDEN CONSERVANCY, INe. FOR THE PURPOSE OF PROVIDING VOLUNTEER PUBLIC INFORMATION AND HORTICULTURAL, EDUCATIONAL AND CONSERVATIONAL SERVICES AND FOR SUPPORTING THE CAPITAL IMPROVEMENTS, PROGRAMMING, AND BUILDING/GROUNDS MAINTENANCE NEEDS AT THE CITY OF MIAMI BEACH BOTANICAL GARDEN, FOR AN INITIAL TERM OF ONE (1) YEAR WITH AN OPTION TO RENEW FOR UP TO FIVE (5)YEARS, ON A YEAR-TO-YEAR BASIS, UNDER THE TERMS AND CONDITIONS CONTAINED WITHIN THE ATTACHED CONCESSION AGREEMENT. ADMINISTRATION RECOMMENDATION: Adopt the Resolution. BACKGROUND: After several years in decline, the City of Miami Beach Botanical Garden has experienced a resurgence as a focal point of pride for our residents, tourists and day guests. This can be attributed in part to the recently completed capital improvements, including but not limited to, a new roof, fence, painting of the interior and exterior of the buildings, restroom renovations, electrical upgrades, new doors and locks and site furnishings. An equally important reason for this resurgence is the significant contributions being made by various groups and individuals volunteering to restore the Miami Beach Botanical Garden to its past splendor and its future potential. Over the past eighteen months the Administration has worked with the members of the Miami Beach Botanical Garden affiliated garden clubs, including the Miami Beach Garden Conservancy, Inc., the Mayor's Ad Hoc Garden & Conservancy Committee and other interested individuals, to improve the appearance of the Garden, as well as to generate a physical and operational comprehensive master plan for the Botanical Garden's future development. AGENDAITEM~ DATE~ Throughout this process, a core volunteer group of the Miami Beach Garden Conservancy, Inc. has been present at the Garden, staffing a "Welcome Center," working on the garden grounds and cooperatively hosting classes and horticultural training to interested citizens. Additionally, the Miami Beach Conservancy, Inc. has conducted fund raising activities and sought donations and grant funds to further the capital development of the Miami Beach Botanical Garden. ANAL YSIS: Since the Miami Beach Garden Conservancy, Inc. has become involved in volunteering, their members have made numerous contributions to the betterment of the Miami Beach Botanical Garden. An outgrowth of this volunteering has been a request from the Miami Beach Conservancy, Inc. to be authorized to use the area known as the Welcome Center, including the gift shop and the orchidariums. The Miami Beach Conservancy's purpose is to provide volunteer public information and horticultural, educational and conservational services and support the capital improvements, programming and building/grounds maintenance needs at the City of Miami Beach Botanical Garden. They have also requested to have access to all other facilities within the Botanical Garden during regularly established operational hours, on a space available basis, when coordinated and approved in advance by the City's designated representative within the Parks and Recreation Department. Additionally, the Miami Beach Conservancy, Inc. has requested that they be issued keys to the Welcome Center and main gate and has agreed to access the Botanical Garden only during City established operational hours. This Concession Agreement is for the use of the area commonly referred to as the gift shop ::'.(~elcome Center), an area of approximately 480 square feet, and the two (2) orchidariums '_ respectively. Please see Areas I and II, indicated on Exhibit A. The Miami Beach Botanical Garden will remain under the direction and operation of the City's Parks and Recreation Department and will remain open to and available for visitation, use and reservation by the general public at all times. This Concession Agreement is being recommended at this time to respond to two (2) pending issues. First, it will legitimize the use of the areas currently being occupied on an informal basis by the Miami Beach Garden Conservancy, Inc. volunteers. Second, it will establish another link between the community and the City that will support the efforts to restore, enhance and expand the Garden through its transition and until such time that decisions for its future management plan are made. Future options for the Botanical Garden's management to be considered may include the continued operations by the City, the issuance of a Request for Proposals for private management and operation, or some other process yet to be determined. CONCLUSION: The Administration recommends that the Mayor and City Clerk be authorized to execute a Concession Agreement between the City of Miami Beach and the Miami Beach Garden Conservancy, Inc. for the purpose of providing volunteer public information and horticultural, educational and conservational services and for supporting the capital improvements, programming, and building/grounds maintenance needs at the City of Miami Beach Botanical Garden, for an initial term of one (1) year with an option to renew for up to five (5) years, ona year- to- year basis, under the t7rms and conditions contained within the attached Concession Agreement. SRiJAG~/ebiJ> T:\AGENDA \ I 999\JUL0799\CONSENT\CONAGMT.MEM CONCESSION AGREEMENT '-~'. ~"~: l \~' :.:~-~ 99 SEP IS PM 5: 04 BETWEEN THE CITY OF MIAMI BEACH \ J ~. ~ i i I ~ ;, ,,-. L ,...L_l. I. V AND OFFICE THE MIAMI BEACH GARDEN CONSERVANCY. INe. THIS AGREEMENT, is made and executed a, of this 7ft. day of ~. 1999. hy and between the CITY OF MIAMI BEACH, a municipal corporation organized and existing under the laws of the State of Florida (the City), and the MIAMI BEACH GARDEN CONSERVANCY, INC., a Florida not-for-profit corporation. 2000 Convention Center Drive, Miami Beach, Florida 33l39- 1821 (the Concessionaire). WITNESSETH RECITALS: WHEREAS, Concessionaire is a group of gardening volunteers who have come together to form a not-for-profit Florida Corporation, which has achieved IRS 501(c)(3) status, in order to support the Miami Beach Botanical Garden's (Botanical Garden) capital improvements; programming; and building/grounds maintenance needs, in order to achieve its rightful status as a fine botanical garden; and WHEREAS, Concessionaire will provide volunteer services and plans to raise money, from appropriate sources, to achieve its goals of enhancing the horticultural, educational. and conservational services typically provided to the public by a botanical garden; and WHEREAS, the City is aware of the contributions that Concessionaire intends to make to the Botanical Garden, and is desirous of obtaining said support in the future for the enjoyment of its citizens and visitors, and is agreeable to the conditions hereinafter set forth under which such volunteer contributions are to be made available; and WHEREAS, the Concessionaire desires to obtain from the City the privilege of operating a concession at the Miami Beach Botanical Garden, located at 2000 Convention Center Drive in the City of Miami Beach, to provide volunteer public information and horticultural, educational and conservational services, as herein described, and the City desires to enter into this Agreement with the Concessionaire for operation of said concession. NOW THEREFORE, in consideration of the premises and the mutual covenants and conditions herein contained, it is agreed by the parties hereto as follows: SECTION 1. The City hereby grants to the Concessionaire, and the Concessionaire hereby accepts from the City, an Agreement to operate the following described concession to be located at the Miami Beach Botanical Garden, located at 2000 Convention Center Drive, in conformance with the purposes 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. SECTION 2. TERM. This Agreement shall be for an initial term of one (I) year, commencing on the first day of A "" . ,..1- ~ ""? ~T ~, 1999, and ending on the 51 day of .Ju l'i ,2000. At the expiration of the initial term herein, provided Concessionaire is in good standing and free from default hereunder, and should the City not be required to otherwise commit or utilize the Concession Premises, as defined herein, the City may, at its sole discretion, renew and extend this Agreement for up to five (5) additional one year terms, under all of the terms and conditions contained herein. The City shall give the Concessionaire written notice of its intention to extend the Agreement term no less than sixty (60) days prior to the end of the Agreement term then in effect. SECTION 3. CONCESSION PREMISES. The City hereby provides to the Concessionaire the following facilities and space, hereinafter referred to as the Concession Premises: The primary use and sole occupation of the area known as the Welcome Center (which 2 includes the gift shop) and the orchidarium (see Areas I and II, respectively, as indicated on the attached Exhibit A). Additionally, the Concessionaire shall have access to all other facilities within the Botanical Garden during regular City established operational hours, on a space available basis, in compliance with stated uses and as delineated in Section 4 herein. (Collectively, the Welcome Center. orchidarium, and the premises referred to in this sentence, as used by Concessionaire, shall be hereinafter referred to as Concession Premises.) Said availability must first be coordinated with and approved in writing by the City's designated representative within its Parks and Recreation Department. The Concessionaire shall be issued and hold keys to the Welcome Center and main entrance gate only and agrees to access the Botanical Garden only during City established operational hours. Any use of the Concession Premises or the Botanical Garden by the Concessionaire beyond the City established operational hours shall require the prior written authorization of the City and, if required, in the City's sole and absolute discretion, payment of the City staff for hours worked. SECTION 4. USES. The Concessionaire is hereby authorized to conduct the following kinds of services, and only such services as set forth below: The Concessionaire will provide volunteer public information, horticultural, educational, and conservational services. This will include volunteer-staffed public information, guided tours and classes for tourists, City residents, and visitors to the Botanical Garden. The functions of the Welcome Center are as follows: The Welcome Center serves as a bridge between the community and the Garden; visitors are greeted and told the history of the Garden; questions of plant identification or culture can be researched in the reference library or on the computer programs, available to the public free of charge. Conservancy programs that run out of the Welcome Center include the Learning Center. which conducts class tours and educational programs for children, as well as the Children's Vegetable Garden; the " .) Master Gardener program, through the University of South Florida / Dade Extension Service providing horticultural education for adults. who in turn volunteer time to the community; "Arts in the Garden: program, which aims to bring cultural arts to the Garden through grants and public support. The gift shop area offers plants and plant related items such as books, horticultural tools and supplies, and novelties such as t- shirts and gift items. The volunteers also sell memberships to the Conservancy and organize Conservancy related events. The Concessionaire may host meetings, tours, programs. and classes related to the above stated uses; however, the scheduling of same must first be coordinated with and approved in writing by the City's designated representative within the Parks and Recreation Department. Concessionaire's request for use of areas other than the Welcome Center and orchidarium may not be made more than thirty (30) days in advance of the requested use; however, the City and the Concessionaire shall use their efforts to devise a schedule for Concessionaire's day-to-day non- exclusive use(s) of the Botanical Gardens, said areas, as used by Concessionaire, to be incorporated within the definition of Concession Premises as set forth in Section 3 above. Notwithstanding the foregoing, Concessionaire shall not act as the agent or representative for any other group, organization, or entity other than itself, for purposes of carrying out the afore stated uses in this Section 4 and any other uses contemplated by this Agreement. No additional rental fee shall be charged to the Concessionaire for use of any meeting room, auditorium or related area for pre-approved uses. All City reservations for rentals, special events, receptions, community meetings and other purposes generally acceptable for a Botanical Garden or deemed acceptable by the City Manager or his designee, will take precedence over Concessionaire's programs and activities. SECTION 5. RENTAL/GROSS RECEIPTS. A. Base Rent. The Concessionaire shall pay to the City the base rental sum of one dollar ($1) per year. B. Gross Receipts. The City herein acknowledges that Concessionaire may derive additional revenues from business it conducts upon or from the Concession Premises, including, but not limited 4 to, gift shop sales, plant sales, classes, and sale of food and beverages. Concessionaire herein acknowledges that any and all business conducted upon the Concession Premises shall be directly related to the customary operation and management of a public botanical garden and, additionally, shall first be approved, in writing, by the City Manager or his designee. Notwithstanding the foregoing, the City and Concessionaire agree that the uses for the Welcome Center (including proposed business activities), are herein deemed approved by the City. However, said approval shall not excuse Concessionaire from the scheduling and other use requirements. as set forth in Sections 3,4, and 11 of this Agreement. Concessionaire shall keep on the Concession Premises, or such other place within Miami Dade County, Florida, as approved by the City, true, accurate, and complete records and accounts of all sales, rentals and business being transacted upon or from the Concession Premises and shall give the City, or its designated representative access during reasonable business hours to examine and audit such records and accounts. Concessionaire shall, within fifteen (15) days after each month during the term of this Agreement, deliver to the City a written monthly statement of the gross receipts for such month certified by Concessionaire or its certified public accountant, to be true, accurate and complete. Within ninety (90) days after each fiscal year during the term of this Agreement, 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 Concessionaire and by its certified public accountant. The term "gross receipts" as used herein shall include all receipts, whether collected or accrued, derived by Concessionaire from all business conducted upon or from the Concession Premises, including, but not limited to, receipts from gift shop sales, beverages, merchandise, or from any source whatsoever, as determined and approved by the City. SECTION 6. NOT A LEASE. It is expressly understood and agreed that no part, parcel, building, structure, equipment or space is leased to the Concessionaire; that it is a Concessionaire and not a Lessee; that the Concessionaire's right to operate the concession shall continue only so long as the concession 5 operation complies with the undertakings, provisions, agreements, stipulations and conditions ofthis Agreement. SECTION 7. NO PARTNERSHIP. Nothing herein contained shall create or be construed as creating a partnership between the City and the Concessionaire or to constitute the Concessionaire as an agent of the City. SECTION 8. MAINTENANCE. The City agrees to provide the Concession Premises in their "as is" condition, except for such maintenance to the Botanical Garden, including the Concession Premises therein, by the City as would normally be carried out in its day to day maintenance of City facilities, and/or as otherwise deemed appropriate by the City Administration with regard to maintenance of this particular public facility. The City Administration shall have the sole authority to direct, guide and instruct City employees in the implementation of all day to day tasks and duties related to the maintenance and upkeep of the Botanical Garden. Notwithstanding the foregoing, during the term hereof, Concessionaire, at its sole cost and expense, shall, to the satisfaction of the City, keep and maintain the Concession Premises and all improvements thereon, as well as any portions of the Botanical Garden utilized by Concessionaire incident to this Agreement, in good and sanitary order. Usual and customary daily housekeeping duties necessary to properly maintain the Concession Premises shall be the responsibility of the Concessionaire. This shall not, however, require the Concessionaire to pay for any costs related to capital improvements and infrastructure (i.e. plumbing and sewer lines, major electrical, structural, etc) with regard to the Concession Premises and/or the Botanical Garden. SECTION 9. TRASH AND GARBAGE REMOVAL. With respect to trash, rubbish and garbage removal, the Concessionaire shall provide, at its 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 within the Concession Premises and any portions of the Botanical Garden utilized by Concessionaire. Concessionaire shall dump such receptacles in a single location designated by the City Administration on the grounds of the 6 Botanical Garden; whereupon, removal of trash, rubbish and garbage shall continue to be the responsibility of the City. SECTION 10. IMPROVEMENTS. The Concessionaire must provide, install and maintain, at its own cost and expense, all equipment required to operate its concession. However, with prior City approvaL the Concessionaire may use the City equipment, furnishings, and fixtures, if any, that may be presently used in conjunction with the Botanical Garden. At its discretion. the City may assess Concessionaire reasonable charge(s) for said use(s); such charge(s) shall take into consideration Concessionaire's not-for-profit status. The Concessionaire shall maintain said equipment, furnishings, and fixtures, if any and as used, during the term of this Agreement, at its sole cost and expense. Upon the expiration of the Agreement, the Concessionaire shall quickly and peacefully, redeliver all City owned equipment, furnishings, and fixtures back to the City. SECTION 11. NON-EXCLUSIVE FOR SPECIAL EVENTS/ RECEPTIONS/ COMMUNITY MEETINGS, ETC. Notwithstanding the grant of the concession pursuant to this Agreement, the City reserves the right to allow, permit, rent and otherwise book any and all areas of the Botanical Garden, with the exception of the Welcome Center and orchidarium referred to in Section 3 herein, for the purpose of allowing individuals and/or organizations to utilize the Botanical Garden for special events, receptions, community meetings, and any other uses deemed acceptable by the City Manager and/or his designee and generally consistent with use(s) associated with a botanical garden. The Concessionaire further acknowledges and agrees that the booking of the aforestated events in the Botanical Garden (excluding the Welcome Center and orchidarium) shall be the sole responsibility of the City and Concessionaire shall make no bookings, reservations, rentals, etc. on the City's behalf. Similarly, the Concessionaire may use the Concession Premises and the Botanical Garden for special events, receptions, and community meetings that it may sponsor or co-sponsor; however, all such events shall first be approved in writing by the City Manager or his designated representative and be subject to the City's established policies and procedures for same. 7 SECTION 12. ASSIGNMENT/SUBLET. The Concessionaire may not sublet or assign this Agreement, or any part thereof without the prior written approval of the City, which approval shall be given, if at alL at the sole discretion of the City. Similarly, Concessionaire shall not act as an agent or representative on behalf of any other group, organization, or entity, for use or uses set forth in Section 4 of this Agreement. or for any other uses contemplated by this Agreement by any other group, organization, or entity. other than Concessionaire. In the event that Concessionaire ceases to be a not-for-profit corporation, this Agreement shall be automatically terminated. SECTION 13. USE OF THE BOTANICAL GARDEN IS PRIMARY. The Botanical Garden 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. SECTION 14. SECURITY. The Concessionaire shall provide reasonable security to protect the Concession Premises and its equipment, materials and facilities, including any City equipment, furnishings, and fixtures used by Concessionaire, as set forth in Section 10 herein, and shall be solely responsible to the City for any loss or damage to any City equipment, furnishings, and fixtures so used by Concessionaire. SECTION 15. PERMITS; LICENSES; TAXES. The Concessionaire agrees to obtain and pay for all permits and licenses necessary for the conduct of its 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 Premises and its operations. In addition, the Concessionaire shall comply with all rules, regulations and laws of the City; Miami-Dade County; the State of Florida; and the U.S. Government now in force or hereafter to be adopted. 8 SECTION 16. UTILITIES. Subject to budget limitations, the City agrees to continue to pay for the utilities used within the Concession Premises, to the extent such utilities (and such expenses) are customary and consistent with the City's budgeted resources for the Botanical Garden, including but not limited to electric, water, gas, telephone service (defined for purposes herein as one line, exclusive of long distance and internet services), and garbage disposal. The City reserves the right to review said expenses for utilities at any time during the Term of this Agreement. In the event that such charges exceed the budgeted costs for utilities for the Botanical Garden, the City reserves the right, in its sole and absolute discretion, to amend this Section 16, thereby making Concessionaire responsible for the difference(s) in any overages for utility costs. Should Concessionaire not wish to be responsible for such difference(s) in utility charges, the City reserves the right to automatically terminate this Agreement without further notice to Concessionaire and further avail itself of any and all remedies to recoup such utility cost(s) from Concessionaire. SECTION 17. SIGNAGE. Concessionaire shall provide, at its sole cost, required signs at all public approaches to its concession. All advertising, signage and postings shall be approved by the City and shall be subject to all applicable planning and zoning requirements of the City. SECTION 18. FORCE MAJEURE. The performance of any act by Concessionaire or the City hereunder may be delayed or suspended at any time while, but only so long as, either party is hindered in or prevented from performance by acts of God, the elements of war, rebellion, strikes, lockouts or any other cause beyond the reasonable control of such party; provided. However, that is the condition of force majeure exceeds a period of ninety (90) days, the City or Concessionaire may, at their option and discretion, cancel this Agreement. SECTION 19. INSPECTION. The Concessionaire agrees that the Concession Premises may be inspected at any time upon 9 reasonable notice by authorized representatives of the City Manager, or by any other State. County, Federal or municipal officer or agency having responsibilities for inspections of such operations and/or premises. The Concessionaire agrees to undertake immediately the correction of any deficiency cited by such inspectors on the Concession Premises, subject to the exceptions provided in Section 8 herein. SECTION 20. WAIVER OF INTERFERENCE. The Concessionaire hereby waives all claims for compensation for loss or damage sustained by reasons of any interference with the concession operation by any public agency or official as a result of their enforcement of any laws or ordinances or of any of the rights reserved to the City herein. Any such interference shall not relieve the Concessionaire from any obligation hereunder. SECTION 21. INDEMNIFICATION. In consideration of a separate and specific consideration of $10.00 and other good and valuable consideration the receipt of which is hereby acknowledged, the Concessionaire hereby agrees to indemnify, defend and hold the City and its employees, agents and authorized representatives harmless with respect to any and all costs, claims, damages and liability which may arise out of the performance of this Agreement as a result of any negligent acts, errors or omission of the Concessionaire, or any other person or entity under the direction or control of Concessionaire. The Concessionaire shall pay all claims and losses arising out of Concessionaire's negligent acts, errors or omissions and shall defend all suits, in the name of the City, its employees, agents and authorized representatives when applicable, including appellate proceedings, and shall pay all costs, judgments and attorneys' fees which may issue thereon. SECTION 22. INSURANCE REOUIREMENTS. The Concessionaire shall not commence operation of its conceSSiOn pursuant to this Agreement until all insurance required under this Section has been obtained and such insurance has been approved by the City's Risk Manager. The Concessionaire shall maintain and carry in full force during the term of this Agreement and throughout the duration of this project the following 10 Insurance: 1. General Liability in the amount of $1,000,000.00. 2. If applicable, Workers Compensation & Employers Liability as required pursuant to Florida statute. 3. Thirty (30) days written notice of cancellation or substantial modification in the insurance coverage must be given to the City's Risk Manager by the Concessionaire and its insurance company. 4. The insurance must be furnished by insurance companies authorized to do business in the State of Florida and approved by the City's Risk Manager. 5. Original certificates of insurance for the above coverage must be submitted to the City's Risk Manager for approval prior to commencement of operation of the concession. These certificates will be kept on file in the office of the Risk Manager, 3rd Floor, City Hall. All insurance policies must be issued by companies authorized to do business under the laws of the State of Florida. The companies must be rated no less than "B+" as to management and not less than "Class VI" as to strength by the latest edition of Best's Insurance Guide, published by A.M. Best Company, Oldwick, New Jersey, or its equivalent, subject to the approval of the City's Risk Manager. Compliance with the foregoing requirements shall not relieve the Concessionaire of the liabilities and obligations under this Section or under any other portion of this Agreement, and the City shall have the right to obtain from the Concessionaire specimen copies of the insurance policies in the event that submitted certificates of insurance are inadequate to ascertain compliance with required coverage. SECTION 23. 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 Concession Premises and/or the Botanical Garden 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 (l0) days therefrom, and in accordance with the applicable law and policy. If this is not accomplished, the City shall terminate this Agreement notwithstanding any other provision of this Agreement. 11 SECTION 24. ORDER, 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 Concession Premises. SECTION 25. EMPLOYEES AND MANAGERS. The Concessionaire and any persons employed by it, or volunteers acting under the authority and/or with the permission of Concessionaire, shall never have been convicted of any offense involving moral turpitude or felony. Failure to comply with this provision shall constitute a violation of this Agreement. The Concessionaire shall have an experienced manager or managers overseeing the concession operations at all times. Any criminal activity on the Concession Premises shall result in automatic termination of this Agreement. SECTION 26. NO IMPROPER USE. The Concessionaire will not use, nor suffer or permit any person to use in any manner whatsoever, the Concession Premises 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. SECTION 27. NO DANGEROUS MATERIALS. The Concessionaire agrees not to use or permit in the Concession Premises the storage of illuminating oils, oil lamps, turpentine, benzine, naphtha, or other similar substances, or explosives or any kind, or any substance or thing prohibited in the standard policies of fire insurance companies in the State of Florida. SECTION 28. NO CLAIM AGAINST CITY OFFICERS, EMPLOYEES, INDIVIDUALS. It is expressly understood and agreed by and between the parties hereto that all individuals, employees, officers, and agents of the City are acting in a representative capacity and not for their 12 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 in conjunction with any acts or duties which are reasonably related to the performance of their duties. SECTION 29. DEFAULT AND TERMINATION. If Concessionaire fails to perform in accordance with any of the terms and conditions of this Agreement, and such default is not cured within fifteen (15) days after written notice is given to Concessionaire, then the City shall have the right to immediately terminate this Agreement and re- enter the Concession Premises without further notice or demand. At its option, the City may also pursue any and all legal remedies available to seek redress for such default. SECTION 30. TERMINATION FOR CONVENIENCE. Notwithstanding the provisions of Section 29 above, this Agreement may be terminated by the City, for convenience and without cause, upon the furnishing of sixty (60) days written notice to the Concessionaire. SECTION 31. 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 address: Miami Beach Garden Conservancy, Inc. Attention: Executive Director 2000 Convention Center Drive Miami Beach, Florida 33139-1821 All notices from the Concessionaire to the City shall be deemed duly served if mailed to: City of Miami Beach City Manager 1700 Convention Center Drive Miami Beach, Florida 33139 (with copies to the City Attorney's Office) The Concessionaire and the City may change the above mailing addressed at any time upon giving the other party written notification. All notice under this Agreement must be in writing. 13 SECTION 32. PRIVILEGE. It is the intent ofthe 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. SECTION 33. 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 Concession Premises. All facilities located on the Concession Premises shall be made available to the public; subject to the right of Concessionaire to establish and enforce rules and regulations to provide for the safety, orderly operation and security of the facilities. SECTION 34. CITY WITHDRAWAL OF CITY PROPERTY. The City retains the right to withdraw all or any portions of the City property included herein from the terms and conditions of the Concession Agreement. The City shall give the Concessionaire thirty (30) days written notice in the event of such withdrawal. In the event the City withdraws less than all of the property that is the subject of this Agreement, then the Agreement automatically terminates. In the event the City withdraws less than all of the property, then the remaining property shall continue within the terms of this Agreement. SECTION 35. VENUE. This Agreement shall be enforceable in Miami-Dade County, Florida, and if legal action is necessary by either party with respect to the enforcement of any or all of the terms or conditions herein exclusive venue for the enforcement of same shall lie in Miami-Dade County, Florida. 14 IN WITNESS WHEREOF, the parties hereto have caused their names to be signed and their seals to be affixed; all as of this day and year first written above. Attest: lUlU1( f~ldl;- :ITY :F jR BEACH eIsen as In, ayor City Clerk Witnesses: MIAMI BEACH CONSERVANCY, INC. GARDEN ~~. ~~ ~~ SIgnature '\J \~A ~ · N ~'\) K~NT\P\~'Z.cr- / Print Name/Title pn.-eS&oea.rtT STATE OF FLORIDA ) ) SS: COUNTY OF DADE ). . .rt, () r-- The foregoing instrument was acknowledged before me this ;tsL day of xfPj?-U fd<J..;; 1999, by Mayor Neisen Kasdin and Robert Parcher, City Clerk, or their designees respectively, on behalf of the CITY OF MIAMI BEACH, known to me to be the persons described in and who executed the foregoing instrument, and acknowledged to and before me that they executed said instrument for the purposes therein expressed. WITNESS my hand and official seal, this (7i--t1~ay of ~f:~/--i:t./ , 1999. ,~iL~u.Ad~uluflp) Notary Public, State of Florida at Large Commission No.: My Commission Expires: APPROVED AS TO FORM & LANGUAGE & FOR EXECUTION ~~/ b/Vt/r~ Dois OfFICIAL Nar ARY SEAL LILLIAN BEAUCHAMP NOTARY PUBUC Sf ATE OF FLORIDA COMMlSSrON NO. CC7383n MY co ISsrON EXP. APR. 29,2002 15 STATE OF FLORIDA ) ) ) SS: COUNTY OF DADE The fore&oing instrument was ~cknorr!edged before me this 6'^ctayof ~bJr . 1999, by Uftfl2<~>-" b\'.JuJo ~n behalf of the MIAMI BEACH GARDEN CONSERV ANCY, INC., known to me to be the persons described in and who executed the foregoing instrument, and acknowledged to and before me that they executed said instrument for the purposes therein expressed. WITNESS my hand and official seal, this ~d'- day of Sev~v---, 1999. ~~~Y I'lIe ."'6<'" II ~ ARTHUR A lAUFFEN8URGEFl *. . * My Commission CC494452 ~ ~ EXPires Sep. 10, 1999 .,~( Of nO~~ , Nota Pu lie, State of Florida at Large Commission No.: My Commission Expires: RJA\k:w F:\A ITO\AGUR\AGREEMNT\GARDNCTR. CON 16 "--' EXHIBIT A <J .... - ~ t-< ~"; - , , '- t:: ~ ;x ;:; < ,<; ~ ~ ~ <j . 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'?= ,,;" ji i ~~~(/' - _~"C/"Y'~ ~I' .~ For - ~~.5 A --_____________________n____________________~ ~I t I: 0 b 70 0 . 5 . 81: 80 2 2 5 ~ . L. 2 ~ II- . 2 5 . ~I rIl-,,,.~.____-.-~... _" ._ . -'-r--""'-_= _~_=e__=~_~_=.:._=__=_~ MIAMI BEACH GARDEN CONSERVANCY, INC. 2000 CONVENTION CENTER DR. MIAMI BEACH, FL 33139 ~~/'~<L 1$ /. n 'Je!arke,q",prica", L1UARDIANw' SAFETY BLUE DE6L III' M,:;::;::::::ONS~RV::~..,::--..-~---;~~;ll !. 2000M~':;::V:;'';;~~ F~E~~~;:' DR Dat, ~ .3, 1111 """";1 I ~ '~ P6::';~~ " f ~~~ ~I $ ;0. ~ 'I . ~ i.J'4 ; '" j '- Dolla" 1il-=-2:' 'j ,I ~OLONIAL BANK /l) - 7 A .~ ..11',' ~31~ (~/~~. II I ~;;b~B~/ B022sB..n";~252~--------,J< il - j! QC!ar/l;e,qm#!ncan GUARD1AN,1i) SAFETY 6LUE DESL '-'