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85-18222 RESO RESOLUTION NO. 85-18222 A RESOLUTION OF THE CITY COMMISSION Q.F THE CITY OF MIAMI BEACH AUTHORIZING THE MAYOR AND THE CITY CLERK TO EXECUTE A CONCESSION AGREEMENT BETWEEN THE CITY OF MIAMI BEACH AND PENROD BROTHERS, INC. FOR RENTAL OF BEACH EQUIPMENT, WATER RECREATIONAL EQUIPMENT WITH FOOD AND BEVERAGE SERVICE AT PIER PARK, OCEAN- FRONT PARK, AND LUMMUS PARK. WHEREAS, the City Administration through the Purchasing Agent, solicited a Request for Proposal (RFP 202-84/04) for the Development, Construction and Operation of a restaurant at Pier Park-Part A, and for the Development and Operation of Beachfront Concessions at Pier Park, Oceanfront Park and Lummus Park-Part B; and WHEREAS, a Proposal was received from Penrod Brothers, Inc.; and WHEREAS, an appropriate Concession agreement has been negotiated relating to Part B of the above RFP, the City Manager has recommended its execution and the City Attorney has approved it as to form, NOW, THEREFORE, BE IT 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 Penrod Brothers, Inc. for rental of beach equipment, water recreational equipment with food and beverage service at Pier Park, Oceanfront Park, and Lummus Park. PASSED AND ADOPTED this 2nd day of October , 1985. ~" Mayor Attest: City Clerk Approved as to Form: Legal Department OFFICE OF THE CITY ATTORNEY - 1700 CONVENTION CENTER DRIVE - MIAMI BEACH, FLORIDA 33139 •_ 1 � INDEX to CONCESSION AGREEMENT BETWEEN CITY OF MIAMI BEACH AND PENROD BROTHERS, INC. - PAGE NO. 1a. TERM 2 b. FACILITIES 3 c. USES 4 d. RFP INCORPORATED 4 e. SPECIAL AND REGULAR EVENTS 4 2. NOTICES 5 3. NOT A LEASE 5 4. NO PARTNERSHIP 6 5. MAINTENANCE 6 , 6. NON - EXCLUSIVE FOR SPECIAL EVENTS 6 7. EXECUTORY AS TO APPROPRIATIONS 7 8. ASSIGNMENT; SUBLET 7 9. USE OF BEACH, IS PRIMARY 7 10. IMPROVEMENTS; UTILITIES 8 11. SECURITY 8 12. PERMITS; LICENSES; TAXES 8 13. UTILITIES 9 14. SIGNAGE � 9 15. TRASH AND GARBAGE REMOVAL 9 16. RENTAL i 10 17. DEFAULT IN PAYMENT .. 11 18. FORCE MAJEURE 11 19. CITY LIEN 11 20. CONCESSIONAIRE NOT TO REMOVE PROPERTY 12 21. RECORDS; AUDIT 12 22. COOPERATION 13 23. INSPECTION 13 , ak 1 -4.)tr r INDEX to CONCESSION AGREEMENT BETWEEN CITY OF MIAMI BEACH AND PENROD BROTHERS, INC. PAGE NO. 24. WAIVER OF INTERFERENCE 14 25. WAIVER OF LOSS FROM HAZARDS 14 1 26. CONCESSIONAIRE HOLDS CITY HARMLESS 14 1 27. APPLICABLE LAWS TO BE FOLLOWED 14 • . 28. ORDERLY OPER ETC. • 15 29. EMPLOYEES; MANAGERS 15 30. NO IMPROPER USE 15 1 31. PRICES 16 32. NO DANGEROUS MATERIALS 17 33. NO.CLAIM.AGAINST CITY OFFICERS, EMPLOYEES INDIVIDUALSI 17 34. DEFAULT AND TERMINATION 17 35. PRIVILEGE 18 . 36. NO DISCRIMINATION 18 37. INDEMNIFICATION OF CITY; INSURANCE 18 38. CITY CONTROLS BEACH 19 39. STORAGE 19 40. VEHICLES ON BEACH 19 41. BIODEGRADABLE CONTAINERS 19 .P i , . M • f • • CONCESSION AGREEMENT . BETWEEN CITY OF MIAMI BEACH AND PENROD BROTHERS, INC. THIS AGREEMENT made the 7 C/14 day. of A4 A.D., 1985 — , between The City of. Miami Beach, a Municipal Corporation of the State of Florida (hereinafter called the "City ") and PENROD BROTHERS, INC., a Florida Corporation, with offices at 707 Royal Plaza Drive, Fort Lauderdale, Florida 33301 (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 priivilege of operating the concession in Pier Park, Oceanfront Park (subject to an existing Beach Food and Beverage Concession), and Lummus 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 establishment and maintenance of such concessions as is contemplated in this Agreement will require substantial capital investment by the Concessionaire, and the operation thereof will involve certain risks of financial loss, and WHEREAS, the City is fully cognizant of these factors and will adopt and pursue such policies with respect to this concession and the obligations imposed upon said Concessionaire by this Agreement as will be an inducement to capital investment and as will be an assurance of the security of such investment and of the reasonable opportunity to make a fair return on the investment. -1- WHEREAS, the Commission of the City of Miami Beach authorized this Concession Agreement by the adoption of Resolution No. 85 2 2 182- _ a copy of said Resolution is made a part hereof as 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 in Pier Park, Oceanfront Park (subject to an existing food and beverage concession which expires June 16, 1988) and Lummus 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. a. TERM. THIS AGREEMENT SHALL COMMENCE ON THE fifth day of November, A.D., 1985, and shall end on the fourth day of November, A.D., 1990, for a term of five (5) years. Provided, however, that the Concessionaire shall have the right to two (2) additional terms of ,,five (5) years each upon compliance with the following: (1) Upon the modification of existing facilities (i.e., the 14th Street storage /restroom building, the 10th Street auditorium and the patio area on the south side, or the storage area under the proposed stage), with a minimum expenditure by Concessionaire of $50,000.00 (certified as set forth below), the original term shall be automatically extended by an additional five (5) years. The plans for modifications to the existing facilities are subject to prior approval of the City Manager and all other necessary City, County, -2- 01 / J State and /or Federal authorities. (2) Upon the construction of any new capital improvements in the concession areas as suggested by Concessionaire in its Proposal dated September 23, 1985 (including such items as the construction of a locker room, and /or vita course or new fixed concession stands), with a minimum expenditure of $50,000.00 by or through Concessionaire, certified as set forth below, the term shall be automatically extended for an additional five (5) years. The plans for construction of new facilities are subject to prior approval of the City Manager and of all other necessary. City, County, State and /or Federal authorities. (3) Concessionaire shall certify in writing when the $50,000 minimum expenditure in either of subparagraphs (1) and (2) has been reached, and shall include in such certification a breakdown of ex enditures. b. FACILIT ES. The City hereby provides to the Concessionaire the following facilities and space: (1) Th bathroom and storage facility at 14th Street (a k/a the North restroom facilities of 1401 Ocean Dr ve) . (2) Provided that the storage area under the proposed st.ge improvement in Lummus Park is authorized by th: State of Florida, Concessionaire .shall be en'itled to 75% of the storage area, but the City Ma ager shall designate where the 75% will be lo•ated. The City is retaining the other 25% of th: storage area for its own use and purposes. The pa.ties agree to build a mutually agreeable se•urity fence within the storage area, with the -3- • c•st of same to be split 75% from the Concessionaire and 25% from the City. (3) A space of approximately 20 feet X 50 Feet in the S•utheast corner of the 10th Street Auditorium and S.uth Patio Area. Concessionaire shall have access t. the 20 X 50 space at all times, for providing s= rvices to the easterly direction. No additional c arge shall be required for use of the South Patio A ea, but any use of the 10th Street auditorium s all be subject to normal auditorium charges. Provided, however, . that any use of the South Patio Area or 10th Street Auditorium for events and a.tivities shall be subject to the prior written consent of the City Manager, and such uses and/or a «tivities shall not interfere with the existing recreational programs and schedules. c. USES. The Concessionaire is hereby authorized to conduct the kinds of business and to provide the kinds of ser ices at the locations as set forth in Exhibit "A" and make additions and new improvements, at its sole cost a d expense as shown on Exhibit "B," attached hereto entitled Lummus Park Concession Facility, consisting of 5 pages and dated 10/30/85 Any specific water recreational activity is subject to the approval of the Marine Authority. The uses set forth on p.62 of the Co sessionare Proposal are hereby authorizied, but any pl-n for other recreational use, similar to those set for h on on page 62 of Concessionaire Proposal shall be subject to the prior approval of the City Manager. This bu -iness will be conducted in compliance with terms of th's Agreement. The Concessionaire is also authorized to add to those concession facilities set forth n Exhibits "A" and "B" temporary concession -4- -,7 ' • • stands in accordance with the market demand presented to the C ncessionaire subject to the restrictions of Paragraph 6 below (Special Events). d. RFP IN4ORPORATED. The Request for Proposals No. 212- 84/04 Part B), together with all amendments thereto, and th- Concessionaire's Proposal in response thereto, are hereby incorporated by reference in this agreement to the extent that they are not inconsistent with any terms erein. In the event of inconsistency, this Agreement shall prevail. e. SPECIAL AND REGULAR EVENTS. Concessionaire's operations contemplate both regular and special events. City agrees to cooperate . with the Concessionaire in developing a plan and schedule for regular events. Special Events are subject to the City's approval procedures for Special Events. 2. NOTICES. All notices from the City to the Concessionaire shall be dremed duly served if mailed by registered or certified mail to the Concessionaire at the following addresses: Penrod Brothers, Inc. 70 Royal Plaza Drive Fo t Lauderdale, Florida 33301 All notices from the Concessionaire to the City shall be deemed duly erved if mailed to: The City Manager Ciy of Miami Beach 1790 Convention Center Drive Miami Beach, FL 33139 The Concessionaire and the City may change the above mailing address at any time upon giving the other party written notification. All notices under this Concession Agreement must be in writing. 3. NOT A LEASE. It is expressly understood and agreed that no part, parcel, building, structure, equipment or space is leased to the Concessionaire; that he is a Concessionaire and -5- R t)) 41)3- • 3 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 a usable 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. City agrees to provide maintenance of the public restroom facilities located at 1401 Ocean Drive. The hours of operation of the restrooms shall be determined by the City Manager; provided, however, that Concessionaire shall have the right to keep the restrooms open for longer periods as it deems necessary, but in such event the Concessionaire agrees that it will be responsible for closing the restrooms each evening. The City will provide,, at its sole cost and expense, normal utilities and necessary supplies for the public restroom facilities. 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 -6- P-') • • 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 for the public on a normal day, 365 days per year. Such equipment or staff shall not be increased or altered during special events without the prior express written permission of the City Manager, which consent shall not be unreasonably withheld. 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 unr easonably withheld or delayed. Concessionaire warrants and represents that the shareholders of its corporation are Jack Penrod, Charles Penrod, and Robert Penrod, and 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, which shall not be unreasonably withheld. Provided, however, the shareholders shall have the right to convey between themselves and their spouses and children, without consent. 9. USE OF BEACH IS PRIMARY. The beach 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 _7_ (L $1f) • • 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 and is responsible for all interior modifications . and maintenance, including entrance doors, windows and screens. 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 agrees to perform daily removal of litter in the immediate exterior fifty (50) foot area of the concession facility. 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 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 inventory 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 -8- • 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. 13. UTILITIES. The Concessionaire agrees to pay for all utilities except as noted, used within the concession operation and for garbage disposal on a rate determined as follows: Electricity, Water /Sewer, Garbage: Payment for these utilities for the llth Street stage storage, the 14th Street restroom facility, and the 10th Street auditorium shall be allocated between the City and the Concessionaire on a use basis, which allocation shall be made by the City. Manager. Concessionaire shall be solely .responsible for all utilities for all other facilities. 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.The City will not unreasonably delay or withhold approval of brochures or advertising. Concessionaire shall have the right to place its logo on its facilities and equipment; such right • shall, however, be subject to the prior approval of the Design Review Board as to size, shape and placement of same. 15. TRASH AND GARBAGE REMOVAL. With respect to trash, rubbish and garbage removal, the Concessionaire shall provide at his -9- a A • , • . • 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. The Concessionaire shall post a Performance Bond 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. 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. 16. RENTAL. The Concessionaire shall pay to the City a rental sum of ten (10 %) percent of gross receipts, or a minimum monthly guarantee in the amount of Eight Hundred ($800.00) Dollars, whichever is greater. Rent begins to accrue on December 1, 1985. Said rental percentage shall be paid to the City by the 115th of each month for the preceding month, and said payment shall be accompanied by a statement of gross receipts for the preceding month. It is also understood that the applicable Florida State Sales and Use Tax on rental payments shall be added to the Concessionaire's rental payment and forwarded to the City as part of said payments. It is the intent of the City that it is to receive the rental amount as net, free and clear of all costs and charges arising from, or relating to, said demised premises and that the minimum monthly guarantee or the percentage rent, whichever is greater, be paid monthly. The term "gross receipts" is understood to mean all income collected or -10- a.,* PA1 • accrued, de 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. 17. DEFAULT IN PAYMENT. A monthly report of gross receipts, the commission 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. 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. 18. 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 pro rata adjustment of monthly payments up to the time the damage is repaired. 19. CITY LIEN. It is expressly agreed that the City shall have a -11- 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. 20. 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 from the park and shall do so within two (2) weeks following the expiration of this Agreement. 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. 21. 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 -12- • • • 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 purchase 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. 22. 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. 23. INSPECTION. The Concessionaire agrees that the concession facilities and premises may be inspected at any time 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 -13- 51) • • • • 1 • • • • .. °• •• • • • • ' inspectors. 24. 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. 25. 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. 26. CONCESSIONAIRE HOLDS CITY HARMLESS. The Concessionaire assumes all risk in the operation of this concession and shall be solely responsible and answerable in damages for accidents or injuries to persons or property, whether direct or indirect, arising out of the operation of this concession or arising by virtue of carelessness, negligence, or improper conduct of the Concessionaire or any servant agent or employee of the Concessionaire, and hereby covenants and agrees to indemnify and save harmless the City of Miami Beach, Florida, and their officers and employees from every such claim, suit, loss, damage or injury, which responsibility shall not be limited to the insurance coverage herein required. 27. APPLICABLE LAWS TO BE FOLLOWED. The Concessionaire agrees to operate and maintain the concession in compliance with this 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 -14- 0-S r . 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 any time by the City Manager or his authorized representative. 29. EMPLOYEES; MANAGERS. 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. Operation hours shall be submitted 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 -15- 04) 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 consistent with those charged for similar merchandise and services in the general vicinity of the park. 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. 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 -16- (;t4t • recommended by the City. The. Concessionaire agrees to maintain an adequate supply 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 16 hereof, and such default is not cured within fifteen (15) days after written notice is given to Concessionaire, the City may cancel this Agreement and revoke the privilege of the Concessionaire to come upon the City's property for purposes for which this concession was granted and may oust and remove all parties who may be present upon or occupy any part of the premises for the purpose of exercising any rights so revoked. Continued occupancy of the facility after termination of the privilege shall constitute trespass by the Concessionaire, and may be prosecuted as such. In addition, -17- Ot 0 w re the Concessionaire shall pay to the City one hundred dollars ($100) per 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, 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 and save the City harmless from any and all claims, liability, losses, and causes of action which may arise out of the Concessionaire's operation of 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 and judgments which may issue thereon. 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 One. Million Dollars ($1,000,000.00) per occurrence for bodily injury and property damage. This policy must also contain coverage for premises operations, products and contractual liability. -18- (01)- b . • b. If this operation includes the sale of alcoholic beverages, liquor liability insurance in the minimum amount of $1,000,000.00 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. The City shall receive thirty (30) days advance written notice of cancellation or changes of the above - mentioned policies. f. All insurance policies shall . be issued by companies authorized to do business under the laws of the State of Florida and must have a rating of A:X or better per A.M. Best's Key Rating Guide, latest edition. g. The Concessionaire shall furnish original certificates of insurance, evidencing the required coverage, and receive approval of same, prior to the commencement of operations. h. Certificates of Insurance shall be approved by the City's Risk Manager and kept on file in the Finance Department, Insurance and Safety Division, 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. STORAGE. Concessionaire agrees that there will be no overnight storage of any kind east of the "Dune Line." 40. VEHICLES ON BEACH. Vehicles are allowed in areas only where roadways are provided and vehicles will park only in areas designated for vehicle parking. Provided, that Concessionaire shall have the right to use vehicles on the beach only for the purposes of loading and unloading its equipment and supplies. 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. 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. 11/4/85 -E -19- 0-4) CITY OF MIAMI BEACH // / By ATTEST: Mayor City Cler ///7 -,/ j -- PENROD BROTHERS, INC. BY /boo/AP r., �. Witnesses: President L ° %' ia , LM I C: 0 -( 1 ... ..../ APPROVED AS TO FORM: 2c;;e;_,_,,az,_,,,,..- /./_,VS'f-- LEGAL DEPARTMENT PNB/jhd 10/30/85D -20 - 2 ( OFFICE OF THE CITY ATTORNEY - 170Q CONVENTION CENTER DRIVE -MIAMI BEACH, FLORIDA 33139 j." i * r > ,. • ` -o > x rn rn O ° " Z ~v 70 ril • C , > Z ca N O 1 (1) Z rn 0 .o so co o cn a C X a Z ty r4 M CAI . 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