Penrod Brothers Concession Agmt
Penrod Brothers, Inc.
Concession
Agreement
SECTION
1.
2.
3.
3.1
3.2
3.3
3.4
3.5
4.
4.1
4.2
4.3
4.4
4.5
4.6
4.7
5.
6.
7.
7.2
8.
9.
10.
10.1
10.2
10.3
10.4
10.5
10.6
10.7
10.8
11.
12.
12.4
12.5
12.6
12.7
13.
13.1
13.2
13.3
13.4
13.5
13.7
13.8
INDEX
TITLE
PAGE
TERM...... ... ............ ... ........................... .............. ...... ............ ...... ............ ... ...... ..... ... .............6
CONCESSION AREA.. ..... ........................... ..... ...... ... ............... ...,... ........ ............... .............6
USE(S)........................................................................................................................ ........ .7
Rental of Lounging and Related Equipment...........................................................7
Food and Beverage Service ...................................................................................9
Construction of Concession Storage Facility ..........................................................9
Hurricane Evacuation Plan ........................................,..........................................1 0
City Occupational Licenses ..................................................................................11
CONCESSION FEES .............,..........................................................................................11
Minimum Guarantee ......,................................................,.....................................11
Prorated MG for First Contract Year..................................................................... 12
Retroactive Remuneration....................................................................... ............ .13
Interest for Late Payment ...,.................................................................................13
Sales and Use Tax ..... ,.........................................................................................13
Concessionaire's Capital Improvements (CCI)....,......................,.........................13
Reverter in the Event of Economic Downturn.......................................................15
MAINTENANCE AND EXAMINATION OF RECORDS.....................................................15
INSPECTION AND AUDIT "..............................................................................................15
TAXES, ASSESSMENTS, AND UTILITIES ......................................................................16
Procedure if Ad Valorem Taxes Assessed ...........................................................17
EMPLOYEES AND INDEPENDENT CONTRACTORS ....................................................17
HOURS OF OPERATION ......,...........................................................,..............................17
MAINTENANCE..............,...........................................................,.,............................... .....17
Concessionaire's Covenant to Maintain ...............................................................17
Garbage Receptacles............ .............. .... .............. .... ...,... ............... ...... .... ...........18
Equipment and Furnishing.......................................,............................................ 18
Orderly Operation ................................................................................ .................19
No Dangerous Materials.".,........................................,....................... ..................19
Security..................................,.............................................................................. 19
Vehicles .................................... ................................,......... .................................. 19
Inspection.........................,.....................................,........... .............. ........ ............ 19
INSURANCE.... ... ........... ..............."......... ..... ..... ... .... ...... ................ ... ...... ...... ......... ......... ..20
INDEMNITY .... ............................""....................................,................................. ........... ..20
Subrogation.........................,................................,.............................................. .21
Force Majeure...........,.......................................................................................... .21
Labor Dispute...................................................................................................... .21
Waiver of Loss from Hazards ...............................................................................22
DEFAULT AND TERMINATION.....,..............................,..,...............,............................... .22
Bankruptcy........................,.............................................,..................................... 22
Default in Payment.............................................................................................. .22
Non-Monetary Default........................................................................................... 23
Default under Pier Park Restaurant Lease Agreement ........................................23
City's Remedies for Concessionaire's Default......................................................23
Termination for Convenience/Partial Termination ................................................24
Surrender of Concession Areas ...........................................................................24
2
PAGE
SECTION
TITLE
14. PERFORMANCE BOND OR ALTERNATE SECURITY ...................................................25
15. ASSiGNMENT...................................................................................................... .......... ...25
16. SPECIAL EVENTS / SPONSORSHIPS ............................................................................26
16.2 City Special Events......................................................... ..................................... .26
16.5 Sponsorships....................................................................................................... .27
17. NO IMPROPER USE............................................................................................ ............ .27
18. PRICE SCHEDULES.................................................. ......................................... ............. .28
19. NOTiCES..................... ............................................... ............. ......................................... .28
20. LAWS................. ............................ .................................................................................. .29
20.1 Compliance.........................................,..................... ............................ ................29
20.2 Governing Law...................................................................................................... 29
20.3 Equal Employment Opportunity ............................................................................29
20.4 No Discrimination................................................................................................. .29
21. MiSCELLANEOUS.......... .......................................................................................... ....... .29
21.1 No Partnership............................. ........................................... ............................. .29
21.2 Modifications................................................ ........... ...................................... ....... .29
21.3 Complete Agreement.............................................. ..................................... .........30
21.4 Headings...................................................... ................................................ ......... 30
21.5 Binding Effect........................................... ....................... ......................................30
21.6 Clauses..............................................................................,.................................. 30
21.7 Severability........................................................................................................... 30
21.8 Right of Entry .....................,..................................................................................30
21.9 Not a Lease ..........................................................................................................30
21.10 Signage....................................................................................... ...... ............... ..... 30
21.11 Use of Pier Park ...................................................................................................31
21.12 Conflict of Interest.................................................................................................31
21.13 Reasonableness............................................................................................ ....... 31
21.14 Procedure for Approvals and/or Consents ...........................................................31
21.15 No Waiver........................................................................................ .....................31
21.16 No Third Party Beneficiary .......................,............................................................31
21.17 Attorneys' Fees................................... ..................................................................31
22. LIMITATION OF LIABILITY.......................................................,....................................... 32
23. VENUE...... ..................................................,.................................................................... .32
EXHIBITS
~~A...............................................................................................................~
Exhibit 3.1 ............................................................................................................. 35
Exhibit 3.1.1 ............................ ..............................................................................36
Exhibit 3.1.4 ............................ ..............................................................................43
Exhibit 3.4..............................,.,............................................................... .............44
3
CONCESSION AGREEMENT BETWEEN
CITY OF MIAMI BEACH, FLORIDA AND
PENROD BROTHERS, INC. FOR
MANAGEMENT AND OPERATION OF A CONCESSION
IN A PORTION OF PIER PARK
THIS CONCESSION AGREEMENT made the 25th day of February, 2004, between the
CITY OF MIAMI BEACH, a municipal corporation of the State of Florida (hereinafter called
"City"), having its principal address at 1700 Convention Center Drive, Miami Beach,
Florida, 33139, and PENROD BROTHERS, INC., a corporation of the State of Florida, with
offices at One Ocean Drive, Miami Beach, Florida, 33139 (hereinafter called
"Concessionaire").
WITNESSETH
WHEREAS, on October 2, 1985, the Mayor and City Commission adopted
Resolution No. 85-18222, approving a Concession Agreement, dated November 7, 1985,
between the City and Penrod Brothers, Inc. (Penrod's) for the rental of beach equipment,
water recreation equipment and food and beverage service at Pier Park, Oceanfront Park,
and Lummus Park, and the respective beachfront areas seaward thereof, for a period of
fifteen (15) years (the Penrod's Concession Agreement); and
WHEREAS, on October 2, 1985, the Mayor and City Commission also adopted
Resolution No. 85-18223, approving a Lease Agreement, dated November 7, 1985,
between the City and Penrod's for the development, construction and operation of a
restaurant and associated uses at Pier Park for a term of twenty (20) years, with two (2)
additional ten (10) year options automatically renewable at Penrod's discretion (the Pier
Park Restaurant Lease Agreement); and
WHEREAS, the Penrod's Concession Agreement, as amended, was scheduled to
expire on November 4, 2000; however on October 18, 2000, the Mayor and City
Commission, in order to allow for the issuance of a Request for Proposals (RFP) for the
future operation of beachfront concessions on the beaches seaward of Lummus Park,
Ocean Terrace and North Shore Open Space Park, approved an amendment to said
Concession Agreement, providing, in part, for a one year extension; to expire on November
4,2001; and
WHEREAS, said RFP did not include the portion of Pier Park, or the beaches
seaward thereof; and
WHEREAS, said RFP was awarded to Boucher Brothers Miami Beach LLC, as the
successful proposer, and a new concession agreement was approved by the Mayor and
City Commission and became effective on November 5, 2001; and
WHEREAS, the Boucher Brothers' concession agreement did not include the
portion of Pier Park and the beaches seaward thereof formerly addressed within the
Penrod's Concession Agreement, including the immediate area directly adjacent to the Pier
Park Restaurant Lease Premises; and
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WHEREAS, Penrod's subsequently entered into discussions with the City and (as it
had always serviced that area through the Penrod's Concession Agreement) requested
that the City permit it to continue servicing patrons in the portion of the Pier Park area east
of its restaurant and the beaches seaward thereof; and
WHEREAS, in response to Penrod's request, the Administration reviewed the
matter and concluded that, as Penrod's was the original developer and long term Lessee of
the upland Pier Park Restaurant, it would be in the best interest of the City to have the
same operator (Penrod's) continue to provide concession services and operations, as were
formerly provided by Penrod's when it controlled the subject area pursuant to the Penrod's
Concession Agreement; and
WHEREAS, the Administration has successfully negotiated the attached
Concession Agreement with Penrod Brothers for the operation and management of a
concession for lounging equipment rentals and food and beverage sales, in the portion of
Pier Park seaward of the footprint of the Pier Park Restaurant Lease Premises; and
WHEREAS, the Concession Agreement is for an initial term of two (2) years, seven
(7) months and six (6) days, commencing retroactively on October 1, 2003, and expiring
on May 6, 2006, with an option to renew to run concurrent with the term of the Pier Park
Restaurant Lease Agreement; and
WHEREAS, said Concession Agreement is terminable for convenience by the City,
at its discretion, and without cause, upon 180 days written notice to Penrod's; and
WHEREAS, the Administration would recommend that the Mayor and City
Commission further waive, by snths vote, the competitive bidding requirement, finding such
waiver to be in the best interest of the City, and approve the attached Concession
Agreement.
NOW THEREFORE, in consideration of the premises and the mutual covenants and
conditions herein contained and other good and valuable consideration, the receipt and
adequacy of which are hereby conclusively acknowledged, it is agreed by the parties
hereto as follows:
The City hereby grants to the Concessionaire, and the Concessionaire hereby accepts
from the City, the exclusive right to operate the following described concession within a
portion of the City owned property known as Pier Park, located at One Ocean 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.
5
SECTION 1. TERM.
1.1 It is the intent of the parties that the term of this Agreement, including any
renewal terms, is to run concurrent with the term of that certain Lease
Agreement entitled; "Lease Agreement between the City of Miami Beach and
Penrod Brothers, Inc. for a Pier Park Restaurant Facility", dated November 7,
1985. Accordingly, this Concession Agreement shall be for an initial term of
two (2) years, seven (7) months and six (6) days, commencing retroactively
on the first day of October, 2003 (the "Commencement Date"), and ending
on the sixth day of May, 2006. For purposes of this Agreement the contract
years for the initial term shall be defined as follows:
Year 1:
Year 2:
Year 3:
October 1, 2003 - May 6, 2004;
May 7,2004 - May 6,2005; and
May 7, 2005 - May 6, 2006
1.2 Provided that the Concessionaire is not in default under Section 13 hereof,
and provided further that the Concessionaire, as Lessee, is not in default
pursuant to the terms and conditions of that certain lease agreement dated
November 7, 1985, entitled, "Lease Agreement between the City of Miami
Beach and Penrod Brothers, Inc. for a Pier Park Restaurant Facility" (Pier
Park Restaurant Lease Agreement), this Concession Agreement shall have
two (2) ten (10) year options for renewal. Such options shall be considered
automatically renewed unless Concessionaire advises the City Manager, in
writing, at least six (6) months prior to the expiration of the preceding term
that Concessionaire does not wish to exercise the option.
Renewal term contract years shall commence on May 7, and end on May 6th
of the following year.
Additionally, in the event that Concessionaire, as Lessee under the Pier Park
Restaurant Lease Agreement, does not exercise its option to renew said
Lease pursuant to Paragraph 3 of said Lease Agreement, then this
Concession Agreement shall automatically terminate, and shall be null and
void and of no further force and effect. Additionally, if, at any time during the
term of this Concession Agreement, the Pier Park Restaurant Lease
Agreement is terminated or otherwise ceases to be of any legal force and
effect, for whatever reason whatsoever, then this Concession Agreement
shall automatically terminate, and shall be null and void and of no further
force and effect.
SECTION 2. CONCESSION AREA.
2.1 The portion of the City owned property known as Pier Park subject to this
Concession Agreement is specifically described in Exhibit A, hereto attached
and incorporated herein (herein after referred to as Concession Area).
2.2 Notwithstanding the Concession Area granted to Concessionaire above,
Concessionaire herein understands, agrees, and acknowledges that the
afore stated Concession Area, along with any and all other public park area
6
not specifically identified herein, are public and, as such, must remain
available for the use and enjoyment of the general public whether or not the
public chooses to use any of Concessionaire's facilities, equipment,
purchase its products, or engage in any of the services it provides. In the
event that a member of the public is within the Concession Area, or desires
access to the Concession Area, as set forth herein, Concessionaire agrees
to allow for his/her access and continued peaceful enjoyment of said Area.
Concessionaire shall at no time charge an admission fee for entry and/or
access to the Concession Area.
SECTION 3. USE(S).
The Concessionaire is hereby authorized to conduct the following kind(s) of businesses
and provide the following kind(s) of services within the Concession Area, as provided
below; all at its sole cost and expense:
3.1 Rental of LounqinQ and Related Equipment.
This shall generally include the rental of lounge chairs and related lounge
seating, including but not limited to, beds, settees, divans, lounge "teepees",
and related pads, cushions, umbrellas and sun canopies (collectively,
lounging and related equipment). The City herein approves the rental of
lounging and related equipment, as defined in the preceding sentence and
the prices for same; all as set forth in Exhibit 3.1, attached hereto and
incorporated herein. Any amendments to Exhibit 3.1, whether as to type(s) of
equipment to be rented or as to changes in prices for same, must be
approved in writing by the City Manager or his designee prior to such
changes being implemented within the Concession Area, and a new updated
Exhibit 3.1 will be incorporated into this Agreement.
3.1.1 The design, type, material, and color of any and all lounging and
related equipment, as defined above, shall be submitted to and
approved in writing by the City Manager or his designee prior to
execution of this Agreement by the parties hereto. A photo or photos
of such City approved lounging and related equipment is incorporated
herein and attached hereto as Exhibit 3.1.1. Thereafter,
Concessionaire shall not change, alter, or modify said City approved
design, type, material and color of any beach equipment without the
prior written consent of the City Manager or his designee, and, if so
approved, an updated Exhibit 3.1.1 will be made a part of and
incorporated into this Agreement.
3.1.2 Prior to execution of this Agreement by the parties hereto,
Concessionaire shall also submit for approval, in writing, by the City
Manager or his designee, the prices to be charged for rental of such
lounging and related equipment, as shall have been approved by the
City Manager and/or his designee, pursuant to Section 3.1 above, and
such approved prices shall be incorporated and attached hereto as
Exhibit 3.1.
7
3.1.3 Any amendments to Exhibit 3.1, whether as to type(s) of lounging and
related equipment to be rented or as to changes in prices for same,
must be approved in writing by the City Manager and/or his designee
prior to such changes being implemented within the Concession Area,
and a new updated Exhibit 3.1 will be submitted and incorporated into
this Agreement. Notwithstanding the foregoing required approval by
the City Manager and/or his designee, Concessionaire may increase
the prices to be charged for rental of such lounging and related
equipment by an amount equal to the percentage increase in the
Consumer Price Index, All Urban Consumers (CPI-U) U.S. City
Average for the previous contract year or years as published by
United States Department of Labor, Bureau of Labor Statistics, with
the baseline established as October 2003; however, prior to
implementation of such increase, Concessionaire shall provide City
with a new updated Exhibit 3.1, as required in the preceding
sentence. Concessionaire agrees that any such increases shall not
be permitted to occur more than once per contract year.
3.1.4 The set up of lounging and related equipment to be placed within the
Concession Area shall be placed substantially in accordance to a site
plan, which shall be approved by the City Manager and/or his
designee and attached hereto and incorporated herein as Exhibit
3.1.4. Concessionaire shall not deviate from or alter the approved site
plan(s) without the prior written consent of the City Manager or his
designee.
3.1.5 The parties acknowledge that Concessionaire's patrons may
themselves relocate lounging and related equipment within the
Concession Area. Such relocation shall be permitted, provided that, in
the aggregate, Concessionaire does not materially alter, or allow to be
materially altered, the configuration of the Concession Area, as set
forth in the site plan approved pursuant to Exhibit 3.1.4. In the event
of this occurrence, Concessionaire shall immediately correct any
material alteration within the Concession Area to bring same back into
substantial compliance with the approved site plan.
3.1.6 The condition and quality of Concessionaire's lounging and related
equipment shall at all times be maintained in a manner that is
consistent with the condition and quality of first class concession
equipment located on public beaches adjacent to world class beach
resorts. It is the City's intent, and Concessionaire hereby agrees and
acknowledges same, to develop and promote world class public
concession facilities and operations. Accordingly, Concessionaire
shall not only, at a minimum, maintain all lounging and related
equipment placed within the Concession Area in usable condition, but
shall adhere, as indicated in this Subsection, to high ongoing
maintenance standards for same. Within thirty (30) days of execution
of this Agreement by the parties hereto, Concessionaire shall provide
City with a full inventory of all lounging and related equipment
contemplated for use herein, including types and numbers (per item);
8
dates of lease and/or purchase; and initial condition, established as of
the date of inventory. Thereafter, City and Concessionaire shall jointly
prepare a plan and schedule for the ongoing replacement and/or
updating of lounging and related equipment throughout the term of
this Agreement, and a new inventory shall be submitted by
Concessionaire to the City.
3.2 Food and BeveraQe Service.
3.2.1 Concessionaire shall offer for sale within the Concession Area, such
food and beverages which, at a minimum, are consistent with the type
and quality of food and beverages prepared and sold within the Pier
Park Restaurant Facility, as provided pursuant to the terms and
conditions of the Pier Park Restaurant Lease Agreement. However,
actual cooking and heating within or on the Concession Area shall not
be allowed, other than the cooking of food on a temporary, non-
permanent barbeque grill, which shall be approved, in writing, by the
City on a case-by-case basis, prior to implementation of same on the
Concession Area.
3.2.2 All food and beverages sold or otherwise offered within the
Concession Area will be subject to any and all terms and conditions
governing food and beverage service under the Pier Park Restaurant
Lease Agreement and shall be dispensed only from the Pier Park
Restaurant Facility.
3.2.3 The City herein allows Concessionaire the right to serve and sell
alcoholic beverages within the Concession Area, for consumption on
the premises, subject to Concessionaire's compliance, at all times,
with whatever restrictions and/or regulations are or may be imposed
by the State of Florida, Miami-Dade County, and/or the City, with
respect to the dispensing and sale of alcoholic beverage, as well as,
alcoholic beverage license requirements. Notwithstanding the
preceding sentence, all alcoholic beverages shall be dispensed only
from the Pier Park Restaurant Facility, and Concessionaire shall not
be permitted to erect or maintain upon the Concession Area, any
permanent or temporary structure and/or area for the dispensing or
sale of alcoholic beverages (i.e.: bars, mini bars, etc.).
3.3 Construction of Concession StoraQe Facilitv.
3.3.1 City herein allows Concessionaire to construct a storage facility, to be
utilized by Concessionaire for the sole purpose of storing Concession
Area lounging and related equipment, tables and chairs, and any and
all other equipment and or items to be utilized for the purpose of
operating and maintaining the Concession Area; said storage facility
to be located in that area of the Concession Area on the northern side
of the Pier Park Restaurant Facility, and further such specific location
subject to the prior written approval of the City Manager or his
designee, and to be specifically identified on Exhibit A to this
9
Concession Agreement. Any and all costs associated with the design,
permitting and any required approvals, construction, and maintenance
shall be at the sole cost and expense of the Concessionaire.
3.3.2 Concessionaire shall be solely responsible for obtaining all approvals
from the City and any other regulatory agencies, including approvals
by the City in its regulatory capacity.
3.3.3 Concessionaire shall submit to City, acting in its proprietary capacity
as owner of the property, plans and specifications for the Storage
Facility, to be submitted to the City Manager or his designee for his
review and approval.
3.3.4 Following review and approval of the plans and specifications,
Concessionaire shall seek and obtain any and all necessary
approvals and permits, including but not limited to, a building permit
for construction of the proposed facility.
3.3.5 Concessionaire shall not commence construction until all necessary
permits and approvals for construction of the facility are issued, and,
following commencement shall thereafter continue to prosecute
construction of the Storage Facility with diligence and continuity to
completion.
3.3.6 Substantial completion of the Storage Facility shall be completed no
later than six (6) months from the issuance of a building permit for
same.
3.3.7 Upon expiration or termination of this Concession Agreement
ownership of the Storage Facility shall vest in the City of Miami Beach
and the City shall have the right to possession of same.
3.3.8 Concessionaire herein acknowledges, represents and warrants that
any cost associated with the construction of the aforestated Storage
Facility shall not be considered part of, nor applied to, the required
Concessionaire's Capital Improvements (CCI), as set forth in
Subsection 4.6 of this Agreement.
3.4 Hurricane Evacuation Plan.
Concessionaire agrees that all its facilities, equipment and any and all other
items used in the concession operations will be removed from the
Concession Area immediately within eight (8) hours of the issuance of a
Hurricane Warning by the Miami-Dade County Office of Emergency
Management, and stored at an approved location. Prior to execution of this
Agreement by the parties hereto, Concessionaire shall provide the City
Manager or his designee with a hurricane preparedness/evacuation plan,
which shall include the location of its proposed off-site hurricane storage
facility.
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3.5 City Occupational Licenses.
Concessionaire shall obtain, at its sole cost and expense, any occupational
licenses required by City law, as amended from time to time, for the
proposed uses contemplated in Section 3 of the Agreement. Concessionaire
will be required to obtain two (2) occupational licenses for: (i) Rental of
lounging and related equipment; (ii) Food and Beverage Service.
SECTION 4. CONCESSION FEES.
4.1 Minimum Guarantee (MG):
In consideration of the City's execution of this Agreement and grant of the
rights provided herein, commencing retroactively on October 1, 2003, and
thereafter on May 7 of each contract year during the initial term of the
Agreement, as well as any renewal terms, the Concessionaire shall pay to
the City a Minimum Guaranteed Annual Concession Fee (MG) equal to a
percentage of Concessionaire's gross receipts. The MG shall be payable as
monthly percentage rent to the City by the fifteenth (15) day of each month
for the preceding month, and said payment shall be accompanied by a
statement of gross receipts for the preceding month. At the time of delivery to
the City of the Annual Statement of Gross Receipts, as required pursuant to
Section 6, Concessionaire shall also pay to the City any adjustment due the
City.
4.1.1 For purposes of calculation of any increase of MG, as set forth below,
and any other term and condition of this Agreement relating to the
MG, the base dollar amount used shall be the original MG
contemplated in this Agreement for the first contract year, which is
$400,000. At the commencement of the second contract year, or May
7, 2004, the MG shall be automatically increased, by five percent
(5%) per year, from the previous year's MG. At the commencement of
the fourth contract year, or May 7, 2006, and every fourth contract
year thereafter, the City shall review Concessionaire's annual gross
receipts and recalculate the MG to an amount equal to seventy-five
(75%) percent of six and one half (6.5%) percent of the prior three (3)
contract year averages of gross receipts. Said adjusted MG shall be
payable as set forth in this Section 4.1, and the annual five (5%)
percent increase shall continue to apply to the recalculated MG
amount.
4.1.2 For each contract year, in the event that the amount equal to six and
one half (6.5%) percent of Concessionaire's gross receipts, as such
term is defined in the Pier Park Restaurant Lease Agreement, as
amended, does not meet the MG amount, as established pursuant to
Subsection 4.1.1, then the Concessionaire shall also pay an
additional lump-sum amount to the City, equal to the difference
between the percentage of gross receipts amount and the MG
amount provided in Subsection 4.1.1 above; said amount payable in
full at the time of delivery to the City of the Annual Statement of Gross
Receipts, or no later than June 30, of each contract year during the
term, including renewal terms, of this Agreement.
11
4.1.3 The parties agree to amend Paragraph 13 of the Pier Park Restaurant
Lease Agreement by increasing Penrod's percentage rent due to the
City to a maximum of six and one half (6.5%) percent of "gross
receipts", as said term is defined in Subsection 4.1.4 , and in the
amendment to the Pier Park Restaurant Lease Agreement.
Notwithstanding the preceding sentence, the agreement of the
parties, as reflected in Subsection 4.2.1, shall also apply to the Pier
Park Restaurant Lease Agreement, as amended.
4.1.4 The term "gross receipts" is understood to mean all income, whether
collected or accrued, derived by Penrod's (whether as Concessionaire
under this Agreement or as Lessee under the Pier Park Restaurant
Lease Agreement), or any licensee, sub-concessionaire, or sub-
tenant of Penrod's (whether as Concessionaire under this Agreement
or as Lessee under the Pier Park Restaurant Lease Agreement), from
all business conducted upon or from the Concession Area or the
"Premises", as such term is defined in the Pier Park Restaurant Lease
Agreement, including but not limited to receipts from sale of food,
beverages, alcoholic beverages, rental of lounging and related
equipment, sale of merchandise, rental of space, including
percentage rents, or from any other source whatsoever. The term
"gross receipts" shall exclude amounts of any Federal, State, or City
sales tax, or other governmental imposition, assessment, charge or
expense of any kind, collected by the Concessionaire and required by
law to be remitted to the taxing or other governmental authority.
4.2 Prorated MG for First Contract Year.
Notwithstanding anything contained in Subsection 4.1, City and
Concessionaire agree that the MG for the first contract year (the first contract
year being defined as the period from October 1,2003 through May 6,2004)
shall be Two Hundred Thirty Nine Thousand Three Hundred Forty Four
($239,344) Dollars. This sum represents the prorated amount based upon
the annual base MG of four hundred thousand ($400,000) dollars.
4.2.1 Notwithstanding Subsection 4.1.2, upon commencement of the
Agreement, and effective retroactively to October 1, 2003,
Concessionaire shall make a monthly MG payment in an amount
equal to five and one half (5.5%) percent of Concessionaire's gross
receipts. The monthly 5.5% MG payment amount shall be increased
to the required six and one half (6.5%) percent MG payment amount
(Subsection 4.1.2), upon the City's sole determination that Penrod's,
both as Concessionaire under this Agreement and as Lessee under
the Pier Park Restaurant Lease Agreement, has achieved the "target
revenue threshold"; said term herein defined as the amount equal to
the average ofthe Fiscal Year (FY) 2001/2002 (October 1-September
30) and Fiscal Year 2002/2003 gross receipts (as said term is defined
in Subsection 4.1.4).
The parties agree that the target revenue threshold is herein
established as the sum of $12,818,026. This sum is based on the
12
average of gross receipts for FY 2001/2002, which equals the sum of
$12,222,358, and FY 2002/2003 gross receipts, which equals
$13,413,695.
4.2.2 Upon Concessionaire's achievement of the target revenue threshold,
Concessionaire shall pay the lump sum amount to the City, equal to
the difference between the 5.5% and 6.5% for the contract year in
which the target revenue threshold was met; said amount payable in
full at the time of delivery to the City of Concessionaire's Annual
Statement of Gross Receipts. Thereafter, Concessionaire shall
continue to make MG payments in the required amount of 6.5% of
Concessionaire's gross receipts, as provided by this Section.
4.3 Retroactive Remuneration.
In addition to the amount set forth in Subsection 4.2, Concessionaire agrees
to pay City the sum of Seven Hundred Sixty Seven Thousand Five Hundred
Thirty Three ($767,533) Dollars representing the parties' agreed upon
retroactive remunerations for the period from November 1, 2001 through
September 30, 2003. Said retroactive remuneration shall be payable as
follows:
i)
$400,000 to be payable as follows:
prior to execution of this Agreement
April 1 , 2004
May 1, 2004
May 31,2004
$100,000
$100,000
$100,000
$100,000
ii) The remaining balance of Three Hundred Sixty Seven
Thousand Five Hundred Thirty Three ($367,533) Dollars to be
applied to a portion of Concessionaire Capital Improvements,
as set forth in Subsection 4.6.
4.4 Interest for Late Payment.
Any payment which Concessionaire is required to make to City which is not
paid on or before the respective date provided for in this Agreement shall be
subject to interest at the rate of twelve percent (12%) per annum, from the
due date of payment until such time as payment is actually received by the
City.
4.5 Sales and Use Tax.
It is also understood that the required Florida State Sales and Use Tax shall
be added to Concessionaire's payments and forwarded to the City as part of
said payments. It is the City's intent that it is to receive all payments due
from Concessionaire as net of such Florida State Sales and Use Tax.
4.6 Concessionaire's Capital Improvements (CCI).
4.6.1 As a further inducement for the City to enter into this Agreement,
Concessionaire shall, at its sole cost and expense, agree to make a
minimum investment in capital improvements, in an amount not less
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than $500,000, either within the Concession Area or within the
"Premises", as said term is defined in the Pier Park Restaurant Lease
Agreement.
4.6.2 In addition to the capital improvements required in Subsection 4.6.1,
Concessionaire shall satisfy the balance of the Retroactive
Remuneration, as required in Subsection 4.3(ii), by making capital
improvements within the Concession Area, in amount not less than
$367,533. Notwithstanding the preceding sentence, said capital
improvements must, at a minimum, include the design and
construction, at Concessionaire's sole cost and expense, of an
outdoor public restroom facility to service Pier Park patrons and
exterior access signage. In the event that Federal, State or local
permitting requirements prohibit the construction of the restroom
facility within the Concession Area, then the parties shall mutually
agree to construct said restroom facility in another area within Pier
Park.
4.6.3 Any and all capital improvements contemplated in Subsections 4.6.1
and 4.6.2 shall first be agreed to and approved by the City and shall,
at a minimum, be compatible with the current design and use of the
Concession Area and Premises, and relate to Penrod's operation and
management of same. Upon the parties execution of this Agreement,
Concessionaire shall, within thirty (30) days, for the storage facility
contemplated pursuant to Subsection 4.6.1, and within ninety (90)
days for the CCI's contemplated pursuant to Subsection 4.6.2, submit
a detailed proposal to City, for its review, outlining the proposed
capital improvements within the Concession Area and/or Premises;
costs for each improvement(s); time frame for completion.
4.6.4 Following written approval of Concessionaire's proposed capital
improvement(s), the parties agree to coordinate and cooperate in the
planning, permitting, scheduling, and approval of the design,
construction and operation of same. Concessionaire shall undertake
and complete the design, development, permitting and approval, and
construction of any agreed upon capital improvement(s), in such time,
order and manner as City and Concessionaire may mutually agree
upon. Concessionaire shall complete all proposed "public" capital
improvements contemplated in Subsections 4.6.1 and 4.6.2 no later
than two (2) years from the date of execution of this Agreement;
provided that said completion date may be extended, at the City's
sole discretion, and upon written request for same by Concessionaire.
4.6.5 Notwithstanding anything contained in this Subsection 4.6, it shall be
Concessionaire's sole responsibility, cost, and expense to design,
develop, obtain permits and approvals, construct, and maintain and
operate all approved capital improvement(s). Concessionaire further
acknowledges, and herein represents and warrants, that the City shall
not be obligated to fund any costs related to any approved capital
improvement(s), including maintenance and operation costs.
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4.7 Reverter in the Event of Economic Downturn.
In the event that Concessionaire deems that, as a result of a downturn in the
economy, a financial hardship has occurred for Concessionaire such that
Concessionaire is no longer financially able to remit the MG amount required
in Subsection 4.1.1 of the Agreement, Concessionaire shall provide the City
Manager with a minimum of one hundred eighty (180) days written notice of
its intent to terminate this Concession Agreement as a result of changed
economic circumstances. Upon termination of the Agreement, City and
Concessionaire agree to amend the Pier Park Restaurant Lease Agreement,
if required, to provide that (i) Concessionaire shall no longer be required to
pay the 6.5% MG amount under the Lease, and (ii) that Concessionaire shall
resume payment under the Pier Park Restaurant Lease Agreement of the
maximum amount equal to 3.5% of gross receipts (said 3.5% amount being
the amount referenced in the Lease prior to execution of this Agreement by
the parties).
Additionally, upon termination of the Agreement pursuant to this Subsection
4.7, Concessionaire shall immediately surrender the Concession Area and
restore same to a satisfactory condition, as shall be determined solely by the
City in its reasonable discretion and judgment.
SECTION 5. MAINTENANCE AND EXAMINATION OF RECORDS.
Concessionaire shall maintain current, accurate, and complete financial records on an
accrual basis of accounting related to its operations pursuant to this Agreement. Systems
and procedures used to maintain these records shall include a system of internal controls
and all accounting records shall be maintained in accordance with generally accepted
accounting principles and shall be open to inspection and audit, but not photocopying, by
the City Manager or his designee upon reasonable prior request and during normal
business hours. Such records and accounts shall include a breakdown of gross receipts.
Concessionaire shall maintain accurate receipt-printing cash registers or a like alternative,
which will record and show the payment for every sale made or service provided; and such
other records shall be maintained as would be required by an independent CPA in orderto
audit a statement of annual gross receipts pursuant to generally accepted accounting
principles.
A monthly report of gross receipts must be submitted to the City, through the Finance
Department's Revenue Supervisor, to be received no later than fifteen (15) days after the
close of each month, certified by Concessionaire to be true, accurate and complete.
SECTION 6. INSPECTION AND AUDIT.
Concessionaire shall maintain its financial records pertaining to its operations for a period
of three (3) years after the conclusion of any contract year and such records shall be open
and available to the City Manager or his designee, as deemed necessary by the City
Manager or his designee, but shall not be subject to photocopying. Concessionaire shall
maintain all such records at its principal office, currently located at One Ocean Drive, Miami
Beach, Florida, 33139, or, if moved to another location, all such records shall be relocated,
at Concessionaire's expense, to a location in Miami Beach, within ten (10) days' written
notice from the City.
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The City Manager or his designee shall be entitled to audit and photocopy,
Concessionaire's gross receipts records pertaining to its operation as often as it deems
reasonably necessary throughout the term of this Agreement, and three (3) times within the
three (3) year period following termination of the Agreement, regardless of whether such
termination results from the natural expiration of the term or for any other reason. The City
shall be responsible for paying all costs associated with such audits, unless the audit(s)
reveals a deficiency of five percent (5%) or more in Concessionaire's statement of gross
receipts for any year or years audited, in which case the Concessionaire shall pay to the
City, within thirty (30) days of the audit being deemed final (as specified below), the cost of
the audit and a sum equal to the amount of the deficiency revealed by the audit, plus
interest; provided, however, the audit shall not be deemed final until Concessionaire has
received the audit and has had a reasonable opportunity to review the audit and discuss
the audit with the City. Nothing contained within this Section shall preclude the City's audit
rights for resort tax collection purposes.
Within sixty (60) days after each contract year, Concessionaire shall submit to City a
written Annual Statement of Gross Receipts for such contract year. Said Annual Statement
shall be an audited statement of gross receipts, in a form consistent with generally
accepted accounting principles.
It is Concessionaire's intent to stay informed of comments and suggestions by the City
regarding Concessionaire's performance under the Agreement. Within thirty (30) days after
the end of each contract year, Concessionaire and City may meet to review
Concessionaire's performance under the Agreement for the previous contract year. At the
meeting, Concessionaire and City may discuss quality, operational, maintenance and any
other issues regarding Concessionaire's performance under the Agreement.
SECTION 7. TAXES. ASSESSMENTS. AND UTILITIES.
7.1 Concessionaire agrees to and shall pay before delinquency all taxes
(including but not limited to resort taxes) and assessments of any kind
assessed or levied upon Concessionaire by reason of this Agreement or by
reason of the business or other activities of Concessionaire under this
Agreement. Concessionaire will have the right, at its own expense, to
contest the amount or validity, in whole or in part, of any tax and/or
assessment by appropriate proceedings diligently conducted in good faith.
Concessionaire may refrain from paying a tax or assessment to the extent it
is contesting the assessment or imposition of same in a manner that is in
accordance with law; provided, however, if, as a result of such contest,
additional delinquency charges become due, Concessionaire shall be
responsible for such delinquency charges, in addition to payment of the
contested tax and/or assessment if so ordered.
Concessionaire shall also pay for any fees imposed by law for licenses or
permits for any business or activities of Concessionaire upon the Concession
Area(s) under this Agreement.
Concessionaire shall pay before delinquency any and all charges for utilities
used by, for, or on behalf of the operations contemplated herein (including,
but not limited to, water, electricity, gas, heating, cooling, sewer, telephone,
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trash collection, etc.).
7.2 Procedure If Ad Valorem Taxes Assessed.
Notwithstanding Subsection 7.1 above, the parties agree that the operations
contemplated within the Concession Area are for public purposes and,
therefore, no ad valorem taxes should be assessed by the Miami-Dade
County Tax Appraiser. If, however, said taxes are assessed, Concessionaire
shall be solely responsible for payment of same.
SECTION 8. EMPLOYEES AND INDEPENDENT CONTRACTORS.
8.1 In connection with the performance of its responsibilities hereunder,
Concessionaire may hire its own employees and/or independent contractors,
who will be employees and/or independent contractors of Concessionaire
and not of the City. Concessionaire shall select the number, function,
qualifications, compensation, including benefits (if any), and may, at its
discretion and at any time, adjust or revise the terms and conditions relating
to such employees and/or independent contractors.
8.2 Concessionaire and its employees and/or independent contractors shall wear
identification badges and/or uniforms approved by the City during all hours of
operation when such employee or independent contractor is acting within the
scope of such employment or such independent contractor relationship. All
employees and/or independent contractors shall observe all the graces of
personal grooming. The Concessionaire shall hire people to work in its
concession operation who are neat, clean, well groomed and shall comport
themselves in a professional and courteous manner. The Concessionaire
and any persons hired by same, shall never have been convicted of a felony.
If Concessionaire materially fails to comply with this provision the City may
send notice of default. The Concessionaire shall have an experienced
manager or assistant manager(s) overseeing the concession operations at all
times, in the Concession Area or immediately available.
SECTION 9. HOURS OF OPERATION.
The Concession Area and concession operations thereon shall be open every day of the
year, weather or events of force majeure permitting, and shall be open by 11.00 AM, and
close no later than 5:00 AM. Notwithstanding the proceeding sentence, Concessionaire
may commence operations upon the Concession Area as early as 9:00 AM. Any change in
the hours of operation shall be at the City's sole option and discretion, and any request by
Concessionaire for an increase or decrease in same shall be subject to the prior written
approval of the City Manager or his designee. Notwithstanding the preceding sentences,
public access to the Concession Area, before the Concessionaire opens for business, shall
be governed by rules generally applicable to City parks.
SECTION 10. MAINTENANCE.
10.1 Concessionaire's Covenant to Maintain.
The Concessionaire accepts the use of the Concession Area provided in this
Agreement in its "as is" condition. Concessionaire assumes sole
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responsibility and expense for maintenance of the Concession Area and all
facilities and equipment therein (including but not limited to, the proposed
storage facility contemplated in Subsection 3.3, and any capital
improvement(s) made pursuant to Subsection 4.6), and any and all public
areas adjacent to and surrounding the Concession Area as delineated in
Exhibit A attached hereto. Concessionaire covenants and agrees with the
City that during the term of this Agreement, including renewal terms,
Concessionaire will keep in good state of maintenance and repair any and all
equipment, buildings, other facilities and structures, landscaping, and any
and all other improvements constructed upon or otherwise located upon or
within the Concession Area; nor will Concessionaire suffer or permit any
strip, waste, neglect, or deterioration of any of the aforementioned to be
committed; and the Concessionaire will repair, replace and renovate the
Concession Area, and improvements located thereon, as often as shall be
necessary to keep it in a first class state of repair and condition.
Concessionaire further assumes sole responsibility and expense for the daily
removal of litter, garbage and debris in and around the Concession Area,
and the areas mentioned above. Daily maintenance shall be accomplished
365 days per year. Concessionaire agrees, also at its sole cost and expense,
to pay for all garbage disposal generated by its operations.
10.2 Garbaqe Receptacles.
With respect to litter, garbage and debris removal, the Concessionaire shall
provide, at its sole cost and expense, receptacles within the confines of the
Concession Area and shall provide a sufficient number of these receptacles
for its own use and for the use of the public. Disposal of the contents of said
receptacles and removal of litter, garbage and debris within the Concession
Area, shall be done on a daily basis, and shall be the sole responsibility of
the Concessionaire. At all times during the term of this Agreement,
Concessionaire shall maintain an agreement with a trash hauler for garbage
disposal and, if requested, provide a copy of such agreement to the City.
Any costs for removal of the contents of said trash receptacles by the City,
because of the Concessionaire's, or waste contractor's failure to do the
same, will be assessed upon, and become the responsibility of the
Concessionaire. The dumping or disposal of any refuse, discards, trash or
garbage, generated by, or as a result of the concession operations, into any
City or Miami-Dade County trash receptacles, by the Concessionaire
(including its staff and employees), shall be strictly prohibited. Determination
of the "number" of receptacles shall at all times be within the City's sole
discretion, and Concessionaire agrees to be bound by same.
10.3 Equipment and Furnishinq.
The Concessionaire must provide and maintain, at its own cost and expense,
all equipment and furnishings required for the operation and maintenance of
the concession. In the event any of the aforestated items are lost, stolen, or
damaged, they shall be immediately replaced or repaired at the sole cost and
expense of the Concessionaire.
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10.4 Orderlv Operation.
Intentionally Omitted.
10.5 No Danqerous Materials.
The Concessionaire agrees not to use or permit in the Concession Area or
facilities the storage and/or use of gasoline, fuel oils, diesel, illuminating oils,
oil lamps, combustible powered electricity producing generators, turpentine,
benzene, naphtha, propane, natural gas, or other similar substances,
combustible materials, or explosives of any kind, or any substance or thing
prohibited in the standard policies of fire insurance companies in the State of
Florida. Any such substances or materials found within the Concession Area
shall be immediately removed. Notwithstanding the foregoing,
Concessionaire may request prior written approval for the temporary, non-
permanent use of outdoor heat lamps and barbeque grill as reflected in the
attached site plan (Exhibit A).
Notwithstanding any contrary provisions of this Agreement, Concessionaire,
after the Commencement Date, shall indemnify and hold City harmless from
any loss, damage, cost, or expense of the City, including, without limitation,
reasonable attorney's fees, incurred as a result of, arising from, or connected
with the placement by Concessionaire, after the Commencement Date, but
during the term of this Agreement, of any "hazardous substance" or
"petroleum products" on, under, in or upon the Concession Area as those
terms are defined by applicable Federal and State Statute, or any
environmental rules and environmental regulations promulgated thereunder;
provided, however, Concessionaire shall have no liability in the event of the
willful misconduct or gross negligence of the City, its agents, servants or
employees. The provisions of this Subsection 10.5 shall survive the
termination or earlier expiration of this Agreement.
10.6 Security.
The Concessionaire shall be responsible for and provide reasonable security
measures which may be required to protect the Concession Area and any of
the equipment, materials and facilities thereon. Under no circumstances shall
the City be responsible for any stolen or damaged equipment, materials and
facilities, nor shall City be responsible for any stolen or damaged personal
property of Concessionaire's patrons, guests, invitees, and/or other third
parties.
10.7 Vehicles.
Intentionally Omitted.
10.8 Inspection.
The Concessionaire agrees that the Concession Area and all facilities,
equipment, and operations thereon may be inspected at any time by the City
Manager or his designee, or by any other Municipal, County, State officer, or
agency having responsibilities for inspections of such operations. The
Concessionaire hereby waives all claims against the City for compensation
for loss or damage sustained by reason of any interference (which
interference, if by the City, must be reasonable) with the concession
19
operation by any public agency or official in enforcing their duties or any laws
or ordinances. Any such interference (which interference, if by the City, must
be reasonable) shall not relieve the Concessionaire from any obligation
hereunder.
SECTION 11. INSURANCE.
Concessionaire shall maintain, at its sole cost and expense, the following types and levels
of insurance coverage at all times throughout the term of this Agreement.
a. Comprehensive General Liability Insurance in the minimum amount of One
Million ($1,000,000) Dollars per occurrence for bodily injury and property
damage. This policy must also contain coverage for premises operations,
products and contractual liability.
b. Liquor Liability Insurance in the minimum amount of One Million ($1,000,000)
Dollars.
c. Workers Compensation Insurance shall be required in accordance with the
Laws of the State of Florida.
The policies of insurance referred to above shall not be subject to cancellation or changing
coverage except upon at least thirty (30) days prior written notice to the City, and then only
subject to the prior written approval of the City Manager or his designee. Prior to execution
of this Agreement by the parties hereto, Concessionaire shall provide City with a Certificate
of Insurance for each such policy. ALL POLICIES SHALL NAME THE CITY OF MIAMI
BEACH FLORIDA AS AN ADDITIONAL NAMED INSURED. All such policies shall be
obtained from companies authorized to do business in the State of Florida with an A.M.
Best's Insurance Guide (latest edition) rating acceptable to the City's Risk Manager, and
any replacement or substitute company shall also be subject to the approval of the City's
Risk Manager. Should Concessionaire fail to obtain, maintain or renew the policies of
insurance referred to above, in the required amounts, the City may, at its sole discretion,
obtain such insurance, and any sums expended by City in obtaining said insurance, shall
be repaid by Concessionaire to City, plus ten percent (10%) of the amount of premiums
paid to compensate City for its administrative costs. If Concessionaire fails to repay City's
expenditures within fifteen (15) days of demand, the total sum owed shall accrue interest at
the rate of twelve percent (12%) until paid, and such failure shall be deemed an event of
default hereunder.
SECTION 12. INDEMNITY.
12.1 In consideration of a separate and specific consideration of $1 0.00 and other
good and valuable consideration the receipt and sufficiency of which are
hereby acknowledged, Concessionaire shall indemnify, hold harmless and
defend the City, its agents, servants and employees from and against any
claim, demand or cause of action of whatsoever kind or nature arising out of
error, omission, or negligent act of Concessionaire, itssubconcessionaire(s),
agents, servants or employees in the performance of services under this
Agreement.
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12.2 In addition, in consideration of a separate and specific consideration of
$10.00 and other good and valuable consideration the receipt and sufficiency
of which are hereby acknowledged, Concessionaire shall indemnify, hold
harmless and defend the City, its agents, servants and employees from and
against any claim, demand or cause of action of whatever kind or nature
arising out of any misconduct of Concessionaire not included in the
paragraph in the Subsection above and for which the City, its agents,
servants or employees are alleged to be liable.
12.3 Subsections 12.1 and 12.2 shall survive the termination or expiration of this
Agreement. Subsections 12.1 and 12.2 shall not apply, however, to any such
liability, that arises as a result of the willful misconduct or gross negligence of
the City, its agents, servants or employees.
12.4 Subroqation.
The terms of insurance policies referred to in Section 11 shall preclude
subrogation claims against Concessionaire, the City and their respective
officers, employees and agents.
12.5 Force Maieure.
Neither party shall be obligated to perform hereunder and neither party shall
be deemed to be in default if performance is prevented by:
a. fire which renders at least thirty percent (30%) of the Concessionaire
Area's cumulative facilities and equipment unusable and which is not
caused by negligence of Concessionaire;
b. earthquake; hurricane; flood; act of God; direct act ofterrorism; or civil
commotion occurring on the Concession Area; or
c. any law, ordinance, rule, regulation or order of any public or military
authority stemming from the existence of economic or energy
controls, hostilities, or war.
The parties hereto acknowledge that Concessionaire's obligations and
benefits hereunder may be negatively affected by an event of Force Majeure.
If an event of Force Majeure occurs during a contract year, and provided
further that Concessionaire's minimum guarantee payment(s) to the City for
that contract year is greater than the applicable percentage payment, then
the City Manager or his designee, in his sole discretion, may extend the term
of this Agreement for a reasonable period of time; provided, however, such
extension shall take effect only if Concessionaire agrees to such extension.
12.6 Labor Dispute.
In the event of a labor dispute which results in a strike, picket or boycott
affecting the Concession Area or operation described in this Agreement,
Concessionaire shall not thereby be deemed to be in default or to have
breached any part of this Agreement, unless such dispute shall have been
caused by illegal labor practices or violations by Concessionaire of applicable
collective bargaining agreements and there has been a final determination of
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such fact which is not cured by Concessionaire within thirty (30) days.
12.7 Waiver of Loss from Hazards.
The Concessionaire hereby expressly waives all claims against the City for
loss or damage sustained by the Concessionaire resulting from fire, water,
natural disasters/acts of God (e.g. hurricane, tornado, etc.), civil commotion,
riot, or any other Force Majeure contemplated in Subsection 12.5 and Labor
Dispute in Subsection 12.6 above, and the Concessionaire hereby expressly
waives all rights, claims, and demands against the City and forever releases
and discharges the City of Miami Beach, Florida, from all demands, claims,
actions and causes of action arising from any of the aforesaid causes.
SECTION 13. DEFAULT AND TERMINATION.
Subsections 13.1 through 13.4 shall constitute events of default under this Agreement. An
event of default by Concessionaire shall entitle City to exercise any and all remedies
described as City's remedies under this Agreement, including but not limited to those set
forth in Subsection 13.5 and Section 14. An event of default by City shall entitle
Concessionaire to exercise any and all remedies described as Concessionaire's remedies
under this Agreement, including but not limited to those set forth in Subsection 13.6.
13.1 Bankruptcy.
If either the City or Concessionaire shall be adjudged bankrupt or insolvent,
or if any receiver or trustee of all or any part of the business property of
either party shall be appointed, or if any receiver of all or any part of the
business property shall be appointed and shall not be discharged within sixty
(60) days after appointment, or if either party shall make an assignment of its
property for the benefit of creditors, or shall file a voluntary petition in
bankruptcy, or insolvency, or shall apply for reorganization or arrangement
with its creditors under the bankruptcy or insolvency laws now in force or
hereinafter enacted, Federal, State, or otherwise, or if such petitions shall be
filed against either party and shall not be dismissed within sixty (60) days
after such filing, then the other party may immediately, or at any time
thereafter, and without further demand or notice, terminate this Agreement
without being prejudiced as to any remedies which may be available to it for
breach of contract.
13.2 Default in Payment.
In the event Concessionaire fails to submit any payment within five (5) days
of its due date, there shall be a late charge of $50.00 per day for such late
payment, in addition to interest at the highest rate allowable by law (currently
12% per annum). If any payment and accumulated penalties are not received
within fifteen (15) days after the payment due date, and such failure
continues three (3) days after written notice thereof, then the City may,
without further demand or notice, terminate this Concession Agreement
without being prejudiced as to any remedies which may be available to it for
breach of contract; and may begin procedures to collect the Performance
Bond required in Section 14 herein.
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13.3 Non-Monetary Default.
In the event that Concessionaire or the City fails to perform or observe any of
the covenants, terms or provisions under this Agreement, and such failure
continues thirty (30) days after written notice thereof from the other party
hereto, such non-defaulting party may immediately or at any time thereafter,
and without further demand or notice, terminate this Agreement without
being prejudiced as to any remedies which may be available to it for breach
of contract. In the event that a default is not reasonably susceptible to being
cured within such period, the defaulting party shall not be considered in
default if it shall, within such period, commence with due diligence and
dispatch to cure such default and thereafter completes with dispatch and due
diligence the curing of such default, but in no event shall such extended cure
period exceed ninety (90) days from the date of written notice thereof. In the
event Concessionaire cures any default pursuant to this Subsection, it shall
promptly provide City with written notice of same.
13.4 Default under Pier Park Restaurant Lease Aqreement.
If a default by Concessionaire under the Pier Park Restaurant Lease
Agreement shall have occurred and be continuing beyond any applicable
cure period, the City may immediately terminate this Agreement without
being prejudiced as to any remedies which may be available to it for breach
of contract.
13.5 City's Remedies for Concessionaire's Default.
If any of the events of default, as set forth in this Section, shall occur, the
City may, after notice (if required) and the expiration of cure periods, as
provided above, at its sole option and discretion, institute such proceedings
as in its opinion are necessary to cure such defaults and to compensate City
for damages resulting from such defaults, including but not limited to the right
to give to Concessionaire a notice of termination of this Agreement. If such
notice is given, the term of this Agreement shall terminate upon the date
specified in such notice from City to Concessionaire. On the date so
specified, Concessionaire shall then quit and surrender the Concession Area
to City pursuant to the provisions of Subsection 13.8. Upon the termination of
this Agreement, all rights and interest of Concessionaire in and to the
Concession Area and to this Agreement, and every part thereof, shall cease
and terminate and City may, in addition to any other rights and remedies it
may have, retain all sums paid to it by Concessionaire under this Agreement,
including but not limited to, beginning procedures to collect the Performance
Bond in Section 14 herein. In addition to the rights set forth above, City shall
have the rights to pursue any and all of the following:
a. the right to injunction or other similar relief available to it under Florida
law against Concessionaire; and or
b. the right to maintain any and all actions at law or suits in equity or
other proper proceedings to obtain damages resulting from
Concessionaire's default.
13.6 If an event of default, as set forth in this Section, by the City shall occur, the
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Concessionaire may, after notice (if required) and the expiration of the cure
periods, as provided above, at its sole option and discretion, terminate this
Agreement upon written notice to the City and/or sue for damages. Said
termination shall become effective upon receipt of a written notice of
termination by the City, but in no event shall Concessionaire specify a
termination date that is less than sixty (60) days from the date of the written
termination notice. On the date specified in the notice, Concessionaire shall
quit and surrender the Concession Area to City pursuant to the provisions of
Subsection 13.8.
13.7 Termination for Convenience.
13.7.1 Notwithstanding the provisions ofthis Section 13, this Agreement may
be terminated by the City, for convenience and without cause, upon
the furnishing of one hundred and eighty (180) days written notice to
Concessionaire.
13.7.2 In the event of termination by City of the Agreement pursuant to this
Subsection, Concessionaire herein acknowledges and agrees that it
shall not have any claim, demand, or cause of action of whatsoever
kind or nature, against the City, its agents, servants and employees
(including, but not limited to, claims for interference in business or
damages for interruption of services or interference in its concession
operations) .
13.7.3 In the event this Agreement is terminated for convenience by the City,
the City and Concessionaire agree to amend the Pier Park Restaurant
Lease Agreement, if required, to provide that (i) Concessionaire shall
no longer be required to pay the 6.5% MG amount under the Lease,
and (ii) that Concessionaire shall resume payment under the Pier
Park Restaurant Lease Agreement of the maximum amount equal to
3.5% of gross receipts (said 3.5% amount being the amount
referenced in the Lease prior to execution of this Agreement by the
parties).
13.8 Surrender of Concession Areas.
At the expiration of this Agreement, or in the event of a termination for
convenience pursuant to Subsection 13.7, or in the event this Agreement is
otherwise declared null and void and of no further force or effect,
Concessionaire shall surrender the Concession Area in the same condition
as the Concession Area was prior to the commencement of this Agreement,
reasonable wear and tear excepted. In the event of termination of this
Agreement pursuant to Subsections 13.1 through 13.4. Concessionaire shall
surrender the Concession Area and restore same to a satisfactory condition,
as shall be determined solely by the City in its reasonable discretion and
judgment. Concessionaire shall remove all its non-permanent facilities,
equipment, fixtures, personal property, etc., upon forty-eight (48) hours
written notice from the City Manager or his designee unless a longer time
period is agreed to by the City. Concessionaire's obligation to observe or
perform this covenant shall survive the expiration or other termination of this
24
Agreement. Continued occupancy of the Concession Area after termination
of the Agreement shall constitute trespass by the Concessionaire, and may
be prosecuted as such. In addition, the Concessionaire shall pay to the City
one thousand dollars ($1,000) per day as liquidated damages for such
trespass and holding over.
SECTION 14. PERFORMANCE BOND OR ALTERNATE SECURITY.
Concessionaire shall, no later than September 1, 2004, furnish to the City Manager or his
designee a Performance Bond in the penal sum as stated below for the payment of which
Concessionaire shall bind itself for the faithful performance of the terms and conditions of
this Agreement. A Performance Bond in the amount of One Hundred Thousand Dollars
($100,000.00) shall be required and be in faithful observance of this Agreement. A cash
deposit, irrevocable letter of credit, or certificate of deposit may also suffice, as determined
by the City Manager or his designee in his reasonable discretion. The form of the
Performance Bond or letter of credit shall be as required by the City Manager or his
designee. In the event that a Certificate of Deposit is approved, it shall be a One Hundred
Thousand Dollar ($100,000.00) one-year Certificate of Deposit in favor of the City, which
shall be automatically renewed, the original of which shall be held by City. Concessionaire
shall be so required to maintain said Performance Bond or alternate security, as accepted
by the City Manager or his designee, in full force and effect until such time as
Concessionaire has satisfactorily completed Concessionaire's Capital Improvements (CCI),
in such amount as required pursuant to Subsection 4.3(ii). Upon said completion,
Concessionaire's Performance Bond requirement shall be deemed satisfied and no further
bond or alternate security shall be required pursuant to this Section. Concessionaire shall
have an affirmative duty to notify the City, in writing, in the event said Performance Bond or
alternate security lapses or otherwise expires. All interest that accrues in connection with
any financial instrument or sum of money referenced above shall be the property of
Concessionaire, except in an event of default, in which case the City shall be entitled to all
interest that accrues after the date of default. In the event of any other default and cure
under this Agreement, the City Manager may reinstate this requirement.
SECTION 15. ASSIGNMENT.
Except as otherwise provided in this Subsection, Concessionaire shall not assign;
sublease; grant any concession or license; permit the use of by any other person other
than Concessionaire; or otherwise transfer all or any portion of this Agreement and/or of
the Concession Area (all of the forgoing are herein after referred to collectively as
"transfers"), without the prior written consent of the City, which consent shall not be
unreasonably withheld.
Concessionaire shall notify the City of any proposed transfer, prior to consummation of
same and the City orthe City Manager or his designee, as applicable, shall respond within
thirty (30) days. In the event that any such transfer is approved, the transferee shall agree
to be bound by all the covenants of this Agreement required of the transferor hereunder.
Any transfer made without complying with this Section shall be null, void, and of no effect
and shall constitute an act of default under this Agreement. Notwithstanding any such
consent, or any permitted transfer under any provision of this Section, unless expressly
released by the City, Concessionaire shall remain jointly and severally liable (along with
each approved transferee, who shall automatically become liable for all obligations of the
25
transferor hereunder with respect to that portion of the Agreement so transferred), and the
City shall be permitted to enforce the provisions of this Agreement directly against
Concessionaire or any transferee of the Concessionaire without proceeding in any way
against any other person.
SECTION 16. SPECIAL EVENTS / SPONSORSHIPS.
16.1 Concessionaire's proposed uses, as defined in Section 3 herein, do not
contemplate the production, promotion or sponsorship by the Concessionaire
of special events in any of the Concession Areas. In the event
Concessionaire does produce, promote or sponsor a special event in the
City, other than those provided for in this Agreement, it shall abide by the
City's Special Events Permit Requirements and Guidelines. For any use,
other than those provided for in this Agreement, a Special Events Permit
may be required and shall be obtained through the City's Department of
Tourism and Cultural Development. The City Manager's authorization must
be obtained for any such special event.
The City Administration shall evaluate requests for Special Events Permits
on a case by case basis, in accordance with the City's Special Event Permit
Requirements and Guidelines. In the event that a special event and/or film
permit is requested by an entity, other than the Concessionaire, and the
proposed special event and/or film/photography activity is scheduled to occur
within the Concession Area and would cause the operations within the Area
to cease, wholly or partly, and provided Concessionaire is not in default
under the Agreement at the time of the request, the request for such special
event shall be submitted tathe Concessionaire at least fifteen (15) days prior
to the event and the City shall obtain Concessionaire's written release, which
shall not be unreasonably withheld, for such special event prior to approval
thereof. Any revenues derived from such special events by the
Concessionaire, whether directly or indirectly, will be considered as part of
the gross receipts pursuant to this Agreement.
16.2 City Special Events.
Notwithstanding Subsection 16.1 above, and in the event that the City, at its
sole discretion, deems that it would be in the best interest ofthe City, the City
reserves the right to displace the Concessionaire for City produced special
events and/or City produced productions. In such cases, the City may
request that the Concessionaire cease and desist operations during the term
of, and in the area of the special event and/or production, and the
Concessionaire shall cease and desist during said term. If the
Concessionaire is not required to close, or chooses to remain open without
interference to the special event and/or production, if so allowed by the City,
Concessionaire agrees to cooperate with the City. If the Concessionaire is
allowed to remain open during special events and/or productions, the
Concessionaire may be allowed to have in operation its normal daily
complement of equipment and staff. "Normal" shall be defined as equipment
and staff, approved by the City, 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 and/or productions without the
26
prior written permission of the City Manager or his designee. To the extent
that the normal daily complement of equipment and staff is displaced by the
special event and/or production, the Concessionaire may reallocate such
displaced equipment and staff on a pro-rata basis within the Concession
Area not being utilized by the special event.
16.3 City acknowledges that Concessionaire has a preference for Concessionaire
sponsored events on Sundays which the City will take into consideration prior
to approving special events and/or film/photography activities. If
Concessionaire's preference changes, Concessionaire shall provide City with
written notice of same.
16.4 Notwithstanding anything to the contrary, if a special event occurs in all or
any portion of any Concession Area, Concessionaire shall not be liable for
any charge, fee or other expense, governmental or otherwise, in connection
with such special event.
16.5 Sponsorships.
The City reserves unto itself all present and future rights to negotiate all
forms of sponsorship agreements based on the marketing value of any City
property, brand, logo and reputation. Any and all benefits derived from a
sponsorship agreement based on the marketing value of a city property,
brand, logo or reputation belonging exclusively to the City.
Management firms, vendors and all subcontractors to the City, including
Concessionaire, are specifically prohibited from creating third party
sponsorships based solely or in any part on the marketing value of a city
asset or property the subcontractor was hired to manage or operate.
SECTION 17. NO IMPROPER USE.
The Concessionaire will not use, nor suffer or permit any person to use in any manner
whatsoever, the Concession Area or 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, its agents, employees and contractors 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 or
agent regarding the Concession. 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 written 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.
27
SECTION 18. PRICE SCHEDULES.
Concessionaire agrees that prices charged for lounging and related equipment rentals,
sale of food and beverage service, and any and all other prices charged within the
Concession Area will be consistent with the price schedule(s) herein submitted by the
Concessionaire and approved by the City and incorporated herein as exhibits to this
Agreement. Except for CPI price increases authorized by Subsection 3.1.3, all subsequent
price approvals and changes must be approved in writing by the City Manager or his
designee. Prices shall be reasonably consistent with those charged for similar items and
services in the general vicinity. The City shall have the final right of approval for all such
prices 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 items approved by the City.
SECTION 19. NOTICES.
All notices from the City to the Concessionaire shall be deemed duly served upon receipt, if
mailed by registered or certified mail with a return receipt, or hand delivered, to the
Concessionaire at the following address:
Mr. Jack Penrod
Penrod Brothers, Inc.
One Ocean Drive
Miami Beach, Florida 33139
With copies to:
Mr. Michael Register
Penrod Brothers, Inc.
One Ocean Drive
Miami Beach, Florida 33139
All notices from the Concessionaire to the City shall be deemed duly served upon receipt, if
mailed by registered or certified mail return receipt requested, or hand delivered, to the City
of Miami Beach at the following addresses:
City Manager
City of Miami Beach
1700 Convention Center Drive
Miami Beach, FL 33139
With copy to:
City Attorney
City of Miami Beach
1700 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.
28
SECTION 20. LAWS.
20.1 Compliance.
Concessionaire shall comply with all applicable City, County, State, and
Federal ordinances, statutes, rules and regulations, including but not limited
to all applicable environmental City, County, State, and Federal ordinances,
statutes, rules and regulations.
20.2 GoverninQ Law.
INTENTIONALLY OMITTED.
20.3 Equal Emplovment Opportunity.
Neither Concessionaire nor any affiliate of Concessionaire performing
services hereunder, or pursuant hereto, will discriminate against any
employee or applicant for employment because of race, creed, sex, color,
national origin, sexual orientation, and disability, as defined in Title I of ADA.
Concessionaire will take affirmative steps to utilize minorities and females in
the work force and in correlative business enterprises.
20.4 No Discrimination.
The Concessionaire agrees that there shall be no discrimination as to race,
sex, sexual orientation, color, creed, national origin, familial status, religion or
handicap, in its employment practice or in the operations referred to by this
Concession Agreement; and further, there shall be no discrimination
regarding any use, service, maintenance, or operation within the Concession
Area. All services offered within the Concession Area shall be made
available to the public, subject to the right of the Concessionaire and the City
to establish and enforce rules and regulations to provide for the safety,
orderly operation and security of the Concession Area.
20.4.1 Pursuant to Sections 62-90 and 62-91, of Chapter 62, of the Miami
Beach City Code entitled "Human Relations", Concessionaire, by
executing this Agreement, certifies that it does not discriminate in its
membership or policies based on race, color, national origin, religion,
sex, sexual orientation, familial status or handicap.
SECTION 21. MISCELLANEOUS.
21.1 No Partnership.
Nothing contained in this Agreement shall constitute or be construed to be or
create a partnership or joint venture between the City and Concessionaire.
21.2 Modifications.
This Agreement cannot be changed or modified except by agreement in
writing executed by all parties hereto. Concessionaire acknowledges that no
modification to this Agreement may be agreed to by the City unless approved
by the Mayor and City Commission except where such authority has been
expressly provided herein to the City Manager or his designee.
29
21.3
21.4
21.5
21.6
21.7
21.8
21.9
21.10
Complete Aqreement.
This Agreement, together with all exhibits incorporated hereto, constitutes all
the understandings and agreements of whatsoever nature or kind existing
between the parties with respect to Concessionaire's operations, as
contemplated herein.
Headinqs.
The section, subsection and paragraph headings contained herein are for
convenience of reference only and are not intended to define, limit, or
describe the scope or intent of any provision of this Agreement.
Bindinq Effect.
This Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns.
Clauses.
The illegality or invalidity of any term or any clause of this Agreement shall
not affect the validity of the remainder of the Agreement, and the Agreement
shall remain in full force and effect as if such illegal or invalid term or clause
were not contained herein unless the elimination of such provision
detrimentally reduces the consideration that either party is to receive under
this Agreement or materially affects the continuing operation of this
Agreement.
Severabilitv.
If any provision of this Agreement or any portion of such provision or the
application thereof to any person or circumstance shall be held to be invalid
or unenforceable, or shall become a violation of any local, State, or Federal
laws, then the same as so applied shall no longer be a part of this
Agreement but the remainder of the Agreement, such provisions and the
application thereof to other persons or circumstances, shall not be affected
thereby and this Agreement as so modified shall remain in full force and
effect.
Riqht of Entrv.
The City, at the direction of the City Manager, shall at all times during hours
of operation, have the right to enter into and upon any and all parts of the
Concession Area for the purposes of examining the same for any reason
relating to the obligations of parties to this Agreement.
Not a Lease.
It is expressly understood, acknowledged and agreed by Concessionaire that
the Concession Area, nor any part, parcel, building, facility, equipment or
space therein, is leased and/or otherwise conveyed and/or transferred to the
Concessionaire, that it is a concessionaire and not a lessee; and that the
Concessionaire's right to operate the concession upon the Concession Area
shall continue only so long as this Agreement remains in effect.
Siqnaqe.
Concessionaire shall provide, at its sole cost and expense, any required
30
21.11
21.12
21.13
21.14
21.15
21.16
21.17
signs at its concessions. All advertising, signage and postings shall be
approved by the City, and shall be in accordance with all applicable
Municipal, County, State and Federal laws and regulations. Any signage
posted by Concessionaire on its facilities and equipment shall be subject to
the prior approval of the City as to size, shape and placement of same.
Use of Pier Park.
Pier Park is for the use and enjoyment ofthe public, for recreation and
other public purposes and the public's right to such use shall not be
infringed upon by any activity ofthe Concessionaire. Upon execution of
this Agreement, Concessionaire acknowledges the public nature of Pier
Park and as such, concession operations and improvements must not
restrict, or appear to restrict, access to the general public, or in any
way limit the public nature or ambience of the park. The Concessionaire
will conduct its operations so as to maintain a reasonably quiet and
tranquil environment for the neighborhood surrounding the Concession
Area, and make no public disturbances.
Conflict of Interest.
INTENTIONALLY OMITTED.
Reasonableness.
Notwithstanding anything to the contrary in this Agreement, including but not
limited to references to "sole option" or "sole discretion" or words of similar
meaning, in each instance in which the approval or consent or other action of
the City Commission or the City Manager or his designee is allowed or
required in this Agreement, such approval, consent or other action shall not
be unreasonably withheld, conditioned or delayed.
Procedure for Approvals and/or Consents.
INTENTIONALLY OMITTED.
No Waiver.
No waiver of any covenant or condition of this Agreement by either party
shall be deemed to imply or constitute a waiver in the future of the same
covenant or condition or of any other covenant or condition of this
Agreement.
No Third Party Beneficiarv.
Nothing in this Agreement shall confer upon any person or entity, including,
but not limited to subconcessionaires, other than the parties hereto and their
respective successors and permitted assigns, any rights or remedies by
reason of this Agreement.
Attornevs' Fees.
If it becomes necessary for City or Concessionaire to enforce their respective
rights under this Agreement or any part hereof through litigation,
Concessionaire and City agree that the prevailing party shall be entitled to
recover from the other party all costs and expenses of such litigation,
including a reasonable attorneys' fee and costs, for all trial and appellate
31
proceedings.
SECTION 22. LIMITATION OF LIABILITY.
The City desires to enter into this Agreement placing the operation and management of the
Concession Area(s) in the hands of a private management entity only if so doing the City
can place a limit on its liability for any cause of action for breach of this Agreement, so that
its liability for any such breach never exceeds the sum of $100,000.00. Concessionaire
hereby expresses its willingness to enter into this Agreement with a $100,000.00 limitation
on recovery for any action for breach of contract. Accordingly, and in consideration of the
separate consideration of $1 00,000.00, the receipt of which is hereby acknowledged, the
City shall not be liable to Concessionaire for damages to Concessionaire in an amount in
excess of $100,000.00, for any action 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 limitation placed upon the City's liability as set forth in Florida Statutes, Section
768.28.
SECTION 23. VENUE.
This Agreement shall be deemed to have been made and shall be construed and
interpreted in accordance with the laws of the State of Florida. 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 and all the terms or conditions herein, exclusive
venue for the enforcement of same shall lie in Miami-Dade County, Florida. CITY AND
CONCESSIONAIRE HEREBY KNOWINGLY AND INTENTIONALL YWAIVE THE RIGHT
TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING THAT CITY AND
CONCESSIONAIRE MAY HEREIN AFTER INSTITUTE AGAINST EACH OTHER WITH
RESPECT TO ANY MATTER ARISING OUT OF OR RELATED TO THIS AGREEMENT
OR THE CONCESSION AREA.
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, indicating their
agreement.
PASSED AND ADOPTED THIS 25th day of Februa
0' MIAMI BEACH
I~t--
MAYOR
:L1u
1.,0; , WJ/./'-
v CITY CLERK
PENROD BROTHERS, INC.
~~'^^- ~
Signature
Print Name:-.J~,-IL..... ~C:N Ito \)
F:IDDHP\$ALLIASSEn1 OCEAN.DRIPENRODCONCESSIONAGREEMENT.FINAL.DOC
32
,:,:'
EXHIBIT A
(Page 1 of 2)
(Survey of Concession Area)
PENDING PUBLIC WORKS
33
EXHIBIT A
(Page 2 of 2)
(Legal Description of Concession Area)
PENDING PUBLIC WORKS
34
Lounge Chairs
Low Beds
Opium Beds
EXHIBIT 3.1
Furniture Rental
$20.00 per day
$20.00 per day
$50.00 per day
35
EXHIBIT 3.1.1
(Lounge Chairs)
36
EXHIBIT 3.1.1
(Low Beds)
37
EXHIBIT 3.1.1
(Opium Beds)
38
EXHIBIT 3.1.1
39
EXHIBIT 3.1.1
..,'."..".,',....".".'."
'. .:.</" ."C.. .~ "
"C-">.'C
40
EXHIBIT 3.1.1
41
EXHIBIT 3.1.4
(Site Plan)
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~i:l~U~8
P&lO .t.lU~~
O"'I~Il~O
n ~nl
43
EXHIBIT 3.4
(Hurricane Evacuation Plan)
Hurricane Evacuation Plan
Penrod Brothers, Inc., ("Concessionaire") leases a warehouse facility at 3717 NW7th Ct,
Miami, Florida. In the event of a hurricane waming, Concessionaire agrees to move all
furniture and other non-permanent fixtures to this warehouse space within the time frame
set forth in the agreement between the City of Miami Beach and the Concessionaire for a
portion of Pier Park, Miami Beach.
44