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HomeMy WebLinkAboutR-98-1124J-98-1102 10/29/98 RESOLUTION NO. v Q Q `� -112 4 A RESOLUTION, WITH ATTACHMENT, AUTHORIZING THE BAYFRONT PARK MANAGEMENT TRUST ("TRUST") TO EXECUTE AN AGREEMENT, IN SUBSTANTIALLY THE ATTACHED FORM, WITH BAYFRONT VENTURES, INC. TO OPERATE A VALET PARKING CONCESSION IN THE MILDRED AND CLAUDE PEPPER BAYFRONT PARK, SUBJECT TO TERMS AND CONDITIONS SET FORTH IN THE ATTACHED AGREEMENT. WHEREAS, the Bayfront Park Management Trust ("Trust") has entered into a long term use agreement with Bayfront Ventures, Inc., for the operation of a gaming vessel from the docks at the Mildred and Claude Pepper Bayfront Park ("Bayfront Park"); and WHEREAS, valet parking service is necessary to park the cars of cruise passengers; and WHEREAS, requests for proposals to provide this service were duly advertised and four responses were received; and WHEREAS, Bayfront Ventures was the most responsive proposer and, additionally, has agreed to pay $180,000 per year for the right to operate this concession; NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. The recitals and findings contained in the ATTACHMENT (S)' CONTAINED CITY C01a3S olf x=1NG og NOV 17 1998 Rqwbaom DS-1124. Preamble to this Resolution are hereby adopted by reference thereto and incorporated herein as if fully set forth in this Section. Section 2. The Bayfront Park Management Trust is hereby authorized to execute an agreement, in substantially the attached form, with Bayfront Ventures to operate a valet parking concession in Bayfront Park, subject to terms and conditions as set forth in the attached agreement. Section 3. This Resolution shall become effective immediately upon its adoption and signature of the Mayor.1/ PASSED AND ADOPTED this 17th day of November , 1998. ATTEST: JOE CAROLLO, MAYOR 11" with Miami Code Sec. 2-36, since the Mayor did not indicate approval of Vft lion by signing it in the designated place provided, said legislation now effective with the elapse of ten 0) d s from the date of Corp s 'cn action g same, without the MayoY xgcisi > veto./, fm 1 WALTER J . FOEMAN, CITY CLERK v Wftg-r 4�-beman, City Clerk APPROVED� TO FORM AND CORRECTNESS:/ A J VILARELLO ATTORNEY W3021:CSK:kc l� If the Mayor does not sign this Resolution, it shall become effective at the end of ten calendar days from the date it was passed and adopted. If the Mayor vetoes this Resolution, it shall become effective immediately upon override of the veto by the City Commission. -2- 98-1124 VALET PARKING CONCESSION AGREEMENT between CITY OF MIAMI, BAYFRONT PARK MANAGEMENT TRUST and BAYFRONT VENTURES d/b/a The Bayfront Princess dated 1998 98-1124 VALET PARKING CONCESSION AGREEMENT THIS AGREEMENT made and entered into this day of , 1998, by and between the City of Miami, Florida, a municipal corporation of the State of Florida, (hereinafter referred to as "City"), Bayfront Park Management Trust, an agency of the City (the "Trust"), and Bayfront Ventures , a (hereinafter referred to as "Operator"). RECITALS WHEREAS, the City is the owner of the property known as Bayfront Park (the "Park"), and the adjacent property, legally described in Exhibit "A" hereto, and referred to herein as the "Parking Facility"; WHEREAS, the Trust is the agency of the City entrusted with the operations of the Park; WHEREAS, the City Commission, by Resolution No. 98- adopted on 1998, authorized the Trust to issue a Request for Proposals ("RFP") for the operation of valet parking services on the Parking Area to service the Park and adjacent property and related amenities (the "Services"); and WHEREAS, Operator submitted its proposal ("Proposal") which has been selected as the most qualified proposal for the provision of the Services. The Proposal is sometimes referred to herein as the Solicitation Documents, and is by this reference incorporated into and made a part of this Agreement. WHEREAS, the City Commission, by Resolution No. 98- , adopted on , 1998, approved the selection of Operator and authorized the City and the Trust to execute a contract, under the terms and conditions set forth herein. NOW THEREFORE, in consideration of the premises and of the terms, covenants and conditions hereinafter contained to be kept and performed by the respective parties, it is agreed as follows: I CONCESSION GRANTED Except as specifically prohibited or limited in this Agreement, the Trust hereby grants to the Operator the exclusive right and privilege to operate the Services in the Parking Facility and to receive all revenues therefrom and, in connection therewith, the non-exclusive right to use, in common with others, those driveways and roadways located upon the Park area, all in accordance with the terms and provisions set forth herein. The location and proposed configuration of the Parking Facility are depicted in Exhibit A-1 hereto, which shall be amended, 2 98-1124 as needed, in order to reflect the improvements contemplated in Article V hereof. The license herein granted is also referred to herein as the "Concession". II LIMITATIONS Operator understands and agrees that its rights under this Agreement may be restricted or limited, as herein provided, during the days that the Park, the Amphitheater, or any portion thereof, is used by the Trust, or by any third party pursuant to an agreement with the Trust, for any purpose whatsoever. The restrictions on Operator's rights hereunder are as follows: A. Trust Dates: Trust Dates are the dates on which the Trust is the sponsor of an event, or any other day designated by the Trust as a "Trust Date" in accordance with this Section. The Trust shall have the right to designate up to five (5) dates as "Trust Dates" by giving Operator written notice of the anticipated date of each on or before January _ of each year. The actual date of each Trust Date, as well as any change on a date previously reserved, shall be given to the Operator at least ( _ ) days in advance of the anticipated Trust Date. During Trust Dates the Trust shall have the right, in its sole discretion, to (i) suspend Operator's rights hereunder and operate the Parking Facility itself or grant another party the right to operate the Parking Facility, or'(ii) require the Operator to provide the Services free of charge or, (iii) require the Operator to provide the Services and remit all revenues therefrom to the Trust or as designated by the Trust. B. Event Dates: Event Days are any days, other than Trust Dates that the Park, the Amphitheater, or any portion thereof, is used by the Trust, or by any third party pursuant to an agreement with the Trust, for any purpose whatsoever. During Event Days, the Trust shall have the right to (i) restrict the number of parking space within the Parking Facility that may be used by Operator for (a) users of the gaming vessel, (b) general public, (c) Event auxiliary personnel, and (d) others, (ii) require that Operator use only the parking spaces located in the area known as the "Rock Garden" and depicted and designated as such in Exhibit A-1 hereto, (iii) designate the hours of Operator's operation of the Parking Facility and staffing requirements, (iv) issue parking passes, not to exceed- 30 for each Event, to enable designated persons to use the Parking Facility and Operator's Services, free of charge. The Trust shall advise Operator of its restrictions and requirements during Event Days by giving Operator written notice thereof at least forty-eight (48) hours prior to the Event date. C. Others: The Trust reserves the right to increase the hours of operation and the staffing requirements by giving Operator forty-eight (48) hours prior written notice. The Trust may also issue, and the Operator shall accept, a maximum of thirty (30) annual passes, that will enable the holder thereof to use Operator's Services, at any time during the year. In this regard, the Trust agrees to give to Operator a list of the annual passholders. Additionally, for any event held during an Event Date or a Trust Date, the Trust shall be entitled to receive ten (10) parking spaces at no charge, and to purchase up 3 98-1124 to twenty (20) parking spaces at a daily rate not to exceed $10.00, by giving Operator at least seventy-two (72) hours prior written notice. III TERM The term of this Agreement shall be for an initial term of five (5) years commencing on the Commencement Date, as defined in Article V below. The Trust shall have two (2) options to extend the term for an additional term of one (1) year each, upon the same terms and conditions contained herein, by giving Operator at least ninety (90) days prior written notice. IV CONSIDERATION The Operator shall pay to the City, in consideration for the concessions privileges herein granted, an Annual License Fee of $180,000. The Annual License Fee shall be subject to annual increases, as described in this Article, and shall be payable as follows: A. Lump Sum Payment: A lump sum payment in the amount of $50,000 shall be due and payable on each anniversary date of the Commencement Date, throughout the term of this Agreement. In order to facilitate the commencement of Operator's operations hereunder, the Trust hereby allows Operator to spread the first lump sum payment due on R the Commencement Date, over a period of five (5) months, by paying said lump sum payment in five (5) installments of $10,000 each. Such payments shall be in addition to, and on the same dates as the monthly payments described in sub -section B hereof. B. Monthly Payments: The balance of the Annual License Fee shall be payable in twelve (12) monthly payments payable in advance, commencing on the Commencement Date and continuing on the same day of each month thereafter during each year of the term. The amount of each monthly payment daring the first year of the term shall be $10,833. Thereafter, the amount of monthly payments shall be adjusted to reflect the increases in the amount of the Annual License Fee described hereunder. Commencing on the first anniversary of the Commencement Date, and on each anniversary date thereafter, the Annual License Fee shall be increased by an amount equal to the percentage increase in the Consumer Price Index ("CPI") between the first and last month of the immediately preceding year but in no event less than 3%. For purposes of this Agreement, CPI is defined as the Consumer Price Index for All Urban Consumers, All Items, published by the Bureau of Labor Statistics of the Unites States Department of Labor. In the event that the CPI ceases to incorporate significant number of items, or if a substantial changes is made in the method of establishing such CPI, then the CPI shall be adjusted to the figure that would have resulted had no change occurred in the manner of computing such CPI. In the event that such CPI, or a successor or substitute index, is not available, a reliable governmental or other nonpartisan publication, evaluating the information for use in determining the CPI, shall be used in lieu of such CPI. 4 98-1124 Any payment that is not made on the date the same is due shall bear interest at the highest rate permitted by law from the date payment was due until payment is received by the Trust. Operator shall be responsible for, and agrees to pay to the State of Florida, promptly when due, all taxes assessed against the Parking Facilities, the Annual License Fee, and/or Operator's activities hereunder, including specifically, but without limiting the generality of the foregoing, sales or use taxes. V THE PARKING FACILITY / IMPROVEMENTS /COMMENCEMENT DATE The Trust shall deliver to Operator the Parking Facility ready for operation. The Trust shall perform all improvements and shall obtain all license relating to the Parking Facility. The Trust shall have sole discretion regarding the design and construction of the improvements, provided, however, that in no event shall the Parking Facility contain less than sixty (60) parking spaces. The Trust agrees to complete all improvements, and deliver the Parking Facility to Operator, ready for the performance of the Services, within _ months following the date of full execution of this Agreement. The date that the Trust delivers the Parking Facility to Operator, in the form required hereunder, shall constitute the "Commencement Date." In consideration of the foregoing, Operator has paid to the Trust, simultaneously with the execution of this Agreement, the sum of $60,000, representing Operator's contribution to the improvements. Operator acknowledges and agrees that its payment of contribution hereunder does not confer upon Operator any right over the design or construction of the improvements. VI MAINTENANCE, AND REPAIR OF PARKING FACILITY The Operator agrees to maintain and repair, at his own cost and expense, the Parking Facility and all personal property, equipment and furnishings necessary for its operation, according to reasonable standards acceptable to the Trust, and to surrender said facility, at the termination of the term of this Agreement, in at least as good condition as received ordinary wear and tear excepted. Further, Operator agrees to furnish, at its own cost and expense, all personal property and equipment necessary to the successful operation of the Parking Facility and to replace at its own expense any such property or equipment provided under the Agreement which has been destroyed, damaged, or become inoperable due to normal wear and tear, with like property or equipment. Operator shall have the right to erect on the Parking Facility a coin collection box and professional parking signs, as long as they do not violate city ordinances, if any, park rules, and provided that all such signs and improvements are first approved by the Trust. Neither the Trust, nor the City shall be responsible for any goods, merchandise or equipment stored at the Parking Facility nor will it be responsible for damage resulting from a power failure, hurricane, tornado, flood, fire, explosion and/or other causes. The Operator shall be responsible for all electricity, telephone and other utilities connections, including the installation of a separate electrical meter, if required by the Trust, and for all usage 5 98-1124 and other charges, excepting only charges for normal water usage at the Parking Facility, which shall be provided by the Trust. The Operator shall be responsible for keeping the Parking Facility in a clean condition, free of debris at all times during the term of this Agreement. VII OPERATION OF THE PARKING FACILITY The Parking Facility shall be used by Operator exclusively for the purpose of operating a valet parking lot for use of visitors to the gaming vessel, Park and the general public. The Parking Facility shall not be used in any manner to create any nuisance nor hazardous or unsafe condition in the Park. Except as provided in Article II hereof, Operator shall operate the valet parking services 365 days per year from a.m. to p.m. The parties agree that the hours of operation may be subject to change based on the need for the Services and Operator agrees, to the extent possible, to obtain the Trust prior written consent to any change in the hours of operation of the Parking Facility. Operator shall operate the Parking Facilities and provide the Services at a level commensurate with parking facilities of similar operations. The Services shall be provided in an efficient, safe and courteous manner to all users of the Parking Facility. In this regard, Operator shall promptly respond to all complaints of the Trust, the City, Park guests, gaming vessel guests and members of the general public relating to the provision of Services. Operator shall procure and maintain, at all times during the term of this Agreement, all required occupational licenses and display them in accordance with all applicable laws and regulations. Operator shall have the right to establish and change parking rates, provided, however, that Operator shall not charge different rates for different users of the Parking Facility. The Operator shall have the right to have "special" rates apply to specific events with the Trust's prior written consent. Operator agrees to establish its parking rates in accordance with prevailing market rates. All charges shall be posted in clear and readable signage, in a conspicuous place in the Parking Facility, readily accessible to the users of the Services. Notwithstanding anything herein to the contrary, Operator and the Trust agree that the maximum rate to be charged for the use of the Parking Facility shall in no event exceed the sum of $20.00 per day, and said rate shall not be increased more often than once per year, provided that said increase does not exceed the corresponding increase in the CPI and that Operator first obtains the Trust's prior written consent. The Trust shall have the right to issue, and the Operator shall accept, up to30 annual passes for the use of the Services at the Parking Facility. The Trust shall submit to the Operator a list of the holders of said passes. Both the Trust and the Operator shall have the right to tow any vehicles that are parked or remain in the Parking Facility or other areas within the Park in violation of this Agreement. The 6 08 -1124 Operator hereby indemnifies and holds the Trust and the City harmless from and against any and all costs relating to the Trust's exercise of its right to tow hereunder. VIII PERSONNEL The Operator shall employ, train and supervise all personnel hired by it to provide the Services. The Operator shall be deemed to represent and warrant to the Trust and the City that all personnel engaged for the provision of Services is fully qualified to perform such services. Operator shall have a hiring practice regarding minorities and women, which will ensure equity in the employment and utilization of same. Operator acknowledges that it has been furnished a copy of Ordinance No. 10062, the Minority and Women Business Affairs Procurement Program Ordinance of the City of Miami, and agrees to comply with all applicable substantive and procedural provisions therein, including any amendments thereto. Operator shall observe and shall ensure compliance with the following requirements at all times: 14 (a) Services shall be rendered in a professional manner to all individuals regardless of race, color, creed, age, sex, disability, marital status, or national origin. (b) Employees shall at all times be neatly attired in clean uniforms and wear an identification badge. (c) All employees involved in the provision of Services at the Parking Facility shall be bondable and shall have satisfactorily completed drug tests to be given by Operator. (d) Operator shall be responsible for the selection and training of all personnel. Special attention shall be required to select staff that is personable, service -oriented, and committed to the satisfactory service of the patrons of the Parking Facility. (e) The Operator and its employees will not distribute campaign or political literature of any kind in the Parking Facility. (f) Operator shall provide such adequate, additional personnel as may be requested by the Trust. Operator and the Trust shall discuss and use their best efforts to reach an agreement on all matters relating to the employment of any person(s) who the parties believe may not to be in the best interests of the City or the Trust. (g) It is understood that Operator, including its agents and employees, shall not be an agent or employee of the Trust, but shall be an independent contractor. It is further understood that the Operator shall be responsible for making all payroll deductions and paying any and all income and other taxes as may be applicable and necessary to its personnel. 7 98-1124 IX MANAGEMENT / TRAINING PROGRAM Operator shall designate a management representative of the Operator who shall serve as the liaison between the Trust and the Operator. Said manager shall remain on call on a 24-hour basis during events at the Park should he/she need to be contacted by the Trust. In addition, the Trust shall be provided with a telephone number and beeper where said individual can be reached at all times, 24 hours per day, 7 days per week. It is expected said manager shall immediately respond to any requests and/or concerns by the Trust within a maximum of 24 hours, or immediately on the day of an event. Regular on -site scheduled and unscheduled visits shall be made by corporate representatives of Operator to ensure adherence to all requirements of this Agreement and the specifications within the Solicitation Documents, and to determine whether there are any deficiencies as determined by the Trust that need to be addressed. The manager of Operator and the Trust designated representative shall consult from time to time with reference to the operations of Operator to review such operations to provide the Services in a proper manner for persons attending the Park. Additionally, prior to an event, the Trust and the manager of Operator shall meet to discuss the requirements for the particular event. X LICENSES AND TAXES The Operator shall pay for and obtain all licenses and permits necessary for the operation of valet parking services. Operator represents and warrants that it currently has, and at all times during the term hereof shall maintain, all licenses and permit required for the full and proper performance of this Agreement. The Operator shall pay to the State of Florida, promptly'when due, all taxes assessed against the Operator or otherwise imposed in connection with this Agreement. Operator agrees to include the State Sales Tax in all the advertised prices. The Operator shall pay all social security, unemployment insurance, and other federal and state taxes which are measured by the wages, salaries or other remuneration paid to persons employed by Concessionaire. XI INDEMNIFICATION Operator shall indemnify, defend and hold harmless the Trust and the City and their respective officials, employees and agents (collectively referred to as "Indemnities") and each of them from and against all loss, costs, penalties, fines, damages, claims, expenses (including attorney's fees) or liabilities (collectively referred to as "Liabilities") by reason of any injury to or death of any person or damage to or destruction or loss of any property arising out of, resulting from, or in 8 98-1124 connection with (i) the performance or non-performance of the services contemplated by this Agreement which is or is alleged to be directly or indirectly caused, in whole or in part, by any act, omission, default or negligence (whether active or passive) of Operator or its employees, agents or subcontractors (collectively referred to as "Operator"), regardless of whether it is, or is alleged to be, caused in whole or part (whether joint, concurrent or contributing) by any act, omission, default or negligence (whether active or passive) of the Indemnities, or any of them or (ii) the failure of the Operator to comply with any of the paragraphs herein or the failure of the Operator to conform to statutes, ordinances or other regulations or requirements of any governmental authority, federal or state, in connection with the performance of this Agreement, (iii) the exercise of the Trust's right to tow vehicles in accordance with the provisions of Article VII hereof. Operator expressly agrees to indemnify and hold harmless the Indemnities, or any of them, from and against all liabilities which may be asserted by an employee or former employee of Operator, or any of its subcontractors, as provided above, for which the Operator's liability to such employee or former employee would otherwise be limited to payments under state Workers' Compensation or similar laws. Operator further agrees to indemnify, defend and hold harmless the Indemnities from and against (i) any and all Liabilities imposed on account of the violation of any law, ordinance, order, rule, regulation, condition, or requirement, in any way related, directly or indirectly, to Operator's performance hereunder, compliance with which is left by this Agreement to the Operator, and (ii) any and all claims, liens and/or suits for labor and materials furnished by the Operator or utilized in the performance of this Agreement, if any. Where not specifically prohibited by law, Operator further specifically agrees to indemnify, defend and hold harmless the Indemnities from all claims and suits for any liability, including, but not limited to, injury, death, or damage to any person or property whatsoever, caused by, arising from, incident to, connected with or growing out of the performance or non-performance of this Agreement which is, or is alleged to be, caused in part (whether joint, concurrent or contributing) or in whole by any act, omission, default, or negligence (whether active or passive) of the Indemnities. The foregoing indemnity shall also include liability imposed by any doctrine of strict liability. XII INSURANCE The Operator shall take out, pay for, and at all times during the term of this Agreement maintain, such public, contingent (where applicable, professional malpractice) and employer's liability insurance as will satisfy the foregoing indemnity requirements of the Agreement and protect Operator, the Trust and the City from claims under Workers' Compensation and other employee benefit acts (the "Insurance"). The insurance shall include Comprehensive General Liability and property and damage, including automobile, products completed operations and broad form contractual covering liability assumed by the Operator under this Agreement. The insurance shall: (i) include the Trust and the City as insured; (ii) be primary insurance written on an occurrence basis to the full limits of liability hereinafter stated, and should the Trust of the City have other valid insurance, said insurance shall be excess insurance only; (iii) include a waiver 0 98�1124 of subrogation against the Trust, the City, and their respective officers, agents and employees, (iv) include a severability clause substantially in the following form: "The insurance afforded applies separately to each insured against whom claim is made or suit is brought, but the inclusion hereunder of more than one insured shall not operate to increase the limits of the insurance carrier's liability. The inclusion of any person or organization as an insured shall not affect any right that such person/organization would have as a claimant if not so included," and (iv) contain an endorsement substantially stating: "Cancellation or expiration of the policy to which this endorsement is attached shall not become effective until after thirty (30) days advance written notice has been delivered to the City. Attention: Bayfront Park Management Trust cc: Risk Management Administrator 444 S.W. 2nd Avenue Miami, Florida 33130 Without limitation of the requirements set forth in this Section, Operator shall maintain insurance with coverage and minimal limits of liability as follows: (1) Workers' Compensation and Employer's Liability providing statutory coverage under the Workers' Compensation laws; and Employer's Liability coverage with limits of $ [at least $100,000 suggested] bodily injury per accident and $ [at least $300,000 suggested] annual aggregate bodily injury. (2) Comprehensive General Liability affording (i) Bodily Injury Liability (or death) with limits of $1,000,000 for each person and, where applicable, $2,000,000 in the aggregate; and (ii) Property Damage Liability with limits of $1,000,000 for each occurrence and $2,000,000 in the aggregate, such coverage to include: Products Completed Operations, Broad Form Contractual Liability covering liability assumed under this Agreement, Broad Form Property Damage, Elevator, and Concessionaire's Contingent (Protective) Liability with respect to work subcontracted by the Concessionaire. (3) Comprehensive Automobile Liability affording (i) Bodily Injury Liability (or death) with limits of at least $300,000 each person and $500,000 each occurrence; and (ii) Property Damage Liability with a limit of at least $250,000 each occurrence; such coverage to include liability for the operation of owned, hired, and non -owned vehicles. 10 98-1124 In no event shall the provisions of this Section be construed in any way to limit Operator's obligations under any provision of this Agreement, including, but not limited to, Operator's obligations to indemnify, defend and hold harmless the Indemnities. The insurance coverage required herein shall be through policies issued by companies authorized to do business under the laws of the State of Florida. The Company must be rated by the latest edition of Best's Insurance Guide, published by Alfred M. Best Company, Inc. [or other recognized organization] at no less than an "A" Best Policyholders Rating and no less than an "X" rating in Best's Financial Size Category. All such insurance, including renewals, shall be subject to the approval of the Trust for adequacy of protection, and evidence of such coverage shall be furnished to the Trust on Certificates of Insurance indicating such insurance to be in force and effect and providing that it will not be canceled during the performance of the services under this Agreement without thirty (30) calendar days prior written notice to the Trust. Completed Certificates of Insurance shall be filed with the Trust prior to the performance of services hereunder, provided, however, that Operator shall at any time upon request file duplicate copies of the policies of such insurance with the Trust. If, in the judgment of the Trust, prevailing conditions warrant the provision by Operator of additional liability insurance coverage or coverage which is different in kind, the Trust reserves the right to require the provision by Operator of an amount of coverage different from the above stated amounts or kind and shall afford written notice of such change in requirements thirty (30) days prior to the date on which the requirements shall take effect. Should the Operator fail or refuse to satisfy the requirement of changed coverage within thirty (30) days following the Trust's written notice, this Agreement shall be considered terminated on the date that the required change in policy coverage would otherwise take effect. XIII DEFAULT / RESOLUTION OF DISPUTES If Operator fails to comply with any term or condition, or fails to perform any of its obligations under this Agreement, in the manner, and within the time provided for performance hereunder, then Operator shall be in default. Upon the occurrence of a default hereunder, the Trust, in addition to all remedies available to it by law, shall have the following options, and its choice of any option shall in no way waive its right to select any other option at any time: (a) The Trust may give Operator written notice of such default. If the Operator does not cure said default within thirty (30) days in the event of a non -monetary default, and within three (3) days in the event of a monetary default, after written notice thereof is given to Operator, then the Trust may terminate this Agreement, assume the operation of the Operator, and exclude the Operator from the premises, and/or the Trust may recover at law any and all claims which may be due the Trust and/or 11 98'-1124 (b) The Trust may perform such work as it deems necessary to cure said default and charge the Operator for the full cost of labor and materials expended. Operator understands and agrees that termination of this Agreement under this Section shall not release Operator from any obligations accruing prior to the effective date of termination. In the event the Trust defaults in the performance of any of the provisions of this Agreement, Operator may give the Trust written notice of such default. If the Trust fails to cure said default within thirty (30) days after written notice was given, or make reasonable progress to cure said default, then Operator may terminate this Agreement. XIV ASSIGNMENT Operator shall not sublet, transfer, convey, or assign the rights, privileges or premises granted under this Agreement in whole or in part to any other person, firm or corporation without written consent of the Trust which consent may be withheld, or conditioned, in the Trust's sole discretion. For purposes of this section, a transfer of five percent (5%) or more of the stock of Operator, during the term of this Agreement, whether as a single transaction or a series of transactions, shall constitute an "Assignment." In the event of a transfer of stock of Operator under this section, the Trust agrees not to withhold its approval unreasonably if the person or entity acquiring the stock of Operator is a "Qualified Transferee". A "Qualified Transferee" shall mean a person who would qualify for the issuance of a liquor license under Florida law. XV ABANDONMENT If Operator vacates or abandons its operations hereunder for a period of (___) days during the term of this Agreement, then the Trust, at its option and without serving notice elsewhere required in this Agreement, may: (a) take immediate possession thereof for the remainder of the said term, and, at its discretion, re -advertise and solicit proposals for the provision of the Services, with Operator remaining liable for the Annual Payment , and for all other obligations under this Agreement to the same extent as if said abandonment had not taken place; or (b) cancel this Agreement, without prejudice to its rights and remedies under applicable laws. XVI RECORDS AUDIT AND INSPECTION RIGHTS The Operator shall maintain, in Dade County, Florida, complete and accurate books and records reflecting its operations under this Agreement and these shall be open for inspection at reasonable times during the term of this Agreement. The City and the Trust may, at reasonable times, and for a period of up to three (3) years following the date of final payment by Operator to the Trust under this Agreement, audit, or cause to be audited, those books and records of Operator which are related to Operator's performance under this Agreement. Operator agrees to 12 98-1124 maintain all such books and records at its principal place of business, in Dade County, Florida for a period of three (3) years after final payment is made under this Agreement. The Trust may, at reasonable times during the term hereof, inspect Operator's facilities to determine whether the Services required to be provided by Operator under this Agreement conform to the terms hereof and/or the terms of the Solicitation Documents, if applicable. Operator shall make available to the City all reasonable facilities and assistance to facilitate the performance of inspections by the Trust's representative. XVII AWARD OF AGREEMENT Operator represents and warrants to the Trust and the City that it has not employed or retained any person or company employed by the City to solicit or secure this Agreement and that it has not offered to pay, paid, or agreed to pay any person any fee, commission, percentage, brokerage fee, or gift of any kind contingent upon or in connection with, the award of this Agreement. XVIII PUBLIC RECORDS Operator understands that the public shall have access, at all reasonable times, to all documents and information pertaining to City contracts, subject to the provisions of Chapter 119, Florida Statutes, and agrees to allow access by the public to all documents subject to disclosure under applicable law. Operator's failure or refusal to comply with the provisions of this section shall result in the immediate cancellation of this Agreement by the Trust. XIX COMPLIANCE WITH LAWS, REGULATIONS AND DIRECTIVES Operator understands that agreements between private entities and local governments are subject to certain laws and regulations, including laws pertaining to public records, conflict of interest, record keeping, etc. The Trust and the Operator agree to comply with and observe all applicable laws, codes and ordinances as the may be amended from time to time. Operator will use the subject premises for no purpose other than specified in this Agreement and the business conducted thereunder will be operated in strict compliance with all laws of the United States and the State of Florida, and with all applicable codes, rules and regulations. Operator shall not permit the Parking Facility, or any part thereof, to be used for any unlawful or immoral purpose or in any manner as to injure persons or property in, or on, or near said premises. Operator understands that the City (and where applicable, the Trust) reserves the right in its sole discretion to cancel, interrupt, or terminate any performance, event, public or private gathering upon its premises, whether or not admission has been charged, and to dismiss the audience, or cause the same to be dismissed; and the Operator hereby agrees that it will not make or allow to 13 98-1124 be made against the City or the Trust, any claim for damages to the Operator or other party arising out of any acts of the City, the Trust, or their respective officers, agents, or employees, in the exercise of their discretion as herein provided. All areas which are open to the public shall be available for use and enjoyment by the public without regard to race, color, creed, sex, age, national origin, marital status or handicap. XX CONFLICT OF INTEREST Operator is aware of the conflict of interest laws of the City of Miami (Miami City Code Chapter 2, Article V), Dade County, Florida (Dade County Code, Section 2-11.1 et. seq.) and of the State of Florida as set forth in the Florida Statutes, and agrees that it will fully comply in all respects with the terms of said laws. Operator, in the performance of this Agreement, shall be subject to the more restrictive law and/or guidelines regarding conflict of interest promulgated by federal, state or local government. XXI NONDISCRIMINATION Operator represents and warrants that it does not and will not engage in discriminatory practices and that there shall be no discrimination in connection with Operator's performance under this Agreement on account of race, color, sex, religion, age, handicap, marital status or national origin. Operator further covenants that no otherwise qualified individual shall, solely by reason of his/her race, color, sex, religion, age, handicap, marital status or national origin, be excluded from participation in, be denied services, or be subject to discrimination under any provision of this Agreement. XXII NOTICES All notices or other communications required under this Agreement shall be in writing and shall be given by hand -delivery or by registered or certified U.S. Mail, return receipt requested, addressed to the other party at the address indicated herein or to such other address as a party may designate by notice given as herein provided. Notice shall be deemed given on the day on which personally delivered; or, if by mail, on the fifth day after being posted or the date of actual receipt, whichever is earlier. TO OPERATOR: TO THE TRUST 14 38 1124, XXIII MISCELLANEOUS PROVISIONS A. This Agreement shall be construed and enforced according to the laws of the State of Florida. B. Title and paragraph headings are for convenient reference and are not a part of this Agreement. C. No waiver or breach of any provision of this Agreement shall constitute a waiver of any subsequent breach of the same or any other provision hereof, and no waiver shall be effective unless made in writing- D. Should any provision, paragraph, sentence, word or phrase contained in this Agreement be determined by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable under the laws of the State of Florida or the City of Miami, such provision, paragraph, sentence, word or phrase shall be deemed modified to the extent necessary in order to conform with such laws, or if not modifiable, then same shall be deemed severable, and in either event, the remaining terms and provisions of this Agreement shall remain unmodified and in full force and effect or limitation of its use. E. This Agreement constitutes the sole and entire agreement between the parties hereto. No modification or amendment hereto shall be valid unless in writing and executed by property authorized representatives of the parties hereto. XIV SUCCESSORS AND ASSIGNS This Agreement shall be binding upon the parties- hereto, their heirs, executors, legal representatives, successors, or assigns. XXV INDEPENDENT CONTRACTOR Operator has been procured and is being engaged to provide the Services as an independent contractor, and not as an agent or employee of the Trust or the City. Accordingly, Operator shall not attain, nor be entitled to, any rights or benefits under the Civil Service or Pension Ordinances of the City, nor any rights generally afforded classified or unclassified employees. Operator further understands that Florida Workers' Compensation benefits available to employees of the Trust of the City are not available to Operator, and agrees to provide workers' compensation insurance for any employee or agent of Operator rendering Services under this Agreement. 15 98-1124 XXVII COUNTERPARTS This Agreement may be executed in two or more counterparts, each of which shall constitute an original but all of which, when taken together, shall constitute one and the same agreement. XXVIII APPROVAL BY THE OVERSIGHT BOARD The State of Florida has appointed an Emergency Financial Oversight Board (the "Oversight Board") which is empowered to review and approve all pending City of Miami contracts. As a result, contracts shall not be binding on the city until such time as they have been approved by the Oversight Board. Execution of this Agreement by the City Manager shall constitute evidence of its approval by the Oversight Board. IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed by their respective officials thereunto duly authorized, this the day and year above written. w Ira Marc Katz Executive Director & General Manager Attest: BAYFRONT PARK MANAGEMENT TRUST Commissioner J. L. Plummer Chairperson BAYIPRONT VENTURES d/b/a The Bayfront Princess, a Florida joint venture By: Concorde Gaming Corporation, a Colorado corporation By: By: Secretary Jerry L. Baum. President 16 98-1124 Attest: c Secretary APPROVAL OF THE CITY OF MIAMI Attest: Walter Foeman, City Clerk APPROVED AS TO INSURANCE REQUIREMENTS: By; Mario E. Soldevilla Administrator, Risk Management GOLD COAST ENTERTAINMENT CRUISES, INC. By: David Grossman, 17 THE CITY OF MIAMI, a municipal corporation of the State of Florida Donald H. Warshaw, City Manager APPROVED AS TO FORM AND CORRECTNESS: I0 Alejandro Vilarello City Attorney 98-1124 To: Honorable Mayor and Members of the City Commission Fro nald H. Warshaw City Manager RECOMMENDATION: 24 NOV - 9 1998 Subject: Valet Parking Concession For City Commission Meeting of It is respectfully recommended that the City Commission authorize the Bayfront Park Management Trust to execute an agreement, in a form acceptable to the City Attorney, with Bayfront Ventures to operate a valet parking operation in Bayfront Park. BACKGROUND: The Bayfront Park Management Trust has successfully managed Bayfront Park with the goal of ensuring maximum community involvement The Trust has entered into a long term use agreement with Bayfront Ventures for the operation of a gaming vessel from the Bayfront Park docks. After a duly advertised request for proposal, Bayfront Ventures was designated by the Trust as the most responsive proposer. Bayfront Ventures has agreed to pay $180,000 per year for the right to operate this concession. DHWfimk Attachments: resolution 98-1124 600 'd 1 i Z 1-83S-SOS:131 1NOW Myd 1NO EYO OS : 11 (NOW) 86 ,61- 100