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HomeMy WebLinkAboutR-82-0520`a RESOLUTION NO. 8"'Jr Ao A RESOLUTION ACCEPTING THE PROPOSALS OF WEENEE QUEENIES, INC. FOR DOUGLAS PARK AS SUBMITTED APRIL 18, 1982; JUDY CRUZ FOR CURTIS PARK AS SUBMITTED MAY 17, 1982; AND SABRETT SOUTH, INC. FOR MORNINGSIDE PARK AS SUBMITTED MAY 20, 1982, FOR NON-EXCLUSIVE FOOD AND BEVERAGE SALE CONCESSIONS AT CITY -OWNED PARKS; FURTHER AUTHORIZING THE CITY MANAGER TO EXECUTE A CONCESSION AGREEMENT IN SUBSTANTIALLY THE SAME FORM AS ATTACHED HERETO WITH SAID CONCES- SIONAIRES, IMPLEMENTING SUCH PROPOSALS. WHEREAS, concession contracts under Florida law are akin to contracts for professional services; and WHEREAS, said concession contracts are moreover in the nature of licenses or permits and, as such, do not involve the expenditure of funds that would require competitive bidding under the City Code; and WHEREAS, there herein proposals of Weenee Queenies for Douglas Park, Judy Cruz for Curtis Park, and Sabrett South, Inc. for Morningside Park are recommended as advantageous to the city; NOI9, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. The proposals of Weenie Queenies for Douglas Park as submitted April 18, 1982; Judy Cruz for Curtis Park as submitted May 17, 1982; and Sabrett South, Inc. for Morningside Park as submitted May 20, 1982 for the non-exclusive concession rights for food and beverage sales operation at said city -owned parks are hereby accepted. Section 2. The city manager is hereby authorized to execute a concession agreement, in substantially the same form as attached hereto, with the above concessionaires, implement- ing the above proposals. PASSED AND ADOPTED thisi2thday of June , 1982. ce A. Ferre A Y 0 R G. ONGIE, City Cle PREPARED AND APPROVED BY: ,ef4,a i. a&z ROBERT F. CLARK, Deputy City Attorney APP V 1�D D. S O P'O AND -CORRECTNESS: GE . KNOX, JR.;-� y Attorney CITY COMEMI5 UN MEETING an JUN 17 1982 C32—s `c,( I CONCESSION AGREE11ENT TABLE OF CONTENTS PREAMBLE 1, LOCATION OF CONCESSION, TERM, AND USE; 2. NOTICES 3. DEFINITION OF CONCESSIONAIRE 4. CO -PARTNERSHIP 5. CUSTODIAL SERVICES AND MAINTENANCE 6. NON-EXCLUSIVE CONCESSION 7. APPROPRIATION S. ASSIGNFIENT OR TAANSiFER OF STOCK 9. INTERIOR MODIFICATIONS AND MAINTENANCE 10. PERPIITS AND LICENSES 11. PAYMENT OF UTIL [TIES 12. PERFORMANCE' BOND 13. CONSIDERATION 14. MONTHLY REPORTS AND PAYMENT 15. DEFAULT OF PAY14ENT 16. LIEN ON PERSONAL PROPERTY 17. RIGHT TO AUDIT RECORDS 18. REPORTS OF VISITOR USE 19. RIGHT TO INSPECTION OF PREt1ISES 20. INTERFERENCE 21. WAIVER OF CLAIM 22. HOURS OF OPERATION AND SIGNS 23. TRAINING 24. STORAGE OF DANGEROUS SUSUSTANCE; 25. REPRESENTATIVE: CAPACITY 26. CONCESSION PRIVILEGE. 27, INSURANCE •AND INDEMNIFICATION 28. ATTORNEY'S FEES 29. CAPTIONS 30. ENTIRE AGREEMENT 31. NON DISCRIMINATION PAG L 3 4 4 4 5 5 5 5 6 6 6 6 7 r 7 7 8 8 9 9 9 9 10 10 10 11 11 12 14 14 14 14 8�-520� A CONCESSION AGREEr9Err TIiIS AGREEMENT made the day of A.D., 19 , between the City of Miami, a rlunici.pal Corporation of the State of Florida, hereinafter called the "CITY, and with offices in _ hereinafter called the "CONCESSIONAIRE". WITNESSETH WHEREAS,. the Department of Leisure Services is vested with jurisdiction over and control of all City parks in the City of Miami and is responsible for the operation and main- tenance of such facilities in the parks under its jurisdiction as may be necessary, desirable or convenient for the use of the public for healthful recreation; and WHEREAS, the CONCESSIONAIRE desires to obtain froin the CITY the exclusive privilege of operating the concession in in the City of. Miami, to provide goods and services as fierein- after described, and the CITY desires to enter into Agreement with the CONCESSIONAIRE, for operation of said concessions; and WHEREAS, the establishment and maintenance of such concessions as is contemplated in this Agreement will require _ substantial capital investment by the Concessionaire, and the operation thereof will involve certain risks of financial loss; and WHEREAS, the CITY is fully cognizant of these factors. and will adopt and pursue such policies with respect- to this concession and the obligations imposed upon said CONCESSIONAIRE by this Agreement as will be an inducement to capital invest- ment- and as well be an assurance of the security of such invest- inent and of the reasonable opportunity to make a fair return on the investment. F 2 82-52C - WHEREAS, the Commission of the Cjt-y of Miami authorized this concession Agreement by the adoptation of Resolution No. , a copy of said resolution is made a part hereof as though set forth in full herein: NOW, THEREFORE, in consideration of the premises and the mutual covenants and conditions herein contained, it is agreed by the parties hereto as follows: 1. LOCATION OP CONCESSION, TERMLAND USE The CITY hereby grants to the CONCESSIONAIRE, and the CONCESSIONAIRE hereby accepts from the CITY, agreement- to operate the following described concession in in conformance with the purpose and for the period stated herein and subject to all the terins and conditions herein contained and fairly implied by the terms Hereinafter set- forth. a. THIS AGREEMENT SRALL COMMENCE 014 THE day of , A.D., 19 , and shall end on the day of _ , A.D., 19 This privilege may be e��o� rencyotiate�i Jat the discretion of the City Manager upon request of the CONCESSIONAIRE submitted in writing at least three (3) inonths Prior to the termination date. Any renegotia- tion of a-, Agreement shall be subject to the appro- val of the City Commission. e-, . -- --- b. The CITY hereby provides to the CONCESSIONAIRE thi following facilities anal space: (SkeEc�l of i�remises an�i 1'ocaa lon prow vied Ln F.xhibi A ) c. The CONCESSIONAIRE is hereby authorized to conduct the following kinds of business and to provide the following kinds of services: 3 82-520- w This business will be conducted in compliance with terms of this Agreement. 2. NOTICES All notices from the CITY to the CONCESSIONAIRE shall be deemed duly served if mailed by registered or certified mail to the CONCESSIONAIRE at the following address: All notices from the CONCESSIONAIRE to the CITY shall be deemed duly served if mailers to: The City Manager City of Miami 3500 Pan American Drive, Dinner Key Miami, Florida 33133 The CONCESSIONAIRE, and the CITY may change the above mailing addresses at anytime upon giving the other party written i notification. All notices under this concession Agreement must be in writing. 3. DE;FINITION OF CONCESSIONAIRE It is expressly understood and agreed that no part, parcel, building, structure, equipment or space is leased to the _ CONCESSIONAIRES; that he is a CONCESSIONAIRE. and riot a Lessee; that the CONCESSIONAIRE'S right to operate the concession shall continue only so long as the concession operation complies with the undertakings, provisions, agreements, stipulations and conditions of this concession Agreement. 4. CO -PARTNERSHIP Nothing herein contained shall create or be construed as creating a co -partnership between the CITY and the CONCESSION- AIRE or to constitute the CONCESSIONAIRE as an agent of the CITY. A 0 lob 5. CUSTODIAN SERVIC KS AND MAINTENANCE' The CITY agrees to furnish to the CONCESSIONAIRE the previously identified physical facilities and space. The CITY agrees to provide the assigned facilities in a useable condition and to perform necessary exterior_ maintenance on the facilities and to provide custodial services and mainte- nance for public restrooms within or near facilities assigned to the CONCESSIONAIRE. Exterior maintenance of the facilities does not include daily removal of litter in the immediate area (50 feet) of the concession facility which removal is the responsibility of the CONCESSIONAIRE. 6. NON-EXCLUSIVE CONCESSION The grant to the CONCESSIONAIRE for the operation of the concession covered herein shall be non-exclusive and the CITY retains the right to grant similiar concessions or other rights. 7. APPROPRIATIONS The CITY'S responsibilities which require annual appro- priations are deemed executory only to the extent that funds j are available for the purpose in question. . 8. ASSIGNMENT OR TRANSFER OF STOCK The CITY may, by amendment to the concession Agreement, authorize the CONCESSIONAIRE to expand the services provided. To encourage continuity of successful operations, the CITY may give preference to the existing CONCESSIONAIRE in the extension or renewal of this Agreement. The CONCESSIONARIE may not assign this concession Agree - meat, or any part thereof, without approval of the CITY. In the event the CONCESSIONAIRE is a corporation autho- rized to do business in the State of Florida, then it agrees that it will not transfer any stock in the corporation or change managers subsequent to entering into this Agreement or during the term of this Agreement until such transfer or change is approved by the CITY. A 5 82l -. 40 ar 9. INTERIOR MODIFICATIONS AND MAINTENANCE' The CONCESSIONAIRE accepts the facilities and space provided in this Agreement and is responsible for all interior modifications and maintenance, including entrance doors, win - lows and screens. The CONCESSIONAIRE must first obtain the CITY'S concurrence for any alteration of the physical facili- ties and then must- pay for such modifications, which become CITY assets upon completion. The CONCESSIONAIRE agrees to perform daily removal of litter in the immediate exterior area (50 feet) of the concession facility. 10. PERMITS AND LICENSES The CONCESSIONAIRE agrees to obtain all permits and licenses necessary for the conduct of the business and agrees to c anply with all laws governing the responsibility of em- ployer with respect to persons employed by the CONCESSIONAIRE. 11. PAYMENT ON UTILITIES The CONCESSIONAIRE agrees to pay for all utilities used within the concession operation and for gargabe disposal on a rate determined as follows: • Electricity Water Garbage Vending Machines _ 12. PERFORt9ANCE BOND The CONCESSIONAIRE shall post a performance bond in the amount of $ with the CITY upon the execution of this Agreement. Said performance bond shall be issued by a surety company authorized to do business in the State of Florida and shall be refundable at the termination of this Agreement if all terms and conditions of the Agreement ac- cepted by the CONCESSIONAIRE have bean satisfied. If the performance bond is on an annual coverage basis, renewal for each succeeding year shall be submitted to the A 6 82-520 9 0 Department of Finance, Risk Management Division, thirty (30) days prior to termination date of existing performance bond. 13. CONSIDERATION The CONCESSIONAIRE agrees to hay the CITY percent of the CONCESSIONAIRE'S monthly gross receipts or a monthly guaranteed amount of $ whichever sum is greater. To this effect, a monthly payment and a report of said gross receipts will be submitted to the CITY, each calendar month. Tile term "gross receipts" is understood to mean all income collected or accrued by the CONCESSIONAIRE under the concession Agreement, excluding amounts of any Federal, State or City Sales Tax, or any other tax collected by CONCESSIONAIRE from customers and which is required by law to be remitted to the appropriate taxing authority. It is understood that Florida State Sales and Use Tax shall be added to all payments to the CITY. rhus, the CITY is to receive the aforementioned proposed consideration as net amount, free and clear of all cost and charges. 14. MONTHLY REPORTS AND PAYHE;NT The monthly report of gross receipts, tale commission payment computed oil that amount, and any other fees due must be submitted to the CITY, through the Finance Department, to be received not later than twenty (20) days after the close of each month. hate payment shall be accompanied by liqui- dated damages in the amount of 1% of the amount payable for each day the payment is late. If the commission payment and accumulated daily penalties are not received within (30) days after the normal monthly payment deadline, then the CITY may take possession of the CONCESSIONAIRE'S assets on CITY property, may cancel this concession Agreement, and may begin procedures to collect the performance bond required in Paragraph 12, above. 15. DEFAULT OF PAYMENT It is expressly agreed that the CITY shall have a con - A 7 tinuing lien on all personal property of the CONCESSIONAIRE on the premises, for all sums width may from time to time be- come due and unpaid to the CITY under this Agreement, and upon default of payment by the CONCESSIONAIRE the CITY shall have the right to take prossessi_on of and retain the same until the full amount due shall be paid, or to sell the same at public auction and, after deducting the expense of such sale, apply the balance of the proceeds to such payment and if there should be any deficiency, to resort to any other legal remedy available to it. 16. LIEN ON PERSONAL PROPERTY The CONCESSIONAIRE agrees not to remove from the park any personal property brought thereon by the CONCESSIONAIRE for the purpose of this concession Agreement, except such items as may be removed with the express permission of the CITY. Upon expiration of the term specified in Paragraph 1 (a) above, if the CONCESSIONAIII►, has made full payment under this concession Agreement, and has fully complied with the terms of this Agreement, he may remove his personal property from the park and shall do so within two weeks following the expiration of the Agreement:. On failure to do so, the CITY may cause same to be removed and stored at the cost and expense of the CONCESSIONAIRE and the CT.TY shall have a continuing lien thereon in the amount of the cost and expense of such removal and storage until paid, and may sell such personal property and reimburse itself for such cost and expense, plus the expense of the sale. 17. RIGHT TO AUDIT RECORDS The CONCESSIONAIRE agrees to establish and maintain such records as be prescribed by the CITY in the future to provide evidence that all terms of this Agreement have been and are being observed. 'file CONCESSIONAIRE grants to the CITY the right and authority to audit all records, documents, and F 8 82-S20 -- A 0 books pertaining to the concession operal.ion. Such audit will be conducted at locations and at a frequency determined by the CITY and communicated to the CONCESSIONAIRE. The CONCESSIONAIRE agrees to provide materials for the audit at the designated place within fifteen days after the CI`1'Y'S notice is received. The CONCESSIONAIRE agrees to provide to the CITY, in a format specified in an attachment hereto, a profit and loss statement of the concession operation for each calendar year. The report will be submitted to the CITY within sixty days after the close of the calendar year. 18. REPORTS OF VISITOR USE The CONCESSIONAIRE agrees to cooperate with the CITY in the conduct of surveys, to provide reports of visitor contracts, and to respond to Department inquiries about public usage concession services. 19. RIGHT 'ro INSPECTION OF PREMISES The CONCESSIONAIRE agrees that tiie concession facilities and preinises may be inspected at anytime by authorized repre- sentatives of the City Manager or his designee or by an'other state, county, or municipal officer or agency having responsi- bilities for inspections of such operations. The CONCES- SIONAIRE agrees to undertake immediately the correction of any deficiency citefl by such inspectors. 20. INTERFERENCE: The CONCESSIONAIRE hereby waives all claims for compen- sation for loss or damagf:! sustained by reason of any inter- ference by any public agency or official in the operation of this concession; any such interference shall not relieve the CONCESSIONAIRE from any obligation hereunder. 21. WAIVER OF CLAIM The CONCESSIONAIRE hereby expressly waives all claims for loss or damage, sustained by the CONCESSIONAIRE resulting from fire, water, tornado, civil commotion, or riot; and the A 9 62-520 " A CONCESSIONAIRE hereby expressly waives all rights, claims, and demands and forever releases and discharges the people of the City of. Miami, Florida, from all demands, claims, actions and causes of action arising from any of the afore- said causes. 22. FLOURS OF OPERATION AND SIGNS The CONCESSIONAIRE agrees to operate and maintain the concession in compliance with this Agreement and in accordance with applicable law and policy. The CONCESSIONAIRE agrees to provide the authorized services to the public throughout the daily hours the park is open, or as otherwise approved by the City Manager. Business hours shall be posted by the CONCESSIONAIRE near the main entrace to the concession facili- ties. The CONCESSIONAIRE agrees to submit to the CITY for prior approval all proposed advertising, brochures, and signs. As a general policy the CITY will not approve billboard adver- tising for the CONCESSIONAIRE either inside or outside the park. Appropriate exterior signs for the CONCESSIONAIRE'S facilities will be provided by the CITY. • 23. TRAINING The CONCESSIONAIRE agrees to provide continuing training and evaluation of all employees assigned to the concession operation to ensure an appropriate level of proficiency and public service orientation. The CONCESSIONAIRE agrees to replace any employee at the request of the CITY for cause. No CITY employee or close relative of an employee of the CITY shall be employed by the CONCESSIONAIRE without express written permission of the City Manager. 24. STORAGE: OF DANGEROUS SUBSTANCES The CONCESSIONAIRE agrees not to use or hermit in the facility the storage of illuminating oils, oil lamps, turpen- tine, benzine, naphtha, or other similar substances, or explo- sives of any kind, or any substance or thing prohibited in the A 10 82-520 - standard policies of fire insurance companies in the State of Florida. 25. REPRESENTATIV9 CAPACITY It is expressly understood and agreed by and between the parties hereto that the members constituting the Department of Leisure Services of the City of Miami and its officers and agents are acting in a representative capacity and not for their own benefit; and that neither the CONCESSIONAIRE nor any occupant shall have any claim against them or any of them as individuals in any event whatsoever. 26. CONCESSION PRIVILEGE It is the intent of the CITY, concurring in by the CON- CESSIONAIRF, that this Agreement- shall not, as against the CITY, vast any right in the CONCESSIONAIRE,; and shall be deemed only the grant of a privilege to the CONCESSIONAIRE to carry out the terms of this Agreement on property of the CITY so long as such Agreement or privilege shall be in force. It is further the intent of the parties hereto that violation of, or failure to comply with, the terms of this Agreement shall, at the op- tion of the CITY terminate this Agreement and privilege upon three days notice in writing delivered or mailed to the CON- CESSIONAIRL'S address as set forth in Paragraph 2 hereof. If the CITY does not afford CONCESSIONAIRE the opportunity to mend any default within a specified time, the privilege shall terminate and the CONCESSIONAIRE shall remove himself and his property from the premises, if all financial obliga- tions hereunder have been met. Continued occupancy of the facility after termination of the privilege shall constitute - trespass by the CONCESSIONAIRE., and may be prosecuted as such. In addition, the CONCESSIONAIRE shall pal, to the CITY $100.00 per day as liquidated damages for such trespass and holding over. The CONCESSIONAIRE will not use, nor suffer or permit F any person to use in any manner whatsorn,*( r, the assigned con- cession facilities and 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 any governmental rule or regulation now in effect or hereafter enacted or adopted. The CONCESSIONAIRE agrees to refrain from the sale or rental of any item identified as prohibited by the CITY and to sell or rent only those categories of merchandise and equipment recommended by the CITY. The CONCESSIONAIRE agrees to maintain an adequate supply of any merchandise which the CITY deems necessary to accomodate park visitors. The CON- CESSIONAIRE will ensure that all merchandise and services offered to the public are of acceptable duality and are safe and clean. 27. INSURANCE AND INDEMNIFICATION The CONCESSIONAIRE shall indemnify and save the CITY harmless from any and all claims, liability, losses, and i causes of action which may arise out of the CONCESSIONAIRE'S operation of. this Agreement and shall pay all claims and losses of any nature whatsoever in connection therewith and shall defend all suits, in the name of the CITY when applicable, and shall pay all costs and judgments which may issue thereon. The CONCESSIONAIRE shall maintain during the term of. this Agreement the following insurance. a. Public Liability Insurance in the amounts of not less than per occurrence for death or bodily .injury and not less than $ per occurrence for property damage. Above to in- clude product liability. b. The CITY shall be named as an additional insured under the policies of insurance as required in Paragraph "A" of this Agreement. A 12 82q-52a A c. Automobile Liability Tnsurmicr covering all owned, non -owned, and hired vehicles in amounts of not less than $1,000,000.00 per accident and $300,000.00 per occurrence of bodily injury and $10,000.00 per occur- rence of bodily injury and $10,000.00 property damage. d. The CITY shall be given at least thirty (30) days advance written notice of cancellation of said policies or any material modifications thereof.. e. Certificates of insurance shall be filed with the Finance Department, Risk Management Division of the CITY. f. The insurance coverage required shall include those classifications as listed in standard liability insurance manuals, which most nearly reflect the operations of the CONCESSIONAIRE:. g. All insurance policies shall he issued by companies authorized to do business under the laws of the State of Florida and must bra rated at least "A" as to management and Class "X" as to financial strength, all in accordance to A.M. BBST'S KEY RATING GUIDE, latest edition. h. The CITY reserves the right to arlend the insurance requirements as circumstances dictate- in order to protect the interest of the CITY in this concession Agreement. i. The CONCESSIONAIRE shall furnish certificates of insurance to the CITY prior to the commencement of operations, which certificates shall clearly indicate the CONCESSIONAIRE has obtained insurance in the type, amount, and classifications as required for strict compliance with this covenant and shall be subject to the approval of the Department of Finance, Risk Man- ac einent Division. F 13 A . j. The policy shall be endorsinI as follows: It is agreed that in the event of any claim or suit against the insured for damages covered by this policy, the in- surance company will not deny liability by the use of a defense based upon governmental immunity. 28. ATTORNEY' S FEES In the event of any litigation between the parties to en- force any of the terms or provisions of this Agreement, the prevailing tarty shall be entitled to reasonable attorney's fees. 29. CAPTIONS The captions contained in this Agreement are inserted only as a matter of convenience and for reference and in no way de- fine, limit or prescribe the scope of this concession Agreement or the intent of any provision thereof. 0. ENTIRE AGREEMENT The provisions of the concession Agreement constitutes the entire agreement between tho parties and no prior agreements I or representations shall be binding upon any of the parties un- less incorporated in this concession Agreement. uo modifica- tion, release, discharge, or waiver of any of the provisions hereof shall be of force and effect unless in writing and signed by both parties. 31. NON DISCRIMINATION The CONCESSIONAIRE agrees that there shall be no discri- mination as to race, sex, color, creed or national origin in connection with the use, maintenance and operation of the pre- mises by CONCESSIONAIRE. IN WITNESS WHEREOF, the parties hereto have caused these presents to be executed by the respective officials thereunto duly authorized, this the day and year first above written. CONCIISS IONAIRE Witnesses: By: (SEAL) A 14 Attest: City Clerk C (Tti: ()F MIAMI , a municipal Cnrporation of. the State of Florida City Manager AP-PJZOVED AS TO FORM AND CORRECTNESS : GF GE F . KNOX , JR . , "_ C 'P ATTORNEY \� R 82-5 20 J