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HomeMy WebLinkAboutR-2025-068 Performance Pups Concessionaire Agreement - Tigertail Lake (24-009)RESOLUTION NO. 2025-068 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DANIA BEACH, FLORIDA, APPROVING THE RANKING OF QUALIFIED MANAGEMENT FIRMS AND AUTHORIZING THE CITY ADMINISTRATION TO EXECUTE AN AGREEMENT WITH PERFORMANCE PUPS, INC. FOR OPERATIONAL MANAGEMENT OF TIGERTAIL LAKE DOG DIVING DOCK/DOG PARK FOR AN INITIAL TERM OF TEN (10) YEARS, WITH THE OPTION OF TWO, THREE YEAR APPROVALS THAT CAN BE AUTHORIZED BY THE CITY MANAGER; PROVIDING FOR CONFLICTS; FURTHER, PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City of Dania Beach owns and operates Tigertail Lake Dog Diving Dock/Dog Park located at 580 Gulf Stream Way; and WHEREAS, the City has traditionally executed an yearly 70/30 independent contractor agreement for the management of the Park; and WHEREAS, on November 1, 2024, the City advertised RLI #24-029 to solicit letters of interest from qualified management firms; and WHEREAS, on December 2, 2024, the City received letters of interest from two (2) qualified firms and a committee comprised of the Deputy City Manager Candido Sosa-Cruz, Chief Human Resource Officer Linda Gonzalez and Director of Parks and Recreation Cassi Waren, met on January 7, 2025, to discuss the letters of interest received and rank the firms; and WHEREAS, the firms were ranked as follows: Firm Rank Performance Pups, Inc 1st HZIP LLC 2nd ; and WHEREAS, the Parks and Recreation Department recommends that the City Commission accept these rankings and authorize City Administration to negotiate final terms and execute an agreement with the first ranked firm, Performance Pups, Inc., for an initial ten-year term with the option for two, three year renewals that can be authorized by the City Manager, which agreement is attached as Exhibit “A” and incorporated into this resolution by this reference. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF DANIA BEACH, FLORIDA: Section 1. That the above “Whereas” clauses are ratified and confirmed, and they are made a part of and incorporated into this Resolution by this reference. 2 RESOLUTION #2025-068 Section 2. That all resolutions or parts of resolutions in conflict with this Resolution are repealed to the extent of such conflict. Section 3. That the City Administration is authorized to execute an agreement with Performance Pups, Inc. for an initial ten-year term and two additional three year renewals that the City Manager can authorize, which agreement is attached as Exhibit “A” and incorporated into this resolution by this reference. Section 4. That the management fee is 70% of the total revenue brought in on a monthly basis. Section 5. That all resolutions or parts of resolutions in conflict with this Resolution are repealed to the extent of such conflict. Section 6. That this Resolution shall be effective 10 days after passage. PASSED AND ADOPTED on May 13, 2025. Motion by Vice Mayor Salvino, second by Commissioner Lewellen. FINAL VOTE ON ADOPTION: Unanimous X Yes No Commissioner Lori Lewellen ____ ____ Commissioner Luis Rimoli ____ ____ Commissioner Archibald J. Ryan IV ____ ____ Vice Mayor Marco Salvino ____ ____ Mayor Joyce L. Davis ____ ____ ATTEST: ERIN MCCLENDON JOYCE L. DAVIS DEPUTY CITY CLERK MAYOR APPROVED AS TO FORM AND CORRECTNESS: EVE A. BOUTSIS CITY ATTORNEY -1- CONCESSION AGREEMENT between CITY OF DANIA BEACH, FLORIDA And PERFORMANCE PUPS, INC. for DOG DOCK AND DOG PARK OPERATION AT BILL METCALF SAILING CENTER / TIGERTAIL LAKE PARK This is a Concession Agreement ("Agreement"), made and entered into by and between: CITY OF DANIA BEACH, a political subdivision of the state of Florida, hereinafter referred to as "CITY," AND PERFORMANCE PUPS, INC., a Florida corporation, hereinafter referred to as "CONCESSIONAIRE." WHEREAS, CITY owns and operates Tigertail Lake Park (the "Park") for the recreation and enjoyment of Park patrons; and WHEREAS, CITY desires to contract with CONCESSIONAIRE for the provision of the operation and maintenance of Dog Dock and Dog Park Services; NOW, THEREFORE, IN CONSIDERATION of the mutual terms, conditions, promises, covenants, and payments hereinafter set forth, CITY and CONCESSIONAIRE agree as follows: ARTICLE 1.0 DEFINITIONS AND IDENTIFICATIONS 1.1 Agreement - means this document, Articles 1 through 39 inclusive. Other terms and conditions are included in the exhibits and documents that are expressly incorporated by reference. 1.2 Board - The CITY Commissioners. 1.3 Dog Dock – The lake area, structures, and supporting equipment and fixtures, and other improvements for the Dog Dock and Dog Park within a portion of Tigertail Lake Park. -2- ARTICLE 2.0 SCOPE OF SERVICES 2.1 CITY hereby grants unto CONCESSIONAIRE and CONCESSIONAIRE hereby accepts from CITY, the right to use the designated Park area as described in Article 8 (the "Property"), for the operation and maintenance of a dog jumping dock and dog park and special functions relating to dog dock jumping (the “Services"). CONCESSIONAIRE shall collect all fees relating to its operations at the Park. Notwithstanding any laws to the contrary, this Agreement shall not be construed as a lease agreement granting CONCESSIONAIRE an interest in said public property. 2.2 CONCESSIONAIRE shall perform all work identified in this Agreement. The parties agree that the Scope of Services is a description of CONCESSIONAIRE's obligations and responsibilities and is deemed to include preliminary considerations and prerequisites, and all labor, materials, equipment, and tasks which are such an inseparable part of the work described that exclusion would render performance by CONCESSIONAIRE impractical, illogical, or unconscionable. 2.3 All duties, obligations, and responsibilities of CONCESSIONAIRE required by this Agreement shall be completed by CONCESSIONAIRE in a reasonable and timely manner. Time shall be deemed to be of the essence in performing the duties, obligations, and responsibilities required by this Agreement. ARTICLE 3.0 TERM 3.1 CITY hereby grants to CONCESSIONAIRE a term of Ten (10) years. The term of this Agreement shall commence on the date of approval by CITY ("Effective Date"). Any term extension under these circumstances is subject to CITY and CONCESSIONAIRE mutually agreeing to same via an amendment to this Agreement. Such extension, to be valid, would require approval by CITY’s Commissioners. ARTICLE 4.0 EXCLUSIVITY 4.1 The rights granted to CONCESSIONAIRE under this Agreement are exclusive only for the Facility area at the Park or originating from within the Park. ARTICLE 5.0 ADDITIONAL SERVICES AND SPACE 5.1 CITY may allow CONCESSIONAIRE to provide additional services and/or use additional space within the Park upon such terms as the parties may agree to in writing. Such additional services must follow the theme of, and be within the scope of, the approved purpose of this Agreement. -3- ARTICLE 6.0 CONSTRUCTION 6.1 Any construction desired by CONCESSIONAIRE for or relating to the Dog Dock is subject to prior written approval by CITY. 6.2 All structures and other approved permanent improvements now existing at the Facility, or constructed during the term of this Agreement at the Facility by CONCESSIONAIRE shall be the property of CONCESSIONAIRE and shall become the property of CITY only upon the expiration of this Agreement or other termination as provided for herein. The Concessionaire shall be responsible for the condition of the Dog Dock, and the used area, including but not limited to the Dog Dock, electrical components, pipes, etc. 6.3 CONCESSIONAIRE shall indemnify and hold harmless CITY, its officers, agents, servants, and employees from liabilities, damages, losses, and costs, including, but not limited to reasonable attorney’s fees, to the extent caused by the negligence, recklessness, or intentional wrongful misconduct of CONCESSIONAIRE and persons employed or utilized by CONCESSIONAIRE in the performance of any approved construction activities under this Agreement. These indemnifications shall survive the term of this Agreement. ARTICLE 7.0 CONCESSIONAIRE'S MARKETING 7.1 CONCESSIONAIRE will use its best efforts to reasonably market, advertise, and promote the Dog Dock as an outdoor recreation amenity open to the public. CITY agrees to include the Dog Dock at the Park in CITY's Parks and Recreation Division relevant promotional or informational materials. ARTICLE 8.0 PROPERTY DESCRIPTION 8.1 That portion of Tigertail Lake Park, located at Anglers Road, Dania Beach, Florida designated for the provision of the Dog Dock Services as referenced herein and in Exhibit "A," attached hereto and made a part hereof. ARTICLE 9.0 FEES CHARGED BY CONCESSIONAIRE 9.1 All fees charged the public by CONCESSIONAIRE shall be approved by the CITY. 9.2 Fees charged to the public by CITY are subject to review and approval by the CITY. CITY will notify CONCESSIONAIRE of changes to CITY fees at the Park. -4- ARTICLE 10.0 PERCENTAGE FEES 10.1 CONCESSIONAIRE shall pay CITY compensation of thirty (30) percent of the net receipts derived from the operation of the Dog Dock. The term “net receipts” is further described and defined in Article 11 below. Such compensation shall be due and payable to CITY on or before the fifteenth (15th) day of each month during the term hereof or any extension there of agreed to by the parties. ARTICLE 11.0 NET RECEIPTS 11.1 The term "Net Receipts" as used in this Agreement means all monies paid or payable to or considerations of determinable value received by CONCESSIONAIRE for sales made, transactions had, or for services rendered, from all sources, in the operations of this Agreement regardless of when or where the order therefore is received or the goods delivered or services rendered, whether paid or unpaid, whether on a cash or credit basis or in consideration of any other thing of value less the following expenses, including, but not limited to: advertising costs, port-o-let, maintenance and repairs, upgrades and modifications to equipment, signage, sale tax, and other expenditures reasonable and necessary to run the Dog Dock. Sales refunds, returned merchandise, and any taxes imposed by law paid by the customer and directly payable by CONCESSIONAIRE to a taxing authority, are not included as Net Receipts. Insurance proceeds shall not be included in "Net Receipts." ARTICLE 12.0 SALES TAX 12.1 CONCESSIONAIRE shall be liable for the prevailing state of Florida Sales and Use Tax imposed on Rent on the amounts payable to CITY under this Agreement. This Sales and Use Tax shall be payable to CITY which in turn will remit same to the Department of Revenue. ARTICLE 13.0 REPORTS AND RECORDS 13.1 CONCESSIONAIRE shall maintain during the term of this Agreement all books of account, reports, and records customarily used in this type of operation and such records as are necessary to document its activities pursuant to this Agreement and all monies collected hereunder, not limited to net receipts. 13.2 Upon written request by the City, CONCESSIONAIRE shall furnish to the CITY a report of net receipts during the preceding calendar month. -5- ARTICLE 14.0 STRUCTURE(S) AND AMENITIES 14.1 All equipment and personal property furnished by CONCESSIONAIRE shall be suitable for its intended purpose, for solely dog use. 14.2 It shall be the responsibility of CONCESSIONAIRE, or designee, to coordinate maintenance, repair, and activities responsibilities of each so as to best serve and interact with the public. 14.3 CONCESSIONAIRE agrees to maintain the Dog Dock area in the same condition, order, and repair as at the commencement of operations and after any improvements are made, excepting only reasonable wear and tear arising from the use thereof under this Agreement. Concessionaire shall be responsible for daily maintenance of the Dog Dock and surrounding area. ARTICLE 15.0 CITY APPROVAL 15.1 CITY reserves the right to approve all matters specifically referenced in this Agreement, and all matters reasonably deemed pertinent to the administration of this Agreement, including but not limited to the following: 15.1.1 Signage. 15.1.2 Equipment, provided that in all events the replacement of any equipment with comparable equipment suitable for the purpose intended shall not require the approval of CITY. Further, it is understood by CONCESSIONAIRE that should any of the above items be disapproved, CONCESSIONAIRE may offer alternative solutions. Any approval required of CITY shall not be unreasonably withheld. ARTICLE 16.0 OPERATING SCHEDULE 16.1 The PARTIES shall work together to set an operation schedule for the Services. Sufficient CONCESSIONAIRE attendants will be available to provide service in a business-like manner. The proposed schedule of hours is: 30 hours per week, through Summer (non- daylight savings (March 2nd, through November 2nd and 24 hours per week during Standard time (November 3rd through March 1st, 2025) spread over a minimum of six days per week. -6- ARTICLE 17.0 QUALITY OF CONCESSIONAIRE'S SERVICES 17.1 CONCESSIONAIRE shall conduct its operations in a business-like manner in accordance with this Agreement. 17.2 CONCESSIONAIRE shall furnish good, prompt, and efficient service adequate to meet all reasonable demands therefore. ARTICLE 18.0 FACILITIES AND SERVICES PROVIDED BY CITY CITY shall provide the following: 18.1 Water facilities as existing at the time of execution of this Agreement. 18.2 Non-exclusive parking as existing at the time of execution of this Agreement. CITY and CONCESSIONAIRE agree to closely interact and cooperate regarding special parking needs for special events. ARTICLE 19.0 FACILITIES, EQUIPMENT, AND SERVICES 19.1 CITY, at its sole cost, shall provide and/or maintain at the Facility: All maintenance and repair to Dog Dock, renovations and improvements for its operations. CITY is responsible for maintenance and repair of its structures and other improvements at the Park, namely the existing improvements at the Facility at the time of commencement of this Agreement, plus any improvements made by or for CITY at the Facility during the term of this Agreement. ARTICLE 20.0 EQUIPMENT, FURNISHINGS AND SIGNAGE 20.1 All equipment, furnishings, signage, and advertising installed, removed, or replaced by CONCESSIONAIRE shall be in keeping with the appropriate standards of decor at the Facility. CITY reserves the right to approve any such equipment, signage, and advertising prior to or following such installation. Currently CONCESSIONAIRE simply provides one sign entitled “Performance Pups”. All other equipment, furnishing, etc., belong to the City. 20.2 CONCESSIONAIRE shall not alter or modify any portion of the Facility without first obtaining written approval from CITY's Contract Administrator. ARTICLE 21.0 MAINTENANCE -7- 21.1 CITY shall keep and maintain its structures, fixtures, equipment and operations in good working order and repair and in the same clean and orderly condition as it existed at the commencement of operations, reasonable wear and tear excepted. CITY shall assume the entire responsibility for all repair and maintenance whatsoever for its property and operations. However, CONCESSIONAIRE shall have the duty of advising the City of any needed repairs or hazards. CONCESSIONAIRE shall keep the Facility and Improvements within in a clean and orderly condition and appearance at all times. ARTICLE 22.0 DAMAGES 22.1 CONCESSIONAIRE shall repair all damage to the Park property contained therein caused by CONCESSIONAIRE, its employees, agents, or independent contractors contracting with CONCESSIONAIRE. CONCESSIONAIRE shall notice the City of any damages to the dock, fence, or facility. ARTICLE 23.0 LIABILITY FOR DAMAGE OR INJURY 23.1 CITY shall not be liable for any damage or injury which may be sustained by any party or persons at the Facility or utilizing CONCESSIONAIRE's operations. ARTICLE 24.0 INGRESS AND EGRESS; RIGHT OF QUIET ENJOYMENT 24.1 CITY represents and warrants that during the term hereof, CONCESSIONAIRE, its agents, employees, patrons, invitees, suppliers of services and furnishers of materials, shall have right of ingress and egress to and from its operations in the Park. Nonexclusive parking shall be available for CONCESSIONAIRE and CONCESSIONAIRE's employees. ARTICLE 25.0 ASSIGNMENT AND SUCCESSORS IN INTEREST 25.1 CONCESSIONAIRE shall not assign, transfer, mortgage, pledge, nor otherwise encumber this Agreement, nor any portion thereof, without written approval of CITY which shall not be unreasonably withheld. Unapproved assignment, transferring, mortgaging, pledging, or encumbering shall be grounds for immediate termination of this Agreement except as herein provided. 25.2 Notwithstanding anything to the contrary contained in this Agreement, CONCESSIONAIRE shall have the right to encumber its interest in all CONCESSIONAIRE-owned furnishings, equipment and personal property from time to time by appropriate instrument if said property is not deemed a fixture. Any equipment, furnishings or personal property attached to the real property which cannot be removed -8- without significant alterations being required will be deemed a fixture. 25.3 It is agreed that all terms and conditions of this Agreement shall extend to and be binding on assignees and other successors as may be approved by CITY. CONCESSIONAIRE shall be liable for acts and omissions by any subcontractor affecting this Agreement to the extent CONCESSIONAIRE would be liable if such act or omission was committed by CONCESSIONAIRE. ARTICLE 26.0 OWNERSHIP OF CONCESSIONAIRE 26.1 The ownership of CONCESSIONAIRE is very important to CITY. Therefore, CITY reserves the right to terminate this Agreement any time a change in ownership involving more than 50 percent (50%) of the ownership of CONCESSIONAIRE has not been specifically approved by CITY. CITY shall reject any proposed new owner on any reasonable ground. CONCESSIONAIRE agrees to provide to CITY within three (3) business days after receipt of written notice from the CITY requesting same, an accurate list of all owners of CONCESSIONAIRE, showing the percentage of ownership of each owner. ARTICLE 27.0 INDEMNIFICATION 27.1 The selected CONCESSIONAIRE shall, in addition to any other obligation to indemnify the CITY and to the fullest extent permitted by law, protect, defend, indemnify and hold harmless the CITY, including its agents, elected officials and employees from and against all claims, actions, liabilities, losses (including economic losses), or costs arising out of any actual or alleged: (a) bodily injury, sickness, disease or death, or injury to or destruction of tangible property including the loss of use resulting from it or any other damage or loss arising out of or resulting or claimed to have resulted in whole or in part from any actual or alleged act or omission of the CONCESSIONAIRE, anyone directly or indirectly employed by any of them, or anyone for whose acts any of them may be liable in the performance of the work; (b) any violation of law, statute, ordinance, governmental administrative order, rule, regulation, or infringement of patent rights by CONCESSIONAIRE in the performance of the work; (c) liens, claims, actions made by the CONCESSIONAIRE or other party performing the work; -9- ARTICLE 28.0 INSURANCE 28.1 The CONCESSIONAIRE shall not commence work under this Agreement until it has obtained all insurance required by the CITY, as specified below and coverages and insurance have been approved by the Risk Manager of the CITY. In addition, CONCESSIONAIRE shall be responsible for any policy deductibles and self-insured retentions. 28.2 CONCESSIONAIRE shall file Certificates of Insurance with the CITY, reflecting evidence of the coverages. They shall be filed with the CITY’s Risk Manager within fourteen (14) days of the date the Agreement is fully executed. The Certificates shall contain a provision that coverages afforded under the policies will not be canceled until at least thirty (30) days’ prior written notice has been given to the CITY. Policies for coverages shall be issued by companies authorized to do business under the laws of the State of Florida and any such companies’ financial ratings must be no less than “A” in the latest edition of the “BEST’S KEY RATING GUIDE”, published by A.M. Best Guide. 28.3 Coverages shall be in force until the term of the Agreement expires. In the event insurance certificates provided to CITY indicate that the insurance shall terminate and lapse during the period of the Agreement, then in that event, the CONCESSIONAIRE shall furnish, at least thirty (30) days prior to the expiration of the date of such insurance, a renewed Certificate of Insurance as proof that equal and like coverages for the balance of the period of the Agreement and any extension of it is in effect. THE CONCESSIONAIRE SHALL NOT PERFORM OR CONTINUE TO WORK PURSUANT TO THIS CONTRACT, UNLESS ALL COVERAGES REMAIN IN FULL FORCE AND EFFECT, SUCH DELAY BEING SUBJECT TO ANY APPLICABLE PROVISIONS DESCRIBED IN THE CONTRACT. INSURANCE REQUIREMENTS. 28.4 CONCESSIONAIRE shall provide, pay for and maintain in force at all times during the term of this Agreement, such insurance, including Workers’ Compensation insurance and Comprehensive General Liability insurance as stated below: A. General Liability Insurance is to include bodily injury, broad form property damage, products and completed operations, blanket contractual liability with limits of not less than One Million Dollars ($1,000,000.00) per occurrence, and Two Million Dollars ($2,000,000.00) annual aggregate. CITY shall be a “named insured” under this policy, and CITY shall be provided a certificate of insurance evidencing coverage and named insured status on the policy. -10- B. Unless exempt under Florida law, Workers’ Compensation insurance to apply for all employees in compliance with the “Workers’ Compensation Law” of the State of Florida and all applicable federal laws, for the benefit of the CONCESSIONAIRE or its employees. Employer’s Liability. Minimum limits of One Hundred Thousand Dollars ($100,000.00) per employee, per accident; $100,000.00 disease aggregate; and $100,000.00 per employee, per disease for all personnel on the premises. In the event the CONCESSIONAIRE has “leased” employees, the CONCESSIONAIRE or the employee leasing company must provide evidence of a Workers’ Compensation policy for all personnel on the premises. C. Comprehensive General Liability insurance, including contractual, with minimum limits of One Million Dollars ($1,000,000.00) per occurrence, combined single limit for bodily injury liability and property damage liability. The City shall be included as a “named insured” under this policy, and Owner shall be provided a certificate of insurance evidencing coverage and named insured status on the policy. D. If CONCESSIONAIRE owns an automobile, Automobile Liability insurance covering owned, hired, and non-owned vehicles with a minimum limit of One Million Dollars ($1,000,000.00) per occurrence with combined single limit. The CITY shall be included as a “named insured” under this policy, and CITY shall be provided a certificate of insurance evidencing coverage and named insured status on the policy. E. If CONCESSIONAIRE hires a subcontractor for any portion of any work, then such subcontractor shall provide general liability insurance with minimum limits of liability of One Million Dollars ($1,000,000.00). F. The CONCESSIONAIRE shall provide the Risk Manager of the CITY Certificates of Insurance for coverages and policies required by this Agreement. All certificates shall state that the CITY shall be given thirty (30) days’ advance notice prior to expiration or cancellation of any policy. Such policies and coverages shall not be affected by any other policy of insurance which the CITY may carry in its own name. All certificates (of insurance) must clearly identify the contract to which they pertain, including a brief description of the subject matter of the contract. ARTICLE 29.0 TERMINATION BY CITY 29.1 The occurrence of any of the following shall cause this Agreement to be terminated without notice by CITY at its sole discretion upon the terms and conditions set forth below: -11- 29.2 Termination without Notice: 29.2.1 Assignment by CONCESSIONAIRE for the benefit of creditors. 29.2.2 Abandonment or discontinuation by CONCESSIONAIRE of operations hereunder "Discontinuation" shall mean any closing (other than a scheduled closing or closing necessitated by acts beyond the control of CONCESSIONAIRE) or failure to provide all services or amenities for thirty (30) consecutive days or more. "Abandonment" shall mean an implied or expressed repudiation or renunciation of any operations under this Agreement or any material part thereof. 29.2.3 The discovery of any material or fraudulent statement in CONCESSIONAIRE's proposal leading to award of this Agreement, which significantly affects CONCESSIONAIRE's qualifications to perform under this Agreement following notice by CITY and an opportunity within thirty (30) days for CONCESSIONAIRE to explain the matter to the satisfaction of CITY, termination of this Agreement shall occur without further notice required. 29.2.4 Unapproved change of ownership interest in CONCESSIONAIRE. 29.2.5 Failure to cease immediately, after notice by hand-delivery or overnight courier, any activity which causes limitation of CITY's use of the Park, unless the nature of the activity is such that it is not possible for CONCESSIONAIRE to immediately cease the activity and CONCESSIONAIRE has begun corrective action to remedy the situation and is diligently pursuing the matter until corrected. 29.2.6 CONCESSIONAIRE falls sixty (60) days past the due date for any sum or sums due CITY under this Agreement. 29.2.7 Any illegal conduct or activity by CONCESSIONAIRE or by an employee of CONCESSIONAIRE, upon CONCESSIONAIRE's failure to take corrective action within forty-eight (48) hours after receipt of written notice from CITY. 29.3 Termination after a fourteen (14) day written notice by certified mail to any known address of CONCESSIONAIRE set forth herein, Notices, for any condition posing a threat to the health or safety of the public or patrons and not remedied by CONCESSIONAIRE within the fourteen (14) days. CITY may extend the remedy period beyond fourteen (14) days if CONCESSIONAIRE cannot complete within fourteen (14) days and is demonstrating due diligence to comply. A request for an extension shall not be unreasonably withheld. 29.4 Termination after a thirty (30) day written notice by certified mail to any known address of CONCESSIONAIRE for any of the following: -12- 29.4.1 Nonperformance of any covenant of this Agreement and failure of CONCESSIONAIRE to remedy such breach. 29.4.2 The conduct of any activity or the merchandising of any product or service not specifically authorized herein. 29.4.3 A judicial dismissal of litigation instituted by CONCESSIONAIRE against CITY where the court finds there was a complete absence of a justiciable issue of either law or fact. 29.5 In the event CITY terminates this Agreement pursuant to Sections 29.1, 29.2, or 29.3 above, any Capital Improvements made at the Facility shall become the property of CITY, not to include CONCESSIONAIRE's personal property. 29.6 Notice for termination as specified under Sections 29.2 and 29.3 above may be sent by CITY's Contract Administrator in the same manner as described in Section 33.5, Notices. 29.7 In the event of termination as provided for in this Article, the termination shall be deemed effective without the necessity of any further legal proceeding, including, but not limited to, eviction or ejectment proceedings. ARTICLE 30.0 TERMINATION BY CONCESSIONAIRE 30.1 CONCESSIONAIRE shall have the right upon thirty (30) calendar days from receipt of written notice by certified mail to CITY to terminate this Agreement at any time after the occurrence of one (1) or more of the following events: 30.2 Issuance by any court of competent jurisdiction of any injunction substantially restricting the use of the Dog Dock for the purposes set forth herein, and the remaining in force of said injunction for a period of more than thirty (30) calendar days. 30.3 A breach by CITY of any of the terms, covenants, or conditions contained in this Agreement and the failure of CITY to remedy such breach or show diligent effort to remedy same for a period of thirty (30) calendar days after receipt of written notice from CONCESSIONAIRE sent in accordance with Section 33.5, Notices, of the existence of such breach. 30.4 The assumption by the United States Government or any authorized agency thereof, or any other governmental agency, of the operation, control or use of the operations area, or any substantial part, or parts, thereof in such a manner as to substantially restrict CONCESSIONAIRE's operations for a period of sixty (60) calendar days or more. -13- ARTICLE 31.0 REMOVAL OF PROPERTY FOLLOWING TERMINATION OF CONTRACT 31.1 CONCESSIONAIRE, within ninety (90) calendar days following the termination of this Agreement, shall forthwith remove all of its personal property from the Property. Any personal property of CONCESSIONAIRE not removed in accordance with this Article within ninety (90) days following termination of this Agreement shall become property of CITY subject to CITY's right to recover disposal costs incurred, if any. It is the intention of the parties to this Agreement that all furnishings and equipment purchased or leased by CONCESSIONAIRE, except those permanently affixed to buildings or structures, as defined under the laws of the state of Florida, shall be the personal property of CONCESSIONAIRE. 31.2 CITY shall have the first right of refusal within forty-five (45) days of termination of this Agreement to elect to purchase any portion of CONCESSIONAIRE's personal property for the Dog Dock and pay to CONCESSIONAIRE the fair market value thereof if and as mutually agreed by the parties hereto. 31.3 In the event CONCESSIONAIRE constructs capital improvements at the Park, and in the event CONCESSIONAIRE has not maintained said improvements in reasonably good condition during this Agreement's term, CONCESSIONAIRE agrees to be liable to CITY for the reasonable repair or demolition/removal cost of said improvements following this Agreement's termination. ARTICLE 32.0 MISCELLANEOUS 32.1 OWNERSHIP OF DOCUMENTS 32.1.1 Any and all reports, photographs, surveys, and other data and documents provided or created in connection with this Agreement are and shall remain the property of CITY. In the event of termination of this Agreement, any reports, photographs, surveys, and other data and documents prepared by CONCESSIONAIRE, whether finished or unfinished, shall become the property of CITY and shall be delivered by CONCESSIONAIRE to the CITY within seven (7) days of termination of this Agreement by either party. Any compensation due to CONCESSIONAIRE shall be withheld until all documents are received as provided herein. 32.2 AUDIT RIGHT AND RETENTION OF RECORDS 32.2.1 CITY shall have the right to audit the books, records, and accounts of CONCESSIONAIRE that are related to this Project. CONCESSIONAIRE shall keep such books, records, and accounts as may be necessary in order to record complete and correct entries related to the Project. All books, records, and accounts of CONCESSIONAIRE shall be kept in written form, or in a form capable of conversion into written form within a -14- reasonable time, and upon request to do so, CONCESSIONAIRE shall make same available at no cost to CITY in written form. 32.2.2 CONCESSIONAIRE shall preserve and make available, at reasonable times for examination and audit by CITY, all financial records, supporting documents, statistical records, and any other documents pertinent to this Agreement for the required retention period of the Florida Public Records Act (Chapter 119, Fla. Stat.), if applicable, or, if the Florida Public Records Act is not applicable, for a minimum period of three (3) years after termination of this Agreement. If any audit has been initiated and audit findings have not been resolved at the end of the retention period or three (3) years whichever is longer, the books, records, and accounts shall be retained until resolution of the audit findings. If the Florida Public Records Act is determined by CITY to be applicable to CONCESSIONAIRE's records, CONCESSIONAIRE shall comply with all requirements thereof; however, no confidentiality or non-disclosure requirement of either federal or state law shall be violated by CONCESSIONAIRE. Any incomplete or incorrect entry in such books, records, and accounts shall be a basis for CITY's disallowance and recovery of any payment upon such entry. 32.3 INDEPENDENT CONTRACTOR CONCESSIONAIRE is an independent contractor under this Agreement. Services provided by CONCESSIONAIRE pursuant to this Agreement shall be subject to the supervision of CONCESSIONAIRE. In providing such services, neither CONCESSIONAIRE nor its agents shall act as officers, employees, or agents of the CITY. No partnership, joint venture, or other joint relationship is created hereby. CITY does not extend to CONCESSIONAIRE or CONCESSIONAIRE's agents any authority of any kind to bind CITY in any respect whatsoever. 32.4 THIRD PARTY BENEFICIARIES Neither CONCESSIONAIRE nor CITY intends to directly or substantially benefit a third party by this Agreement. Therefore, the parties agree that there are no third party beneficiaries to this Agreement and that no third party shall be entitled to assert a right or claim against either of them based upon this Agreement. 32.5 NOTICES Whenever either party desires to give notice to the other, such notice must be in writing, sent by certified United States Mail, postage prepaid, return receipt requested, or by hand delivery with a request for a written receipt of acknowledgment of delivery, addressed to the party for whom it is intended at the place last specified. The place for giving notice shall remain the same as set forth herein until changed in writing in the manner provided in this section. For the present, the parties designate the following: -15- FOR CITY: Ana M. Garica, City Manager City of Dania Beach, Florida 100 West Dania Beach Boulevard Dania Beach, Florida 33004 WITH COPY TO: Eve A. Boutsis, City Attorney City of Dania Beach, Florida 100 West Dania Beach Boulevard Dania Beach, Florida 33004 FOR CONCESSIONAIRE: Performance Pups, Inc. Attn: Neil Hennessy, President 10325 NE 10 Lane Silver Springs, Florida 34488 32.6 ASSIGNMENT AND PERFORMANCE 32.6.1 Neither this Agreement nor any interest herein shall be assigned, transferred, or encumbered without the written consent of the other party. In addition, CONCESSIONAIRE shall not subcontract any portion of the work required by this Agreement. 32.6.2 CONCESSIONAIRE represents that each person who will render services pursuant to this Agreement is duly qualified to perform such services by all appropriate governmental authorities, where required, and that each such person is reasonably experienced and skilled in the area(s) for which he or she will render his or her services. 32.6.3 CONCESSIONAIRE shall perform its duties, obligations, and services under this Agreement in a skillful and respectable manner. The quality of CONCESSIONAIRE's performance and all interim and final product(s) provided to or on behalf of CITY shall be comparable to the best local and national standards. 32.7 COMPLIANCE WITH LAWS CONCESSIONAIRE shall comply with all applicable federal, state, and local laws, codes, ordinances, rules, and regulations in performing its duties, responsibilities, and obligations pursuant to this Agreement. 32.8 SEVERANCE In the event a portion of this Agreement is found by a court of competent jurisdiction to be invalid, the remaining provisions shall continue to be effective unless CITY or CONCESSIONAIRE elects to terminate this Agreement. An election to terminate this Agreement based upon this provision shall be made within seven (7) days after the finding by the court becomes final. -16- 32.9 JOINT PREPARATION The parties acknowledge that they have sought and received whatever competent advice and counsel necessary for them to form a full and complete understanding of all rights and obligations herein and that the preparation of this Agreement has been their joint effort. The language agreed to expresses their mutual intent and the resulting document shall not, solely as a matter of judicial construction, be construed more severely against one of the parties than the other. 32.10 JURISDICTION, VENUE, WAIVER OF JURY TRIAL This Agreement shall be interpreted and construed in accordance with and governed by the laws of the state of Florida. All parties agree and accept that jurisdiction of any controversies or legal problems arising out of this Agreement, and any action involving the enforcement or interpretation of any rights hereunder, shall be in the state courts of the Seventeenth Judicial Circuit in Broward County, Florida, and venue for litigation arising out of this Agreement shall be in such state courts, forsaking any other jurisdiction which either party may claim by virtue of its residency or other jurisdictional device. By entering into this Agreement, CONCESSIONAIRE and CITY hereby expressly waive any rights either party may have to a trial by jury of any civil litigation related to this Agreement. 32.11 AMENDMENTS No modification, amendment, or alteration in the terms or conditions contained herein shall be effective unless contained in a written document prepared with the same or similar formality as this Agreement and executed by the Board and CONCESSIONAIRE or others delegated authority to or otherwise authorized to execute same on their behalf. 32.12 PRIOR AGREEMENTS This document represents the final and complete understanding of the parties and incorporates or supersedes all prior negotiations, correspondence, conversations, agreements, and understandings applicable to the matters contained herein. The parties agree that there is no commitment, agreement, or understanding concerning the subject matter of this Agreement that is not contained in this written document. Accordingly, the parties agree that no deviation from the terms hereof shall be predicated upon any prior representation or agreement, whether oral or written. 32.13 REPRESENTATION OF AUTHORITY Each individual executing this Agreement on behalf of a party hereto does hereby represent and warrant that he or she is, on the date he or she signs this Agreement, duly authorized by all necessary and appropriate action to execute this Agreement on behalf of such party. 32.14 REMEDIES In the event of a breach of any of the terms or conditions of this Agreement, it is specifically acknowledged and agreed that either party shall, in addition to all other -17- remedies which may be available herein or in law or equity IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY LOSS OF PROFIT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT. 32.15 MULTIPLE ORIGINALS Multiple copies of this Agreement may be executed by all parties, each of which, bearing original signatures, shall have the force and effect of an original document. 32.16. SOVEREIGN IMMUNITY. CONCESSIONAIRE acknowledges that the Florida Doctrine on Sovereign Immunity bars all claims by CONCESSIONAIRE against the City unless the claim is based upon a breach of this Agreement. Further, the Contractor recognizes the City is a sovereign with regulatory authority that it exercises for the health, safety, and welfare of the public. This Agreement in no way estops or affects the City’s exercise of that regulatory authority. In addition, the City retains the full extent of its sovereign immunity in relation to the exercise of its regulatory authority. CONCESSIONAIRE acknowledges that it has no right and will not make claim based upon any of the following: a. Claims based upon any alleged breach by the CONCESSIONAIRE of implied warranties or representations not specifically set forth in this Agreement, as the parties stipulate that there are no such implied warranties or representations of the CONCESSIONAIRE. All obligations of the CONCESSIONAIRE are only as set forth in this Agreement; b. Claims based upon negligence or any tort arising out of this Agreement; c. Claims upon alleged acts or inaction by the City, its commissioners, attorneys, administrators, CONCESSIONAIREs, agents, or any CONCESSIONAIRE employee; d. Claims based upon an alleged waiver of any of the terms of this Agreement unless such waiver is in writing and signed by an authorized representative for the CONCESSIONAIRE and Contractor. Verification of Employment Eligibility. CONCESSIONAIRE represents that CONCESSIONAIRE has registered with and uses the E-Verify system maintained by the United States Department of Homeland Security to verify the work authorization status of all newly hired employees in compliance with the requirements of Section 448.095, Florida Statutes, and that entry into this Agreement will not violate that statute. If CONCESSIONAIRE violates this section, the City may immediately terminate this Agreement for cause and CONCESSIONAIRE shall be liable for all costs incurred by Municipality due to the termination. -18- 32.17 NONDISCRIMINATION CONCESSIONAIRE shall not discriminate against any employee or applicant for employment because of race, color, creed, sex, age, or national origin or sexual orientation. CONCESSIONAIRE and CONCESSIONAIRE’s employees shall not discriminate against any person because of race, color, age, creed, sex, sexual orientation or national origin by refusing to furnish such person any service or privilege offered to or enjoyed by the general public. 32.18 RESERVATION OF AUTHORITY. 32.18.1 Rights Reserved. Any rights not expressly granted herein by the City to CONCESSIONAIRE are reserved by the City. 32.18.2 Regulatory Approval. The City cannot, and hereby specifically does not, waive or relinquish any of its regulatory approval or enforcement rights and obligations as it may relate to regulations of general applicability which may govern the Concession or any operations at the Concession. Nothing herein shall be deemed to create an affirmative duty of the City to abrogate its sovereign right to exercise its police powers and governmental powers by approving or disapproving or taking any other action in accordance with its ordinances, rules and regulations, federal laws and regulations and state laws and regulations. 32.18.3 Public Safety The City may in its sole discretion limit or restrict access to the Park if it deems it necessary for public safety. SIGNATURES ON THE FOLLOWING PAGES -19- IN WITNESS OF THE FOREGOING, the parties have set their hand and seal the day and year first written above. ATTEST: CITY OF DANIA BEACH, FLORIDA, a Florida municipal corporation ELORA RIERA, MMC JOYCE L. DAVIS CITY CLERK MAYOR APPROVED AS TO FORM AND CORRECTNESS EVE A. BOUTSIS ANA M. GARCIA, ICMA-CM CITY ATTORNEY CITY MANAGER -20- CONCESSIONAIRE: WITNESSES: Performance Pups, Inc., a Florida Corporation ____________________________ _________________________ Signature NEIL HENNESSY, President ____________________________ PRINT Name Date: __________________ ____________________________ Signature ____________________________ PRINT Name STATE OF FLORIDA COUNTY OF _________________ The foregoing instrument was acknowledged before me by means of ☐ physical presence or ☐ online notarization, on ______ , 20__, by ________________________, as __________________________ of ______________________, a Florida ______________. He/She is personally known to me or has produced ____________ as identification. NOTARY PUBLIC My Commission Expires: State of Florida -21- EXHIBIT “A” LOCATOR MAP