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HomeMy WebLinkAboutR-1995-172RESOLUTION NO. 172-95 A RESOLUTION OF THE CITY O['DANIA, FLORTDA APPROVING LEASE AGREEMENT F'ORWATER SPORTS CONCESSION BETWEEN THE CITY OF DANIA AND PIER MANAGEMENT, INC., AND PRO}TDING FORAN EF'I'ECTIVE DATE. BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF DANIA, Section 1: That that certain Lease Agreement for Water Sports Concession between the City of Dania and Pier Management, Inc., a copy of which is attached hereto as Exhibit "A", be and the same is hereby approved and the appropriate city officials are hereby authorized to execute same. Section 2: That this resolution shall be in force and take effect immediately upon its passage and adoption PASSED and ADOPTED on this 12th day of December,1995. Mayor -ssloner ,A€+ing Clerk - Auditor APPROVED AS TO FORM & CORRECTNESS *r.o^,t c. Gl,/r,t-By Frank C. Adler, City Attomey Resolution No. 172-95 F'LORIDA: ATTEST: /2,"5*A- ]'tm AGREEMENT FOR OPERATION OF WATER SPORTS CONCESSION THIS AGREEMENT made and entered into this 12th day of December, 1995, by and between CITY OF DANIA, a Florida municipal corporation (hereinafter referred to as the "City"), and DANIA PIER MANAGEMENT, INC., a Florida Corporation, (hereinafter referred to as the "Contractor"). WITNESSETH: WHEREAS, for the purposes and intents of this Agreement the parties hereto agree that abbreviated, shortened or informal names, words, phrases or references may be sometimes used herein for the purposes ofreducing the length of this Agreement and making its meaning clearer; and WIIEREAS, the parties hereto further agree that such names, words, phrases or references shall have, unless the context obviously requires otherwise, the following meanings and definitions, to wit: "City Manager": "City Manager" as used herein shall mean and refer to the City Manager, City of Dania, Florida. "Agreement": "Agreement", as used herein, shall mean and refer to the within Agreement; and WHEREAS, the City owns and controls Dania Beach which is a recreational facility that the City owns in a proprietary capacity; and WHEREAS, Article 4, Part XII, of the Charter of the City of Dania, a Florida municipal corporation, authorizes the City to lease its property; and 1 WIIEREAS, the City desires to lease a 50' x 50 space immediately north of the Dania Ocean Pier on Dania Beach to the Contractor for the purpose of operating a watersport concession under the terms and conditions stated herein; and WHEREAS, the Contractor is willing to lease the said space for the purpose of operating a watercraft concession on Dania Beach from the City under the said terms and conditions. NOW, THEREFORE, KNOW ALL MEN BY THESE PRESENTS as follows: AGREEMENT TO RENT That for and in consideration of the rent herein reserved to be paid by the Contractor, and in consideration ofthe covenants herein to be kept and performed by the Contrator, the City does hereby lease unto the Contractor and the Contractor does hereby take from the City, a area, TO HAVE AND TO HOLD the same for a term of six (6) months, commencing the lst day ofJanuary, 1996 and ending the 30th ofJune, 1996, under the terms and conditions stated herein. RENT The Contractor covenants and agrees to pay to the City as basic rental for the demised property (during aforesaid term of six (6) months, the total sum of 2070 ofgross revenue plus Florida sales tax thereon, payable in six (6) monthly installments with the first of said installments to be due on the 1st day of February,1996, and the remaining installments to be due on the lst day of each and every month for the month immediately preceding. Sales tax to be included in all fees. I ,, 2 Said monthly payments shall be due and payable as aforesaid without demand at the City Hall, Dania, Florida. CONTRACT PERIOD/EXTENSION TERMS The initial contract terrn shall commence upon final execution ofthe contract by the City or January 1, 1996 whichever occurs last, and shall be for a six (6) months period. The City reserves the right to extend the contract for additional terms providing all terms conditions and specifications remain the same, both parties agree to the extension, and such extension is approved by the City The rental rates lor any extension term(s) shall be subject to negotiation between the parties. If the concessionaire desires an extension, the concessionaire shall notify the City in writing no later than 30 days prior to the expiration ofthe contract term then in effect. The notice shall contain the length of the proposed extension, the proposed rental rates, new or additional equipment, and proposed annual permit fee. The City shall noti$ the concessionaire of its decision within thirty (30) days 4 SUBSTITUTION OF PERSONNEL It is the intention of the City that the Contractor's personnel proposed for the contract will be available for the initial contract term. In the event the Contractor wishes to substitute personnel, he shall propose personnel ofequal or higher qualif,rcations and all replacement personnel are subject to prior City approval. In the event substitute personnel are not satisfactory to the City and the matter cannot be resolved to the satisfaction ofthe City, the City reserves the right to cancel the Contract J for cause. 5 INDEPENDENT CONTRACTOR The contractor is an independent contractor under this Agreement. Personal services provided by the Contractor shall be by employees ofthe Contractor and subject to supervision by the Contractor, and not as officers, employees, or agents of the City. Personal policies, tax responsibilities, social security, health insurance, employee benefits, purchasing policies and other similar administrative procedues applicable to services rendered under this Contract shall be those of the Contractor. UNCONTROLLABLE CIRCUMSTANCES ("Force Majeure") The City and Contractor will be excused lrom the performance oftheir respective obligations under this agreement when and to the extent that their performance is delayed or prevented by any circumstances beyond their controI including, fire, flood, inclement weather which would present customer with potential safety hazard, explosion, strikes or other labor disputes. act ofGod or public emergency, war, riot, civil commotion, malicious damage, act or omission of any governmental authority, delay or failure or shortage ofany type of transportation, equipment, or service from a public utility needed for their performance, provided that: A. the non-performing party gives the other party prompt written notice describing the particulars of the Force Majeure including, but not limited to, the nature ofthe occurrence and its expected duration, and continues to fumish timely reports with respect thereto during the period ofthe Force Majeure; 6 4 B. the excuse of performance is ofno greater scope and ofno longer duration than is required by the Force Majeure; C. no obligations of either party that arose before the Force Majeure causing the excuse of performance are excused as a result ofthe Force Majeure; and D. the non-performing party uses its best efforts to remedy its inability to perform Notwithstanding the above, performance shall not be excused under this Section for a period in excess of two (2) months, provided that in extenuating circumstances, the City may excuse performance for a longer term. Economic hardship of the Contractor will not constitute Force Majeure. The term of the agreement shall be extended by a period equal to that during which either parly's performance is suspended under this Section. ADDITIONS, DELETIONS AND CHANGES OF SERVICES The City may require the addition or deletion of services from the Contract, during the contract term, as the requirements and needs of the City change. This may entail, but not be limited to, additional equipment, increases in the quantity of equipment, changes or elimination or equipment, modifications in operating hours, or similar type changes. The Contractor must immediately modify or otherwise initiate those changes required by the City. 7 5 INSURANCE General Liability Insurance coverage to remain in force at all times during the contracted term. The following minimum insurance coverage per wave runner is required with the City added as an additional insured: COMPREHENSIVE GENERAL LIABILITY INSURANCE Limits: Combined Single Limit Bodily Injury/Property Damage: $l,000,000 AUTOMOBILE LIABILITY INSURANCE Limits: CombinedBodilylnjury/PropertyDamage:$ 300,000 CERTIFICATE OF INSURANCE must be lumished to and be approved by the City's Risk Manager prior to the commencement of any work. the City shall be given ten (10) days written notice of any cancellation or material change in any policy 9 6 8 SUBCONTRACTING The Contractor should be capable of performing all the services referenced in this agreement. If the Contractor intends to use a subcontractor in the performance ofthese services, the same qualification requirements, and all other terms and conditions of this Grant shall also apply to the subcontractor. The City reserves the right to approve or reject any subcontractors proposed. The Contractor shall be held fully responsible for the subconhactor's actions. 10 INDEMNIFICATION/HOLD IIARMLESS The Contractor agrees to protect, defend, indemnifr, and hold harmless the City of Dania and its officers, employees and agents from and against any and all losses, penalties, damages, settlements, claims, costs, charges for other expenses, or liabilities ofevery and any kind including attomey fees, in connection with or arising directly or indirectly out of the work agreed to be performed by the contractor under the terms of the agreement. Without limiting the foregoing, and all such claims, suits, or other actions, relating to personal injury, death, damage to property, defects in material or workmanship, actual or alleged violation ofany applicable statute, ordinance, administrative order, rule or regulation, or decree ofany court, shall be included in the indemnity hereunder. The Contractor assumes all risk in the operation of this concession and shall be solely responsible and answerable in damages for accidents or injuries to persons or property, whether direct or indirect, arising out of the operation of this concession or arising by virtue ofcarelessness, negligence, or improper conduct of the Contractor or any servant, agent, or employee ofthe Contractor. 11 NON-DISCRIMINATION There shall be no discrimination as to race, sex, color, creed, or national origin in the operations conducted under this contract. 7 t2 PERMITS, LICENSES The Concessionaire agrees to obtain and pay for all permits and licenses necessary for the conduct of the business and agrees to comply with all laws goveming the responsibility of the employer with respect to persons employed by the Contractor. The Contractor shall also be solely responsible for payment of any taxes levied on the concession operation. In addition, the Contmctor shall comply with all rules, regulations and laws, including permit requirements of Ordinance C-93-26, of the City of Dania, Broward County, the State of Florida and the U.S. Govemment, now in force or hereafter to be adopted. 13 CONCESSION FEE PAYMENTS The Contractor shall pay to the City twenty percent (20%) of gross revenue on a monthly basis. Atl payments shall be presented to the City Manager by check payable to the City of Dania, on the first of each month for the month preceding. l4 SALES TAX It is understood that the applicable Florida State Sales Tax, payable on those concession lees due the City, shall be paid directly to the State of Florida by the Contractor. It is the intent of the City that it is to receive the rental amount net, free and clean or all costs and charges arising from, or B relating to, said demised premises. Florida State Sales Tax is also payable on all revenues gained as a result ofgross sales on the rental fees for watercraft. The sales tax must be submitted to the State of Florida. in accordance with applicable laws. The term "gross sales" is understood to mean all income collected or accrued, derived by the Contractor under the privileges granted by the Agreement entered into with the City, excluding amounts ofany State Sales Tax or other tax, collected by the Contractor from customers and required by law to be remitted to the taxing authority. l5 The Contractor shall maintain during the term ofthe contract, all books of account, receipts, invoices, reports, and records in accordance with Generally Accepted Accounting Principles and standards. The form ofall records and reports shall be subject to the approval of the City's Finance Director/City Clerk. Recommendations for changes, additions or deletions by the City's Finance Director/City Clerk complied with, by the Contractor. The City's F'inance Dircctor/City Clerk or other representative authorized by the City, must be permitted, during normal business hours, to audit and examine the books of account, reports, and records relating to this contract. The Contractor shall maintain and make available, in Broward County, Florida, such records and files for the duration ofthe contract and retain them for a period of two (2) years beyond the last day of the contract term. 9 RECORDS 10 t6 OPERATING REGULATIONS All City, County and State laws and regulations relating to the operational use of the City's beachfront areas, shall be adhered to by the Contractor, his representatives and employees. This shall relate to laws currently in force and those adopted hereafter. There shall be no ovemight storage of any type on the beach except with prior City approval. The Security for all property, equipment and supplies owned and provided by the Contractor, shall remain the responsibility of the Conhactor. Costs relating to the repair or replacement of such items, stolen, lost, or damaged, shall be at the expense ofthe Contractor. The Contractor will be responsible for all damage to City property or the City beachfront, during the hours of operation. Any such damage that may occur during stated times, shall be corrected at the expense of the Contractor. The Contractor will conduct his operation and provide contracted services, in such a manner as to maintain reasonable quiet and minimize disturbance to the general public. The Contractor's vehicles, trailers and equipment shall be in a neat, clean and well maintained condition at all times. Any repairs, cleaning or other maintenance as required to maintain a cleal and safe working environment, shall be provided on a continuous and immediate schedule. The Concession operation must be maintained as to provide an aesthetically pleasing appearance and not be detrimental to the immediate surroundings, appearance and not be detrimental to the immediate surroundings. t7 PAITKING REQU IIIE,MENTS City will provide five (5) spaces in the permit lot on the northwest comer of the existing Parking Lot to Contractor for employee and equipment storage. 18 OPERATING PROCEDURES The Contractor shall post rental rates for all equipment, stating a cost per hour, hatf(l/2) day or full day or as requested ofthe city, as applicable. Should a deposit and./or security payment also be required for the rental of equipment, this must so be stated. Rental equipment shall nor be so positioned in the beach area, as to obstruct the view ofany lifeguards or their work stations, thus preventing or reducing the quality of needed services. Should this condition develop, the Contractor shall immediately, upon notification from the lifeguard personnel, take any and all actions as instructed by such City personnel. to correct this situation The Contractor shall instruct and identify for customers ofrental equipment, that area designated as Swimming Area only. This area, defined in current City Codes Section "Restricted Area" currently restricts such operations in an area 400 feet east of the current shore water line. The Concessionaire will also restrict operation within 100 feet of the nearest swimmer, regardless ofthe proximity of this person to the shoreline. This defined Safety or Protected Zone, may be modified and revised during the course of this contract as determined by changes in the referenced City Codes or as determined necessary by City personnel 11 All rental equipment shall be inspected on a daily basis and prior to commencement of the rental operation. Any equipment determined not to be in sound mechanical or working condition, shall not be utilized until noted defects are corrected. A powered chase vessel must be available and on site to be utilized as required in this operation. Such vessel shall be available to control and insure the proper operation of rental vessel in the designated and authorized areas only. Chase vessel will be equipped with an electronic device capable ofdisabling the operation ofany rental vessel not complying with the rules ofoperation. This vessel shall also be available to assist as needed to tow rental vessels, either inoperable, non- controllable or otherwise incapable of normal movement. Such vessel shall be driven by either by jet or propeller. Should a propeller driven vessel be utilized, the Contractor must provide a guard or similar device to prevent contact with the propeller. Contractor shall prohibit anyone under the age of 16 from renting or otherwise using their watercraft. All rental watercraft shall adhere to applicable registration and license requirements ofthe State of Florida. Any change or addition to the Contractor's operation will require prior review and approval of all applicable City Departments. The City reserves the right to issue additional beach rules and regulations as deemed necessary by the City. Contractor agrees to abide by any new or revised rules and regulations that the City deems necessary. l2 20 EQTIIPMENT The Proposer must provide and maintain at its own cost and expense, all equipment required to operate the concession. In the event of loss, stolen or damaged equipment or facilities, any and all required repairs and/or replacement of equipment, shall be at the cost and expense ofthe Contractor. The Contractor shall also be responsible to provide, install and maintain all regulatory buoys during operating hours as requited to define operating areas. Buoys shall be at least 18 inches in diameter and of a high visibility color. A11 signage, if allowed, must be in complete compliance with City Codes and beach regulations. Ali rental equipment shall be color coded or otherwise plainly marked so as to permit identification from a distance of 150 yards. No maior repairs to equipment shali be allowed on the saldy beach. 19 OPERATING SCHEDULE During the term ofthis contract, the facility shall be open and properly staffed seven (7) days per week, on a 52-week per year schedule, with appropriate hours to serve the beach patrons and the general public. Exceptions to this operations schedule shall only be considered when inclement weather conditions do not warrant the operation ofthis concession service or with an advance request for such change and approval by an authorized City Representative. 13 2t PRICING The Contractor agrees that prices and fees charged for concession services shall be competitive with those charged for similar merchandise and/or services in the Tri County (Palm Beach, Dade and Bror.vard) area 22 INSTRUCTIONS As to provide full service and maximize the potential for rental of equipment, the Contractor shall pre-screen all renters to determine their ability to operate rental equipment. The Contractor shall be capable ofproviding complete instructions on the proper, correct and safe usage olsuch equipment. These instructions shall include verbal directions and a demonstration ofthe equipment's proper usage 23 PERSONAL SAFETY EQUIPMENT The contractor shall have available and provide an approved personal flotation device to all renters of watercraft equipment. Such device shall be of the type and class approved for such use by the Coast Guard. It shall be the sole responsibility of the Contractor to insure the renter is capable of properly adjusting and using such a device. Information on the proper use of this equipment must be provided to the user should there be any doubt relating to the renter's ability to properly use this equipment. t4 The Contractor shall insure that such device is being wom properly, prior to the operator leaving the beach area. Removal of such equipment during the rental period while equipment is actually in use, shall be constructed as a violation ofthe rental agreement. Corrective measures shall be immediately taken or the rental craft shall be retumed to the concessionaire site. The mandatory use of this equipment must be stated on a display sign in the immediate area of the rental site. 21 APPEARANCE OF PREMISES The Contractor shall be responsible to have a neat, clean and orderly operation at all times and be responsible for maintaining that condition during operating hours within an area offifty feet (50') of The Conctractor shall provide at his own expense all trash and rubbish receptacles within the confines of his area in a quantity adequate for his own use and that of the public. The removal and disposal ofthis trash and rubbish shall be the responsibility of, and at the expense ofthe City. 25 EMPLOYEE QUALIFICATIONS AND APPEARANCE The Contractor shall employ workers to service this operation whom are literate, neat, clean, well groomed and courteous. At least one person of Contractor's staff will maintain certifrcations inCPR and First Aide. The Contractor will oversee the daily operation of this concession and with the full authority to direct the operation and immediately take all corrective action required to correct erroneous procedures and insure complete and continuous compliance with the specifications contained herein. 15 the concession site. 26 BEACH REGULATIONS The Contractor shall abide by all rules and regulations, established at the beach location and intended for use by the general public. 27 CONTRACTOR'S RIGHTS The City warrants and agrees to protect the Contractor(s) against the rental of like equipment on public beaches within the established boundaries ofthe Dania Beach. This Agreement does not include a contract for the rental of cabanas, and similar types of equipment, or any types of food or beverage. SPECIAL EVENTS The City will hold sponsored and cosponsored events and activities on the Dania Beach from time to time. During such events, the Contractor may be allowed to continue operations or be assigned a temporary location elsewhere within close proximity of the originally assigned site. During the event, the Contractor has the option of operating his equipment from the temporary site or stopping operations until the event is over. The City reserves the right to allow other concessionaires to operate upon the originally assigned site or in close proximity to that site during the special events as may be approved by the designated City Representative. 28 76 29 DEFAULT (1) If Contractor abandons or vacates the premises prior to the expiration ofthe term hereof, or (2) If Contractor fails to make the payments as set forth herein and said payment is not made within 15 days after written notice is given to Contractor, or (3) If Contractor fails to perform in accordance with any ofthe other terms and conditions herein contained, and such default is not cured within fourteen (14) days after written notice is given to Contractor, the City, at City's option and without further notice or demand to Contractor, may enter into possession ofthe Premises and all improvements thereon and remove all persons therefrom and may either take possession of all fumiture, equipment, and other personal property of Contractor found on the Premises or remove such property or any part of it and store it at Contractors expense. City may terminate this agreement without prejudice to City's law.lul rights and remedies against Contractor. BANKRUPTCY OR INSOLVENCY If Contractor is adjudicated a bankrupt or makes an assignment for the benefit ofcreditors, or if the leasehold interest is sold under a legal order, orjudgment, City shall have the right to immediateiy terminate this contract and re-enter the Premises without notice or demand. 30 77 3l SUBLEASE AND ASSIGNMENT Contractor shall not sublease the Premises or any part thereofnor enter into any concession agreement, nor assign this contract or any portion thereofto any other person or firm without first obtaining the prior written approval ofthe City. Contractor agrees that no shareholder shall sell, assign, transfer or convey his stock (except by operation of law) nor shall the corporation issue any additional shares of stock without the prior written consent ofthe City, which shall not be unreasonably withheld. Provided, however, that the shareholders shall have the right to convey between themselves and their spouses and children without consent. 32 INSPECTION OF PREMISES For the purpose of inspection, City reserves the right to enter upon any part ofthe Premises at any time during the period the business is to be open under the terms of this lease. NOTICES All notices and rental payments shall be sent to the parties at the following addresses: City City of Dania City Manager 100 W. Dania Beach Blvd. Dania. FL 33004 Dania Pier Mgmt., Inc. 300 North Beach Road Dania, FL 33004 Contractor: 18 City and Contractor may change such addresses at any time upon giving the other party wfitten notification. All notices under this lease must be in writing and shall be deemed to be served when delivered to the address ofthe addressee. All notices served by mail shall be registered mai[, retum-receipt requested. Contractor may designate additional persons for notification ofdefault. 34 ATTORNEY FEES Contractor agrees to pay the cost ofcollection and reasonable attomeys' fees on any part of said payment that may be collected by suit or by attomey after the same is past due. In the event of any olher litigation the prevailing party shall be entitled to collect attomeys' fees and court costs from the losir.rg party. TERMS BINDING ON SUCCESSORS All ofthe terms and conditions ofthis contract shall insure to the benefit ofand be binding upon the successors and assigns of the parties hereto. 35 79 SIGNS No signs whatsoever, including advertising signs, shall be erected or permitted upon the Premises until the plans have first been submitted to the City in accordance with all Federal, State and City Laws, Statutes and Ordinances and approval received in writing. IN WITNESS WHEROF, the parties hereto have caused these presents to be executed the date and year first above written. CITY OF DANIA, a Florida municipal Corporation, LANDLORD ATTEST: By: MAYOR - Commissioner City Clerk/Finance Director By: Mike Smith, City Manager PIER MANAGEMENT. INC.. Tenant 36 APPROVED AS TO FORM AND CORRECTNESS By Frank C. Adler, City Attorney Thomas Zannucci. President By By: Donald V. Streeter. Vice President 20