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R95-145RESOLUTION NO. R95-/~ A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA, AUTHORIZING AND DIRECTING THE MAYOR AND CITY CLERK TO EXECUTE A RENEWAL OF AN AGREEMENT BETWEEN THE CITY OF BOYNTON BEACH AND KENNETH WELCH FOR THE BAIT SHOP CONCESSION AT BOAT CLUB PARK; AND PROVIDING AN EFFECTIVE DATE. WHEREAS, upon recommendation of staff, the City Commission of the City of Boynton Beach, Florida, deems it to be in the best interests of the citizens and residents of the City to renew an Agreement with Kenneth Welch for the bait shop concession at Boat Club Park; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF BOYNTON BEACH, FLORIDA, THAT: $~ction 1. The City Commission of the City of Boynton Beach, Florida hereby authorizes and directs the Mayor and City Clerk to execute a renewal of an Agreement between the City of Boynton Beach and Kenneth Welch, for the bait shop concession at Boat Club Park, a copy of said Agreement being attached hereto as Exhibit "A" Section 3. That this Resolution effective immediately upon passage. shall become PASSED AND ADOPTED this /~ day of September, 1995. ATTEST: Ci~ Clerk CITY OF BOYNTON BEACH, FLORIDA Mayor ._ j 'J ~ Mayor Pr~p~Tem Co~s s ioner (Corporate Seal) Authsig.doc BaitShoD.Con Boat Club Park 9/11/95 CITY OF BOYNTON BEACH LEASE AGREEMENT This lease agreement made and entered into by and between the City of Boynton Beach, Florida, a municit~al corporation, hereinafter referred to as the "CITY" and Kenneth Welch, hereinafter referred to as the "CONCESSIONAIRE". Contract Objectives The CITY shall grant to the CONCESSIONAIRE, as an independent contractor, the exclusive right and the CONCESSIONAIRE shall accept from the CITY the exclusive fight to operate within the designated City facility: Concessions in order to provide primarily fishing supplies, bait, gear, tackle, food and beverages for the daily use by patrons and visitors to the Boymon Beach Municipal Boat Club Park. The CONCESSIONAIRE agrees to sell on the concession site live and frozen bait, tackle, other fishing supplies, gear, food and beverages for the use of patrons and visitors to the Boynton Beach Municipal Boat Club Park. 2. Terms of Contract This lease agreement shall be in force for a period of three (3) years from October 1, 1995, unless sooner terminated as otherwise provided in Section 7, Termination, with an option to renew for a period of three (3) years if mutually agreed upon by both the CITY and the CONCESSIONAIRE and subject to any agreed upon updated conditions in this lease agreement. 3. Compensation Ao The CONCESSIONAIRE agrees to pay the CITY a sum of five (5%)percent of the first Five Thousand ($5000) Dollars of monthly gross income, plus twelve (12%) percent of any monthly gross income over Five Thousand ($5000) Dollars. Gross sales shall be defined as sales for cash or on credit, less applicable sales tax and added gratuities for all direct and indirect sales by the CONCESSIONAIRE. Risk Management Ao The CONCESSIONAIRE agrees to indemnify and save harmless the CITY from all suits, claims, damages, and actions of any kind or nature arising directly or indirectly on the part of the CONCESSIONAIRE, its agents, servants, employees, contractors and suppliers, arising out of its operation under this agreement. The CONCESSIONAIRE shall secure and maintain for the duration of this lease agreement the following insurance coverage. Comprehensive General Liability in the minimum amounts of Three Hundred Thousand Dollars ($300,000) per person and Five Hundred Thousand Dollars ($500,000) per occurrence. J Property damage to the full insurable value of all property involved in the lease agreement. Both policies shall name the CITY as an additional insured and shall include Product Liability and Contractual Liability coverage. Requirement for product liability will be waived as long as the CONCESSIONAIRE serves only prepackaged products. Workers Compensation Insurance in full compliance with the State of Florida Workers Compensation Law. Fire, Theft, Vandalism and Extended Coverage m a sufficient amount to insure CONCESSIONAIRE for such loss to its own equipment and that of its suppliers which CONCESSIONAIRE shall elect to place or install on the premises. Such a policy shall contain standard waiver of subrogation clause and a certificate of such endorsement shall be furnished to the CITY. All policies of insurance shall be issued by insurance companies licensed to do business in the State and having a Best's policy-holder's rating of A or better and a Best's financial rating of AA+ or better. All policies shall contain an endorsement providing the Purchasing Agent of the City of Boynton Beach thirty (30) days prior written notice in advance of any material alteration or cancellation of said policies. All policies of shall be submitted to .the Purchasing Agent not less than ten (10) days prior to the commencement of the term of this Contract. General Conditions The CONCESSIONAIRE shall be open for operation seven (7) days per week with the following schedule: 6:00 AM to 6:00 PM Sunday through Saturday. Exact times of opening and closing may have seasonal variations if approved by the City Manager, or designee. However, hours must be consistent and strictly adhered to. The CONCESSIONAIRE will be responsible for prompt and full payment of all utility bills related to the CONCESSIONAIRE'S operation. These utilities include but are not limited to electric service, water and sewer service, sanitation, and gas. Co DJ Performance Bond - A performance bond or cash deposit in the mount of [waived] will be required of the CONCESSIONAIRE prior to the signing of the lease agreement. Said bond or deposit shall be conditioned upon the CONCESSIONAIRE'S faithful performance of all things herein required of him. Assienment - The CONCESSIONAIRE will not assign or transfer its rights and privileges granted under this lease, either in whole or in part, without fin:st obtaining the written consent of the City Manager. Destruction of Premises - In the event that the concession site is destroyed or damaged by fire or other casualty so as to render it untenable, the lease agreement shall be suspended until such time as the premises are rendered again tenable. If the CITY elects not to render the premises tenable again, it shall notify the CONCESSIONAIRE and, upon furnishing such notice, this lease agreement shall be terminated. T~ernporary Improvements to Facility_ - The CONCESSIONAIRE shall have the right to improve the facilities in a proper and pleasing decor, subject to the approval of the City Manager. All such improvements shall meet all applicable codes and shall be of a temporary nature, and shall be paid for, erected and removed by the CONCESSIONAIRE at the termination of this lease agreement. ~ - After six (6) months of signing of original lease agreement and every six (6) months thereafter until this lease agreement is terminated as provided, both parties are to meet to review the operation of the concession and "fine tune" the operation to the satisfaction of both parties. At that meeting, subjects discussed will include, but will not be limited to, quality of food and service, prices of food, beverage, tobacco products, fishing supplies, bait, tackle and gear, cl~nliness of concession site, reaction of patrons to the operation, the quality of the CONCESSIONAIRE'S employees, and the hours of operation. ~ - The CITY shall not operate any additional, similar, competing concessions at the Boynton Beach Municipal Boat Club Park without the CONCESSIONAIRE having first option as to additiOnal operations. The- CITY reserves the right as themselves or any organization granted power as their agent to sell food and beverages for special community event programs of short duration (one to three days). Heense for Sale of Alcoholic Beverages - The CONCESSIONAIRE is hereby permitted to secure licenses required for the selling to the public by the drink, fermented malt beverages and vinous beverages, but it is explicitly understood that the CITY makes no representation that such license or licenses will be granted to the CONCESSIONAIRE. A sign should be permanently displayed NJ by the CONCESSIONAIRE stating that consumption of such alcoholic beverages is not allowed on Park property or in the concession building and immediate surrounding area. Waiver of Damages - The CONCESSIONAIRE hereby expressly waives any and all claims for compensation for any and all damage sustained by reason of any defect, deficiency, or impairment of the water supply system, drainage or heating systems, steam pipes or electrical wires leading to the concession areas, or by reason of any loss resulting from failure of any water supply, heat or current which may occur from time to time from any cause, or for any loss resulting from water; for any loss, damage or claim resulting from the cancellation, interruption, or termination by the CITY for any reason of any event scheduled for public or private attendance at the concession site; and the CONCESSIONAIRE hereby expressly releases and discharges the CITY and its agents from any and all demands, claims, action and causes of actions arising from any of the causes aforesaid. The CONCESSIONAIRE shall and hereby does release the CITY from all liability for the loss or damage of merchandise, goods, equipment or any other property of whatsoever kind of the CONCESSIONAIRE or any of his suppliers caused by fire, theft, water, storm, windstorm, vandalism, or any other causes whatsoever. Delivery_ of Supplies - The CONCESSIONAIRE shall arrange for the delivery of supplies used by it at the concession site at times and in a manner so that such deliveries do not create congestion or an undue interference with the regular operation and maintenance of the site. Advertising_ Materials - Signs, advertising materials, posters and other such material used by the CONCESSIONAIRE shall be subject to the approval of the City Manager. Ant, discrimination Clause - The CONCESSIONAIRE shall not discriminate against any employee or applicant for employment in be employed in the performance of this lease agreement with respect to his hire, tenure, term, condition or privileges of employment or any matter directly or indirectly related to employment, because of race, color, religion, national origin, ancestry, sex, age or handicap status. Litigation - In connection with any litigation arising out of the lease agreement, the prevailing party shall be entitled to recover all costs incurred, including reasonable attorney's fees. The CONCESSIONAIRE shall make every effort to assist the CITY in keeping the area free from debris and litter. Financial Operations The CONCESSIONAIRE shall pay promptly all taxes, excise or license fees or whatever nature, applicable to this operation, and take out and keep current all licenses, municipal, state or federal, required for the conduct of the business, and farther, shall not permit any of said taxes, excise or license fees to become delinquent. The CONCESSIONAIRE further shall at all times maintain adequate workmen's compensation insurance with an authorized insurance company, insuring the payment of compensation to all employees engaged in the operation of said concession. The CONCESSIONAIRE also shall not permit any mechanic's or materialman's or any other lien to be imposed upon the property hereinabove described or any part or parcel thereof by reason of any work or labor performed, or materials furnished by any mechanic or materialman to said concession herein granted. The CONCESSIONAIRE shall make available, upon request, duplicate receipts or other satisfactory evidence showing the prompt payment of the social security, unemployment compensation and ali taxes and fees above referred to, and showing that the said workmen's' compensation insurance and all required licenses are in good standing. The CONCESSIONAIRE shall pay promptly when due all bills, debts and obligations incurred in connection with the operation of the concession and shall not permit same to become delinquent and suffer no lien, mortgage, judgment, execution or adjudication in bankruptcy which will in any way impak the rights of the City under this lease agreement. Bo Accounts and Payment to the City - The CONCESSIONAIRE shall keep a true and accurate account of all monies received through the operation of the concession herein granted and shall, on or before the twentieth day of each month of the lease agreement, render and deliver to the City an itemized statement showing all monies so received during the calendar month immediately preceding. Attached to the statement shall be the applicable payment due to the City, which shall be on a monthly basis. Methods of accounting, cash recording devices, books, record equipment and any necessary procedure for determining gross receipts shall be mutually agreed upon and shall be implemented at the CONCESSIONAIRE'S expense. Audit - The CONCESSIONAIRE shall keep tree' and complete records and accounts of all gross receipts and business transacted, including daily bank deposits, and semi-annually furnish a tree and accurate statement for the preceding six (6) months of all such receipts and business transacted during such preceding six (6) months (showing the authorized deductions or exclusions in computing the amount of such gross receipts and business transactions), which statement shall be Certified by an authorized representative of the CONCESSIONAIRE to be correct. The CONCESSIONAIRE agrees to establish and maintain a system of bookkeeping and fiscal year accounting sa 'tlSfictory to the CITY'S auditor and to give the CITY access during reasonable hours to such books and records. The CONCESSIONAIRE agrees that it will keep and preserve for at least three (3) years all sales slips, cash register tapes, sales books, cash deposit receipts, bank books, or duplicate deposit slips, and other evidence of gross receipts and business transacted for such period. The CITY's auditor and the City Manager and their respective authorized representatives shall have the right at any time and from time to time to audit all of the books of account, bank statements, documents, records, returns, papers, and files of the CONCESSIONAIRE relating to gross receipts and business transacted, and the CONCESSIONAIRE on request by either, shall make all such matters available for such examination at the corporate headquarters of the CONCESSIONAIRE. If the CITY shall make or have such an audit made for any year and the gross receipts and business transacted shown by the CONCESSIONAIRE'S statement for such year should be found to be understated by more than one percent (1%), the CONCESSIONAIRE shall pay to the CITY the cost of such audit. The CITY'S right to have such an audit made with respect to any year shall expire three (3) years after the CONCESSIONAIRE'S statement for any year shall have been delivered to, and accepted by, the CITY. Termination This lease agreement may be terminated by either party thirty (30) days .after delivery of written notice of such termination and reason(s) for lease termination. This lease agreement may, at the option of the CITY, be terminated inmiediately if the CONCESSIONAIRE shall become insolvent or bankrupt, make an assignment for the benefit of creditors or be convicted of a crime or any other similar gross mispriority. Ce A tennimtion of the lease agreement, for reasons other than expiration of the term, shall be effected as follows: If conditions are present which are considered by either party to be cause for termination, written notice shall be provided to the other party, and a sufficient period of time shall be given to correct the conditions. Ifthe conditions are not corrected within a reasonable period of time, then this lease agreement maybe terminated for such conditions by giving thirty (30) days written notice. In the event the CONCESSIONAIRE fails to pay the CITY charges or fees strictly in accordance with the terms of this lease agreement, the CITY may cancel and terminate this lease agreement at any time upon five (5) day's written notice to the CONCESSIONAIRE. If this lease agreement is cancelled or terminated by the CITY, or if the CITY shall discontinue its operations, the CONCESSIONAIRE shall pay to the CITY all sums then due from the CONCESSIONAIRE to the CITY. The acceptance of monies due the CITY for any period or periods after a default of any of the terms, covenants, or conditions of this lease agreement shall not be deemed a waiver on the part of the CITY. No waiver or default by the CITY of any of the terms, covenants or conditions hereof to be performed, kept and observed by the CONCESSIONAIRE shall be construed to be or act as a waiver or any subsequent default of any of the terms, covenants and conditions herein contained to be performed, kept and observed by the CONCESSIONAIRE. Delivery. After Termination - The CONCESSIONAIRE will deliver the premises and any permanent improvements and attached accessories to the CITY at the termination of the lease agreement in as good condition and state of repair as when received, except for ordinary wear and tear or loss or damage caused by an act of God. Removal on Teaa~ination - On the date of termination hereof, or in case of the termination of the relationship created by the lease agreement prior thereto, on written notice, the CONCESSIONAIRE shall have the fight to remove ~om said premises all personal property, fixtures and equipment not a part of the real estate, installed by it and title to which it retains, subject, however, to any valid lien or claim which the CITY may have for unpaid fees, provided, also, that if said removal causes any damage to the premises, said CONCESSIONAIRE will repair the same in a proper and satisfactory manner at its own expense. The provisions of this paragraph shall not apply to the personal property to which the CITY has a fight to use and purchase pursuant to this lease agreement. of IN WITNESS WHEREOF, the parties hereto have set their hands and seals this ,1995. WITNESSES: FOR THE CONCESSIONAIRE WITNESSES: Approved as to form: - g~' City Attody~ FOR THE CITY OF BOYNTON BEACH ATTEST: ~ -city ~l~r~ City Seal