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HomeMy WebLinkAboutReso 99-171RESOLUTION NO.99-171 A RESOLUTION OF THE CITY OF SUNNY ISLES BEACH, FLORIDA, DIRECTING THE MAYOR TO EXECUTE THE PERMIT AGREEMENT BY AND BETWEEN THE CITY OF SUNNY ISLES BEACH AND THE NEWPORT BEACHSIDE RESORT, ITS SUCCESSORS OR ASSIGNS, ATTACHED AS EXHIBIT "A"; PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, heretofore the Gilbert Samson Park, located at AlA Collins Avenue and 167`h Street has been the property of Miami -Dade County ("County"); and WHEREAS, the City of Sunny Isles Beach ("City") and the County have agreed that the County will transfer said park in accordance with the Interlocal Agreement approved by Resolution No.99-170; and WHEREAS, the City of Sunny Isles Beach has negotiated with the Newport Beachside Resort for it to continue to maintain park property in perpetuity and provide and pay for a lifeguard to be located in the City of Sunny Isles Beach for the terms set for in the Permit Agreement in consideration of the City's permission to allow permitee at all times to maintain an easement to the property. NOW THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY SUNNY ISLES BEACH, FLORIDA, AS FOLLOWS: Section 1. Permit Agreement. In tandem with the transfer of the Gilbert Samson Park from Miami -Dade County to the City of Sunny Isle Beach in accordance with the Interlocal Agreement, the City Commission of the City of Sunny Isles Beach hereby approves the Permit Agreement by and between the City and the Newport Beachside Resort, its successors or assigns, attached hereto as Exhibit "A" and directs the Mayor to execute said agreement. Section 2. Effective Date. This Resolution shall become effective upon adoption. PASSED AND ADOPTED this 2°a day of Noveml ATTEST: Richard Brown Morilla, City Clerk APPROVED AS TO FORM AND LEGAL SUFFICIENCY vx� ,rye-M. Dannheisser, City Attorney VOTE: S- Q Mayor Samson Vice Mayor Turetsky Commissioner Iglesias Commissioner Kauffinan Commissioner Morrow Moved by: cra �, I OW4L�.- l Seconded by: '�iCR- 1�1`� wkwovc-,� ✓ (Yes) (No) c/ (Yes) (No) (Yes) (No) LIZ (Yes) (No) PERMIT AGREEMENT THIS PERMIT AGREEMENT (" Agreement") made and entered into this ?_f4 day of IJoo e,,,,L,,,, , 1999, by and between the City of Sunny Isles Beach (the "City") and the Newport Operating Management Corp. d/b/a Newport Beachside Resort, its successors and/or assigns (the "Permittee"). WHEREAS, the City through an Interlocal Agreement adopted by Resolution No.1381-grL of the County Commission as accepted by the City of Sunny Isles Beach by Resolution No. 99- v, deeding the Gilbert Samson Memorial Park ("Park") to the City as attached to this Agreement as Exhibit "A" (hereinafter referred to as the "Interlocal Agreement"; and WHEREAS, the City and the Permittee have agreed to continue the terms of the Agreement, subject to the terms and conditions set forth below, including but not limited to the City's grants to Permittee of a non-exclusive easement in favor of the Permittee over and across the Park, solely for pedestrian and vehicular access and any easements to bury a 208 feet feeder cable; and WHEREAS, in consideration of this permit, the Permittee agrees to manage and maintain the park for and on behalf of the City in perpetuity, as well as provide lifeguard services, until the end of the fiscal year 2000; and WHEREAS, this permit is determined to be in the best interest of the City and the Permittee to provide controlled parking, access to ocean and maintenance of the park; NOW THEREFORE, IN CONSIDERATION OF THE MUTUAL COVENANTS AND PROVISIONS CONTAINED HEREIN, THE PARTIES HEREBY AGREE AS FOLLOWS: 1. Incorporation of Recitals. The Recitals set forth hereinabove shall be incorporated by reference into this Agreement. 2. Purpose. The City hereby grants unto the Permittee, and the Permittee hereby accepts from the City, a permit to maintain, operate and manage the Gilbert Samson Memorial Park for the recreation and entertainment of Park patrons which provides access to the beach and ocean located between State Road AIA and the ocean at the intersection of Northeast 167`h Street and to collect a reasonable parking fee. 3. Term. The City hereby grants to the Permittee a term of 99 years beginning upon the execution of this Agreement. Newport -Holiday Inn Permit Agreement 10/28/99 -- 12:45 PM LMD:ch 4. Exclusivity. The rights granted under the permit are exclusive only to the site and as to types of services offered. Nothing contained in this Permit Agreement shall preclude the City from offering other services or for charging fees to park patrons. 5. Permittee Obligations. As a material inducement for the City to enter into this Permit Agreement with Permittee, the Permittee hereby agrees as follows: i. The Permittee shall (a) either provide and pay for a lifeguard to be located on the beach or demised premises, in which case the lifeguard shall be the sole responsibility of the Permittee; or (b) pay for a lifeguard provided by Miami -Dade County. Specifically, if the Permittee provides the lifeguard, in accordance with this Paragraph 5 (a), the Permittee agrees to indemnify and save harmless the City from any and all claims, liability, losses and causes of action, which may arise out of the actions of the lifeguard, the Permittee, its employees, agents, officers and assigns, arising outside of the terms of this agreement, including any claim for which the City has indemnified the County in accordance with the Interlocal Agreement attached hereto as Exhibit "A". The Permittee, directly or through its insurance carrier, shall pay all claims and losses of any nature whatsoever in connection therewith and shall defend all lawsuits in the name of the City when applicable and shall pay all costs and judgment and attorneys' fees which may issue therefrom. In either case, the lifeguard shall be on duty during the hours as customary in the Miami -Dade County beaches. The Permittee shall pay for said lifeguard for a two-year term commencing on the date the Park Interlocal Agreement is executed by the City and Miami -Dade County, and terminating two (2) years from that date. ii. Additionally, the City will have the right to relocate the lifeguard to the other beachfront park owned by the City. iii. Permittee agrees to abide by any obligations of the City as incurred in any Interlocal Agreement with the County for the Gilbert Samson Park and shall indemnify the City for same in accordance with Paragraph 13 hereinbelow. 6. Access. Permittee shall, at all times, maintain the easement as a public park with free access to the beach for the term of the permit and the City shall have the option to provide additional services and facilities, as it deems appropriate, subject to the right of the Permittee to its access easement. 7. Facilities. a. The Permittee shall maintain the following: Parking Lot Maintenance: Newport -Holiday Inn Permit Agreement 2 10/29/99 — 12:45 PM LMD:ch I (i) Trim trees and shrubs (ii) Daily waste, litter pickup and removal (iii) Provide attendant to collect parking fees (iv) Open and close parking lot at mutually agreeable hours (v) Removal of excessive sand buildup Park Maintenance: (i) Trim trees and shrubs (ii) Daily waste and litter pickup, dump receptacles and remove debris (iii) Provide water connection for foot shower at pedestrian gate (iv) Striping and resurfacing of parking lot as needed B. The City shall maintain the following: (i) Clean the sand area of the park by beach maintenance crews during normal operations (ii) Replacement of trees and shrubs as necessary (iii) Maintain the fence and gates (chain link and pipe gate to beach) (iv) Provide park signage C. It shall be the responsibility of Permittee to coordinate activities with the City during construction and normal operations. 8. City Approval. The Permittee agrees that it will obtain prior written approval from the City, which approval shall not be unreasonably witheld, in all of the following matters: A. Use of any type vending machines inside the park boundary. B. Changes from originally approved specifications, business activities, signage and graphics C. Any use of the City's department's, park's or facility's name D. Any replanting or removal of vegetation. E. Hours of operation F. Any business activity except as approved above. 9. Public Contact of Permittee's Employees. Permittee's employees in contact with the public shall perform their duties in an efficient and courteous manner, subject to the indemnification clause set forth in Paragraph 5 hereinabove. 10. Minimum Hours of Operation. The park will be required to be open seven (7) days a week during those hours of operation approved by the City. Prior to beginning operations, the Permittee shall submit a schedule of intended hours of operation to the City for approval. Newport -Holiday Inn Permit Agreement 3 10/28/99--12:45 PM LMD:ch 11. Damages by Permittee. The Permittee shall repair all damage to the permitted premises caused by the Permittee, its guests, employees, agents, patrons, or independent contractors. 12. Assignment, Subletting and Successors of Interest. Permittee shall not assign, sublet, mortgage, pledge or otherwise encumber any portion of this Agreement nor any portion thereof, nor any property associated with this Agreement without the approval of the City which shall not be unreasonably witheld. Unapproved assignment, subletting, mortgaging, pledging or encumbering shall be grounds for immediate termination of this Permit. It is agreed that all terms and conditions of this Permit shall extend to and be binding on assignees, subpermittees and other successors as may be approved. The County reserves the right to directly terminate any subcontractor for any cause for which Permittee may be terminated. 13. Indemnification and Insurance. The Permittee shall maintain, during the term of this Agreement, the insurance specified below and a Certificate of Insurance shall be filed with the Parks and Recreation Department, 17070 Collins Avenue, Suite 250, Sunny Isles Beach, Florida 33160, prior to the commencement of this agreement: a. Workers' Compensation Insurance as required by Chapter 440, Florida Statutes. b. Public Liability Insurance on a Comprehensive basis in an amount not less than $300,000 combined single limit for bodily injury and property damage. Policy shall be endorsed to include Metropolitan Dade County as an additional insured. Policy will be endorsed to include Products Liability coverage when applicable. C. Automobile Liability Insurance covering all owned, non -owned and hired vehicles used in connection with the work, in an amount not less than $300,000 combined single limit for bodily injury and property damage. d. Hazard Insurance to include at least fire, extended coverage and vandalism and malicious mischief for the full, insurable, value of any structure located upon the premises, naming the City as an additional payee. e. Builder's Risk Insurance for any construction during the term of this Agreement shall provide any other insurance or security that may required. f. No modification, change or cancellation of insurance shall be made without thirty- (30) days written advance notice to the City of Sunny Isles Beach, c/o City Attorney. The Public Liability Insurance coverage as required in paragraph (b) above shall include those classifications as listed in Standard Liability Insurance Manuals, which are applicable to the operations of the Permittee in the performance of this Agreement. All insurance policies required above shall be issued in companies authorized to do business Newport -Holiday Inn Permit Agreement 4 10/28/99--12:45 PM LMD:ch under the laws of the State of Florida. They shall have a general policy holders' rating of "B" or better and a financial rating no less than "Class V" as reported by Best's Key Rating Guide, published by A.M. Best Company, latest edition. Compliance with the foregoing requirements shall not relieve the Permittee of its liability and obligations under this section or any other portion of this Agreement. The City reserves the right to reasonably amend the insurance requirements by the issuance of notice in writing to the Permittee. The Permittee hereby agrees to indemnify and save the City harmless from any and all claims, liability, losses and causes of action which may arise as a result of this Permit, unless such claim, liability, loss or cause of action is the result of the City's negligence. 14. Non -Discrimination. a. Permittee does hereby for itself, its personal representatives, successors in interest and assigns, as part of the consideration hereof, covenants and agrees that: (i) No person on the grounds of race, color, religion, national origin, sex, age or disabilities shall be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination in the use of said facilities, except for bonafide causes allowed by law. (ii) That in the construction of any improvements on, over, or under such land and the furnishings of services thereon, no person on the grounds of race, color, religion, national origin, sex, age or disabilities shall be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination, except for bonafide causes allowed by law. (iii) That the Permittee shall use the premises in compliance with all other requirements imposed by or pursuant to Title 45, Code of Federal Regulations, Article 80, Non-discrimination under programs receiving Federal Assistance through the Department of Health, Education and Welfare — effectuation of Title VI of the Civil Rights Act of 1964, and as said Regulations may be amended. b. That in the event of breach of any of the above non-discrimination covenants, the City shall have the right to terminate the Permit and reenter and repossess said facilities thereon and hold the same as if said Permit had never been made or issued. This provision shall not be effective, where applicable, until the procedures of Title 45, Code of Federal Regulations, Part 80, are followed and completed including exercise or Newport -Holiday Inn Permit Agreement 5 10/28/99 — 12:45 PM LMD:ch expiration of appeal rights. The City does have the privilege of prohibiting Permittee from removing any fixtures of business personal property from the facilities without express written prior City approval. C. Permittee shall not discriminate against an employee or applicant for employment to be employed in the performance of the contract with respect to hiring, tenure, terms, conditions or privileges to employment because of age, sex, or disability (except when based on a bonafide occupational qualification); or because of marital status, color, religion, national origin or ancestry. 15. No Lease. It is expressly understood and agreed that no real or personal property is leased to the Permittee, that this is a Permit and not a Lease, that the Permittee's right to occupy the premises and operate the Permit hereby granted shall continue only so long as the Permittee shall comply strictly and promptly with each and all of the undertakings, provisions, covenants, agreements, stipulations and conditions herein contained. The Permittee agrees not to represent itself as an agent or associate of the City or any unit thereof. 16. Termination. This Permit may not be terminated for two (2) years from the execution of the Interlocal Agreement. Thereafter, this agreement may be terminated by either party upon sixty- (60) day's notice in writing provided that the City's termination shall be for cause which shall be defined as a failure to comply with the terms of this agreement. In the event of termination or cancellation of this Agreement as herein provided, the Permittee shall forthwith remove all its property, failing in which, the City shall have the right to store or provide for storage of the Permittee's property at the Permittee's expense or to dispose of such property in accordance with the law. Notwithstanding the foregoing and anything in this agreement to the contrary, it is the intention of the parties that Permittee shall have unimpeded access to the pier and adjacent hotel property at all times. 17. Inspection by the City. The City shall have the authority to make periodic inspections of the premises to determine if such are being operated and maintained in a neat and orderly condition. The Permittee shall be required to make any improvements in cleaning and maintenance methods required by the City. Such periodic inspections will be made at the City's discretion to determine compliance with the terms and provisions of this Permit. 18. Facility Repairs, Alterations and Additions by the City. The City shall have the absolute right to make any reasonable repairs, alterations and additions to any facilities in the park, free from any and all liability to the Permittee for loss of business or damages of any nature whatsoever during the making of such repairs, alterations and additions, except for such damage caused by the sole negligence of the City and where not otherwise indemnified by the Permittee. Newport -Holiday Inn Permit Agreement 6 10/28/99 — 12:45 PM LMD:ch 19. Secuiity. The City makes no warranties as to any obligation to provide security for the facilities, outside of standard security measures supplied for the Park in general. Permittee may provide its own specialized security for the facilities, subject to the City's written approval. Absence of said Permittee security shall not increase the City's obligation. 20. Waiver. Waiver of any breach shall not constitute waiver of any other breach. 21. Invalidation. Invalidation of any portion of this Agreement shall not automatically invalidate the entire Agreement. Notwithstanding anything herein to the contrary, Permittee is not waiving any rights it may have for ingress and egress to Permittee's premises. IN WITNESS WHEREOF, the parties hereto have caused this Permit to be executed by their appropriate officials as of the day of WA-•i.� , 1999. CITY OF SUNNY ISLES BEACH Attest c�" `dry-"O- By:� David S f� Attest: L L7 Attest: NEWPORT/OBiERATING LIM M. Newport -Holiday Inn Permit Agreement 7 10/28/99 -- 12:45 PM LMD:ch M 1-71 To: City Commission From: Lynn M. Dannheisser, City Attorney Date: November 18, 1999 City of Subject: GILBERT SAMSON PARK INTERLOCAL AGREEMENT Sunny Isles Beach AND PERMIT AGREEMENT BY AND BETWEEN Sunny Collins Avenue. Suite0 Sunny Isles Beach. Florida 33160 NEWPORT OPERATING MANAGEMENT CORPORATION Telephone: (305) 947-0606 Facsimile: (305)949-3113 Over the last several months, the City has negotiated with Miami -Dade County for transfer of the Gilbert Samson Memorial Park. In consideration of the transfer of the park, the City has agreed to assume obligations of maintenance and operation of the park and assume the obligations ofprovision of lifeguard station and services and other things. In tandem with the negotiation of the Interlocal Agreement, the City has negotiated with the Newport Operating Management Corporation for a permit agreement which would allow a permanent nonexclusive easement through the park, by the Newport, in consideration of its agreement to maintain, operate and manage the Gilbert Samson Park during the life of the agreement. ADDITIONAL INFORMATION In addition to that, the Mayor has negotiated for the Newport to provide and pay for a lifeguard to be located on the beach for two years from the date of the execution of the Interlocal Agreement. After that time the City of Sunny ofIsles Beach will assume that lifeguard obligation. In any case, the City will have the right to relocate the lifeguard station and the lifeguard as well as the name of the park to the primary beachfront park owned by the City. The Permit Agreement will be binding not only upon the Newport Operating Management Corporation, but its potential successors or assigns. David Samson, Mavor I Respectfully Submitted, Connie Morrow. I4ce,tfavor Commissioners Danny Iglesias Lila Kauffman Irving Tnrecsky Lynn M. Dannheisser Ciry Manager City Attorney Jack Neusmdt Ciry Anomev I LD:pw Lynn A Dannheiss r City Clerk Richard Brown-Morilla