CITY OF COCOA BEACH BEACH CONCESSION LICENSE AGREEMENT

Transcription

1 THIS ( License Agreement ), entered into as of the day of, 2014 by and between the City of Cocoa Beach, a Florida Municipal Corporation ( City ), and ( Concessionaire/License Holder ). WITNESSETH: WHEREAS, the City regulates and operates the Atlantic Ocean Beach ("Beach") as an active and passive public recreation facility; and WHEREAS, the Beach is a unique ecosystem which can accommodate a large number of visitors; and WHEREAS, federal, state and the City of Cocoa Beach regulations significantly impact utilization of the Beach; and WHEREAS, the City wishes to maintain and enhance the Beach users' experience while protecting the beach environment; and WHEREAS, the provision for rental of Beach Equipment or the sale of Food and Beverages is compatible with public use of the Beach and the public need for access to such items; and WHEREAS, there is identified a specific Granted Location for the Concessionaire/License Holder to locate their Beach Concession on the Beach which requires a Beach Concession License Agreement (License Agreement) and the written authorization to conduct a Beach Concession from the upland property owner(s); and WHEREAS, the agreement specifies by Exhibit, a specific Area of Operation or Stand which is located within the Granted Location where business is permitted to be transacted for the rental of equipment, or the sale of food and beverages, which is to be used and/or consumed by patrons on the Beach; and WHEREAS, it is the desire of the License Holder to serve the public who visits the Beach in accordance with this Agreement and under the regulation of the City, the License Holder must obtain a Business Tax Receipt (BTR) License from the City for its business within their granted location; and WHEREAS, the License Holder has provided evidence of the capability of serving the public in a manner compatible with the City's operation of the Beach and publicly owned property for public recreation purposes; and WHEREAS, the City and the License Holder need to set forth the terms and conditions for the Beach Concession License and for providing a public service to people visiting the Beach through their Beach Concession; and NOW, THEREFORE, in consideration of the mutual covenants contained herein and for other good and valuable consideration passing between the parties hereto, receipt of which is hereby acknowledged, be it agreed as follows: General Beach Concession License Agreement DRAFT

2 1. Recitals. The foregoing recitals are true and incorporated herein by reference. 2. Definitions. a. Beach Rental Equipment shall mean such related beach rental equipment as described in Section 8 (a) Standards of Operation herein. Additions or deletions to the equipment enumerated herein shall be made subject to the approval of the City Manager. b. Food and Beverages shall mean the City authorized and pre-packaged consumable items which will be offered up for sale to beach patrons by the License Holder as described in Section 8 (b) Standards of Operation herein. c. Effective Date shall mean the date on which this agreement begins, commences and/or takes effect as defined in Section 5. d. Concessionaire shall be the license holder who has been granted the right to conduct a business for profit, either through the renting of Beach Rental Equipment as defined in paragraph a. above, or through the sale of Food and Beverages as defined in paragraph b. above, on the Granted Location as described under Sections 8 (a), Section 8 (b), and Section 4 respectively. e. Granted Location shall mean the geographical boundaries and location of the Area(s) of Operation and/or Concession Stand(s), as defined in Section 4, and as memorialized in the Exhibit, within the City limits of Cocoa Beach. The License Holder s Area(s) of Operation or Stand(s) are all located within the Granted Location. f. Storage Unit(s) shall mean the mobile trailer where the Beach Rental Equipment and/or Food and Beverages are stored off of the Beach and out of the sea dune area, in the parking lot or other location as approved by the upland property owner as defined by paragraph i. below, as further defined in Section 8 (d), and whose location(s) shall also be approved by the City Manager. g. Area(s) of Operation and/or Stand(s) shall mean the area within the Granted Location on the beach where the concession stand is located, where business is transacted, as set forth in Section 9. h. Stand(s) shall have the same meaning as Area(s) of Operation as defined in Section 2 (g) above, and as set forth in Section 9. i. Upland Property Owner(s) shall mean the owner of the property (or legal representative) westward of the Beach Concession Granted Location, who has authorized the Beach Concession to be located and operated eastward of their eastern property boundary on the Atlantic Ocean Beach. 3. Grant. There is hereby granted by the City to the License Holder the right and privilege to operate a Beach Concession at the Granted Location described in Section 4. The License Holder shall be required to execute this Agreement in General Beach Concession License Agreement DRAFT

3 accordance with Ordinance No and Resolution , and/or any subsequent applicable ordinances and resolutions, which further define the rules, regulations and License Fees to be paid, to operate the concession. The License Holder shall also obtain: written authorization from the upland property owner(s) to conduct this Beach Concession at this Granted Location; appropriate City of Cocoa Beach Business Tax Receipt (BTR) License(s); acquire and maintain Insurance in accordance with Section 6; and, acquire and maintain all requisite state and county health safety licenses for storage, handling and preparation of Food or Beverage items, if same is approved to sell these items through this Agreement. 4. Granted Location. The authorized geographical North/South Granted Location boundaries for this concession shall be the area which starts at the North South property boundary line (when extended eastward onto the Beach) and it extends by feet to the North South by feet. This is the length. The authorized geographical East/West Granted Location boundaries for this concession shall be the area which starts at the western boundary of the sea dune area and extends eastward by feet onto the Beach. This is the width. The overall dimensions of the Granted Location for this Beach Concession shall be feet wide east-to-west, by feet long north-tosouth, for a total area of square feet. This is the area. The Beach Concession Area(s) of Operation and Stand(s) shall all be located within the Granted Location so as to not disturb or harm the natural dune nor block access to the beach via any established or future dune crossover structure. The Legal Description of said Granted Location is shown as the attached Exhibit which is attached hereto and incorporated herein by reference. 5. Duration of Agreement. This Agreement shall continue in force and effect for a term of ( ) consecutive calendar years commencing on January 1, 2015, the Effective Date of this Agreement, and it shall expire on, 20. The provisions of this Agreement shall be administered by the City Manager or his/her designee. No later than the Effective Date of this Agreement, the License Holder shall deliver to the Business Tax Receipt (BTR) Clerk the policies of insurance, coverage s and notices required hereunder in Paragraph 6. Should the License Holder fail to comply with the insurance requirements, it shall acquire no right, privilege or authority under the Agreement whatsoever, in accordance with Section 12 (b) Insurance Requirement. The License Holder shall maintain liability insurance throughout the term of this Agreement, in the amounts defined in Resolution , Section Two (b) and/or any subsequent applicable resolutions, on policies acceptable to the City insuring the License Holder and the City equally against liability in the minimum amounts of: General Beach Concession License Agreement DRAFT

4 a. $1,000, for each occurrence of bodily injury or death resulting from one accident. b. $1,000, for bodily injury or death to any one person within the limit set forth in Section 6 (a). c. $50, for property damage resulting from one accident. d. The License Holder is required to remain in compliance with FS Chapter 440 with respect to Worker s Compensation insurance if the License Holder s business is required to comply by law. All policies provided should be Occurrence, not Claims Made, forms. The License Holder s insurance policies must be endorsed to add the City of Cocoa Beach as an Additional Insured. The License Holder shall pay all deductibles. All policies of insurance so required to be purchased and maintained shall contain a provision or endorsement that the coverage afforded shall not be canceled, materially changed or renewal refused until at least thirty (30) calendar days written notice has been given to the City by certified mail. 7. Fees Paid by the License Holder. The License Holder must pay the City certain Fees for the right to operate a Beach Concession, which includes the Business Tax Receipt (BTR) License Fee(s) to operate the Beach Concession business, and a Beach Concession License Fee to operate the Beach Concession on the City s ocean beach. The License Holder may choose a payment plan to pay for the Beach Concession Annual License Fee. The License Holder, absent an agreed upon payment plan, is required to pay the full amount, as defined by Resolution and described below, and those paying a one-time annual Fee are provided a ten percent (10%) discount on the license fee(s) only. The First Year s Beach Concession License Fee is calculated as follows: 1. The applicable linear foot fee, multiplied by the total linear feet of the North-to- South length of the Granted Location, along the beach and parallel to the water. 2. When applicable, a $ non-refundable New/Renewal Application Fee is due in full upon application/reapplication. (Fees approved and defined by Resolution). For this license, the License Holder shall be required to pay the following License Fee for the first year of the Agreement s duration, for the operation of the concession described herein: dollars ($ ). This License Holder has selected to pay all annual license fees as marked below: 1. Annually (Payments due by January 1 st for each year of the Agreement) 2. Quarterly (Payments due by the 1 st day of each January/April/July/October) 3. Monthly (Payments due by the 1 st day of each month, for all Annual Fees) Due to the payment method selected above, with any discounts, the License Holder shall pay the City: dollars and ($ ), in Annual Quarterly Monthly payments, for the first year license fee. General Beach Concession License Agreement DRAFT

5 NOTE: A Minimum Annual Fee has been established for each type of Beach Concession permitted. Should the linear foot fee calculated equate to less than the established Minimum Annual Fee for the type of Beach Concession requested the Minimum Annual Fee is the Fee required to be paid by the License Holder. Annual Fee(s) shall be adjusted and increased each year in the same proportion as the annual average Consumer Price Index (CPI) as published by the Bureau of Labor Statistics of the United States Department of Labor for ALL Urban Consumers for ALL Items, 1982 base, or the successor index to the same for the twelve (12) month periods extending from January 31st. Payments are due the first day of each month, if monthly payments were selected, and by the first day of each January, April, July and October if quarterly payments were selected by the License Holder. Pro-rated Annual Beach Concession License Fees: Should an applicant be approved for a Beach Concession License Agreement at any time after the first day of January of any given calendar year, the City shall pro-rate the annual fees(s) to require the License Holder to only have to pay for those calendar days remaining in that calendar year. The License Holder will then be required to pay the full annual Beach Concession License Fees for all remaining subsequent years of the term for the License Agreement. Should the upland property owner sell their upland business or take any other actions which terminate the agreement between the License Holder and the upland property owner at any time and for any reason, which is deemed to be beyond the control of the License Holder, and as approved by the City Manager, the City may reimburse the License Holder for any prepaid fees on a pro-rated basis, for any calendar days remaining in that calendar year. 8. Standards of Operation. a. Beach rental equipment shall be limited to chairs, umbrellas or cabanas. Recreational beach rental equipment shall be limited to watercraft and recreational items as may be set in motion and whose movement is only sustained by either human, wave, wind or other non-motorized forces. Motorized vehicles are prohibited and they may not be rented, other than any motorized chair(s) for the physically disabled as approved by the ADA. b. Food and Beverages shall be limited to those pre-packaged items approved and outlined in the applicable City Ordinance for Beach Concessions, or as otherwise approved by the City Manager. c. The Concession shall be operated in a safe and sanitary manner, and all products rented and/or sold for consumption by the License Holder shall comply with applicable state and county health and safety laws and regulations in regards to the safe storage, handling and preparation of any approved consumable Food or Beverage products. All food service and handling licenses shall be acquired from the requisite state and county health agencies and they shall be maintained and remain in good standing throughout the duration of this Beach Concession Agreement. General Beach Concession License Agreement DRAFT

6 d. Storage Units shall be mobile trailers which are properly licensed and registered as required by the State of Florida and located in the paved parking area or other location(s) as approved by the upland property owner and City Manager, west of the sea dune area, for the purpose of storing Beach Rental Equipment and/or Food and Beverage items. There shall be a maximum of ( ) storage unit(s), each with a maximum size of 200 square feet. Storage Units shall be prohibited from being placed in the sea dune area or on the beach in accordance with the City Code of Ordinances, Chapter 5, Article IIIB, Section 5-48, and Article IV, Section 5-60 (b), and the City Ordinance No. 1585, Section 2, Paragraph C (7), nothing shall be permitted to be stored on the beach and/or sea dune area, or any subsequent applicable codes or ordinances which may come into effect for the duration of this agreement. The placement and operation of all Storage Units shall be in compliance with all applicable federal, state and City regulations. Storage Units must be kept in an operable and ready-to-travel condition, in good repair and appearance and they must be inspected and approved to ensure compliance with the terms of this agreement and maintained in a manner to ensure compliance with the International Property Maintenance Code, as required by the City Code of Ordinances for vehicles. Mobile trailers must be capable of being removed per the terms and conditions of this agreement. The City reserves the right to inspect these units at least once each year, for the duration of this agreement. e. Motor vehicle usage in the sea dune area and on the beach is prohibited for any purpose, unless prior approval from the City Manager has been granted, in accordance with the City Code of Ordinances, Chapter 5, Article IV, Section Operation of motor vehicles prohibited in certain beach areas, or any subsequent applicable codes or ordinances which may come into effect during the duration of this agreement. See paragraph (a) above. f. The License Holder may have up to three different signs on the storage unit(s), up to 32 sq. ft. in total sign area. Additionally, the concession is allowed two signs, up to 12 sq. ft. each for safety/regulatory information and price information, per area of operation. This signage must be attached and secured to the storage unit as approved by the Chief Building Official. The concession shall also be allowed one (1) portable sandwich sign for each Stand which shall not exceed nine (9) square feet in total size and be located within twenty (20) feet of the Stand within the granted location, but it shall in no instance interfere with pedestrian traffic or public beach access. g. Stand(s), storage units and all beach rental equipment are all subject to immediate removal by the License Holder upon demand by the City in the event of an imminent natural disaster or an urgent public safety need. The City acknowledges that the License Holder may retain third parties to assist in the removal of these items from the Granted Location should this demand be made. Such third party shall be held to the same standard of care and diligence as required of the License Holder when removing these items. General Beach Concession License Agreement DRAFT

7 h. Operating hours are restricted to the daylight hours between dawn and dusk. i. The License Holder agrees to ensure that they and their employees conduct themselves in a professional and courteous manner at all times, when dealing with their patrons, City staff, other License Holders and their employees, Special Event staff and patrons, and the general public. See Section 12 (b) Areas of Operation and Stands. The License Holder shall be permitted ( ) Area(s) of Operation or Stand(s) on the beach where any business may be transacted within the Granted Location at mutually agreed upon location(s) near public beach access points, which shall consist of: a chair; a table; an umbrella or tent; Food and Beverage temporary storage, if approved for that use; and, portable sandwich board signage (as defined in Section 8 (f)). No more than six (6) set-ups of beach rental equipment will be permitted at any given time. Everything described above may be located on the beach and out of the Sea Dune Area, without interfering with pedestrian traffic or public beach access, as approved by the City Manager. Under no circumstance shall any part of the Stand(s) be located outside of the authorized boundaries of the approved Granted Location. 10. Beach Maintenance. The License Holder agrees to clean and remove any trash and debris on a daily basis which is generated by the Concession from an area extending 100 feet in every direction from the stand(s) and the Granted Location. 11. Abandonment. The License Holder understands and agrees that in the event that the stand(s)/storage unit(s)/equipment remain abandoned, after notice by City, the License Holder fails to relocate or remove these items within a reasonable timeframe pursuant to Section 8 (g), the City reserves the right to relocate or remove the items at the License Holder s expense to a secure storage facility and terminate the concession agreement and rights. Both parties further agree that failure of the License Holder to reimburse the City for the reasonable costs to relocate and store License Holder s property described herein within 60 days of incurring said expenses shall constitute forfeiture of said property and the City shall dispose of the items for the purpose of recouping expenses. 12. Termination of Concession. a. The License Holder may terminate this agreement by giving sixty (60) days written notice to the City Manager. Coincidental with, or prior to, the effective date of termination of the agreement by License Holder, all stand(s), storage unit(s) and beach rental equipment shall be removed from the Granted Location and/or City property. b. The right(s) of the License Holder may be terminated for cause by the City upon written notice by certified U.S. mail to the License Holder upon the occurrence of one of the following events or conditions: 1) Failure of License Holder to pay the amount(s) due by the due date(s) for either the Business Tax Receipt (BTR) License, or the Beach General Beach Concession License Agreement DRAFT

8 Concession License. The City agrees to a 30 day grace period from the due date(s) accepted for this Agreement. 2) Failure of the License Holder to maintain stand(s) and storage unit(s) in good repair and operable condition including the ability of the stand(s) and storage unit(s) to be removed from the Granted Location within 24 hours of a demand to do so by the City. 3) Failure of the License Holder to update and maintain: the insurance coverage required in Section 6; and, all required and applicable state, county and City Food and Beverage health safety licenses, should same be permitted to sell said items through this Agreement, for the duration of the Agreement. 4) Failure of the License Holder to comply with the terms, limitations or conditions specified in this agreement. Three (3) documented incidents of violations to any of the terms and conditions specified in this agreement, during the duration of the agreement, are grounds for termination of this Agreement and any rights thereunder. 5) Abandonment of the concession the failure of the License Holder to conduct or operate the specified concession at the Granted Location for any continuous three (3) month period of time. 6) The conviction of the License Holder or its employees of a misdemeanor or felony, or any violation and conviction involving moral turpitude, shall be grounds for termination of the convicted employee, and/or the termination of the License Agreement and any rights. 7) Filing of Bankruptcy by the License Holder. c. Expiration date of this agreement and/or termination of the agreement between the License Holder and the upland property owner. 13. Hold Harmless and Indemnification. The License Holder understands and hereby agrees that the City of Cocoa Beach, its agents, representatives, officers and any others on behalf of the City of Cocoa Beach shall be held harmless and indemnified in the event of any damage or liability caused by the License Holder s stand(s), storage unit(s), beach rental equipment or Food and Beverage products. 14. Non-Exclusivity. The License Holder and the City agree that use of the public property as a concession location is non-exclusive and from time to time the City may use the public property and/or the public beach as a Special Event location. 15. Business Interruption. The City shall not be liable to the License Holder for any damages arising out of the temporary prohibition of concession operations resulting from any environmental protection, public safety, maintenance or governmental activities which requires prohibition of the concession from being present on the Granted Location and/or engaging in its business activities. In the General Beach Concession License Agreement DRAFT

9 event the License Holder is prohibited from being present at the Granted Location and/or engaging in its business activities for periods in excess of forty-eight (48) hours, then the City shall hold in abeyance the Fee(s) set forth in Section 7, for the time period the License Holder s business is temporarily closed down. 16. Assignment. This Agreement may not be assigned without the prior written consent of the City Commission, which can only occur upon the City Manager or his/her designee having approved the assignee s complete application package. The potential assignee is required to obtain a Beach Concession License, and must show that the assignee meets and/or exceeds the requirements for the granting of a license. Any attempt to assign this Agreement without prior written consent, and the required application approvals of the City shall render the assignment null and void with respect to the assignee. The assignee, like the License Holder, is required to provide written authorization for the concession from the upland property owner(s) and reapply for a new Beach Concession License, and if the rental of public property is required, approval of a new Public Property Rental Agreement upon the expiration of the current license and agreement. The assignee shall also be required to annually apply for and receive a new City Business Tax Receipt (BTR) License and comply with the Insurance requirements outlined in Section 6 of this agreement, and all other rules and regulations as required for obtaining and operating a City of Cocoa Beach - Beach Concession. 17. Other. The license Holder and employees of the Beach Concession owned by: shall be subject to a criminal history search facilitated by the City Police Department and conducted by the Florida Department of Law Enforcement (FDLE) to insure the safety of visitors and residents and to eliminate those convicted of a crime involving moral turpitude, in accordance with Ordinance No. 1585, Section 2 (c) (3) and/or any subsequent applicable ordinances. 18. Notice. Notices under the terms of this Agreement shall be deemed sufficiently given or served if in writing and delivered either in person or if deposited in the U.S. mail in a sealed, registered or certified envelope with postage prepaid, addressed to the following parties or persons to be served. For all notices required hereunder, City shall give the maximum notice that it is reasonably capable of providing. To the License Holder: To the City: Owner:. City Manager Address:. 2 South Orlando Avenue Address:. P.O. Box Address:. Cocoa Beach, Florida IN WITNESS WHEREOF, the parties hereto have caused this instrument to be signed in its name by its proper officers on the date and year first above written. General Beach Concession License Agreement DRAFT

10 CITY OF COCOA BEACH Attest: By: Loredana Kalaghchy, CMC, City Clerk City of Cocoa Beach Signature: By: Robert J. Majka City Manager City of Cocoa Beach Date: Date: Print:. Approved as to form and legality For use and reliance by the.. City of Cocoa Beach Owner James A. Fowler, Esq. City Attorney Owner Date: Date: General Beach Concession License Agreement DRAFT

11 EXHIBIT LEGAL DESCRIPTION AND AERIAL BOUNDARY MAP OF THE GRANTED LOCATION AND AREA(S) OF OPERATION FOR THIS BEACH CONCESSION: Following is the Legal Description of the Granted Location for the Beach License Holder s License held and operated by: : The Area(s) of Operation and/or Concession Stand(s), where business for the Beach Concession may be transacted, shall be located in the areas approved by the City Manager near the public beach access point indicated within this Agreement. General Beach Concession License Agreement DRAFT