Boucher Brothers Miami Beach LLC Agreement Boucher Brothers Miami Beach LLC
Public Beachfront Concession Agreement
CONCESSION AGREEMENT BETWEEN
CITY OF MIAMI BEACH, FLORIDA
AND
BOUCHER BROTHERS MIAMI BEACH LLC
FOR
MANAGEMENT AND OPERATION OF PUBLIC BEACHFRONT CONCESSIONS
THIS AGREEMENT made the 2 »d 'day of - ebm 0 (r'VI 2012 (the "Effective Date "), between the
CITY OF MIAMI BEACH, a municipal corporation of the State of Florida ( "City "), having its principal address at
1700 Convention Center Drive, Miami Beach, Florida, 33139, and BOUCHER BROTHERS MIAMI BEACH
LLC, a limited liability company of the State of Florida, with offices at 420 Lincoln Road, Suite 265, Miami
Beach, Florida, 33139 ( "Concessionaire ").
The City hereby grants to Concessionaire, and Concessionaire hereby accepts from the City, the
exclusive right to operate the following described concessions within the Concession Areas (as said term is
hereinafter defined), in conformance with the purposes and for the period stated herein, and subject to all the
terms and conditions herein contained and fairly implied by the terms hereinafter set forth.
SECTION 1. TERM.
1.1 This Agreement shall be for an initial term of five (5) years, commencing retroactively on the 5th day of
November, 2011 (the "Commencement Date "), and ending on the 4th day of November, 2016 ( "Initial
Term ").
1.2 Provided that Concessionaire is not in default under the Agreement, and commencing with written
notice from Concessionaire, which notice shall be given in the fourth Agreement year (as such term is
defined in Subsection 1.3 hereof) of the Initial Term, and then no later than 180 days prior to the
expiration of such term, Concessionaire and the City shall negotiate exclusively with each other in good
faith for a period of sixty (60) days (commencing from the date of Concessionaire's notice) to extend
the term of this Agreement for an additional five (5) year term (the Renewal Term). Each of the parties
agrees to use its respective best efforts to negotiate such a Renewal Term, on such terms and
conditions that are mutually agreed to; provided however that, as to negotiation of the following
financial terms, the parties acknowledge that (i) the Minimum Guarantee (MG) amount (as defined in
Subsection 4.1), for the first Agreement year of the Renewal Term shall be equal to the MG amount for
the fifth Agreement year of the Initial Term (including the CPI Adjustments, as defined in Subsection
4.1); and, thereafter, the MG during the Renewal Term shall only be subject to annual increases
pursuant to the CPI Adjustment; and (ii) that any negotiated amount for the Percentage of Gross (PG)
payment for the Renewal Term, shall be adjusted in an amount not to exceed five percent (5 %) of the
percentage amount agreed to for each item /category of services provided by the Concessionaire,
during the Initial Term (and as such percentages are set forth, per item /category of services, in
Subsection 4.2 hereof).
The Renewal Term shall be subject to, and require, the approval of the Mayor and City Commission.
Additionally, any such renewal shall require Concessionaire to purchase new equipment, the types and
quantities of which shall be subject to the prior written approval of the City Manager or his /her
designee. Concessionaire shall provide the City Manager or his /her designee, at least 180 days prior
to the expiration of the Initial Term, (i) a schedule of any equipment which was replaced during the
Initial Term, evidencing to the reasonable satisfaction of the City Manager or his /her designee, having
expended a minimum investment of $400,000; and, ii) an itemized list of proposed new equipment
which, if the Renewal Term is approved, must be purchased by no later than the end of the third
agreement year of the Renewal Term, evidencing a minimum investment in such new equipment in the
amount of $200,000; which proposed $200,000 investment in new equipment shall be reviewed and
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approved by the City Manager or his /her designee prior to commencement of negotiations for a
Renewal Term.
1.3 For purposes of this Agreement, the "Term" shall be defined as the Initial Term and Renewal Term (if
approved), and an "Agreement year" shall be defined as each one (1) year period during the Term,
commencing on November 5 th , and ending on November 4
SECTION 2. CONCESSION AREA(S).
The City hereby grants to Concessionaire the exclusive right, during the Term, to operate certain concessions,
as described herein, in the following Concession Areas.
In Subsections 2.3 and 2.4 hereof, which make reference to a Concession Area becoming "serviceable during
the Term," the procedure for such determination shall be as follows:
a) The City Manager or his /her designees shall notify Concessionaire, in writing, of the City's intent to
have one (or both, as the case may be) of the Concession Areas referenced in Subsections 2.3 and /or
2.4 put into service (the City Notice).
b) Concessionaire shall have thirty (30) days from receipt of the City Notice to conduct its own due
diligence as, in its sole professional judgment, it deems necessary to determine the economic feasibility
(for Concessionaire) of putting one (or both) of the aforestated Areas into service (Concessionaire's
Due Diligence Period).
c) On or before the conclusion of Concessionaire's Due Diligence Period, Concessionaire shall provide
the City Manager or his /her designee with a written report, assessing the economic feasibility of putting
the Concession Area (or Areas) into service (the Due Diligence Report); provided, however, that such
Report may not, as a condition of putting an Area (or Areas) into service, include any request for an
extension in the Term, or for additional financial remuneration (other than what is already included in
the terms of this Agreement).
d) If Concessionaire fails to provide the City with its Due Diligence Report by the last day of the Due
Diligence Period, then Concessionaire shall have waived its right to not put the requested Area (or
Areas) into service and, in that case, shall thereafter be required to provide the services contemplated
under this Agreement for such Area (or Areas) upon written notice from the City, and within such time
as shall be determined (and set forth in said notice) by the City Manager his /her designee, but in no
event less than sixty (60) days.
e) If, however, the Concessionaire has timely submitted its Due Diligence Report then, following review of
the report by the City Manager or his /her designee, the parties shall meet to discuss same and shall, in
good faith, mutually agree upon how to proceed.
2.1 Lummus Park
This Concession Area is limited to the beach area bounded on the south by the northernmost line of the
5th Street right -of -way; bounded on the north by the southernmost line of the 14th Lane right -of -way;
bounded on the west by a line 50 feet east from the easternmost edge of the Dune; and bounded on
the east by either a line 60 feet west of the Mean High Water Line (MHWL), or by a line 5 feet west of
the westernmost lifeguard stand (located within this Concession Area), whichever is further east.
2.1.1 13 to 14 Street Zone:
With regard to the area bounded to the north by a line 50 feet to the north of the midpoint
between 13th and 14 Streets; bounded to the south by a line 50 feet to the south of the
midpoint between 13th and 14 Streets; and bounded to the east and west by the easternmost
and westernmost boundaries of this Concession Area, Concessionaire shall not deploy any
Beach Equipment (as hereinafter defined) within this Zone unless specifically requested by an
individual patron(s).
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2.1.2 9" to 10" Street Zone:
With regard to the area bounded to the north by a line 50 feet to the north of the midpoint
between 9th and 10 Streets; bounded to the south by a line 50 feet to the south of the midpoint
between 9th and 10 Streets; and bounded to the east and west by the easternmost and
westernmost boundaries of this Concession Area, Concessionaire shall not deploy any Beach
Equipment, within this Zone, unless specifically requested by an individual patron(s)..
2.1.3 Southern Handicap Zone:
With regard to the area bounded to the north by a line 50 feet north of the southern boundary of
this Concession Area; to the south by the southern boundary of this Concession Area; and
bounded to the east and west by the easternmost and westernmost boundaries of this
Concession Area, Concessionaire shall not deploy any Beach Equipment within this Zone,
unless specifically requested by a handicapped patron(s).
2.1.4 Northern Handicap Zone:
With regard to the area bounded to the south by a line 50 feet south of the northern boundary of
this Concession Area; to the north by the northern boundary of this Concession Area; and
bounded to the east and west by the easternmost and westernmost boundaries of this
Concession Area, Concessionaire shall not deploy any Beach Equipment within this Zone,
unless specifically requested by a handicapped patron(s).
The City and Concessionaire agree and acknowledge that the public's use of the beach within the
Concession Areas is of prime consideration. Accordingly,the Concessionaire shall use best efforts to
strive to maintain approximately forty nine (49 %) percent of the beach frontage within the entire
Lummus Park beach area free and clear of Concessionaire's, Beach Equipment, Watersports
Equipment (as hereinafter defined) and any other facilities and equipment, so that such portion of the
beach may remain free and clear for the public's use and enjoyment.
2.2 Ocean Terrace
This Concession Area is limited to the beach area bounded on the south by the northernmost line of the
73rd Street right -of -way; bounded on the north by the southernmost line of the 75th Street right -of -way;
bounded on the west by a line 50 feet east from the easternmost edge of the Dune; and bounded on
the east by either a line 60 feet west of the Mean High Water Line (MHWL), or by a line 5 feet west of
the westernmost lifeguard stand (located within this Concession Area), whichever is further east.
2.3 North Shore Open Space Park
This Concession Area, should it become serviceable during the Term, as determined pursuant to the
procedures established in Subsections 2(a) — (e), is limited to the beach area bounded on the south by
the northernmost line of the 79th Street right -of -way; bounded on the north by the southernmost line of
the 87th Street right -of -way; bounded on the west by a line 50 feet east from the easternmost edge of
the Dune; and bounded on the east by either a line 60 feet west of the Mean High Water Line (MHWL),
or by a line 5 feet west of the westernmost lifeguard stand (located within this Concession Area),
whichever is further east.
2.4 South Pointe Park Beach
This Concession Area, should it become serviceable during the Term, as determined pursuant to the
procedures established in Section 2(a) — (e), is limited to the beach area bounded on the south by a
line 50 feet north of the of the South Pointe Park Pier; bounded on the north by lifeguard stand,
bounded on the west by a line 50 feet east from the easternmost edge of the Dune; and bounded on
the east by either a line 60 feet west of the Mean High Water Line (MHWL), or by a a line 5 feet west of
the westernmost lifeguard stand (located within this Concession Area), whichever is further east.
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2.5 Lifeguard Stand /Lifeguard Stand Zone
City and Concessionaire acknowledge that, as of the Commencement Date, there are lifeguard stands
within the Concession Areas. As such, City and Concessionaire agree that in the event additional
lifeguard stands are added within the Concession Areas during the Term, the size of the buffer areas
around the lifeguard stands shall be reduced so as not to further reduce the size of a corresponding
Concession Area.
Concessionaire shall not use or deploy any Beach Equipment, Watersports Equipment, or any other
facilities and /or equipment on or within those portions of the beach where lifeguard stands are located ,
including the area extending from the easternmost foot of the Dune to the shoreline, and bounded by a
line one hundred (100) feet (each) to the north and south of a lifeguard stand.
2.6 Public Use
Notwithstanding the Concession Areas granted to Concessionaire in this Section 2, Concessionaire
hereby acknowledges and agrees that such Areas, along with any and all other public beachfront areas
not specifically identified herein, are public and, as such, must remain open, accessible and available
for the use and enjoyment of the public, whether or not the public chooses to use any of
Concessionaire's facilities and /or equipment, purchase its products, or engage in any of the services it
provides. In the event that a member of the public is within a particular Concession Area,
Concessionaire agrees to allow for his /her quiet and peaceful enjoyment of same.
2.7 Buffer Zones
City and Concessionaire acknowledge that there are certain areas within Lummus Park Beach, Ocean
Terrace Beach, North Shore Open Space Park Beach, and South Pointe Park Beach, that either lie
outside of the respective defined Concession Areas, or where Concessionaire's use is limited and /or
restricted, including Lifeguard Facility Zones (as defined in Subsection 2.5); Handicap Zones (as
defined in Subsections 2.1.3 and 2.1.4), and other defined zones (as defined in Subsections 2.1.1
and 2.1.2); all of which are designed to facilitate public access to the ocean and shoreline, and create
buffer zones between the Concession Areas and Lifeguard stands.
City and Concessionaire acknowledge that buffer zones around lifeguard stands shall not apply to
areas of the beach that do not fall within a defined Concession Area. One such example would be the
beachfront adjacent to a private upland owner's property (unless the City's Rules and Regulations for
Beachfront Concessions, as same may be amended from time to time, expressly provide otherwise).
SECTION 3. USE(S).
Concessionaire is hereby authorized to conduct the following kinds of businesses and provide the following
kinds of services within the Concession Areas, all of which, shall be provided at Concessionaire's sole cost
and expense:
3.1 Rental of Beach Equipment
This shall mean, and generally include, the rental of beach chairs (including lounge chairs), pads,
umbrellas, sun canopies, and such other related equipment as may be approved by the City Manager
or his /her designee. For purposes of this Agreement, the term "Beach Equipment" shall also include
beach lockers, if approved and authorized by the City pursuant to the Beach Locker Program
contemplated in Subsection 3.1.7 hereof.
The City herein approves the rental of Beach Equipment, and the prices for same, as set forth in
Exhibit 3.1. Any amendments to Exhibit 3.1, whether as to type(s) of Beach Equipment to be rented,
or as to changes in prices for same, must be approved in writing by the City Manager or his /her
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designee prior to such changes being implemented within the Concession Area(s) (and, if approved,
an updated Exhibit 3.1 will be incorporated into this Agreement).
3.1.1 The condition and quality of Beach Equipment shall at all times be maintained in good working
order and condition, and in a first -class manner which is equal to, or better than, the condition
and quality of beach equipment found in public beach concessions in other world class beach
resorts on par with the City of Miami Beach. It is the City's intent, and Concessionaire hereby
agrees and acknowledges same, to develop and promote world class public beach concession
facilities and operations that would be comparable to those found at other world class public
beach concession facilities. Accordingly, Concessionaire shall not only, at a minimum, maintain
all Beach Equipment placed within the Concession Areas in good working order and condition,
but shall adhere, as indicated in this subsection, to the highest ongoing maintenance standards
for same.
Attached as Exhibit 3.1.1 is a full inventory of all Beach Equipment contemplated for use as of
the Commencement Date, including types and numbers (per item); dates of lease and /or
purchase; and initial condition, established as of the date of inventory. Throughout the Term, all
Beach Equipment shall be replaced no later than the fifth year after purchase, unless it is
necessary, due to the condition of Beach Equipment, to replace such Equipment prior to the fifth
year after purchase. Within thirty (30) days following the Effective Date, Concessionaire shall
provide a plan and schedule for the ongoing replacement and /or updating of Beach Equipment
throughout the Term.
3.1.2 The design, type, material, and color of any and all Beach Equipment shall be submitted to the
City's Planning Department, for its review and approval, no more than five (5) business days
after the Effective Date. A photo or photos of the City- approved Beach Equipment shall be
attached and incorporated as Exhibit 3.1.2. The City shall provide written notice to
Concessionaire of any Beach Equipment not approved by the Planning Department, and the
Concessionaire shall have seventy -two (72) hours to remove such Equipment. Thereafter,
Concessionaire shall not change, alter, or modify the design, type, material, and color of any
City- approved Beach Equipment without the prior written consent of the City Manager or his /her
designee (and, if so approved, an updated Exhibit 3.1.2 will be incorporated into this
Agreement).
3.1.3 With regard to an individual Concession Area, all Beach Equipment within that Area shall be
placed substantially in accordance with the City- approved site plans for such Area. The
approved site plan for each Concession Area shall be attached and incorporated as Exhibit
3.1.3 and each individual Concession Area shall be labeled on the Exhibit. Concessionaire
shall not deviate from or alter an approved site plan without the prior written consent of the City
Manager or his /her designee.
3.1.4 The set -up of Beach Equipment placed within a Concession Area shall be substantially in
accordance with the approved site plan for that Area. The "Set -Up Period" shall commence
daily, before 10:OOAM (or, in the event of inclement weather, as soon thereafter as such
weather permits). During the Set -Up Period, Concessionaire shall be permitted to set up to the
maximum number of Beach Equipment allowable for that particular Area (as defined in
Subsection 3.1.6). In addition to conformance with the approved site plan, daily placement of
Beach Equipment during the Set -Up Period shall be in accordance with, and shall not exceed,
the maximum number, per Area, set forth in Subsection 3.1.6.
3.1.5 The parties acknowledge that Concessionaire's patrons may themselves relocate chairs and
other Beach Equipment within a Concession Area, and /or to an immediately adjacent Buffer
Zone. Such relocation shall generally be permitted; provided that, in the aggregate,
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Concessionaire shall not materially alter, nor allow to be materially altered, the configuration of a
particular Concession Area (from what is set forth in the approved site plan for that Area) and /or
an adjacent Buffer Zone. In such event, Concessionaire shall be responsible for promptly
correcting any material alteration to bring the Concession Area back into substantial
conformance with the approved site plan.
Moreover, if Concessionaire elects to replace a certain number of standard chairs with luxury
chairs (above the number of luxury chairs currently permitted under this Agreement, but not to
exceed the aggregate maximum number of chairs permitted under this Agreement), and if at
any time thereafter a patron desires a standard chair which is unavailable, due to such
replacement, then Concessionaire shall provide the patron with a luxury chair at the standard
chair rate.
Notwithstanding anything in this Subsection 3.1.5, the City's Ocean Rescue Division shall at all
times have the sole and absolute discretion to require Concessionaire, and /or Concessionaire's
patrons, to relocate chairs and other Beach Equipment in the event that such chairs and /or
Beach Equipment in any way impede and /or obstruct sightlines, or have any other effect
whatsoever which would directly or indirectly impede the performance of Ocean Rescue
activities. Concessionaire will use best efforts to cooperate with Ocean Rescue to promptly
ensure compliance with the preceding requirement.
3.1.6 The City and Concessionaire agree and acknowledge that the public's use of the beach is a
prime consideration and must be balanced with the services to be provided to the public, and
the respective financial remunerations to City and Concessionaire pursuant to this Agreement.
Accordingly, notwithstanding the approved site plans and maximum numbers set forth in
Subsection 3.1.3 hereof, Concessionaire further agrees that, notwithstanding its right to set up
its maximum numbers during the Set -Up Period, if during the period of time between the Set -Up
Period and 1:OOPM Eastern Standard Time (or 2:OOPM daylight savings time, as applicable) on
any day during Concessionaire's hours of operation, more than twenty -five percent (25 %) of
Concessionaire's maximum number of chairs are vacant ( "vacant" being defined for purposes
of this subsection as not being rented), then Concessionaire shall remove, at 1:OOPM EST(or
2:OOPM daylight savings time, as applicable) that day, from the particular area, that number of
chairs that equates to the difference between the percentage of vacant chairs and twenty -five
percent (25 %) of such chairs. For example, assuming that 100 chairs are the maximum, if 100
chairs are set up in an area during the Set -Up Period, and 60 are rented and 40 are vacant
then, at 1:OOPM EST (or 2:OOPM, as applicable), Concessionaire must remove 15 chairs, which
equals the difference between the actual number of vacant chairs minus 25% of the maximum
number of chairs allowable during the Set -Up Period. If chairs are removed as provided in the
preceding sentence, Concessionaire may, later that same day, increase the number of chairs
based upon demonstrated increased demand; provided, however, that in no event shall the
increased number of chairs in any particular Concession Area exceed the maximum number for
that Area by more than twenty percent (20 %), without the prior written consent of the City
Manager or his /her designee.
Notwithstanding the preceding paragraph, within thirty (30) days after the end of each contract
year, City and Concessionaire may meet, as provided in the last paragraph of Section 6 hereof,
to review and, subject to mutual agreement, revise the maximum numbers set forth in
Subsection 3.1.3, and the formula for removal of vacant chairs set forth in this Subsection
3.1.6.
3.1.7 Concessionaire shall provide, within thirty (30) days from the Effective Date, a design and plan
for the implementation of a Beach Locker Program (the "Program "), including proposed pricing,
for review and approval by the City Manager or his /her designee. If, following review of
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Concessionaire's plan, the City Manager or his /her designee elects to have Concessionaire
implement the Program, then the Manager or his /her designee shall provide written notice to
Concessionaire, and Concessionaire shall implement the Program no later than ninety (90) days
from receipt of such notice; provided, however, that the parties agree that this initial
implementation only contemplates the implementation of a "pilot program" for a period of one (1)
year (which term shall commence upon: i) Concessionaire's implementation of the Program; or
ii) the date which is ninety (90) days from Concessionaire's receipt of the City's notice,
whichever comes first). At least sixty (60) days prior to the end of the one (1) year term of the
pilot Program, the City and Concessionaire shall meet and, in good faith, mutually agree upon
whether to require Concessionaire to continue to operate the Beach Locker Program throughout
the remainder of the Term; provided, however, that if Concessionaire and the City cannot
mutually agree on whether Concessionaire should continue to operate the Program (or the
terms and conditions for operation of same), then the City Manager or his /her designee, at their
sole option and discretion, may assume and undertake — whether through the City or by
contracting with a third party vendor — operation of a beach locker program within the
Concession Areas, without any liability to the City under this Agreement.
The approved plan, design, and pricing for Concessionaire's Beach Locker Program shall be
incorporated as Exhibit 3.1.7 hereto (Initially, this exhibit shall reference the plan for the pilot
program and, thereafter, if City and Concessionaire mutually agree to Concessionaire's
continued operation of the Program throughout the remainder of the Term, Exhibit 3.1.7 shall
be updated, as required, to reference any changes in the Program as a result of transition from
pilot to permanent status). Following approval by the City Manager or his /her designee, any
subsequent changes in the Program plan, design, and /or pricing must be approved, in writing,
by the Manager or his /her designee prior to such changes being implemented (and an updated
exhibit will be incorporated into this Agreement).
3.1.8 The Concessionaire shall provide outdoor ashtrays in accordance with the Public Beachfront
Outdoor Ashtray Program contemplated in Subsection 3.9.5.
3.2 Food and Beverage Service.
3.2.1 Concessionaire shall prepare, or cause to be prepared, for sale within the Concession Areas,
such cooked, prepared, and /or prepackaged foods and non - alcoholic beverages, as those set
forth in the attached Exhibit 3.1. However, actual cooking and heating from Concessionaire's
on -site facilities shall not be allowed, unless approved by the City Manager or his /her designee
pursuant to Subsection 3.2.8. The City herein approves the types of food and beverages, and
prices for same, as set forth in Exhibit 3.1. Any amendments to Exhibit 3. 1, whether as to type
of food and beverages to be sold, or as to changes in prices for same, must be approved, in
writing, by the City Manager or his /her designee prior to such changes being implemented
within the Concession Area(s) (and, if approved, an updated Exhibit 3.1 will be incorporated
into this Agreement).
3.2.2 Concessionaire shall be permitted to utilize no more than five (5) non - motorized, stationary carts
in the Lummus Park Concession Area (as defined in Subsection 2.1), to dispense ice cream
and frozen lemonade. The design, size, type, material, and color of such carts shall be reviewed
and approved in writing by the City's Planning Department. The location of same shall be
designated within Concessionaire's approved site plan (as referenced in Exhibit 3.1.3). A photo
(or photo(s)) of the City- approved carts shall be incorporated herein as Exhibit 3.2.2.
Thereafter, Concessionaire shall not change, alter, or modify such City- approved carts without
the prior written consent of the City Manager or his /her designee (and, if so approved, an
updated Exhibit 3.2.2 will be incorporated into this Agreement).
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3.2.3 Concessionaire acknowledges that, as of the Commencement Date, Concessionaire itself is
providing the food and beverage services contemplated under this Agreement. Notwithstanding
the preceding sentence, Concessionaire may, at any time during the Term, subcontract with
another entity ( "Subconcessionaire ") to provide food and beverage services, within the
Concession Areas, in the manner and to the extent contemplated under this Subsection 3.2,
subject to the following: i) Concessionaire shall submit a minimum of three (3) potential
Subconcessionaires for the City Manager's or the City Manager's designee's prior review and
written approval; and ii) any proposed contract or agreement with a City- approved Sub -
Concessionaire shall also be subject to the prior written approval of the City Manager or his /her
designee.
Notwithstanding the preceding paragraph, and because the parties agree and acknowledge that
the provision of food and beverage services are a vital and principal component of this
Agreement, there shall be no interruption in Concessionaire's provision of food and beverage
services at any time during the Term (except during events of force majeure, as defined
herein). Accordingly, in the event that the City Manager or his /her designee declines to approve
a Subconcessionaire and, thereafter, Concessionaire itself fails to resume to provide the non -
heated food and beverage services contemplated under this Agreement within three (3)
business days, then the City Manager, at his /her sole option and discretion, may declare the
Agreement in default; provided further that, for purposes of an event of default by
Concessionaire pursuant to this Subsection 3.2.1, no extended cure period (as may be
provided under Subsection 13.3) shall be permitted.
3.2.4 All food and beverages sold within the Concession Areas will be properly prepared and served
in compliance with all applicable health and sanitary standards, laws and regulations.
Concessionaire shall use products to serve food and beverage that are environmentally friendly.
The use of Styrofoam containers and plastic (or other non - biodegradable) straws is strictly
prohibited.
3.2.5 The quality of food and beverages contemplated in Subsection 3.2.1, and food and beverage
service, will be first -rate and comparable to similar food and beverage operations at public
beach concessions in other world class beach resorts on par with the City of Miami Beach.
3.2.6 In addition to Concessionaire's general maintenance obligations for the Concession Areas, as
set forth in Section 10 hereof, all food and beverage dispensing facilities, and the immediately
surrounding 50 -foot areas, shall at all times be maintained in a clean and sanitary manner. All
food and beverage dispensing facilities where heating of food occurs (if allowed pursuant to
Subsection 3.2.8) shall be properly cleaned, and Concessionaire shall ensure that products
used to prepare or heat food are properly disposed of. At least one supervisory employee must
possess a Food Service Management Certification issued by a County Public Health
Department in Florida. In addition, each food and beverage dispensing facility must be licensed
by the Florida Department of Business Regulation, Division of Hotels and Restaurants, the
Department of Agriculture, and as may further be required by State law and /or by corresponding
agencies.
3.2.7 Food and beverage services shall be offered daily to patrons at all times during the Concession
Areas' hours of operation (as set forth in Section 9); provided, however, that if Concessionaire
can show, to the City Manager or his /her designee's reasonable satisfaction, that if either an
increase or decrease in demand for such service exists in a Concession Area then, in that
event, Concessionaire may request, which request shall be subject to the City Manager or
his /her designee's prior written consent, an extension or decrease, in the hours of service for
that Area.
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3.2.8 Notwithstanding the prohibition on cooking, as set forth in Subsection 3.2.1, the City Manager
or his /her designee may, in their sole discretion, allow food heating by means of battery power,
solar power, or propane gas systems, subject to the following: i) Concessionaire shall submit a
request, in writing, to the City Manager or his /her designee, requesting approval to allow
heating, and listing where such heating is proposed to occur (i.e. in which Concession Area); ii)
such request shall include a list of the food that requires heating and what type of heating
process is proposed; (iii) Prior to any such approval of Concessionaire's request, the City
Manager or his /her designee shall advise the Ocean Drive Association (ODA), and obtain an
advisory, non - binding recommendation from the ODA; iv) Concessionaire shall obtain all
necessary regulatory reviews and approvals to permit the type of heating proposed (including
without limitation, review and approval from the City's Planning Department and Fire
Department), with all such costs to obtain such approvals to be borne solely by Concessionaire;
and v) if approved, use, handling, and storage of batteries, solar power, or propane must
comply with all applicable codes and standards. Notwithstanding the preceding, the City may,
upon ninety (90) days prior written notice to Concessionaire, rescind any such approval for
heating of food, with or without cause, and without any liability to the City under this Agreement.
3.3 Sale of Beach - Related Sundries and Skin Care Products
Beach - related sundries shall generally include the sale of those items identified in Exhibit 3.1, in
accordance with the price ranges set forth therein. Any amendments to Exhibit 3.1, whether as to
changes and /or additions of items to be offered for sale, or in the respective price ranges for same,
must be approved in writing by the City Manager or his /her designee, prior to such changes and /or
additions being implemented (and an updated Exhibit 3.1 will be incorporated into this Agreement).
Skin Care Products shall include those lotions, oils and other skin care products identified in Exhibit
3.1, in accordance with the prices for same set forth therein. Any amendments to Exhibit 3.1, whether
as to types of Skin Care Products to be sold, or as to changes in prices for same, must be approved in
writing by the City Manager or his /her designee, prior to such changes being implemented (and an
updated Exhibit 3.1 will be incorporated into this Agreement).
3.3.1 Notwithstanding the City's approval of the sale of Beach - Related Sundries and Skin Care
Products pursuant to this Subsection, the City Manager may subsequently elect, in his sole
option and discretion (and with or without cause), to rescind such approval, upon ninety (90)
days prior written notice to Concessionaire, and without any liability to the City under this
Agreement.
3.4 Watersports Equipment Rentals
Watersports Equipment Rentals shall include the rental of both motorized and non - motorized
watersport equipment, as provided for in this Section.
3.4.1 City and Concessionaire agree and acknowledge that, for the active watersports channel
existing within the Lummus Park Concession Area (at 9 th street), as of the Commencement
Date, Watersports Equipment rentals only includes, and is only permitted for, the following
Watersports Equipment: eight (8) waverunners, one (1) parasail boat, one (1) banana boat, and
six (6) kayaks.
Any future requests for new and /or additional Watersports Equipment (other than the
Watersports Equipment referenced in the preceding paragraph) must be approved, in writing, by
the City Manager or his /her designee prior to implementation of same. The City herein approves
the rental of Watersports Equipment, in the types and numbers defined in this Subsection, and
the prices for same, as set forth in Exhibit 3.1. Any amendments to Exhibit 3.1, whether as to
type(s) or number(s) of Watersports Equipment, or as to changes in prices for same, must be
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approved, in writing, by the City Manager or his /her designee prior to such changes being
implemented (and an updated Exhibit 3.1 will be incorporated into this Agreement).
�I
Within six (6) months following Concessionaire's implementation of the Watersports Equipment
! concession at the Ocean Terrace Concession Area and, thereafter, periodically during the
Term (as determined by the City Manager or his /her designee), the City may evaluate patrons'
usage of the Watersports concession to determine whether additional Watersports Equipment is
necessary at that Concession Area in order to accommodate increased demand. In the event
that the City determines that there is a need for Concessionaire to make additional Watersports
Equipment available at the Ocean Terrace Concession Area —in order to meet increased
demand for such service(s) -- then the parties shall evaluate the City's request in accordance
with the procedures established in Section 2, page 8, hereof, for determining whether a
Concession Area is "serviceable;" provided, however, that in the instant case, the established
procedures (to determine serviceability) shall be followed to determine whether the provision of
additional Watersports Equipment at that location is deemed necessary (based on demand).
3.4.2 City and Concessionaire herein acknowledge and agree that, as additional consideration for the
City entering into this Agreement, City desires that Concessionaire establish and operate a non -
motorized Watersports Equipment concession in the Ocean Terrace Concession Area. The non -
motorized Watersports Equipment rentals for the Ocean Terrace Concession Area shall be
provided and implemented by Concessionaire no later than ninety (90) days following the City's
final approval of a designated watersports channel within that Area.
Prior to the Effective Date, Concessionaire shall provide to the City Manager or his /her designee
for their review and approval, a preliminary list of the proposed non - motorized Watersports
Equipment to be made available for rental (which may include, for example purposes only, the
rental of paddle boards, kayaks, and paddle boats /bikes). Within sixty (60) days following the
approval of the channel, Concessionaire shall provide the City Manager or his /her designee, for
their review and approval, the final list of the proposed non - motorized Watersports Equipment to
be made available for rental and the pricing for same, which shall be incorporated into Exhibit
3.1. Any amendments to Exhibit 3.1, whether as to type(s) or number of non - motorized
watersport equipment to be rented, or as to changes in prices for same, must be approved in
writing by the City Manager or his /her designee prior to such changes being implemented within
the Concession Area(s), and a new updated Exhibit 3.1 will be incorporated into this
Agreement.
Concessionaire shall, throughout the Term, provide City of Miami Beach residents with a twenty
percent (20 %) discount for Watersports Equipment rentals from the Ocean Terrace Concession
Area.
3.4.3 City and Concessionaire agree and acknowledge that Watersports Equipment rentals shall only
be permitted from a designated watersports channel approved by the City.
3.4.3.1 Concessionaire agrees, at its sole cost and expense, to provide one off -duty police
officer during (i) certain City- designated major event periods (as such major event
periods may be determined by the City Manager or his /her designee, and as to which
the City shall provide a list, no later than ninety (90) days from the commencement of
each Agreement year, with the dates of such major events /event periods that the City
knows of for such Agreement year, and which list may be amended by the City from
time to time); and, ii) federal holidays, to monitor the motorized Watersports
Equipment channel during all times that such channel is operating.
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3.4.3.2 Concessionaire's future use of any alternate or additional watersports channel(s) is
subject to the prior written approval of the City Manager or his /her designee, who
shall first obtain a non - binding recommendation from the City's Marine Authority
Board.
3.4.3.3. All watersports channels shall be used as an access route through which users of
Watersports Equipment may leave the beachfront and enter open water. Said
channel(s) shall be a minimum of fifty (50) feet in width and shall extend 300 feet
east, perpendicular to the shore line, and be marked by removable high visibility
orange colored buoys which shall be a minimum of eighteen (18) inches in diameter.
There shall be a minimum of eight (8) buoys on each side of the channel, equally
spaced. All buoys shall be clearly marked "IDLE SPEED" in six (6 ") inch high letters.
Specifications or a sample of the line to be used for the channel buoys must be sent
to the appropriate regulatory agency for approval prior to use.
3.4.3.4 Motorized Watersports Equipment shall not exceed "idle speed" within the channel.
3.4.4 All Watersports Equipment operations must have a "chase" watercraft and properly certified
concession staff, readily available to operate same. The chase watercraftl must be positioned at
the eastern end of the watersport channel, if any rented watercraft are in the water, unless the
chase watercraft is being used for other customary life safety related functions related to the
watersport operation(s). The chase watercraftl must be capable of catching, and performing, a
proper rescue of all Watersports Equipment which is available for rent. The chase watercraft
must be readily available for use and be safely located on shore, or within the channel, unless
monitoring or recalling a patron. In addition to these requirements, all chase watercraft
operators shall wear high visibility yellow colored personal floatation devices when operating the
chase watercraft. When the chase watercraft is on shore, said high visibility yellow colored
personal floatation device shall be placed on top of the chase watercraft, in order to identify
same. All concession staff must be properly certified (complete boater's education course
approved by the NASBLA or pass the State of Florida "How to Boat Smart" course), and wear
the required identification badge to reflect same, and staff must be readily available at all times
that the concession is operating.
3.4.5 The operation of all Watersports Equipment shall be conducted east of the 300 -foot swimming
area ( "guarded area ") and no closer than 400 feet of any lifeguard stand. Concessionaire is
responsible for instructing clients on the safe operation of Watersports Equipment, including
advising them to stay away from all "guarded areas." The guarded area extends 300 feet east of
the shoreline and 100 feet from the nearest bather or swimmer.
3.4.6 The Concessionaire must instruct all users as to all safety precautions, including avoidance of
swimmers and bathers, and inform said users of any and all municipal, County, State and
Federal requirements associated with the use of the respective watersport equipment.
3.4.7 All Concession activities, including the placement and /or use of chairs, umbrellas, sun canopies,
or other Beach Equipment, food and beverage service dispensing facilities, Watersports
Equipment, and any and all other equipment and facilities, shall not obstruct the view of a
lifeguard. Concessionaire shall promptly comply with any request from a lifeguard to relocate
any item(s) that obstructs his /her view.
3.4.8 Concessionaire shall not knowingly permit anyone under the minimum age, as required by
Federal, State, County, or municipal law (unless appropriate written consent of the parent or
guardian is provided pursuant to such applicable law), nor anyone under the influence of alcohol
or other mood altering drug, to rent or use any Watersports Equipment. Concessionaire shall
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not knowingly permit anyone under the age of eighteen (18) to rent Watersports Equipment.
Concessionaire shall not knowingly permit anyone under the age of 16 to operate motorized
Watersports Equipment. Concessionaire shall not knowingly permit a person 21 years of age or
younger to operate a marine vessel of 10 horse power or more, unless such person has in
his /her possession aboard the vessel, a photo identification and proof of completion of a boater
education course approved by the State of Florida and /or the National Association of State
Boating Law Administrators.
3.4.9 Concessionaire shall supply all users of Watersports Equipment with the appropriate United
States Coast Guard approved "personal flotation device" in appropriate sizes. Proper "personal
flotation devices" must be "speed rated ".
3.4.10 All Watersports Equipment and chase watercraft shall be maintained at Concessionaire's sole
cost and expense and shall meet the registration and licensing requirements of the State of
Florida, and any other governing agency. Concessionaire agrees that all motorized watersport
equipment shall be at minimum of commercial grade and quality. All motorized watersport
equipment shall be no more than two (2) model years old. City reserves the right to request
proof of title or other proof of purchase related to such Equipment in order for the City to
properly monitor this requirement. To assure that all Watersport Equipment is at all times
maintained in accordance with the highest industry standards, the City reserves the right to
request periodic service and /or maintenance reports to be provided and, if required, certified or
otherwise guaranteed by Concessionaire, at its sole cost and expense. All of Concessionaire's
motorized Watersport Equipment shall have fuel injected four (4) stroke engines.
3.4.11 All motorized Watersports Equipment shall be equipped with "kill- switches" in proper working
order.
3.4.12 All Watersports Equipment shall be clearly marked to identify the Concessionaire with ten -inch
(10 ") high, one and one -half inch (1 '/2 ") thick, contrasting numbers.
3.4.13 Any fueling of Watersports Equipment or chase watercraft on the beach must comply with
FDEP, Miami -Dade County DERM and USCG Regulations.
3.4.14 Concessionaire must be equipped, on site, with operating fire extinguisher and cellular /wireless
type telephone.
3.4.15 Concessionaire must provide renters or users a thorough demonstration of the operation of the
rented Watersports Equipment and use of all safety equipment including, but not limited to,
handling characteristics of Watersports Equipment. Furthermore, all renters and users must be
instructed as to the location and proper usage of all on -board safety equipment including, but
not limited to fire extinguisher(s).
3.4.16 Concessionaire must inform all Watersports Equipment renters or users as to the locations of
known diving areas and reefs, how to identify a diving flag, and instruct them to maintain a
minimum 100' distance from dive flags, swimmers, other boaters, markers and marked areas.
3.4.17 Concessionaire shall have, at a minimum during peak usage ( "peak usage" defined as anytime
in which eight (8) motorized Watersports Equipment items are present at the subject
Concession Area), three (3) employees on site while the Watersports Equipment concession is
open; provided, however, that this number may be increased from time to time, if required by
the City Manager or his /her designee. Concessionaire shall have at least one (1) Red Cross
Lifeguard Course certified employee on duty at all times during which the Watersports
Equipment concession is open.
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3.4.18 Any and all Watersports Equipment concession activities shall only be conducted when the
weather conditions and the conditions of the surf permit for the safe operation of same.
Concessionaire shall inform each and every prospective patron that if the Ocean Rescue
Division of the City of Miami Beach Fire Department (Ocean Rescue) determines that conditions
are unsafe or hazardous, he or she may be required to immediately come to shore and
discontinue using the Watersports Equipment. In the event that conditions are of such a nature
that the Ocean Rescue deems them unsafe or hazardous to the individuals who are operating
Watersports Equipment, or to the swimmers and bathers in the vicinity of said Equipment, the
Ocean Rescue shall request that Concessionaire cease operating its respective Watersports
Equipment concession. Once it is concluded that unsafe or hazardous conditions exist, the
Ocean Rescue shall notify Concessionaire.
3.4.20 Concessionaire agrees and understands that the maximum horsepower of any motorized
Watersports Equipment intended to be used for rental purposes shall not exceed 110 horse
power, and chase watercraft shall not exceed 140 horse power. However, in the event the 110
or 140 horse power models are no longer manufactured and /or cost prohibitive, then the City
Manager or his /her designee may approve, at their sole discretion, other comparable
equipment.
3.4.21 Concessionaire agrees and understands that in the event of any accident or collision involving
any of its Watersports Equipment which involves an injury to persons (whether minor or major),
it must complete and submit a written report to the City's Marine Patrol, with copies to the City's
Ocean Rescue Division and Office of Asset Management, within twenty -four (24) hours of the
incident occurring, or upon notification thereof by a third party(ies).
3.4.22 In the event the City Manager or his /her designee determine, at their sole option and discretion,
that the provision of motorized or non - motorized Watersports Equipment is no longer desired,
then the City Manager may revoke Concessionaire's right to provide one or both of these
services, with or without cause, and without any liability to the City under this Agreement, upon
ninety (90) days prior written notice to Concessionaire. Any minimum guarantee paid by
Concessionaire to the City for motorized Watersports Equipment, shall be prorated and /or
adjusted accordingly as of the date of revocation of approval for said motorized Watersports
Equipment service(s), and no further payment shall be required for same during the Term,
unless the City Manager reinstates the motorized Watersports Equipment service(s), at which
time the payment provisions of Section 4 shall once again apply. Because a minimum
guarantee on this service(s), is paid in advance, City agrees to refund such pro -rated minimum
guarantee (for motorized Watersports Equipment services only) to Concessionaire upon sixty
(60) days written demand from Concessionaire.
3.4.23 Concessionaire shall maintain any area where Watersports Equipment is placed within the
Concession Area clean and free of litter and debris. Any spillage of any chemical or liquid, other
than water, shall be cleaned immediately and Concessionaire shall take whatever necessary
steps are necessary to remediate, using customary and reasonable efforts, any soiled or
impacted area.
3.5 Concession Facilities and Concession Storage Facilities
3.5.1 The design, materials, color, signage, etc. of Concessionaire's dispensing facilities and storage
facilities must be required and approved by the City's Planning Department, and receive design
review approval prior to the Effective Date. The City- approved facilities shall be incorporated
herein as Exhibit 3.5.1. The size of Concessionaire's food and beverage trailers shall be no
larger than 8 feet by 12 feet; provided, however, if heating is allowed, then the size of that food
and beverage trailer shall be no greater than 8 feet by 16 feet. The location of facilities must
14
also be approved by the City Manager or his /her designee, and shall be designated within
Concessionaire's approved site plan (as referenced in Exhibit 3.1.3). Concessionaire shall not
deviate from or change the type, design, and /or location of its proposed dispensing or storage
facilities without the prior written consent of the City Manager or his /her designee.
3.5.2 Prior to the Effective Date, Concessionaire shall provide the City Manager or his /her designee
with a written plan for storage and removal of Concessionaire's Beach Equipment, dispensing
facilities, and Watersports Equipment; which plan shall be reviewed and approved by the City
Manager or his /her designee. This plan shall include the use of any storage facilities
contemplated in Subsection 3.5.1 above.
3.5.3 In the event that, at any time during the Term, the State of Florida determines that
Concessionaire's dispensing and storage facilities (for purposes of this subsection, the
"facilities ") do not comply with State law, then Concessionaire shall, at its sole cost and
responsibility, immediately take such actions, as necessary, to bring same into compliance,
including, without limitation, revising its storage plan and /or either altering or removing the non-
complying facilities from the Concession Areas. Concessionaire herein further acknowledges
that it shall not hold the City liable for any expenses and /or other damages incurred as a result
of its non - compliance with State requirements pursuant to in this subsection (including, without
limitation, any cost or other liabilities incurred by Concessionaire as a result of removal of the
facilities or, in the alternative, bringing such facilities into compliance with State law.
3.6 Hurricane Evacuation Plan.
Concessionaire agrees that fifty percent (50 %) of all its storage and dispensing facilities, Beach
Equipment, Watersports Equipment, and any other equipment and facilities used in the concession
operations will be removed from the beachfront immediately within eight (8) hours of the issuance of a
Hurricane Watch by the Miami -Dade County Office of Emergency Management, and stored at an
approved, private, off -site location, and the remaining fifty percent (50 %) of the above - referenced
facilities and equipment will be removed from the beachfront immediately within eight (8) hours of the
issuance of a Hurricane Warning by the Miami -Dade County Office of Emergency Management, and
stored at an approved, private, off -site location. Prior to the Effective Date, Concessionaire shall
provide the City Manager or his /her designee with a hurricane preparedness /evacuation plan, which
shall include the location, and proof of ownership and /or control by Concessionaire (either through a
deed, lease or other form satisfactory to the City Manager or his designee), of its proposed hurricane
storage facility; both of which shall be attached as Exhibit 3.6 to this Agreement.
3.7 Sea Turtles.
Concessionaire agrees and understands that the State of Florida has advised that in order to place
facilities and /or equipment on the beach, surveys for marine turtle nesting activity must be ongoing, and
have been conducted daily for 65 days previous to the initial date of operation, or beginning May 1, of
each year. The Concession Area(s) are currently surveyed by the Beach Maintenance Division of the
Miami -Dade County Parks and Recreation Department.
a. It is the responsibility of the Concessionaire to abide by any order issued by the State of Florida
and /or cooperate with Miami -Dade County to ensure that nesting surveys may be conducted in
accordance with the conditions set forth by the State.
b. In the event an unmarked marine turtle nest is exposed, or a dead, injured, or sick marine turtle
is discovered, the Florida Marine Patrol (1- 800 - DIAL -FMP) shall be notified immediately such
that appropriate conservation measures may be taken.
C. No temporary lighting associated with the concession will be permitted at any time during the
marine turtle nesting season and no permanent lighting is authorized.
15
d. The placement and removal of facilities and equipment on the beach seaward of 230 feet from
the high water line shall be conducted during daylight hours and shall not occur in any location
prior to completion of the necessary marine turtle protection measures.
e. The beach area seaward of the 230 -foot setback from the high water line should be cleared of
all furniture and equipment, except lifeguard equipment, at nights during the turtle- nesting
season.
f. Disturbing the existing beach, Dune topography and vegetation is prohibited.
3.8 City Business Tax Receipts.
Concessionaire shall obtain, at its sole cost and expense, any Business Tax Receipts (BTRs) required
by City law, as amended from time to time, for the each of its proposed uses, as contemplated in
Section 3 of the Agreement. BTR's shall be obtained for each proposed use within a particular
Concession Area. For example, in the Lummus Park Concession Area, the Concessionaire would be
required to obtain four (4) BTR's; one each for: (i) rental of Beach Equipment; (ii) food and beverage
service; (iii) sale of Beach - Related Sundries /Skin Care Products; and (iv) rental of Watersports
Equipment)
3.9 Value -Added Enhancements
The Concessionaire agrees to provide the following Value -Added Enhancements throughout the Term:
3.9.1 An annual donation to the City, in the amount of five - thousand dollars ($5000) per year, to be
utilized by the City for scholarships and contributions to philanthropic organizations, with an
emphasis on marine - related and children - related recipients. The City shall make the sole and
final determination as to the recipient organization(s).
3.9.2 An annual donation to the City, in the amount of five - thousand dollars ($5000) per year, to be
utilized by the City in support of environmental organizations and programs. The City shall make
the sole and final determination as to the recipient organization(s).
The monetary donations in Subsections 3.9.1 and 3.9.2 above shall be submitted to the City, in
full, at the commencement of each contract year during the Term.
3.9.3 Concessionaire shall establish and maintain, at its sole cost and expense, a lounge chair
"promotional towel program" in the "Luxury" areas of the Concession Areas, that would provide
for the promotion of the City of Miami Beach. Said promotional towel program would provide for
a minimum of 600 imprinted lounge chair towels, which shall be replaced with 600 new
imprinted towels at least once during the Initial Term, and twice during the Renewal Term. The
design and content of the imprinted message shall be determined and approved by the City
Manager or his /her designee, at their sole discretion. In order to preserve the City's approval
rights in the preceding sentence, Concessionaire shall provide written notice to the City
Manager or his /her designee at least thirty (30) days prior to ordering such promotional towels.
Concessionaire's notice shall include the proposed design to be used by Concessionaire for the
promotional towel program. The City Manager or his /her designee shall have thirty (30) days
from receipt of Concessionaire's notice to approve or disapprove of the proposed design and
content of the imprinted message, or otherwise submit an alternative design for the imprinted
message. If the City Manager or his /her designee fails to approve or disapprove the proposed
design and /or content of the imprinted message, or submit an alternative design for the
imprinted message, within such thirty (30) day period, the City shall be deemed to have waived
its approval rights under this subsection.
3.9.4 Concessionaire shall provide, at its sole cost and expense, enhanced beach cleanliness as
follows: Concessionaire shall provide assistance in the supervision of cleanliness in Lummus
Park, including the area outside of the Concession Area(s), beginning at the west foot of the
sand dunes and extending westerly to, and including the east sidewalk of, Ocean Drive; said
16
supervision to include coordination with the City's Sanitation Department for the collection of
any litter garbage or debris that is identified by the Concessionaire, including notification of
overflowing trash receptacles; notification to the Public Works Department of any issues
regarding the operation of any beach showers and the cleanliness of beach restrooms; and
coordination with the Code Compliance Division in identifying and reporting littering, illegal
vendors, graffiti on City property or any other City Code violation.
3.9.5 Concessionaire shall provide, at its sole cost and expense, a public beachfront outdoor ashtray
program. Such program shall require the Concessionaire's purchase, daily placement/removal,
and maintenance of no fewer than twenty (20) outdoor ashtrays (maximum cost of $100.00 per
outdoor ashtray) for the use of the general public. The proposed make and model of the outdoor
ashtrays, and a photo of same, shall be submitted to the City Manager or his /her designee for
their approval prior to purchase and placement, but no later than sixty (60) days after the
Effective Date. The outdoor ashtrays shall be placed daily along the existing public trash can
line, at a distance to be mutually determined by the Concessionaire and the City Manager or
his /her designee, in all public beachfront areas (i) adjacent to the Concession Areas; (ii)
adjacent to "areas outside of the Concession Areas" (as such term is defined in Section 10.1);
and, (iii) adjacent to the following additional areas: the public beachfront area located between
the private concession areas behind Penrod's and behind the Continuum, and the public
beachfront area located east of Marjory Stoneman Park, for so long as the Concessionaire
operates a beachfront concession immediately adjacent to these locations. The outdoor
ashtrays shall be placed in such a manner as not to interfere with the servicing of the public
trash cans. Such ashtrays are to be placed and removed daily consistent with the current
schedule for the placement and removal of Concessionaire's Beach Equipment. A site plan
indicating the placement of the outdoor ashtrays shall be included as Exhibit 3.9.5.
Concessionaire shall replace any damaged outdoor ashtray, and shall ensure that at no time no
fewer than twenty (20) outdoor ashtrays are available for use. Should the City Manager or
his /her designee determine, in their sole discretion, that additional outdoor ashtrays are
necessary to meet the required placement requirements in this section (e.g. distance,
frequency), such additional outdoor ashtrays shall also be purchased, placed /removed and
maintained by the Concessionaire, but in no event shall the number of additional ashtrays
(including replacement of damaged ashtrays) exceed an additional ten (10) during the Term (in
addition to the twenty (20) required pursuant to this subsection).
SECTION 4. CONCESSION FEES.
4.1 Minimum Guarantee (MG):
In consideration of the City's execution of this Agreement and granting the rights provided herein, but
subject to reduction as may (only) expressly be provided in this Agreement, Concessionaire shall pay to
the City a Minimum Guaranteed Annual Concession Fee (MG), in the total amount of $686,563, for
food and beverage sales, Beach Equipment rentals, the sale of Beach - Related Sundries /Skin Care
Products, and Watersports Equipment Rentals. The MG is apportioned as follows:
Food and Beverage Sales, Beach - Related $ 174, 524.43
Sundries and Skin Care Products Sales
Beach Equipment Rentals $ 465, 398.46
Watersports Equipment Rentals $ 46, 639.84
Total $ 686, 562.73
Fifty percent (50 %) of the MG for each contract year shall be due and payable to the City on November
5 th of each such year during the Term, and the remaining fifty percent (50 %) of the MG for that contract
year shall be due and payable to the City on May 5 th of each such year during the Term.
17
Commencing with the fourth contract year, and each subsequent annual anniversary of the
Commencement Date during the Term, the MG shall be automatically increased by the greater of: i) an
amount equal to the percent of change in the Consumer Price Index, All Urban Consumers (CPI - U.S.
City Average All Items; base year 1982 -84 =100) (the "Index "), as published by the United States
Department of Labor, Bureau of Labor Statistics; or ii) three percent (3 %) (the "CPI Adjustment ").
4.2 Percentage of Gross (vs.) MG (PG):
For each contract year during the Term, Concessionaire shall pay to the City the difference between
the MG provided in Subsection 4.1 above, and a percentage of the gross receipts that exceeds the
amount of the MG for food and beverage sales, the sale of Beach - Related Sundries /Skin Care
Products, Beach Equipment rentals, and Watersports Equipment rentals (the "Percentage of Gross"
(PG)), as follows:
Food and Beverage Sales 15%
Beach - related Sundries/Skin Care Products Sales 20%
Beach Equipment Rentals 20%
Watersports Equipment Rentals 20%
The payment of the PG shall be due and payable to the City no later than December 31S of each
contract year.
4.3 The amount in excess of the MG due by Concessionaire for Watersports Equipment rentals for a
contract year shall be waived during the time the City is conducting, or having conducted, any sand
excavation project within less than one city block of the watersports channel which materially affects
use of the watersports channel in Lummus Park, as follows: prorated for every day that the watersports
channel is materially affected, such prorated amount to be equal to the average daily revenues
collected over the previous three (3) year period during those affected dates ( "Watersports Waiver ").
Concessionaire agrees and acknowledges that the Watersports Waiver shall be Concessionaire's sole
remedy for damages and /or other compensation from the City due to any alleged adverse impact
sustained by the concession operations, and the City shall have no further liability or obligation to
Concessionaire with regard to this matter. Notwithstanding the foregoing, the provisions of Subsection
4.2.1 shall be reinstated, commencing with the next applicable day, at such time as the City Manager,
in his /her sole judgment and reasonable discretion, has determined that adequate beach accretion has
occurred so as to render the Watersports Waiver invalid. For purposes of this Subsection 4.3 only, a
Watersports channel shall be deemed "materially affected" when Concessionaire's average daily
revenue resulting from the use of the affected channel is reduced by at least fifteen percent (15 %) from
the amount equal to the average daily revenues collected over the previous three (3) year period for
such channel.
4.4 The term "gross receipts" is understood to mean all income collected or accrued, derived by the
Concessionaire under the privileges granted by this Agreement, excluding amounts of any Federal,
State, or City sales tax, or other tax, governmental imposition, assessment, charge or expense of any
kind, collected by the Concessionaire from customers and required by law to be remitted to the taxing
or other governmental authority. The term "gross receipts" shall also include all income collected,
accrued or derived by the Concessionaire from the sale of food, beverages and any other products sold
by Concessionaire at a special event at such Concession Area and, in the case of a special event
under Section 16 hereof in which Concessionaire is not providing the food and beverage service at a
Concession Area, any Displacement Fee or Alternative Consideration (as such terms are defined in
Subsection 16.2.1) received by Concessionaire.
4.5 Interest for Late Payment.
Any payment which Concessionaire is required to make to City which is not paid on or before the
respective date provided for in this Agreement shall be subject to interest at the rate of twelve percent
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12% per annum, from the due date of payment until such time as payment is actually received by the
City.
4.6 Sales and Use Tax.
It is also understood that the required Florida State Sales and Use Tax shall be added to
Concessionaire's payments and forwarded to the City as part of said payments. It is the City's intent
that it is to receive all payments due from Concessionaire as net of such Florida State Sales and Use
Tax.
SECTION 5. MAINTENANCE AND EXAMINATION OF RECORDS.
Concessionaire shall maintain current, accurate, and complete financial records on an accrual basis of
accounting related to its operations pursuant to this Agreement. Systems and procedures used to maintain
these records shall include a system of internal controls and all accounting records shall be maintained in
accordance with generally accepted accounting principles and shall be open to inspection and audit, but not
photocopying, by the City Manager or his /her designee upon reasonable prior request and during normal
business hours. Such records and accounts shall include a breakdown of gross receipts, expenses, and profit
and loss statements. Concessionaire shall maintain accurate receipt - printing cash registers or a like alternative
in all Concession Areas which will record and show the payment for every sale made or service provided in
such Areas. Concessionaire shall also maintain such other records as would be required by an independent
CPA in order to audit a statement of annual gross receipts and profit and loss statement pursuant to generally
accepted accounting principles.
A monthly report of gross receipts must be submitted to the City's Finance Department's Revenue Supervisor,
to be received no later than thirty (30) days after the close of each month.
SECTION 6. INSPECTION AND AUDIT.
Concessionaire shall maintain financial records pertaining to its operations pursuant to this Agreement for a
period of three (3) years after the conclusion of any contract year, and such records shall be open and
available to the City Manager or his /her designee, as deemed necessary by the City Manager or his /her
designee, but shall not be subject to photocopying without the Concessionaire's prior consent. Concessionaire
shall maintain all such records at its principal office, currently located at 420 Lincoln Road, Suite 265, Miami
Beach, Florida, 33139. If moved to another location outside of the City of Miami Beach, all such records shall
be relocated, at Concessionaire's expense, to a location in Miami Beach, within ten (10) days' written notice
from the City Manager or his /her designee.
The City Manager or his /her designee shall be entitled to audit, but not photocopy (unless first having obtained
Concessionaire's consent), Concessionaire's records pertaining to its operations pursuant to this Agreement
as often as it deems reasonably necessary throughout the Term of this Agreement, and three (3) times within
the three (3) year period following termination of this Agreement, regardless of whether such termination
results from the natural expiration of the Term or for any other reason. The City shall be responsible for paying
all costs associated with such audits, unless the audit(s) reveals a deficiency of five percent (5 %) or more in
Concessionaire's statement of gross receipts for any year or years audited, in which case the Concessionaire
shall pay to the City, within thirty (30) days of the audit being deemed final (as specified below), the cost of the
audit and a sum equal to the amount of the deficiency revealed by the audit, plus interest at the rate of 12%
per annum; provided, however, the audit shall not be deemed final until Concessionaire has received the audit
and has had a reasonable opportunity to review the audit and discuss the audit with the City. These audits are
in addition to periodic audits by the City of Resort Tax collections and payments, which are performed
separately. Nothing contained within this Section shall preclude the City's audit rights for Resort Tax collection
purposes.
Concessionaire shall submit at the end of each contract year, an annual statement of gross receipts, in a form
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consistent with generally accepted accounting principles. Additionally, such statement shall be accompanied
by a report from an independent CPA firm which shall perform certain agreed upon procedures, as described
in the attached Exhibit 6.
It is Concessionaire's intent to stay informed of comments and suggestions by the City regarding
Concessionaire's performance under the Agreement. Within thirty (30) days after the end of each contract
year, Concessionaire and the City Manager or his /her designee may meet to review Concessionaire's
performance under the Agreement for the previous contract year. At the meeting, Concessionaire and City may
discuss quality, operational, maintenance and any other issues regarding Concessionaire's performance under
the Agreement.
SECTION 7. TAXES, ASSESSMENTS, AND UTILITIES.
7.1 Concessionaire agrees to, and shall pay before delinquency, all taxes (including but not limited to
Resort Taxes) and assessments of any kind assessed or levied upon Concessionaire by reason of this
Agreement, or by reason of any business or activities conducted by Concessionaire in connection with
the Concession Areas. Concessionaire will have the right, at its own expense, to contest the amount or
validity, in whole or in part, of any tax and /or assessment by appropriate proceedings diligently
conducted in good faith. Concessionaire may refrain from paying a tax or assessment to the extent it is
contesting the assessment or imposition of same in a manner that is in accordance with law; provided,
however, if, as a result of such contest, additional delinquency charges become due, Concessionaire
shall be responsible for such delinquency charges, in addition to payment of the contested tax and /or
assessment if so ordered.
Concessionaire shall also pay for any fees imposed by law for licenses or permits for any business(es)
or activities of Concessionaire conducted in the Concession Areas.
Concessionaire shall pay before delinquency any and all charges for utilities used by, for, or on behalf
of the operations contemplated herein (including, but not limited to, water, electricity, gas, heating,
cooling, sewer, telephone, ice machine, trash collection, etc.).
City acknowledges that Concessionaire shall also be permitted to use, but shall pay for, all utilities with
respect to its operations at 10 Street and Ocean Drive, including costs associated with operating an
ice machine, running water, and electrical.
7.2 Procedure If Ad Valorem Taxes Assessed.
Notwithstanding Subsection 7.1, the parties are proceeding under the assumption that, as the
operations contemplated herein are for public purposes, historically no ad valorem taxes have been
assessed by the Miami -Dade County Tax Appraiser. If, however, such taxes are assessed at any time
during the Term, the City and Concessionaire shall use reasonable efforts to achieve and equitable
solution to address payment of same.
SECTION 8. EMPLOYEES AND INDEPENDENT CONTRACTORS.
8.1 In connection with the performance of its responsibilities hereunder, Concessionaire shall select, train,
and employ (or otherwise retain) such number of employees and /or independent contractors, as is
necessary or appropriate for Concessionaire to satisfy its responsibilities hereunder. Concessionaire
shall have the authority to hire, terminate and discipline any and all personnel employed (or otherwise
retained) by the Concessionaire to satisfy its responsibilities hereunder. Concessionaire shall select the
number, function, qualifications, compensation, including benefits (if any), and may, at its discretion and
at any time, adjust or revise the terms and conditions relating to such employees and /or independent
contractors. None of the employees or contractors of Concessionaire shall be deemed to be
employees or contractors of the City for any purpose whatsoever.
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2 Concessionaire n
8 a d its employees and /or independent contractors shall wear identification badges and
uniforms approved by the City during all hours of operation when such employee or independent
contractor are on duty. The Concessionaire shall hire people to work in its concession operation who
are neat, clean, well groomed and shall comport themselves in a professional and courteous manner.
The Concessionaire and any persons hired by it, shall never have been convicted of a felony. The
Concessionaire shall have an experienced manager(s) overseeing the concession operations and
Concession Areas at all times. The name (or names ) of the Concessionaire's manager(s) shall be
provided to the City Manager or his /her designee, on or before the Effective Date, and shall be
updated, as necessary.
SECTION 9. HOURS OF OPERATION.
All Concession Areas and concession operations thereon shall be open every day of the year, weather or
events of force majeure permitting, and shall be open no earlier than one (1) hour after sunrise daily, and close
no later than one (1) hour before sunset daily. Sunrise and sunset shall be established on a daily basis by the
National Weather Service. Any change in the hours of operation shall be at the City Manager's or his /her
designee's sole option and discretion, and any request by Concessionaire for an increase or decrease in same
shall be subject to the prior written approval of the City Manager or his /her designee.
Notwithstanding anything herein to the contrary, if the City Manager or his /her designee, require that the
Concessionaire operate a concession at the North Shore Open Space Park Concession Area and /or at the
South Pointe Park Beach Concession Areas, such operations may be permitted with reduced hours of
operation and reduced services, as may be determined by the City Manager or his /her designee pursuant to
the procedures established under Subsections 2(a) — (e) hereof.
SECTION 10. MAINTENANCE.
10.1 The Concessionaire accepts the use of the Concession Areas in their "AS IS, WHERE IS" condition.
Concessionaire assumes sole responsibility and expense for maintenance, including the collection and
daily removal of litter, garbage and debris of the following areas: 1) the Concession Areas, including all
facilities and equipment thereon; 2) any Buffer Zone (as defined in Subsection 2.7 hereof) immediately
adjacent to any portion of the Concession Areas; 3) any Lifeguard Facility Zone (as defined in
Subsection 2.5 hereof) immediately adjacent to any portion of the Concession Areas; 4) any Handicap
Zone immediately adjacent to any portion of the Concession Areas; 5) the area within fifty (50) feet of
any of the Concessionaire's storage areas located outside of a Concession Area; 6) the area within ten
(10) feet of any outdoor ashtray required to be placed and maintained by Concessionaire pursuant to
this Agreement (and including ashtrays provided by Concessionaire pursuant to the Public Beachfront
Outdoor Ashtray Program contemplated in Subsection 3.9.5, and ashtrays provided by
Concessionaire for use by its patrons); 7) any area within fifty (50) feet of a food and beverage
dispensing facility; and 8) the Dune area landward and adjacent to any portion of the Concession
Areas (NOTE: for purposes of this Section 10, and of any other section of the Agreement which
references the term "areas outside of the Concession Areas," that term shall be deemed to reference
and include only the specific areas described in Nos. (2) through (8) above).
10.1.1 As an additional requirement of its maintenance responsibilities, Concessionaire shall provide
throughout the Term, at its sole cost and expense, sand sifting equipment, whether manual or
motorized, and staff appropriately trained and /or certified to operate same, within all Concession
Areas and those "areas outside of the Concession Areas" as defined in Subsection 10.1, but
not including the Area defined in Subsection 10.1(8) above. Sand sifting shall occur no less
than two (2) times weekly in each Concession Area and in each of the areas outside of the
Concession Areas. On or before the Effective Date, Concessionaire shall provide the City
Manager or his /her designee with photographs and specifications of the sand sifting equipment
it shall employ, which shall be included as Exhibit 10.1.1 hereof.
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10.2 Garbage Receptacles; Recycling Plan; outdoor ashtrays; and Fenced Storage Area.
With respect to litter, garbage, and debris removal caused by the Concessionaire's operations, the
Concessionaire shall provide, at its sole cost and expense, receptacles within the confines of the
Concession Areas, and shall provide a sufficient number of these receptacles for its own use and for
the use of its patrons and the public in general. The Concessionaire shall provide the City Manager or
his /her designee with a recycling plan for litter, garbage, and debris collected within the Concession
Areas; such plan to be submitted to the City Manager or his /her designee within the first Agreement
year.
Concessionaire shall provide ashtrays for use by the Concessionaire's patrons; this requirement is in
addition to the Concessionaire's obligation to implement and maintain the Public Beachfront Outdoor
Ashtray Program contemplated in Subsection 3.9.5.
The disposal of the contents of the Concessionaire's garbage receptacles and ashtrays, and removal of
litter, garbage, and debris within the Concession Areas, shall be done on a daily basis, and shall be the
sole responsibility of the Concessionaire.
The Concessionaire shall be permitted to utilize the dumpster area on the north side of the 10 Street
Auditorium, but must provide for its disposal at its sole cost and expense. Concessionaire shall enter
into and maintain a current agreement with a trash hauler for disposal at the 10 Street dumpster
facility, and provide a copy of such agreement to the City Manager or his /her designee. Any costs for
removal of the contents of said trash receptacles by the City, because of the Concessionaire's failure to
do the same, will be assessed upon, and become the responsibility of, the Concessionaire. The
dumping or disposal by Concessionaire, including its employees and /or contractors, of any garbage,
litter, and /or debris generated by, or as a result of, the concession operations, into any of the Miami -
Dade County trash receptacles, is strictly prohibited.
Determination of the "number" of receptacles shall at all times be made by the City Manager or his /her
designee at their sole discretion, and Concessionaire shall agree to be bound by same.
Notwithstanding the foregoing, with respect to litter, garbage and debris created by the public or other
persons in the "areas outside of the Concession Areas," provided for in Subsection 10.1, and the
contents of the public beachfront outdoor ashtrays, the Concessionaire shall remove such litter,
garbage and debris to the City's waste receptacles for disposal by the City.
10.2.1 Concessionaire shall be permitted to operate and maintain, including landscaping, at
Concessionaire's sole cost and expense, a twenty five (25) foot by twenty five (25) foot fenced
storage area adjacent to the dumpster area on the north side of the 10 Street Auditorium, in
accordance with Exhibit 10.2.1,to be used for umbrella and chair storage only. Said fenced
storage area shall be approved by the City's Planning Department or such other applicable
authority as may be deemed necessary by the City Manager or his /her designee.
10.2.2 In addition to the area described in Subsection 10.2.1 above, and subject to all necessary
regulatory reviews and approvals, Concessionaire shall also be permitted to operate and
maintain, including landscaping, at Concessionaire's sole cost and expense, a 748 square foot
fenced storage area located due west of the area described in Subsection 10.2.1, in
accordance with Exhibit 10.2.2. Said fenced storage area shall be approved by the City's
Planning Department, or such other applicable authority as may be deemed necessary by the
City Manager or his /her designee.
10.3 Facilities /Equipment/Furnishings.
Concessionaire must provide and maintain, at its own cost and expense, all facilities, equipment, and
furnishings required to operate the concession. In the event any of the aforesaid items are lost, stolen,
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or damaged during the Term, they shall be repaired or, if irreparable, replaced, at the sole cost and
expense of the Concessionaire, within fifteen (15) days of written notice from the City Manager or
his /her designee. This requirement is in addition to Concessionaire's obligation for the periodic
replacement of Beach Equipment (under Subsection 3.1.1) and Watersports Equipment (under
Subsection 3.4.10)
10.4 Orderly Operation.
Concessionaire shall keep a neat and orderly operation at all times, and shall be solely responsible for
the necessary housekeeping services to properly maintain the Concession Areas and all facilities,
equipment and furnishings thereto. There shall be no living quarters, nor shall anyone be permitted to
live, within any Concession Areas and /or any facilities thereon. Concessionaire shall make available all
of its facilities, equipment and furnishings for inspection during hours of operation by the City Manager
or his /her authorized representative.
10.5 No Dangerous Materials.
Concessionaire agrees not to use or permit the storage in the Concession Areas of gasoline, fuel oils,
diesel, illuminating oils, oil lamps, combustible powered electricity producing generators, turpentine,
benzene, naphtha, propane (unless approved pursuant to Subsection 3.2.8), natural gas, or other
similar substances, combustible materials, or explosives of any kind, or any substance or thing
prohibited in the standard policies of fire insurance companies in the State of Florida. Any such
substances or materials found within the Concession Areas shall be immediately removed. This
subsection shall not apply to any substances permitted by the City's Rules and Regulations for
Beachfront Concession Operations, as same may be amended from time to time; provided the use and
storage of such substances comply with such Rules and Regulations.
Notwithstanding any contrary provisions of this Agreement, Concessionaire, shall indemnify and hold
City harmless from any loss, damage, cost, or expense of the City, including, without limitation,
reasonable attorney's fees, incurred as a result of, arising from, or connected with the placement by
Concessionaire of any "hazardous substance" or "petroleum products" on, under, in or upon the
Concession Areas, as those terms are defined by applicable Federal and State Statute, or any
environmental rules and environmental regulations promulgated thereunder. The provisions of this
Subsection 10.5 shall survive the termination or earlier expiration of this Agreement.
10.6 Security.
Concessionaire shall be solely responsible for providing such reasonable security measures as
Concessionaire, in its professional experience and judgment, may deem necessary to protect any of its
facilities, equipment, and furnishings within the Concession Areas. Under no circumstances shall the
City be responsible (i) for any stolen or damaged facilities, equipment, or furnishings; nor shall the
City be responsible for (ii) any stolen or damaged personal property of Concessionaire's patrons,
guests, invitees, employees, contractors, and /or any other third parties; provided that, as to (ii), the
foregoing is not intended to impose any affirmative duty on Concessionaire for any such theft or
damage.
10.7 Vehicles on the Beach.
Concessionaire's vehicles shall include (i) any "on- road" vehicles and /or trailers licensed in accordance
with applicable County, State and Federal law, to operate on public streets and roadways; and (ii) any
"off- road" vehicles such as golf carts and all terrain vehicles ( "ATV's ") (both (i) and (ii) shall be referred
collectively herein as "Vehicles "). Concessionaire's on road vehicles shall only be allowed on the
beachfront for purposes of supplying the concession operations and to deploy and remove
Watersports Equipment at the beginning and close of operations each day, and must be removed from
the beachfront immediately thereafter. No parking of an on -road vehicle on any of the beachfront is
permitted, except when engaging in the activities set forth herein. Said supplying and
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deployment/removal operations shall only be permitted during regular hours of operation, and shall be
completed safely and expeditiously as provided for in this Subsection. No Vehicles will be permitted on
the beach after sunset or prior to sunrise. Access to the beach for all Vehicles shall only be permitted
via specifically designated beach and dune crossovers authorized, in writing, by the City Manager or
his /her designee for such use, and nearest to the concession operation, as referenced in Exhibit 10.7.
10.7.1 A total of six (6) Vehicles, (which may include such combination of the type of Vehicles specified
in (i) and (ii) above as Concessionaire may deem necessary, but which total number of Vehicles
shall in no event exceed six (6)) are herein permitted, and shall be properly marked and
identified in accordance with the applicable guidelines for Vehicles provided in this Section. In
order to contain vehicular traffic on the beach to a minimum, the City Manager or his /her
designee must approve any additional Vehicles to be used by Concessionaire prior to such use.
Concessionaire shall provide to the City the vehicle model, make, year and license plate
information for the six (6) approved Vehicles (or any subsequently approved additional
vehicles), and such list shall be incorporated as Exhibit 10.7.1 and updated accordingly
10.7.2 Vehicles operated on the beachfront shall not exceed 5 M.P.H., and shall only operate in the
immediate vicinity of the concession or to- and -from the nearest pre- determined and assigned
access ramp. After transporting equipment to, or removing equipment from, a Concession Area,
the Vehicles shall be removed from the beachfront area and parked in a legally authorized
location. Driving Vehicles on the beachfront area shall be kept to a minimum. No vehicular traffic
will be permitted on the beach, at any time or for any purpose, other than as stated herein.
Driving an on -road vehicle from one Concession Area, concession facility, and /or concession
location to another to service, supervise, or for any other reason other than permitted in this
subsection, is prohibited. Concessionaire, when using an on -road vehicle, must exit to the street
using the closest approved beach access point to access other locations. All Vehicles must
have a tire -to- ground pressure of ten pounds per square inch (10 p.s.i) or less. Prior to entering
the beach area, drivers will turn on their Vehicle headlights and flashers, if available. Both the
passenger and driver's side front windows of the Vehicle shall be rolled down while operating
said Vehicle on the beach.
10.7.3 Eighteen -inch (18 ") high cones, orange in color, shall be placed in front of, and at the rear of any
on -road vehicle when parked temporarily anywhere on the beachfront for the purpose of
deploying, servicing or removing Watersports Equipment. The on -road vehicle operator must
inspect the on -road vehicle's perimeter and surrounding area, prior to turning the on -road
vehicle's ignition switch, to assure a clear path of egress and only proceed with extreme
caution. On -road vehicles must always remain on the "hard- packed" sand area, unless
otherwise provided for in this Section. Driving or parking Vehicles on any "soft- sand" area is
prohibited. The only exception to this rule is for a Concession Area that has been authorized to
conduct Watersports Equipment rental activities, and where Concessionaire is in the process of
deploying, servicing, or removing Watersports Equipment from such Concession Area. Said
deployment, servicing, or removal of Watersports Equipment must be conducted with no less
than one (1) additional concession employee that will be positioned on the beachfront, to
directly supervise and guide, said deployment, service, or removal operation, to ensure the
safety of the beach -going public. Additionally, during any deployment, service, or removal
operation, the Concessionaire shall be responsible for placing no less than eight (8), eighteen -
inch (18 ") high cones, orange in color, no less than four (4) on the northernmost boundary and
no less than four (4) on the southernmost boundary of the projected path (from hard - packed
sand to the shore line) of the Vehicle, to create a clear non - obstructed path perpendicular to the
shoreline, of no less than twenty -five feet (25' -0 ") in width (when measured from north to south).
The Vehicle driver and supervising concession employee must independently inspect the
Vehicle perimeter, surrounding area, and path (once marked) prior to turning the Vehicle's
ignition switch, to assure a clear path of ingress to the shoreline or egress to the hard packed
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sand and only then, proceed with the respective operation with extreme caution to ensure the
safety of all beach -going patrons.
10.7.4 All Vehicles must have signage, on each side, with the Concessionaire's name in 4" high letters
on a contrasting background.
10.7.5 Use of a cellular phone by the driver while the Vehicle is in motion is prohibited. Vehicle gear
shift must be placed in the "park" position, and the emergency break engaged prior to any use
of a cellular telephone by the driver.
10.7.6 Anyone operating a Vehicle for or on behalf of Concessionaire must have a current valid Florida
Driver's License. Concessionaire, its employees, and contractors, are prohibited from driving
their personal vehicles, whether said vehicle is a motor vehicle, small off -road vehicle, or any
other type of vehicle (e.g., motorcycle), on the beach at any time.
10.7.7 Any Vehicle not provided for in this Subsection 10.7, or not approved by the City, will be
required to leave the beachfront immediately. Three (3) or more notices from the City of
this violation may, at the discretion of the City Manager, lead to the City's termination of
this Agreement, upon thirty (30) days written notice to Concessionaire, and without
liability to the City.
10.7.8 No Vehicle or any trailer attached thereto may be parked or left unattended on the beach, at any
time or for any reason.
10.7.9 Concessionaire agrees and understands that in the event of any accident or collision involving
any of its Vehicles which involves an injury to person(s) (whether minor or major), it must
complete and submit a written report to the City's Risk Management Officer, with copies to the
City's Office of Asset Management, within twenty -four (24) hours following the occurrence of
such an accident or collision, or upon notification thereof by a third party(ies).
10.8 Inspection.
The Concessionaire agrees that the Concession Areas, and all facilities, equipment, furnishings, and
operations thereon, may be inspected at any time during hours of operation by the City Manager or
his /her authorized designee(s), or by any other municipal, County, State agency or official having
responsibilities for inspections of such operations. The Concessionaire hereby waives all claims against
the City for compensation for loss or damage sustained by reason of any interference (which
interference, if by the City, must be reasonable) with the concession operation by the City, or any public
agency or official, in enforcing their duties or any laws or ordinances. Any such interference shall not
relieve the Concessionaire from any obligation to perform hereunder.
SECTION 11. INSURANCE.
Concessionaire shall maintain, at its sole cost and expense, the following types of insurance coverage at all
times throughout the Term:
a. Comprehensive General Liability:
(i) except as specifically provided for in clause (a)(ii) below, comprehensive general liability in the
minimum amount of Five Million Dollars ($5,000,000) per occurrence for bodily injury and property
damage. This policy must also contain coverage for premises operations, products and contractual
liability.
(ii) for all Watersports Equipment rentals, as defined in Section 3.4, comprehensive general liability
in the minimum amount of One Million Dollars ($1,000,000) per occurrence for bodily injury and
property damage. This policy must also contain coverage for premises operations, products and
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contractual liability.
b. Workers Compensation Insurance shall be required in accordance with the Laws of the State of Florida.
C. Automobile Insurance shall be provided covering all owned, leased, and hired vehicles and non -
ownership liability for not less than the following limits:
Bodily Injury $1,000,000 per person
Bodily Injury $1,000,000 per accident
Property Damage $1,000,000 per accident
The policies of insurance referred to above shall not be subject to cancellation or changing coverage except
upon at least thirty (30) days prior written notice to the City, and then only subject to the prior written approval
of the City Manager or his /her designee. Prior to the Effective Date, Concessionaire shall provide City with a
Certificate of Insurance for each such policy. Except for Workers' Compensation, ALL POLICIES SHALL
NAME THE CITY OF MIAMI BEACH FLORIDA AS AN ADDITIONAL NAMED INSURED. All such policies
shall be obtained from companies authorized to do business in the State of Florida with an A.M. Best's
Insurance Guide (latest edition) rating acceptable to the City's Risk Manager, and any replacement or
substitute company shall also be subject to the approval of the City's Risk Manager. Should Concessionaire
fail to obtain, maintain or renew the policies of insurance referred to above, in the required amounts, the City
may, at its sole discretion, obtain such insurance, and any sums expended by City in obtaining said insurance,
shall be repaid by Concessionaire to City, plus ten percent (10 %) of the amount of premiums paid to
compensate City for its administrative costs. If Concessionaire fails to repay City's expenditures within fifteen
(15) days of demand, the total sum owed shall accrue interest at the rate of twelve percent (12 %) per annum
until paid, and such failure shall be deemed an event of default hereunder.
The terms of insurance policies referred to in this Section 11 shall preclude subrogation claims against
Concessionaire, the City, and their respective officers, employees, contractors and agents.
SECTION 12. INDEMNITY.
12.1 In consideration of a separate and specific consideration of $10.00 and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, Concessionaire shall
indemnify, hold harmless and defend the City, its officers, officials, employees, contractors, and agents,
from and against any claim, demand or cause of action of whatsoever kind or nature arising out of
error, omission, or negligent act of Concessionaire, its officers, directors, employees, contractors
(including, without limitations, any subconcessionaires), or agents, in the performance of services under
this Agreement.
12.2 In addition, in consideration of a separate and specific consideration of $10.00 and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Concessionaire
shall indemnify, hold harmless and defend the City, its officers, officials, employees, contractors, or
agents, from and against any claim, demand or cause of action of whatever kind or nature arising out of
any misconduct of Concessionaire, its officers, directors, employees, contractors (including, without
limitations, any subconcessionaires), or agents, not included in Subsection 12.1 above and for which
the City, its officers, officials, employees, contractors or agents, are alleged to be liable.
12.3 Subsections 12.1 and 12.2 shall survive the termination or expiration of this Agreement. Subsections
12.1 and 12.2 shall not apply, however, to any such liability that arises as a result of the willful
misconduct or gross negligence of the City, its officers, officials, employees, contractors, or agents.
12.4 Force Majeure.
Neither party shall be obligated to perform hereunder and neither party shall be deemed to be in default
if performance is prevented by:
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a. fire which renders at least thirty percent (30 %) of the Concessionaire's cumulative facilities and
equipment unusable and which is not caused by negligence of Concessionaire;
b. earthquake; hurricane; flood; act of God; direct act of terrorism; or civil commotion occurring on
the Concession Area(s); or during or in connection with any event or other matter or condition of
like nature; or
C. any law, ordinance, rule, regulation or order of any public or military authority stemming from the
existence of economic or energy controls, hostilities, or war.
The parties hereto acknowledge that Concessionaire's obligations and benefits hereunder may be
negatively affected by an event of Force Majeure. If an event of Force Majeure occurs during a contract
year, and provided further that Concessionaire's minimum guarantee (MG) payment(s) to the City for
that contract year is greater than the applicable percentage guarantee (PG) payment, then the City
Manager or his /her designee, in their sole discretion, may extend the Term of this Agreement for a
reasonable period of time; provided, however, such extension shall take effect only if Concessionaire
agrees to such extension.
12.5 Labor Dispute.
In the event of a labor dispute which results in a strike, picket, or boycott affecting the Concession
Areas described in this Agreement, Concessionaire shall not thereby be deemed to be in default or to
have breached any part of this Agreement, unless such dispute shall have been caused by illegal labor
practices or violations by Concessionaire of applicable collective bargaining agreements and there has
been a final determination of such fact which is not cured by Concessionaire within thirty (30) days
following such determination.
12.6 Waiver of Loss from Hazards.
The Concessionaire hereby expressly waives all claims against the City or its officers, officials,
employees, contractors or agents, for loss or damage sustained by the Concessionaire resulting from
any Force Majeure contemplated in Subsection 12.4 and Labor Dispute in Subsection 12.5 above,
and the Concessionaire hereby expressly waives all rights, claims, and demands against the City or its
officers, officials, employees, contractors, or agents,and forever releases and discharges the City and
its officers, officials, employees, contractors, or agents, from all demands, claims, actions and causes
of action arising from any of the aforesaid causes.
SECTION 13. DEFAULT, TERMINATION AND PENALTIES
Subsections 13.1 through 13.3 shall constitute events of default under this Agreement. An event of default
by Concessionaire shall entitle City to exercise any and all remedies described as City's remedies under this
Agreement, including but not limited to those set forth in Subsection 13.4 and Section 14. An event of default
by City shall entitle Concessionaire to exercise any and all remedies described as Concessionaire's remedies
under this Agreement, including but not limited to those set forth in Subsection 13.5.
13.1 Bankruptcy.
If either the City or Concessionaire shall be adjudged bankrupt or insolvent, or if any receiver or trustee
of all or any part of the business property of either party shall be appointed, or if any receiver of all or
any part of the business property shall be appointed and shall not be discharged within sixty (60) days
after appointment, or if either party shall make an assignment of its property for the benefit of creditors,
or shall file a voluntary petition in bankruptcy, or insolvency, or shall apply for reorganization or
arrangement with its creditors under the bankruptcy or insolvency laws now in force or hereinafter
enacted, Federal, State, or otherwise, or if such petitions shall be filed against either party and shall not
be dismissed within sixty (60) days after such filing, then the other party may immediately, or at any
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time thereafter, and without further demand or notice, terminate this Agreement without being
prejudiced as to any remedies which may be available to it for breach of contract.
13.2 Default in Payment.
In the event Concessionaire fails to submit any payment within five (5) days of its due date, there shall
be a late charge of $50.00 per day for such late payment, in addition to interest at the highest rate
allowable by law (currently 12% per annum). If any payment and accumulated penalties are not
received within fifteen (15) days after the payment due date, and such failure continues three (3) days
after written notice thereof, then the City may, without further demand or notice, terminate this
Agreement without being prejudiced as to any remedies which may be available to it for breach of
contract; and may begin procedures to collect the Security Deposit provided for in Section 14 herein.
13.3 Non - Monetary Default.
In the event that Concessionaire or the City fails to perform or observe any of the covenants, terms or
provisions under this Agreement, and such failure continues thirty (30) days after written notice thereof
from the other party hereto, such non - defaulting party may immediately or at any time thereafter, and
without further demand or notice, terminate this Agreement without being prejudiced as to any
remedies which may be available to it for breach of contract. In the event that a default is not
reasonably susceptible to being cured within such period, the defaulting party shall not be considered in
default if it shall, within such period, commence with due diligence and dispatch to cure such default
and thereafter completes with dispatch and due diligence the curing of such default, but in no event
shall such extended cure period exceed ninety (90) days from the date of written notice thereof. In the
event Concessionaire cures any default pursuant to this subsection, it shall promptly provide City with
written notice of same.
13.4 City's Remedies for Concessionaire's Default.
If any of the events of default by Concessionaire as set forth in this Section shall occur, the City may,
after notice (if required) and the expiration of cure periods, as provided above, at its sole option and
discretion, institute such proceedings as in its opinion are necessary to cure such defaults and to
compensate City for damages resulting from such defaults, including but not limited to the right to give
to Concessionaire a notice of termination of this Agreement. If such notice is given, the Term of this
Agreement shall terminate upon the date specified in such notice from City to Concessionaire. On the
date so specified, Concessionaire shall then quit and surrender the Concession Area(s) to City
pursuant to the provisions of Subsection 13.7. Upon the termination of this Agreement, all rights and
interest of Concessionaire in and to the Concession Area(s) and to this Agreement, and every part
thereof, shall cease and terminate and City may, in addition to any other rights and remedies it may
have, retain all sums paid to it by Concessionaire under this Agreement, including but not limited to,
beginning procedures to collect the Security Deposit, as provided in Section 14 herein. In addition to
the rights set forth above, City shall have the rights to pursue any and all of the following:
a. the right to injunction or other similar relief available to it under Florida law against
Concessionaire; and or
b. the right to maintain any and all actions at law or suits in equity or other proper proceedings to
obtain damages resulting from Concessionaire's default.
13.5 If an event of default, as set forth in this Section, by the City shall occur, the Concessionaire may, after
notice (if required) and the expiration of the cure periods, as provided above, at its sole option and
discretion, terminate this Agreement upon written notice to the City and /or sue for damages. Said
termination shall become effective upon receipt of a written notice of termination by the City, but in no
event shall Concessionaire specify a termination date that is less than sixty (60) days from the date of
the written termination notice. On the date specified in the notice, Concessionaire shall quit and
surrender the Concession Areas to City pursuant to the provisions of Subsection 13.7.
13.7 Surrender of Concession Areas.
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At the expiration of this Agreement, or earlier termination in accordance with the terms of this
Agreement, Concessionaire shall surrender the Concession Areas in the same condition as the
Concession Areas were prior to the commencement of this Agreement, reasonable wear and tear
excepted (including any beach erosion not directly caused by Concessionaire and /or its operation).
Concessionaire shall remove all its facilities, equipment, fixtures, personal property, etc. upon forty -
eight (48) hours written notice from the City Manager or his designee unless a longer time period is
agreed to by the City. Concessionaire's obligation to observe or perform this covenant shall survive the
expiration or other termination of this Agreement. Continued occupancy of the Concession Area(s) after
termination of this Agreement and expiration of such 48 -hour period shall constitute trespass by the
Concessionaire, and may be prosecuted as such. In addition, the Concessionaire shall pay to the City
one thousand dollars ($1,000) per day as liquidated damages for such trespass and holding over.
13.8 Penalties in Lieu of Default.
Notwithstanding the City's right to declare the Concessionaire in default, as an alternative means of
ensuring compliance with certain non - monetary terms of this Agreement for which the parties agree
and acknowledge that the cure period provided for defaults herein is an inadequate remedy, the City
Manager or his /her designee may issue a fine to the Concessionaire for violations of provisions in the
Sections and Subsections described in Exhibit 13.8, in the amounts contained therein.
SECTION 14. SECURITY DEPOSIT OR ALTERNATE SECURITY
Concessionaire shall furnish to the City Manager or his /her designee a Security Deposit, in the amount of
$68,652.00, as security for the faithful performance of the terms and conditions of this Agreement, to be paid
as follows: half (50 %) of the amount shall be due on the Effective Date, with the remaining half (50 %) due no
later than May 5, 2012. A cash deposit, irrevocable letter of credit, or certificate of deposit may also suffice, as
determined by the City Manager or his /her designee in his /her reasonable discretion, and subject further to the
reasonable review and approval of the City's Chief Financial Officer. In the event that a Certificate of Deposit is
approved, it shall be a $68,652.00 one -year Certificate of Deposit in favor of the City, which shall be
automatically renewed, the original of which shall be held by the City's Chief Financial Officer. Concessionaire
shall be so required to maintain said Security Deposit, or alternate security as accepted by the City Manager or
his /her designee, in full force and effect throughout the Term.
SECTION 15. ASSIGNMENT.
Except as otherwise provided in this Subsection, Concessionaire shall not assign; sublease; grant any
concession or license (other than the subconcession for food and beverages which shall be governed pursuant
to the procedures in Subsection 3.2 hereof); permit the use of by any other person other than Concessionaire;
or otherwise transfer all or any portion of this Agreement and /or of the Concession Area(s) (all of the foregoing
are herein after referred to collectively as "transfers "), without the prior written consent of the City Manager or
his /her designee, which consent shall not be unreasonably withheld.
If there is a change in control of Concessionaire, then any such change in control shall constitute a "transfer"
for purposes of this Agreement and shall be approved by the City Commission prior to consummation of such
change in control. "Change in control ", for purposes hereof, shall mean a change of the ownership, directly or
indirectly, of greater than thirty -three and four tenths percent (33.4 %) of the voting or ownership interest or right
to profits in such Concessionaire, by means of one or more transfers, sales, mergers, consolidations,
dissolutions or otherwise; provided that the foregoing shall not be deemed to include (i) a pledge or collateral
assignment of the profits of Concessionaire in connection with any financing, provided such pledge or collateral
assignment is subordinate to the rights of the City to the fees payable to the City pursuant to Section 4 hereof;
(ii) any transfer to other owners of Concessionaire or to trusts the beneficiaries of which are any owner(s) of
Concessionaire or member(s) of their immediate family; or (iii) a change in the ownership of Concessionaire
through a registered public offering of shares in Concessionaire ((i), (ii) and (iii) above collectively are referred
to herein as the "Transfer Exclusions "). Except for the Transfer Exclusions, any change of the ownership,
directly or indirectly, of thirty -three and four tenths percent (33.4 %) or less of the voting or ownership interest or
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right to profits in such Concessionaire (a "Minor Change "), by means of one or more transfers, sales, mergers,
consolidations, dissolutions or otherwise, shall be subject to the approval of the City Manager or his /her
designee.
Concessionaire shall notify the City of any proposed transfer that is not a Transfer Exclusion, and shall notify
the City Manager or his /her designee of any proposed Minor Change, prior to consummation of same and the
City or the City Manager or his /her designee, as applicable, shall respond within thirty (30) days. In the event
that any such transfer or Minor Change is approved, the transferee shall agree to be bound by all the
covenants of this Agreement required of the transferor hereunder. Any transfer or Minor Change made without
complying with this Section shall be null, void, and of no effect and shall constitute an act of default under this
Agreement. Notwithstanding any such consent, or any permitted transfer or Minor Change under any provision
of this Section, unless expressly released by the City, Concessionaire shall remain jointly and severally liable
(along with each approved transferee, who shall automatically become liable for all obligations of the transferor
hereunder with respect to that portion of the Agreement so transferred), and the City shall be permitted to
enforce the provisions of this Agreement directly against Concessionaire or any transferee of the
Concessionaire without proceeding in any way against any other person.
SECTION 16. SPECIAL EVENTS / SPONSORSHIPS.
16.1 Concessionaire's proposed uses, as defined in Section 3 herein, do not contemplate the production,
promotion or sponsorship by the Concessionaire of special events in any of the Concession Areas. In
the event Concessionaire does produce, promote, or sponsor a special event in the City, it shall comply
with by the City's Special Events Permit Requirements and Guidelines, as same may be amended from
time to time, including the payment of all required fees.
16.2 The City Manager or his /her designee shall evaluate requests for special events permits on a case by
case basis in accordance with the City's Special Events Permit and Film and Print Permit Requirements
and Guidelines, as may be amended from time to time (the "Guidelines "). In the event that a special
event and /or film permit is requested by an entity, other than the Concessionaire, and the proposed
special event and /or film production is scheduled to occur within a Concession Area, as such
Concession Area is delineated in Exhibit 3.1.3, and would cause the operations within that particular
Concession Area to cease wholly or partly, and provided that the Concessionaire is not in default under
the Agreement at the time of the request, the Concessionaire agrees to cooperate with the City and the
special event or film permitee to allow use of such Concession Area during the period of the special
event or film production, including set -up and break -down time.
16.2.1 Should the Concessionaire be displaced from all or any portion of a Concession Area due to a
special event or film production, then the Concessionaire shall be entitled to a "Displacement
Fee" (as hereinafter defined). For purposes of this subsection only, "displacement" shall mean
that the Concessionaire cannot provide the food and beverage services, sales of Beach - Related
Sundries /Skin Care Products, rental of Beach Equipment, or rental of Watersports Equipment
from a section of a Concession Area, as such sections shall be defined in Exhibit 16.2.1, and
the services provided by the Concessionaire cannot be otherwise reasonably accommodated by
the relocation of the services to another section of the Concession Area, as approved by the
City Manager or his /her designee.
The Displacement Fee for each section will be calculated by the City Manager or his /her
designee and Concessionaire at the start of each Agreement year. The Displacement Fee shall
be based upon the average of daily revenues generated by the Concessionaire in the section of
the Concession Area from which Concession Services will be displaced, and shall be based
upon the average of the last three (3) full years of revenues for that section of the Concession
Area, multiplied by the number of days that Concessionaire is displaced. The Displacement Fee
is to be paid to the City by the special event permittee or film production (as the case may be),
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for remittance to Concessionaire. The Concessionaire may waive all or a portion of the
Displacement Fee remittance from the City, at its sole option, in exchange for other
consideration(s) of equal value from the special event permittee or film production, as may be
negotiated directly between the Concessionaire and the special event permittee or film
production ( "Alternative Consideration "). Written notice of such waiver, and the value of the
Alternative Consideration, shall be provided by the Concessionaire to the City Manager or
his /her designee prior to payment of the Displacement Fee to the City by the special event
permittee or film production. The Concessionaire acknowledges that, in the event of notification
to and acceptance by the City of a waiver request for the Displacement Fee, there shall be no
other remedy for the Concessionaire for the collection of any additional fees and /or
consideration as a result of displacement of a section of a Concession Area due to a special
event or film production, and the City shall have no further liability to Concessionaire under this
subsection.
16.2.2 Notwithstanding anything to the contrary, if a special event or film production occurs in a
Concession Area, Concessionaire shall not be liable for any charge, fee or other expense,
governmental or otherwise, in connection with such special event or film production, nor for
waste clean -up, removal, or other obligations under this Agreement with respect to the area
used by the special event or film production during the permitted time.
16.3 City Special Events.
Notwithstanding Subsections 16.1 and 16.2 above, and in the event that the City, at its sole discretion,
deems that it would be in the best interest of the City, the City reserves the right to displace the
Concessionaire for City - produced special events and /or City - produced productions. In such cases, the
City may require that Concessionaire cease and desist operations during the term of, and in the area of
the City - produced special event and /or production. No displacement fee shall be paid by the City to the
Concessionaire for a City - produced special event/production occurring in a Concession Area. If the
Concessionaire is not required to close, or chooses to remain open without interference to the City -
produced special event and /or production, Concessionaire agrees to cooperate with the City. If the
Concessionaire is allowed to remain open during City - produced special events and /or productions, the
Concessionaire may be allowed to have in operation its normal daily complement of equipment and
staff. "Normal" shall be defined as equipment and staff, approved by the City, that the Concessionaire
has available for the public on a normal day, 365 days per year. Such equipment or staff shall not be
increased or altered during City - produced special events and /or productions without the prior written
consent of the City Manager or his /her designee. To the extent that the normal daily complement of
equipment and staff is displaced by the City - produced special event and /or production, the
Concessionaire may reallocate such displaced equipment and staff on a pro -rata basis within the
portion of the Concession Areas not being utilized by the special event or production.
16.5 Sponsorships.
The City reserves unto itself all present and future rights to negotiate all forms of endorsement and /or
sponsorship agreements based on the marketing value of any City trademark, property, brand, logo
and /or reputation (hereinafter referred to in this subsection as a "City Mark" or the "City Marks "). Any
and all benefits derived from an endorsement and /or sponsorship agreement based on the marketing
value of a City Mark, including any monetary contributions, shall belong solely and exclusively to the
City.
Concessionaire shall be specifically prohibited from entering into, or otherwise creating, endorsements
or sponsorship agreements with third parties which are based solely or in any part on the marketing
value of a City Mark. This shall include, for example purposes only, any agreement between the
Concessionaire and a food and beverage and /or skin care product company for the designation of a
product(s) as the official product(s) of Miami Beach, South Beach, etc.
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The prohibition on Concessionaire entering into endorsements or sponsorship agreements, pursuant to
this Subsection 16.5, shall not be deemed to include nor prohibit the Concessionaire's right to offer the
exclusive sale, rental or use of any particular brand or product that would be permitted for use or sale
pursuant to this Agreement, subject to the Concessionaire's disclosure of same, as required pursuant
to this paragraph, and subject to the City's rights in the following paragraph (which City rights shall be
superior to any rights or permissions granted to Concessionaire pursuant to this Subsection 16.5).
Moreover, the City will not limit Concessionaire's ability to negotiate a reduced rate for purchase from
any vendor whose product(s) Concessionaire uses or offers for sale or rent pursuant to this Agreement.
Notwithstanding the preceding, Concessionaire shall, on or before the Effective Date, provide the City
with an itemized list describing any agreements or arrangements which have been entered into or
made, or which may be imminently entered to or made, pursuant to a written contractual agreement or
verbal agreement, that Concessionaire has made, or intends to imminently make, regarding the
exclusive sale, rental, or use of any brand or product. Concessionaire's submitted list shall be attached
and incorporated as Exhibit 16.5 to this Agreement. It shall also be Concessionaire's sole responsibility
and obligation to update such list/exhbit within thirty (30) days of a particular brand or product being
added, or deleted, as the case may be.
Notwithstanding the above (including the rights given to Concessionaire in the preceding
paragraph), should the City enter into any exclusive endorsement and /or sponsorship
agreement for products sold, rented, distributed, or otherwise used by the Concessionaire, then
Concessionaire shall be required to sell, rent, distribute, or use ONLY the products under the
City's exclusive endorsement and /or sponsorship agreement, and may not sell, rent, distribute,
or otherwise use products produced by the City's exclusive sponsor's competitors. Notice of
any exclusive endorsement/sponsorship agreement entered into by the City for any products
sold, rented, distributed, or otherwise used by the Concessionaire shall be provided by the City
to the Concessionaire at least ninety (90) days prior to the commencement of any such
exclusive endorsement/sponsorship agreement by the City. It is understood that the
Concessionaire may have existing agreements for the sale, rental, distribution or use of the
product(s) that may be competitive products of the City's exclusive sponsor. In those instances,
unless there is a penalty for cancellation /termination of such agreement or contract between
Concessionaire and the third party (for the sale, rental, distribution or use of such competitor
products), the Concessionaire shall cancel /terminate those agreements or contracts within
thirty (30) days of the City's notice to the Concessionaire by the City of the City's exclusive
endorsement/sponsorship agreement.
The City also acknowledges that, prior to the City providing notice to Concessionaire of any exclusive
endorsement and /or sponsorship agreement, as provided in this Subsection 16.5, Concessionaire may
have purchased, for example, certain Beach Equipment (including, as defined herein, beach chairs,
lounge chairs, pads, umbrellas, and sun canopies), and /or Watersports Equipment (including, as
defined herein, motorized and non - motorized equipment such as wave runners, parasail boats, banana
boats, kayaks, and paddle boats) for use in the Concession Areas, and to provide the services
contemplated under this Agreement, that may be deemed to be a competitive (or otherwise prohibited)
product under one of the aforestated proposed exclusive endorsement and /or sponsorship agreements
that the City may seek to enter into during the Term (For purposes of this Subsection 16.5 only, such
Beach Equipment and Watersports Equipment and other equipment and products required to be
provided by Concessionaire hereunder that has been purchased by Concessionaire for the Concession
Areas, and to provide the services contemplated under this Agreement, shall be referred to collectively
as Concessionaire's Equipment). Concessionaire's Equipment shall only be exempt from the
requirements of Subsection 16.5 provided that PRIOR TO the City giving Concessionaire notice of its
intent to enter into the particular exclusive endorsement and /or sponsorship agreement: (i) the
particular Concessionaire's Equipment was already approved by the City Manager or his /her designee,
and is referenced in a corresponding exhibit to this Agreement; and (ii) the Concessionaire shall have
entered into a binding contract for the purchase of such Concessionaire's Equipment (PRIOR TO the
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date of the aforestated City notice to Concessionaire). As to subsection (ii), the City Manager or his /her
designee may request such documentation as they deem reasonably necessary including, without
limitation, sales slips, invoices, receipts, sales contracts, purchase orders, etc., evidencing proof of
Concessionaire's purchase of the particular Concessionaire's Equipment.
Notwithstanding the preceding paragraph, should the City enter into an exclusive endorsement/
sponsorship agreement in which the proposed City sponsor will provide the particular Concessionaire's
Equipment to the City and /or the Concessionaire at no cost to the City and /or Concessionaire, the City
reserves the right to require Concessionaire to use this sponsor - provided Concessionaire Equipment.
It is further understood that, should the City enter into any exclusive endorsement/sponsorship
agreement that includes the public beachfront concessions that are the subject of this
Agreement, the City shall have the right to place, or allow the placement of, any signage,
equipment, logos or graphics, as same may be approved by the City's Planning Department, or
the City Manager or his /her designee, on any or all of the following Concessionaire's equipment
and facilities: food and beverage dispensing facilities, carts, kiosks, storage containers,
Watersports Equipment, Beach Rental Equipment, and Vehicles; provided, however, that the (i)
cost and expense to place any such approved signage, equipment, logos or graphics, and to
remove such approved signage, equipment, logos or graphics, shall not be the responsibility of
the Concessionaire; and (ii) the City shall use, or cause to be used, reasonable care in the
placement and removal of such signage, equipment, logos or graphics and, in the event that
any of the aforestated Concessionaire's equipment is /are damaged as a result of the placement
or removal of such approved signage, equipment, logos, or graphics, then the City shall be
responsible for repairing any such damage, to the extent of restoring the equipment or
facility(ies) to the condition itithey existed prior to the placement or removal (as the cause may
be) of the approved signage, equipment, logos, or graphics, reasonable wear and tear excepted.
Concessionaire shall endeavor to ensure that any such signage, equipment, logos or graphics
are not unduly obscured or damaged.
SECTION 17. NO IMPROPER USE.
The Concessionaire will not use, nor suffer or permit any person to use in any manner whatsoever, the
Concession Areas, or any facilities, furnishings or equipment thereon, for any improper, immoral or offensive
purpose, or for any purpose in violation of any Federal, State, County, or municipal ordinance, rule, order or
regulation, or of any governmental rule or regulation now in effect or hereafter enacted or adopted. The
Concessionaire will protect, indemnify, and forever save and keep harmless the City, its officers, officials,
employees, contractors, and agents, from and against damage, penalty, fine, judgment, expense or charge
suffered, imposed, assessed or incurred for any violation, or breach of any law, ordinance, rule, order or
regulation occasioned by any neglect, act or omission of the Concessionaire, or any officers, directors,
employee, contractors (including any subconcessionaire) or agents regarding the Concession Areas. In the
event of any violation by the Concessionaire or if the City or his /her authorized representatives shall deem any
conduct on the part of the Concessionaire to be objectionable or improper, the City Manager shall have the
right to suspend concession operations should the Concessionaire fail to correct any such violation, conduct,
or practice, to the satisfaction of the City Manager, within twenty -four (24) hours after receiving written notice of
the nature and extent of such violation, conduct, or practice; such suspension to continue until the violation is
cured. The Concessionaire further agrees not to commence operations during the suspension until the
violation has been corrected to the satisfaction of the City Manager. Notwithstanding the foregoing,
Concessionaire is not liable for any acts or omissions of the public.
SECTION 18. PRICE SCHEDULES.
Concessionaire agrees that prices charged for beach equipment rentals, sale of food and beverage service,
sale of beach sundries /skin care products, and watersport equipment rentals will be consistent with the price
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schedule(s) herein submitted by the Concessionaire and approved by the City, and incorporated herein as
Exhibit 3.1 to this Agreement. All subsequent price approvals and changes must be approved in writing by the
City Manager or his /her designee. Prices shall be reasonably consistent with those charged for similar items
and services in the general vicinity. The City Manager shall have the final right of approval for all such prices
and changes, but said right shall not be arbitrarily or unreasonably exercised. The Concessionaire agrees to
refrain from the sale or rental of any item identified as prohibited by the City and to sell or rent only those items
approved by the City. The Concessionaire agrees to maintain an adequate supply necessary to accommodate
beach patrons.
SECTION 19. NOTICES.
All notices from the City to the Concessionaire shall be deemed duly served upon receipt, if mailed by
registered or certified mail with a return receipt to the Concessionaire at the following address:
Boucher Brothers Miami Beach LLC
420 Lincoln Road, Suite 265
Miami Beach, Florida 33139
With copy to: Abigail C. Watts- FitzGera Id
Hunton & Williams
1111 Brickell Avenue, Suite 2500
Miami, Florida 33131
All notices from the Concessionaire to the City shall be deemed duly served upon receipt, if mailed by
registered or certified mail return receipt requested to the City of Miami Beach at the following addresses:
City Manager
City of Miami Beach
1700 Convention Center Drive
Miami Beach, FL 33139
With Copies to: Asset Manager
City of Miami Beach
555 17 Street
Miami Beach, Florida, 33139
City Attorney
City of Miami Beach
1700 Convention Center Drive
Miami Beach, FL 33139
The Concessionaire and the City may change the above mailing address at any time upon giving the other
party written notification. All notices under this Concession Agreement must be in writing.
SECTION 20. LAWS.
20.1 Compliance.
Concessionaire shall comply with all applicable City, County, State, and Federal ordinances, statutes,
rules and regulations, including but not limited to all applicable environmental City, County, State, and
Federal ordinances, statutes, rules and regulations.
20.2 Governing Law.
INTENTIONALLY OMITTED.
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20.3 Equal Employment Opportunity.
Neither Concessionaire nor any affiliate of Concessionaire performing services hereunder, or pursuant
hereto, will discriminate against any employee or applicant for employment because of race, creed,
sex, color, national origin, religion, sex, gender identity, sexual orientation, disability, marital or familial
status or age. Concessionaire will make good faith efforts to utilize minorities and females in the work
force and in correlative business enterprises.
20.4 No Discrimination.
The Concessionaire agrees that there shall be no discrimination as to race, color, national origin,
religion, sex, gender identity, sexual orientation, disability, marital and familial status, or age, in its
employment practice or in the operations referred to by this Concession Agreement; and further, there
shall be no discrimination regarding any use, service, maintenance, or operation within the Concession
Areas. All services offered on the beach shall be made available to the public, subject to the right of the
Concessionaire and the City to establish and enforce rules and regulations to provide for the safety,
orderly operation and security of the facilities.
SECTION 21. MISCELLANEOUS.
21.1 No Partnership.
Nothing contained in this Agreement shall constitute or be construed to be or create a partnership or
joint venture between the City and Concessionaire.
21.2 Modifications.
This Agreement cannot be changed or modified except by agreement in writing executed by all parties
hereto. Concessionaire acknowledges that no modification to this Agreement may be agreed to by the
City unless approved by the Mayor and City Commission, except where such authority has been
expressly provided herein to the City Manager or his designee.
21.3 Complete Agreement.
This Agreement, together with all exhibits incorporated hereto, constitutes all the understandings and
agreements of whatsoever nature or kind existing between the parties with respect to Concessionaire's
operations, as contemplated herein.
21.4 Headings.
The section, subsection and paragraph headings contained herein are for convenience of reference
only and are not intended to define, limit, or describe the scope or intent of any provision of this
Agreement.
21.5 Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
21.6 Clauses.
The illegality or invalidity of any term or any clause of this Agreement shall not affect the validity of the
remainder of the Agreement, and the Agreement shall remain in full force and effect as if such illegal or
invalid term or clause were not contained herein unless the elimination of such provision detrimentally
reduces the consideration that either party is to receive under this Agreement or materially affects the
continuing operation of this Agreement.
21.7 Severability.
If any provision of this Agreement or any portion of such provision or the application thereof to any
person or circumstance shall be held to be invalid or unenforceable, or shall become a violation of any
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local, State, or Federal laws, then the same as so applied shall no longer be a part of this Agreement
but the remainder of the Agreement, such provisions and the application thereof to other persons or
circumstances, shall not be affected thereby and this Agreement as so modified shall.
21.8 Right of Entry.
The City, at the direction of the City Manager, shall at all times during hours of operation, have the right
to enter into and upon any and all parts of the Concession Areas for the purposes of examining the
same for any reason relating to the obligations of parties to this Agreement.
21.9 Not a Lease.
It is expressly understood and agreed that no part, parcel, building, facility, equipment or space is
leased to the Concessionaire, that it is a concessionaire and not a lessee; that the Concessionaire's
right to operate the concession shall continue only so long as this Agreement remains in effect.
21.10 Signage.
Concessionaire shall provide, at its sole cost and expense, any required signs at its concessions. All
advertising, signage and postings shall be approved by the City, and shall be in accordance with all
applicable municipal, County, State and Federal laws and regulations. Any signage posted by
Concessionaire on its facilities and equipment shall be subject to the prior approval of the City as to
size, shape and placement of same.
21.11 Use of Beach.
The beach is for the use and enjoyment of the public, for recreation and other public purposes
and the public's right to such use shall not be infringed upon by any activity of the
Concessionaire. Upon execution of this Agreement, Concessionaire acknowledges that all of
the beaches are public and as such concession operations must not restrict, or appear to
restrict, access to the general public, or in any way limit the public nature or ambiance of the
beachfront. The Concessionaire will conduct its operations so as to maintain a reasonably quiet
and tranquil environment for the adjacent area, and make no public disturbances.
21.12 Conflict of Interest.
Concessionaire shall perform its services under this Agreement and conduct the concession operations
contemplated herein, in a manner so as to show no preference for other concession operations /facilities
(e.g. particularly concession operations behind private property along the City's beachfront) owned,
operated, managed, or otherwise controlled by Concessionaire with regard to its responsibilities
pursuant to this Concession Agreement.
21.13 Reasonableness.
Notwithstanding anything to the contrary in this Agreement, including but not limited to references to
"sole option" or "sole discretion" or words of similar meaning, in each instance in which the approval or
consent or other action of the City Commission or the City Manager or his /her designee is allowed or
required in this Agreement, such approval, consent, or other action shall not be unreasonably withheld,
conditioned or delayed.
21.14 Procedure for Approvals and /or Consents.
In each instance in which the approval or consent of the City Manager or his /her designee is allowed or
required in this Agreement, it is acknowledged that such authority has been expressly provided herein
to the City Manager or his /her designee by the Mayor and City Commission of the City. In each
instance in which the approval or consent of the City Manager or his /her designee is allowed or
required in this Agreement, Concessionaire shall send to the City Manager a written request for
approval or consent (the "Approval Request "). The City Manager or his /her designee shall use good
faith efforts to respond to the Approval Request within sixty (60) days from the date of such Request
(i.e. to provide written notice to Concessionaire approving of, consenting to or disapproving of the
36
Request). However, the City Manager or his /her designee's failure to consider such Request within this
time provided shall not be deemed a waiver, nor shall Concessionaire assume that the Request is
automatically approved and consented to. The Subsection shall not apply to approvals required herein
by the Mayor and City Commission.
21.15 No Waiver.
No waiver of any covenant or condition of this Agreement by either party shall be deemed to imply or
constitute a waiver in the future of the same covenant or condition or of any other covenant or condition
of this Agreement.
21.16 No Third Party Beneficiary.
Nothing in this Agreement shall confer upon any person or entity, including, but not limited to
subconcessionaires, other than the parties hereto and their respective successors and permitted
assigns, any rights or remedies by reason of this Agreement.
SECTION 22. LIMITATION OF LIABILITY.
The City desires to enter into this Agreement placing the operation and management of the Concession
Area(s) in the hands of a private management entity only if so doing the City can place a limit on its liability for
any cause of action for breach of this Agreement, so that its liability for any such breach never exceeds the
sum of $100,000.00. Concessionaire hereby expresses its willingness to enter into this Agreement with a
$100,000.00 limitation on recovery for any action for breach of contract. Accordingly, and in consideration of
the City's entering into this Agreement, the City shall not be liable to Concessionaire for damages to
Concessionaire in an amount in excess of $100,000.00, for any action for breach of contract arising out of the
performance or non - performance of any obligations imposed upon the City by this Agreement. Nothing
contained in this paragraph or elsewhere in this Agreement is in any way intended to be a waiver of limitation
placed upon the City's liability as set forth in Florida Statutes, Section 768.28.
SECTION 23. VENUE.
This Agreement shall be deemed to have been made and shall be construed and interpreted in accordance
with the laws of the State of Florida. This Agreement shall be enforceable in Miami -Dade County, Florida, and
if legal action is necessary by either party with respect to the enforcement of any and all the terms or
conditions herein, exclusive venue for the enforcement of same shall lie in Miami -Dade County, Florida. CITY
AND CONCESSIONAIRE HEREBY KNOWINGLY AND INTENTIONALLY WAIVE THE RIGHT TO TRIAL BY
JURY IN ANY ACTION OR PROCEEDING THAT CITY AND CONCESSIONAIRE MAY HEREIN AFTER
INSTITUTE AGAINST EACH OTHER WITH RESPECT TO ANY MATTER ARISING OUT OF OR RELATED
TO THIS AGREEMENT OR THE CONCESSION AREA(S).
37
IN WITNESS WHEREOF,the parties hereto have caused their names to be signed and their seals to be
affixed, all as of the day and year first above written, indicating their agreement.
PASSED AND ADOPTED THIS c�rra' day of Feb rLf G Icy` 2012
Attest:
&tA a 1 .ty�
CITY CLERK MAYO
Witness: BOUCHER BROTHERS
MIAMI BEACH LLC
a4u' g
Signatu
S E o vch er
Name and Title of Signatory
F: \RHCD \$ALL \ECON \$ALL\ASSET\BOUCHER BROTHERS \Boucher Brothers Agreement FINAL (3)01092012.docx
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
tY me ate
38
Exhibits 3.1 Price schedule by area
Standard Equipment Lummus Park Ocean Terrace NSOSP South Pointe
Lounge Chair $10.00 $8.00 $8.00 $10.00
Umbrella $15.00 $10.00 $10.00 $15.00
Cabana $20.00 $15.00 $15.00 $20.00
Lounge Bed $50.00 n/a n/a $50.00
Sand Chair $8.00 $5.00 $5.00 $8.00
Towels $15.00 $10.00 $10.00 $15.00
Luxury Oasis
Luxury Lounge $18.00 n/a n/a n/a
Luxury Umbrella $15.00 n/a n/a n/a
Luxury Cabana $25.00 n/a n/a n/a
Luxury Lounge Bed $50.00 n/a n/a n/a
Luxury Towel $15.00 n/a n/a n/a
Exhibits 3.1.2
Watersports Price schedule by area
Motorized Lummus Park Ocean Terrace NSOSP South Pointe
Waverunner 1/2 hour (1 rider) $80.00 n/a n/a n/a
Waverunner 1/2 hour (2 riders) $85.00 n/a n/a n/a
Waverunner I hour (1 rider) $160.00 n/a n/a n/a
Waverunner 1 hour (2 riders) $170.00 n/a n/a n/a
Banana Boat (per person) $20.00 n/a n/a n/a
Non - Motorized
Paddle Boards 1 Hour $35.00 $35.00 n/a n/a
Kayaks 1 Hour n/a $25.00 n/a n/a
Kite Surfing 1 Hour n/a $160.00 n/a n/a
Catamaran 1 Hour n/a $60.00 n/a n/a
Paddle Boats n/a $35.00 n/a n/a
Exhibits 3.1.3
Food and Beverage Price schedule by area
Food Lummus Park Ocean Terrace NSOSP South Pointe
Frozen Grapes $7.00 $7.00 $7.00 n/a
Fresh Fruit $8.00 $8.00 $8.00 n/a
Caesar Salad $8.00 $8.00 $8.00 n/a
Chicken Caesar Salad $10.00 $10.00 $10.00 n/a
House Salad $7.00 $7.00 $7.00 n/a
House Salad with Tuna or Chicken $10.00 $10.00 $10.00 n/a
Assorted Cold Sandwiches $8.00 $8.00 $8.00 n/a
Assorted Cold Sandwiches w /salad $10.00 $10.00 $10.00 n/a
Assorted Cold Wraps $8.00 $8.00 $8.00 n/a
Assorted Cold Wraps w /salad $10.00 $10.00 $10.00 n/a
Kosher Hot Do $6.00 $6.00 $6.00 n/a
Pizza $8.00 $8.00 $8.00 n/a
Hot Panini Sandwiches $10.00 $10.00 $10.00 n/a
Chicken Sandwich $10.00 $10.00 $10.00 n/a
Chips $2.75 $2.75 $2.75 n/a
Assorted Candies $3.00 $3.00 $3.00 n/a
Ice Cream $4.00 $4.00 $4.00 n/a
Specialty Desserts $5.00 $5.00 $5.00 n/a
Cuban Pastries $4.00 $4.00 $4.00 n/a
Popcorn $4.00 $4.00 $4.00 n/a
Beverages Price schedule by area
Bottled Water $3.25 $3.25 $3.25 $3.2"
Drinks $3.25 $3.25 $3.25 $3.25
Iced Tea $3.25 $3.25 $3.25 $3.25
Gatorade and similar sports drinks $3.75 $3.75 $3.75 $3.75
Fresh Juices $4.00 $4.00 $4.00 $4.00
Frozen Lemonade $4.00 $4.00 $4.00 $4.00
Energy Drinks $5.00 $5.00 $5.00 $5.00
Cuban Coffees Hot or Cold $4.00 $4.00 $4.00 $4.00
Vitamin Water $3.75 $3.75 $3.75 $3.75
Exhibits 3.1.4 Price schedule by area
Miscellaneous Beach Items Lummus Park Ocean Terrace NSOSP South Pointe
Beach Toys 5.00 to $25.00 5.00 to $25.00 5.00 to $25.00 n/a
Hats $10.00 to $20.00 $10.00 to $20.00 $10.00 to $20.00 n/a
Lip Balm $3.00 to $8.00 $3.00 to $8.00 $3.00 to $8.00 n/a
Misters $10.00 to $20.00 $10.00 to $20.00 $10.00 to $20.00 n/a
Rafts /Flotation Devices $10.00 to $25.00 $10.00 to $25.00 $10.00 to $25.00 n/a
Tee - Shirts / Appral $10.00 to $30.00 $10.00 to $30.00 $10.00 to $30.00 n/a
Beach Bas $10.00 to $30.00 $10.00 to $30.00 $10.00 to $30.00 n/a
Beach Shoes $10.00 to $30.00 $10.00 to $30.00 $10.00 to $30.00 n/a
Beach Cameras $10.00 to $30.001 $10.00 to $30.00 $10.00 to $30.00 n/a
Beach Sun Glasses $10.00 to $25.001 $10.00 to $25.00 1 $10.00 to $25.00 1 n/a
Exhibits 3.1.5 Price schedule by area
Suntan Lotions and Oils Lummus Park I Ocean Terrace NSOSP South Pointe
Lotions SPF 4 thru 50 $10.00 to $30.00 $10.00 to $30.00 $10.00 to $30.00 $10.00 to $30.00
Suntan Oils 1 $10.00 to $30.00 1$10.00 to $30.00 $10.00 to $30.00 $10.00 to $30.00
EXHIBIT 3.1.1
Luxury Storage &W Food &Bev
Area lounge Lounge Beds Sand Chairs Umbrella Cabanas ork Hut Storage Trailers
5th St 150 0 0 10 50 5 1 1 1
6th St 150 1 0 0 1 10 50 5 1 1 1
7th St 150 0 0 20 50 5 0 1 0
8th St 150 150 4 20 60 10 1 1 1
9th St 175 100 4 10 100 10 1 2 1
10th St 275 0 3 10 100 10 1 2 1
11th St 0 100 4 20 35 5 1 0 1
12th St 200 50 6 20 35 5 0 1 0
13th St 200 0 4 20 50 10 2 2 1
14th St 100 0 0 10 30 10 1 1 1
14thLn 100 100 5 20 50 10 0 2 0
Ocean Terr 100 0 0 10 50 5 1 2 1
*NSOS Park 100 0 0 10 20 5 1 2 1
*South Point 50 0 0 10 20 5 1 2 0
Total 1900 500 30 200 700 100 12 20 10
* NSOS Park and South Point Park only will open when mutually agreed
by the City of Miami Beach and Boucher Brothers Miami Beach,LLC.
Exhibit 3.1.2(1 of 4)
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Every morning BBMB will bring out two trailers with 75 lockers on each trailer which will be left on 9st
and 12st. There will be 1 locker attendant selling tokens for the lockers and helping clients get in and
out of their lockers if needed. Lockers will cost between $4.00 and $6.00 per day ,per locker. At the end
of the day the trailers will be hauled off the beach and stored in the fenced in area on 10th street. The
hours of operation will be from 9:00 am to 5:00 pm everyday weather permitting...
Exhibit 3.2.2
Ice Cream Cart
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EXHIBIT 3.5.1 (1 of 2)
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EXHIBIT 3.6
HURRICANE PREPAREDNESS / EVACUATION PLAN
Concessionaire agrees that all its storage and dispensing facilities, beach equipment, water sport
equipment and any and all other equipment or other items used in the concession operations under this
Agreement will be removed from the beachfront immediately within eight (8) hours of the issuance of a
Hurricane Warning by the Miami -Dade County Office of Emergency Management. Such facilities,
equipment and items will be stored at 6708 NE 4` Avenue and 6929 NE 3r Avenue, Miami, Florida. If
such storage locations change, Concessionaire will advise the City Manager of his designee.
1
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EXHIBIT 6 (page 1 of 3)
CITY OF MIAMI BEACH
BOUCHER BROTHERS MIAMI BEACH, LLC
AGREED -UPON PROCEDURES
1. Inquire of management and obtain and review documentation on the nature of the
company's business and the factors that affect sales. Inquire about and document any
major changes made during the period.
a. Review procedures for recording sales for all sources of beachfront rental
Income.
b. Obtain the operating policies and procedures from the concessionaire.
C. Interview key company representatives to determine procedures used.
d. Observe the utilization and effectiveness of the procedures through quarterly site
visits to beach concession locations.
2. Test to determine that the concessionaire maintained proper internal controls and
documentation to support the reported gross receipts figure for each open and closed
section.
a. Document the procedures, if any, for determining how sections are recorded as
open and closed.
b. For months, test manual Open and Closed Sections sheet to Daily
Rental sheets for days to determine if for sections opened revenues are
recorded and that for closed sections, proper supervisory approval is evidenced.
Agree earned revenue to entries on master Consolidated Sales schedule.
C. Determine that all daily rental sheets have been accounted for.
d. Verify the notations of "inclement weather" or "special events" for days in which
the revenues are unusually low.
e. Document the findings.
3. Obtain a Consolidated Sales schedule for the year ended
prepared in conformity with the concession agreement between the City of Miami Beach
and Boucher Brothers Miami Beach, LLC, effective November 5, 2011. Recalculate
concession fees for the period based on sales per the schedule and the terms of the
concession agreement.
4. Review the concession agreement(s) and inquire about major changes, if any; in the
definition of which sales are included and excluded from the Consolidated Sales
schedule.
5. Perform an analytical test of sales by obtaining a schedule summarizing sales by revenue
type (i.e. food and beverage, water sports, etc.) Analyze this schedule and critically
evaluate explanations for significant variations that are unusual in amount or nature.
6. Obtain or prepare a reconciliation of total sales recorded in the general ledger for the
period to the Consolidated Sales schedule provided to the City of Miami Beach. Also,
obtain or prepare an analysis of sales summarized by revenue type. Perform the
following procedures:
a. Test the analysis by selecting a few categories, and compare the amounts shown
with those recorded in the sales schedule. Document the items selected for
testing. Agree the sales schedule balances to the general ledger.
EXHIBIT 6 (page 2 of 3)
b. Review the analysis, and identify any unusual trends or variations within the
period or the prior period.
C. Obtain sound business reasons for large or unusual variations in the amounts
included in the analysis.
7. Scan the accounting records for large and unusual transactions, review evidence and
document any findings.
8. Perform a test of sales completeness by applying the following procedures:
a. Using sales documentation or daily cash register recaps, select 1 (one) day per
month throughout the year, including weekdays and weekends. Document the
items selected for testing. The sales documentation or daily cash register recaps
should include original sales documents (including cash sales and credit card
sales), credit memos, etc.
b. Agree the summary information on the daily cash register recap or daily
collection sheet to the supporting documents (which maybe sales tickets, cash
register tape, etc.). Determine that details are appropriately reflected on the
summary and that all collection sheets have been accounted for.
C. Agree the amounts on the daily cash register recaps to proper recording in the
sales schedule and general ledger, as appropriate.
d. Determine that proper accounting treatment has been applied to these sales
transactions.
e. Agree deposits per the daily register recap to the daily collection sheets and
ultimately to the bank statement.
f. Agree sundries to supporting inventory sales sheets.
g. Agree water sports /parasailing contract amounts to selected rental agreements.
h. Test the propriety of the numerical sequence of the executed water sports
agreements /waivers.
i. Agree revenues from equipment rentals to Daily Sheets. Check for proper sign -
off approval by attendant and supervisor.
j. Agree daily deposits to daily revenue sheets and bank statements.
k. Foot and cross foot selected months of Consolidated Sales schedule
and other linked spreadsheets to verify their accuracy.
I. Compare total sales for selected months to sales tax returns filed with the
applicable taxing jurisdictions.
9. Verify that the concessionaire's rental payments were remitted timely in adherence to the
dates designated by the City.
10. Review, the products and prices charged by the concessionaire and his sub -
concessionaire to determine if the City Manager or his designee has approved them.
a. Obtain pricing from site visits to beach locations.
b. Compare prices to agreement terms. Recalculate any increase to determine if it
falls with the limits of the agreement.
C. Determine if the city has authorized any price increases and verify if the
Company has the authorization in its files.
EXHIBIT 6 (page 3 of 3)
11. Verify the status of operations in both North Shore Open Space Park (inactive) and
Ocean Terrace (active).
a. Conduct site visit to determine the level of operations.
b. Review provided documents to determine the period of activity.
C. Discuss and document any variances with Boucher Brothers Management for
explanation.
12. Verify that the sub concessionaire has timely paid all resort taxes to the City's Finance
Department and ensure the correct calculation of resort tax due.
13. Review the records maintained of all secret shoppers and determine:
a. The shoppers' results and corresponding actions taken by management.
b. That all locations (including Monty's kiosks) were periodically covered by secret
shoppers.
C. The frequency and timing of the shoppers on a quarterly basis.
d. That all revenues were recorded in the Consolidated Sales schedule.
14. Determine and document how management verifies which Monty's kiosks were open in a
particular day.
a. Agree food and beverage sales to sub concessionaire reports. Agree amounts
sold to daily inventory sheets.
b. Using sales documentation or daily cash registers recaps, select one day per
month throughout the year, including weekdays and weekends. Document the
items selected for testing. The sales documentation or daily cash register recaps
should include original sales documents (including cash sales and credit card
sales), credit memos, etc.
C. Agree the summary information on the daily cash register recap or daily
collection sheet to the supporting documents (which maybe sales tickets, cash
register tape, etc.). Determine that details are appropriately reflected on the
summary and that all collection sheets have been accounted for.
d. Agree the amounts on the daily cash register recaps to proper recording in the
sales schedule and general ledger, as appropriate.
e. Verify the notations of "inclement weather" or "special events" for days in which
the revenues are usually low.
f. Select days and ensure that both the attendant and a supervisor sign -off
on the applicable daily inventory sheet attesting to the accuracy of the beginning
and ending inventory counts as well as any other inventory charges for the day.
g. For the days selected above, ensure that the ending inventory agrees to the next
days opening inventory. Document any discrepancies.
h. Review management's periodic reconciliations of the food and beverage
revenues performed by analyzing the inventory reports and cash register tapes.
Document any discrepancies and management follow -up.
Exhibit 10.1.1
EXHIBIT 10.2.1
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Exhibit 10.7
The beach access points Boucher Brothers Miami Beach, LLC. will use to leave and enter the
beach are: 5 th street, 10 street and 22 street.
Exhibit 10.7.1
Beach Vehicles "On Road ":
2009 Ford F 150 / License plate # X051GB
2011 Ford F 150 / License plate # 821YKH
Beach Vehicles "Off Road ":
Golf Cart 1
Golf Cart 2
Golf Cart 3
Golf Cart 4
Exhibit 13.8
PENALTIES IN LIEU OF DEFAULT
As an additional means of ensuring compliance, penalties, as provided for in Subsection 13.8
of the Agreement, shall apply for the following:
1) The use of any food heating device not approved by the City, pursuant to 3.2.8. $150 per
incident.
2) Fueling of Watersports Equipment or chase watercraft in violation of regulatory
requirements, as per 3.4.13. $150 per incident.
3) Failure to report any accident or collision involving any Watersports Equipment, as required
pursuant to 3.4.21. $250 per incident.
4) Failure to report any accident or collision involving Concessionaire Vehicles, as required
pursuant to 10.7.9. $250 per incident.
5) Storing or maintaining dangerous materials, pursuant to 10.5. $250 per incident.
6) Permitting unauthorized Vehicles, including more Vehicles than authorized, on the
beachfront, pursuant to 10.7.1 $250 per incident.
7) Allowing Vehicles to access the beach from an unauthorized access point, pursuant to 10.7.
$250 per incident.
8) Allowing on -road vehicles in the soft sand, expect as may be permitted, pursuant to 10.7.3
$250 per incident
9) Allowing Vehicles or trailers attached thereto to be parked or left unattended, pursuant to
10.7.8. $250 per incident.
Exhibit 16.5
Boucher Brothers Miami Beach, LLC. Currently does not have any exclusive agreements with
any vendor.
1599
BOUCHER BROTHERS MIAMI BEACH, L.L.C.
OPERATING ACCOUNT FIRST UNION NATIONAL BANK
L—{-- 20971 NORTHEAST 30TH COURT 63 -643 -670
V NTURA FL 33180 1/17/2012
BHHCH�6 www.boucherbrothers.com
PAY TO THE City of Miami Beach s "'34,326.00
ORDER OF
lrat# icttirw�+ Nci:xirt�k�tt�fnH-�Hrxtiririci: �kkxirat *+ritlFf frX�i - i: Yrl tihir l. iriir irlr.Fxi
Thirty -Four Thousand Three Hundred Twenty -Six and 00/100 DOLLARS
City of Miami Beach =
TWO SIG U _S E ED OV R $1,500. _
- � v
MEMO 201112012 Deposit (1st half)
11'0000 L 59911' 1':0E 70064 3 21: 20000 10 S 131 10911'
BOUCHER BROTHERS MIAMI BEACH, L.L - OPERATING ACCOUNT
City of Miami Beach 1/17/2012 1599
Date Type Reference Original Amt. Balance Due Discount Payment
1/17/2012 Bill 2011/12 Deposit -1 34,326.00 34,326.00 34,326.00
Check Amount 34,326.00
Wells Fargo- Checking 2011/2012 Deposit (1st half) 34,326.00
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