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2001-24533 RESO RESOLUTION NO. 2001-24533 A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, AUTHORIZING THE ADMINISTRATION TO NEGOTIATE WITH THE SECOND RANKED FIRM OF BOUCHER BROTHERS MIAMI BEACH, LLC, PERTAINING TO THE RANKING OF THE PROPOSALS RECEIVED IN RESPONSE TO REQUEST FOR PROPOSALS (RFP) NO. 22-00/01, FOR THE MANAGEMENT AND OPERATION OF BEACHFRONT CONCESSIONS ON THE BEACHES SEAWARD OF LUMMUS PARK, OCEAN TERRACE AND NORTH SHORE OPEN SPACE PARK WHEREAS, the City Commission, at its February 21, 2001 meeting, via Commission Memorandum No. 79-01, authorized the Administration to issue a Request for Proposals (RFP) for the management and operation of beachfront concessions on the beaches seaward of Lummus Park, Ocean Terrace, and North Shore Open Space Park; and WHEREAS, on February 1 ,2001, input was received from the Marine Authority and the South Pointe Advisory Board; the Administration also met with the Ocean Drive Association and the Beach Preservation Committee on December 12, 2000, and also advised them of the key components of the proposed RFP; and WHEREAS, the RFP notices were sent by DemandStar by Onvia to 73 individuals and/or firms, which resulted in 18 individuals and/or firms obtaining a copy of the RFP with three responses: Penrod Brothers, Inc. (Penrod's), Boucher Brothers Miami Beach, LLC (Boucher Brothers), and Playtime Watersports (Playtime); and WHEREAS, Letter to Commission (LTC) No. 87-2001, established an Evaluation Committee consisting of the following individuals: Samuel!. Burstyn, P.A., Miami Beach Resident . Pablo Cejas, PLC Investments Laurie Holtz, Audit Committee Member . Timothy Hemstreet, Special Assistant to the City Manager Amadeo Lopez-Castro, Chairman of the Public Health Trust of Miami-Dade County Ira Nausbaum, Marine Authority Chairman Hank Oppenborn, Beach Patrol Supervisor Wyatt Porter-Brown, Beach Preservation Committee Chairman Vivian Rodriguez, Miami-Dade Parks and Recreation Director; and WHEREAS, the City Manager subsequently appointed Joe Garcia, Executive Director of the Cuban-American Foundation to replace Pablo Cejas, and also appointed Morris Sunshine, Marine Authority Member to replace Ira Nausbaum; and WHEREAS, on June 13,2001, letters were sent via facsimile to the three proposers: Penrod's, Boucher Brothers, and Playtime; said letters informed each proposer that they had been scheduled for a 20 minute oral.presentation, followed by a 30 minute question and answer session with the Committee; and WHEREAS, each Committee member completed their Evaluation Matrix forms, which resulted in the following ranking of firms as follows: (1) Penrod's; (2) Boucher Brothers; and (3) Playtime; and WHEREAS, members of the City's Administrative staff and the City Attorney's Office briefed the City Manager on the Evaluation Committee's recommendation, and the process followed relative to the RFP; and WHEREAS, the Administration has reviewed the Committee's recommendations, and the issues raised by the various proposers, and will ensure that during negotiations with the successful proposer, the following goals are achieved: . higher minimum guaranteed amount; . internal controls to ensure financial accountability and consistent reporting methodology; and . negotiate aesthetic, design, and density issues as permitted in the RFP, with the successful proposer in the best interest of the City; and WHEREAS, the Administration recommended that the Mayor and City Commission accept the City Manager's recommendation pertaining to the ranking of firms, and authorize the Administration to negotiate an agreement with the top ranked firm of Penrod Brothers, Inc., and if unsuccessful in negotiating an agreement with Penrod Brothers, Inc., authorize the Administration to enter into negotiations with Boucher Brothers; and WHEREAS, at the City Commission meeting on July 18, 2001, the Mayor and City Commission authorized the Administration to negotiate with the second ranked firm of Boucher Brothers Miami Beach, LLC. NOW, THEREFORE BE IT DULY RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City Commission hereby authorizes the Administration to negotiate with the second ranked firm of Boucher Brothers Miami Beach, LLC, pertaining to the ranking of the proposals received in response to Request for Proposals (RFP) No. 22-00/01, for the management and operation of beachfront concessions on the beaches seaward of Lummus Park, Ocean Terrace and North Shore Open Space Park. PASSED AND ADOPTED this 18th day of July 200 ATTEST: ~r p~~ Robert Parcher, CITY CLERK F:\DDHP\$ALL \ASSET\BEACH FRN\PUBLlC\RFP _2001 \BOUCHER\AmendedReso2001_24533.doc APPROVED AS TO FORM a LANGUAGE a EXECUTION CITY OF MIAMI BEACH CITY HALL 1700 CONVENTION CENTER DRIVE MIAMI BEACH, FLORIDA 33139 hltp:\\ci. miami-beach. fl. us COMMISSION MEMORANDUM NO. 'lY6-0( TO: Mayor Neisen O. Kasdin and Members of the City Commission JorgeM. Gonzalez \ .~ City Manager 0 I/" 0 DATE: July 18, 2001 FROM: SUBJECT: A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, ACCEPTING THE RECOMMENDATION OF THE CITY MANAGER PERTAINING TO THE RANKING OF THE PROPOSALS RECEIVED IN RESPONSE TO REQUEST FOR PROPOSALS (RFP) NO. 22-00/01, FOR THE MANAGEMENT AND OPERATION OF BEACHFRONT CONCESSIONS ON THE BEACHES SEAWARD OF LUMMUS PARK, OCEAN TERRACE AND NORTH SHORE OPEN SP ACE PARK; AUTHORIZING THE ADMINISTRATION TO ENTER INTO NEGOTIATIONS WITH THE TOP RANKED FIRM OF PENROD BROTHERS, INC., AND IF UNSUCCESSFUL IN NEGOTIATING A CONTRACT WITH THE TOP RANKED FIRM OF PENROD BROTHERS, AUTHORIZING THE ADMINISTRATION TO NEGOTIATE A CONTRACT WITH THE SECOND RANKED FIRM OF BOUCHER BROTHERS. ADMINISTRATION RECOMMENDATION: Adopt the Resolution. ANALYSIS: On November 7, 1985, the Mayor and City Commission adopted Resolution No. 85-18222, approving a Concession Agreement between the City of Miami Beach and Penrod Brothers, Inc. (Penrods) for the operation and management of beach front concessions, including rental of beach equipment, water recreation equipment, and food and beverage service at Pier Park, Oceanfront Park, and Lummus Park. The Concession Agreement which was subsequently amended as follows: · On August 13, 1986, via Resolution No. 86-18539 (Amendment No.1); · On September 4, 1986, via Resolution No. 85-18571 (Amendment No.2); and · On April 20, 1988, via Resolution No. 88-19223 (Amendment No.3), the Concession agreement was scheduled to expire on November 4, 2000. AGENDA ITEM R7I DATE 7-/f-CJj Commission Memo RFP 22-00/01 - Beach Concessions July 18,2001 Page 2 of 15 On October 18, 2000, the Mayor and City Commission adopted Resolution No. 2000-24137, approving Amendment No.4 to the Concession Agreement, extending its term for a period of one year, pending the issuance of an RFP, and providing that Penrods operate a Pilot Concession Program on the beaches east of North Shore Open Space Park and Ocean Terrace. The term extension contained therein provided for the following: · an opportunity to finalize the Rules and Regulations for Beachfront Concession Operations; . an opportunity to confer with, and seek input from, the Ocean Drive Association and other interested parties with regard to the new RFP; . ensuring the non-interruption of services to beach patrons; · an opportunity to provide a short term pilot program to establish the feasibility of a beach concession program on the beaches east of North Shore Open Space Park and Ocean Terrace; · an expiration date of November 5, 2001, for the existing Concession Agreement; and · an increase of revenues due to the City from a minimum of 10% to a minimum of 15%. The Administration met with and sought input from the Marine Authority, South Pointe Advisory Board, and Ocean Drive Association. On February 1, 2001, input was received from the Marine Authority, South Pointe Advisory Board, and Ocean Drive Association. The Administration also met with the Beach Preservation Committee on December 12,2000, and advised said Committee of the key components of the proposed RFP and requested that the Committee begin to develop recommendations. Copies of the proposed RFP were sent to the Committee on December 28,2000. The Administration also attended the Beach Preservation Committee meeting of January 9, 2001, but the Committee did not have a quorum. The Committee then met on Tuesday, February 13,2001, at which time formal recommendations were provided. Formal recommendations, as provided by the respective groups, and comments of the groups' individual members were reviewed and incorporated, as appropriate, in RFP No. 22-00/01. Meetings with community organizations/interested parties: Ocean Drive Association South Pointe Advisory Board Community Workshop Beach Preservation Committee Marine Authority Conclusion of Rules and Regulations issues with State City Commission approval of Rules and Regulations November 07, 2000 November 16, 2000 December 05, 2000 Dec. 12,2000 & Jan. 8,2001 Dec. 12,2000 & Jan. 8,2001 February 2001 (still pending) Pending State approval Commission Memo RFP 22-00/01 - Beach Concessions July 18, 2001 Page 3 of 15 The City Commission at its February 21, 2001 meeting, via Commission Memorandum No. 79-01, authorized the Administration to issue a Request for Proposals (RFP) for the management and operation of beach front concessions on the beaches seaward of Lummus Park, Ocean Terrace, and North Shore Open Space Park. RFP No. 22-00/01 ("the RFP") The RFP notices were sent by DemandStar by Onvia to 73 individuals and/or fIrms, which resulted in 18 individuals and/or firms obtaining a copy of the RFP with three responses: Penrods, Boucher Brothers, and Playtime Watersports. The scope of services for the management and operation of beachfront concessions originally provided for a more limited overall concession area in comparison to the existing RFP which included Lummus Park (5th Street to 14th Lane), Pier Park (Biscayne-lst Street) and Oceanfront Park (2nd-3rd Street). The RFP was limited to the beaches east of Lummus Park, and does not include those beachfront portions east of public street ends. The proposed Lummus Park beach Concession Area is more specifIcally described below: Lummus Park The Concession Area is limited to the beach area bounded on the south by the northern most line of the 5th Street right-of-way, bounded on the north by the southern most 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 a line 60 feet west of the Mean High Water Line (MHWL). The Concession Area does not include those portions of the beach located east of the respective street ends beginning and inclusive of 5th Street through and inclusive of 14th Lane along Ocean Drive. The easterly extension of these street rights-of-way onto the beach area shall be established using the recommended methodology of extending the respective northern and southern boundaries of the these rights-of-way seaward to the Erosion Control Line (ECL) and then proceeding seaward perpendicular to the ECL until reaching the shoreline. However, in keeping with the Pilot Program being conducted on the beaches at North Shore Open Space Park and Ocean Terrace by Penrod Brothers, in accordance with its Concession Agreement, as extended, the RFP also includes the additional North Shore Open Space Park beaches and Ocean Terrace beaches more specifically described as follows: Ocean Terrace The Concession Area is limited to the beach area bounded on the south by the northern most line of the 73rd Street right-of-way, bounded on the north by the southern most 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 a line 60 feet west of the Mean High Water Line (MHWL). Commission Memo RFP 22-00/01 - Beach Concessions July 18,2001 Page 4 of 15 The Concession Area does not include those portions of the beach located east of the respective street ends beginning and inclusive of 73rd Street through and inclusive of 75th Street along Ocean Terrace. The easterly extension of these street rights-of-way onto the beach area shall be established using the recommended methodology of extending the respective northern and southern boundaries of the these rights-of-way seaward to the Erosion Control Line (ECL) and then proceeding seaward perpendicular to the ECL until reaching the shoreline. North Shore Ooen Soace Park The Concession Area is limited to the beach area bounded on the south by the northern most line of the 79th Street right-of-way, bounded on the north by the southern most 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 a line 60 feet west of the Mean High Water Line (MHWL). The Concession Area does not include those portions of the beach located east of the respective street ends beginning and inclusive of 79th Street through and inclusive of 87th Street along Collins Avenue. The easterly extension of these street rights-of-way onto the beach area shall be established using the recommended methodology of extending the respective northern and southern boundaries of the these rights-of-way seaward to the Erosion Control Line (ECL) and then proceeding seaward perpendicular to the ECL until reaching the shoreline. As described above, a buffer zone would be created at each street-end along the Lummus Park, Ocean Terrace, and North Shore Open Space Park beaches that would not be encumbered by any concession operation, so as not to restrict, appear to restrict, or in any way limit the public access to the beachfront areas. The selected Proposer would be authorized to conduct the type(s) of business and to provide the type(s) of services within the Concession Area, in accordance with the guidelines, as set forth in the City of Miami Beach Rules and Regulations for Beachfront Concession Operations, and as provided below, at its sole cost and expense: 1) Rental of lounge chairs, chair pads, and umbrellas within the Concession Area. The design, materials, and color of the any and all lounge chairs, chair pads, and umbrella must be approved in writing by the City. 2) Food and beverage service within the Concession Area. The specific list of foods and beverages to be provided by Concessionaire must be approved in writing by the City. 3) Facilities to conduct the above services. Any and all facilities proposed to be used by Concessionaire within the Concession Area must be approved in writing by the City. Commission Memo RFP 22-00/01 - Beach Concessions July 18,2001 Page 5 of 15 4) Other services as they may be negotiated with the City at the time of the contract award. The percentage of gross revenues payable to the City by the successful Proposer was initially set at a minimum of 15% of gross revenues, which is the percentage that was negotiated with Penrod Brothers for its one year extension. The previous percentage was 10%. The City reserved the right to negotiate separate terms for any of the above-described Concession Areas, if it is deemed to be in the City's best interest. On March 30, 2001, a pre-proposal meeting was held and as a result of the issues raised, and inquiries and requests that were made, Addendum No.1 to the RFP was issued with the following changes incorporated into the RFP: · The Agreement to be entered into between the City and the successful Proposer shall be for an initial term of five (5) years, with the option if mutually agreed upon, to renew for an additional five one -year periods. · Deadline for receipt of questions was changed from April 4, 2001 at 5:00 p.m. to April 17, 2001 at 5 :00 p.m. · The deadline for receipt of proposals is changed from April 12, 2001 @ 3 :00 p.m. to April 27, 2001 @ 3:00 p.m. · Written clarification relative to Prohibited Campaign Contribution was provided to all proposers via City Attorney's Memo dated March 21,2001. · Proposer's Experience was changed to read as follows: Proposer must have five years of experience with the management and operation of beach concessions. · Manager's Experience was changed to read as follows: A comprehensive resume of the experience and qualifications of the individual selected to serve as the on-site manager at each location. Individual must have a minimum of two years experience in the management and operation of beach concessions. · Financial Stability was changed to read as follows: Yearly Gross Revenue of facilities, including expenditures and operating costs. · The Price Proposal Form was revised to remove the required minimum of$15,000 per month, and the required percentage of 15% was also deleted. The revised Proposal Form dated April 5, 2001, and replaced with the following: · The Proposer shall pay the greater of the two to the City as a monthly fee, as follows: (1) Guaranteed Monthly Concession Fee; or (2) Percentage of Gross Receipts. · The following documents were also provided to all proposers via Addendum No.1: Rules and Regulations for Beachfront Concession Operations; Penrod's Financial Documents for the past two years; City's Auditing Policies and/or Audit; the differences between the scope of services and the concession agreement. · Revised Cone of Silence. Commission Memo RFP 22-00/01 - Beach Concessions July 18,2001 Page 6 of 15 EVALUATION COMMITTEE: Letter to Commission (LTC) No. 87-2001, established an Evaluation Committee consisting of the following individuals: Samuel 1. Burstyn, P.A., Miami Beach Resident Pablo Cejas, PLC Investments Laurie Holtz, Audit Committee Member Timothy Hemstreet, Special Assistant to the City Manager Amadeo Lopez-Castro, Chairman of the Public Health Trust of Miami-Dade County Ira Nausbaum, Marine Authority Chairman Hank Oppenbom, Beach Patrol Supervisor Wyatt Porter-Brown, Beach Preservation Committee Chairman Vivian Rodriguez, Miami-Dade Parks and Recreation Director The City Manager appointed Mr. Laurie Holtz as the Committee Chair. Mr. Ira Nausbaum notified the City Manager's office that he would be out of town on June 20, 2001 - the date the Evaluation Committee meeting was scheduled. Therefore, Mr. Nausbaum was replaced by Dr. Morris Sunshine, Marine Authority Committee member. Additionally, it was determined that Mr. Pablo Cejas had a conflict of interest, and was therefore replaced by Mr. Joe Garcia, Executive Director of the Cuban American National Foundation. COMMITTEE MEETING: On June 8, 2001, the Committee was provided with the following documents: . Proposals received from Penrod Brothers, Inc., Boucher Brothers, and Playtime Watersports; . RFP No. 22-00/01 with Addendum No.1; . Disclosure Questionnaire form; . Evaluation Matrix form; and · Proposed Agenda for the June 20, 2001 Committee meeting. The Committee members were informed that it is very important that they adhere to the City's Cone of Silence Ordinance and the Government in the Sunshine Law. All Committee members were asked to disclose any association or relationship, which would constitute a conflict of interest, either actual or perceived, with any firm and/or individuals comprising or representing each proposer. All Committee members completed the Disclosure Questionnaire Forms and certified that their answers were true and correct to the best of their knowledge. Commission Memo RFP 22-00/01 - Beach Concessions July 18, 2001 Page 7 of 15 On June 13,2001, letters were sent via facsimile to the three proposers: Boucher Brothers, Penrods, and Playtime. Said letters informed each proposer that they had been scheduled for a 20 minute oral presentation, followed by a 30 minute question and answer session with the Committee. On June 18, 2001, Mr. Wyatt Porter Brown, Committee Member, and Chairman of the Beach Preservation Committee requested that the Evaluation Committee meeting scheduled for 9:00 a.m. on June 20 should be "postponed, to allow inclusion of terms which would attempt to correct current abuses - abuses which are not addressed in the RFP, which would award concession contracts now for five years." Mr. Brown was advised that the Committee meeting would not be postponed, and as a Committee member, he may bring to the attention of his fellow Committee members his concerns with the terms and conditions adopted by the Beach Preservation Committee. Additionally, Mr. Brown was informed that the RFP could not be modified since proposals had been received. However, that should the Administration and/or the City Commission desire that the terms and conditions that were adopted by the Beach Preservation Committee be incorporated into a contractual agreement with the successful proposer, that it could be the subject of contract negotiations. On June 20, 2001, the Committee convened in the Commission Chambers, and all members were in attendance. The agenda of the meeting was as follows: 1. Introductions 2. Project Overview 3. RFP Requirements 4. Evaluation Criteria 5. Presentation and Question and Answer Sessions: a. Boucher Brothers b. Penrods c. Playtime 6. Lunch 7. Deliberations Commission Memo RFP 22-00/01 - Beach Concessions July 18, 2001 Page 8 of 15 COMMITTEE MEETING The project overview was provided by Joe Damien, Asset Manager. Mr. Damien provided the Committee with the background and history on beachfront concessions, and a summary of the scope of services. Specifically, the scope of the RFP fairly broad in an attempt to generate interest among the beach concession community and allow them to be creative in their responses. The RFP requirements was provided by Gus Lopez, Procurement Director. Mr. Lopez read from page 14 of the RFP, entitled Minimum Requirements/Qualifications, which included the following: 1. Proposer's Experience: Proposer must have five years of experience with the management and operation of similar sizes and types of concessions, such as those specified within the Concession Areas, pursuant to the Scope of Services in Section II herein. 2. Manae:er's Experience: A comprehensive resume of the experience and qualifications of the individual selected to serve as the on-site manager at each location. Individual must have a minimum of two years experience in the management and operation of comparably sized concessions, such as those specified within the Concession Areas, pursuant to the Scope of Services in Section II of the RFP. 3. List of Beach Concessions Previouslv or Currentlv Manae:ed and Operated: A list of previously or currently managed concessions. Information should include at a minimum: . Name of facilities . Address of facilities · Name, Address, and Telephone Number of facilities' owners · Size offacilities (Square Feet, Number of and Type of Concession Stands, Number of Chairs, Number of Umbrellas, etc.) · Yearly Gross and Net Revenue of facilities, including expenditures and operating costs 4. Manae:ement: List the members of the Proposer's executive staff. Provide a list of the executive personnel that will be involved with the management and operation of the Concession Areas. A resume including education, experience, and any other pertinent information shall be included for each executive staff member. Commission Memo RFP 22-00/01 - Beach Concessions July 18,2001 Page 9 of 15 5. Financial Stability: Demonstration of financial stability of the Proposer. Include a financial statement, balance sheet or assurance that indicates the financial capacity and viability of the Proposer. This statement should be certified by an appropriate corporate official or by an independent Certified Public Accountant. 6. Operatinl! Plan: Proposer must include a detailed description of the Proposer's management and operating plan for concession operations at the Concession Areas including, but not limited to: · Concept plan . Design and layout of equipment and facilities . Projection of operating costs, including revenues and expenses 7. Amounts Payable to the City: The Proposer shall propose an amount to be paid to the City as a fee for the management and operation of the Concession Areas, including both a percentage of gross receipts and a minimum monthly guarantee. The following issues were then raised and addressed: Public Comment? Mr. Raul Aguila, First Assistant City Attorney, informed the Evaluation Committee that the meeting is a duly noticed public meeting, and that the Committee does not have to hear public comment, but if the Committee desires public comment it is at their discretion. The Committee agreed to allocate time for public comment at the end of the presentations. Should the Meeting be Postponed as Requested by Mr. Brown? Mr. Joe Damien stated that the RFP and the process the Administration followed has been a very thorough public process, including a review by various Boards and Committees, and the City Commission, and that the Committee's task should not be hindered by the issues raised, and that these issues could be addressed by the Administration and/or the City Commission. The Committee agreed that they proceed expeditiously. Assignment of Weights to the Evaluation Criteria: The Committee discussed the various options associated with assigning a weight to each criteria. The Committee members discussed the factors that they believed should be assigned a high weight. After much discussion the Committee decided that each member would read aloud their weight for each criteria, and that the average of the Committee members would decide the weight to be assigned. The results were as follows: Commission Memo RFP 22-00/01 - Beach Concessions July 18,2001 Page 10 of 15 CRITERIA WEIGHT Plan for the management and operation of the Concession Areas. . . . . . . . . . . . .. 4.8 Professional qualifications and/or recommendations of the Proposer. . . . . . . . .. 2.6 Prior history and current operations of other similar size/types of concessions. . . . 3.8 Demonstration of financial stability of the Proposer. . . . . . . . . . . . . . . . . . . . . . . .4.4 Experience, education and performance record of individuals who would be instrumental in the management and operation of the concessions. . . . . . . . . . . 2.7 Proposer's concept plan, design and layout of equipment and facilities. . . . . . . . . . 4.4 Proposer's fee(s) payable to the City. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.8 ORAL PRESENTATIONS: Boucher Brothers: Mr. Robert Todak, General Manager, Delano Hotel, spoke very highly of Boucher Brothers' passion, hands on involvement, immense detail, great communication, and a really pleasant group of people to work with. Mr. Michael Milberg, Boucher Brothers' Strategic Planner, provided a PowerPoint presentation on the following: · Team members · Commitment to the Community · Hotels that are currently under operation · Twenty one (21) five-star recommendations · Monty's Miami Beach -- Food and Beverage · Monty's Experience and Qualifications · Beach Concession Managers · Paradigm Shift from the Ordinary Public Beach to the Extraordinary (i.e. Five Star Hotel) · Targeting the South Beach Market (2100 South Beach Hotel Rooms along Ocean Drive and Collins Avenue) · North Beach: Targeting the North Beach market through environmentally sensitive programming · Compliance with all adopted and newly proposed Beach Concession Rules & Regulations · Delivery of Equipment · Start-Up Costs (Capital Equipment - $700,000; City Guarantee - $412,500; and Operating Capital- $200,000) total $1,312,500. · Letters ofIntent to Finance: Total Bank ($1,300,000), and Bank of America ($700,000) · Welcome to Hotel Miami Beach - Sensitivity to balancing the environmental and commercial needs of our community. Commission Memo RFP 22-00/01 - Beach Concessions July 18, 2001 Page 11 of 15 Boucher Brothers Presentation Continued: · Standard Equipment (Vinyl Strapped Lounge Chair, Children's Play Area, 3" pads, towels, umbrellas, cabanas, ADA compliant · Oasis in the Sand - Lummus Park (8th Street and 12th Street) · Oasis Equipment (Double Vinyl Mesh Lounge Chairs, 6" pads, Towels, Umbrellas, Cabanas, Side Tables, Board Games, Children's Play Area, ADA Compliant · ADA Compliance - Beach Wheelchairs · Safety is Paramount · More than just a minimum guarantee for the City - "Show Me the Money" Video Clip · Increased Sales + Accountability = More $ to the City · Audit Trails for cash transactions, checks and balances, hand-held computers, credit card charges, hotel room charges, and resort fee program. · Shift from Cash transactions to Paper transactions. · More than 600 rooms between Collins A venue and Ocean Drive to commit to the room charge program - mitigate cash transactions. · Remuneration - proposer's fees(s) payable to the City. · Comparison of current concessionaire (Penrods) - cannot make sense of reported numbers - there is more out there. · Comparison Baseline Deviations (Boucher, Penrod's, Playtime). · Penrod's assertions relative to Boucher Brothers' operation should be noted in the City's Internal Audit Report on Penrod's. Penrods' Presentation: Mr. Gerald K. Schwartz, Attorney, Beloffand Schwartz, provided background information and history relative to Mr. Jack Penrod. · Experience and qualifications of Mr. Penrod. · Partnership with Ocean Drive and Miami Beach for 16 years. · Compliment to Hotels and Restaurants. · Highest proposal of all proposals - 20% of all sales. · Earned opportunity to take the City Beaches to the next highest level. Mr. Jack Penrod, presented the following points: · Not the high bidder in the minimum bid because of not being sure on what the State or City would decide relative to the number of chairs. · We are the high bidder in percentage - 20% across the board. · Great new look with upgraded services. · The City residents need their space. · 16 years of managing the City's public beach. Commission Memo RFP 22-00/01 - Beach Concessions July 18, 2001 Page 12 of 15 Penrod's Presentation Continued: . Introduction of team. · Introduce a chart - amounts paid to the City. · Rent Payable Projections: Actual Rent Paid - $198,358; Rent Payable at 20% (new pricing)- $493,328; Rent Payable at 20% with Added Amenities - $881,994; and Rent Payable Added Amenities Alcohol - $1,081,994. Mr. Stephane Dupoux, Concept Designer, presented a PowerPoint presentation relating to his vision on the design concepts. The sample chairs and umbrellas were placed in the Commission Chambers. Chef Ron Rusberg of Pearl and Champagne Lounge, and Chef Brian Malloy of Nikki Beach Club, discussed the food and beverage items that would be provided, while Penrod's staff members distributed sampling of the various food and beverages. Mr. Nat Dorman, General Manager, stated that Penrod's has 16 years of experience in running and operating a public beach without any violation or complaints from their partner - the City of Miami Beach. Presentation included: · Hurricane Preparedness procedures. · Balance between local residences and tourists. · More is needed to keep the image of Ocean Drive and South Beach alive and well. · New look for two sections: In front of the Tides Hotel, and the other in front of Park Central. · Manager for each section equipped with cell phones to allow for reservation of lunch, lounge chair, and other amenities. · Of more than 100 staff members, many are bilingual and have been employed by Penrod's for more than 10 years. · Accounting system: Numbered chairs, numbered umbrellas, and numbered control sheets. · Independent Checker who reports directly to General Manager, audits the attendants. Mr. Penrod, in closing, discussed the removal of all items from the Beach at the end of each day, and that he is committed to the North Beach area. Additionally, Mr. Penrod summarized his 16 years of experience of managing the public beaches. Playtime Watersports Presentation: · Vision Statement. · Revenue Sharing Plan - Minimum Annual Guarantee of $480,000 or 20% of Gross Receipts. · Commitment to pay first year's guarantee upfront. · Will provide for yearly financial audits and practice an open book policy to their finances. Commission Memo RFP 22-00/01 - Beach Concessions July 18,2001 Page 13 of 15 Playtime Presentation Continued: · Commitment to Service and Beach Preservation. · Improve the Aesthetics of the Beachfront · Minimize Commercial Pollution · Beach Beautification · Beach Concierges - Johnny Rockets, and Larios. . Upgrade services currently offered. · Record of Service - Hotel Concessions Managed. · Experience of Project Team The Committee decided to continue the question and answer sessions with all three firms after their lunch break. During the question and answer sessions, each proposer agreed to the following: · $1 MILLION UP FRONT CAPITAL COMMITMENT; · REDUCTION AND/OR RECONFIGURA TION OF FACILITIES AND SERVICES; · JET SKIS NOT NECESSARY TO FULFILL MINIMUM FEE GUARANTEE TO THE CITY; · NO OBJECTIONS TO ELIMINATING THE JET SKI CHANNEL AT 9th STREET. The Committee also voted to recommend to the City the following contract conditions: · At or before contract signing, the vendor be required to fund an investment of $500,000 earmarked to the capitalization of the project. · The contract is to provide that the City reserves the power to require reduction or reconfiguration of facilities and services in order to protect the public interest in the beach. Each Committee member completed their Evaluation Matrix forms, which resulted in the following ranking of firms as follows: (1) Penrods; (2) Boucher Brothers; and (3) Playtime. The Committee members scoring and ranking is tabulated as follows: Commission Memo RFP 22-00/01 - Beach Concessions July 18,2001 Page 14 of 15 c ---~---T-~~ .i:> ... ..........<I>>>c..T..m...I.i .. ...... .. .. ..... '1' >. i I , ___ _____ - - - - - - ___J _.____-"_~, .'.--,-,-_J~,-- _J ~__ _ _ _ _ 1 _ __ I __ i _ _ _ _ _ TIMOTHY HEMSTREET 208.8 2 214.9 1 170.6 3 WYATT PORTER-BROWN 133.8 3 167 1 161.5 2 DR. MORRIS SUNSHINE 183.1 2 217.5 1 145.4 3 SAMUEL 1. BURSTYN 208.9 1 200.6 2 189.3 3 LAURIE HOLTZ 177.8 2 190.8 1 161.9 3 HENRY "HANK" 213.1 2 232.6 1 190.6 3 OPPENBORN III VIVIAN DONNELL 178.5 2 216.6 1 151 3 RODRIGUEZ AMADEO LOPEZ-CASTRO 241.9 1 216.3 3 227.6 2 JOE GARCIA 217.5 2 207.8 3 238.4 1 On June 24, 2001, the Law Offices of Alexander 1. Tachmes, P.A. protested the Evaluation Committee's recommendation (See Attached Letter dated June 24,2001). On July 3, 2001, the Law Offices of Beloff & Schwartz, responded to Mr. Tachmes letter dated June 24,2001 (See Attached Letter dated July 3, 2001). On July 5, 2001, the Law Offices of Alexander 1. Tachmes, P.A. provided additional points relative to their protest (See Attached Letter dated July 5, 2001). On July 6, 2001, the Law Offices of Alexander 1. Tachmes, P.A. responded to Mr. Schwartz's letter dated July 3, 2001 (See Attached Letter dated July 6, 2001). Members of the City's Administrative staffand an Assistant City Attorney, briefed the City Manager on the Evaluation Committee's recommendation, and the process followed relative to the Beachfront Concessions RFP. The City Manager also reviewed all of the material, documentation and videotape of the evaluation process, and the various letters of protest. Commission Memo RFP 22-00/01 - Beach Concessions July 18, 2001 Page 15 of 15 In the past the Commission has benefited from presentations from the proposers when projects of such a significant magnitude as Beachfront Concessions are being considered. Therefore, while I am recommending the ranking of firms provided by the Evaluation Committee, I believe it is in the best interest of the City to allow for presentations and an opportunity for the City Commission to ask questions of the top two proposers. As such, on July 10,2001, both Penrods and Boucher Brothers were asked to please attend the Commission meeting of July 18,2001, and to be prepared to provide the City Commission with a 20-minute presentation. The Administration has reviewed the Committee's recommendations, and the issues raised by the various proposers, and will ensure that during negotiations, the following goals are achieved: . Higher minimum guaranteed amount; · Internal controls to ensure financial accountability and consistent reporting methodology; and · Negotiate aesthetic, design, and density issues with the successful proposer in the best interest of the City. The necessary internal controls will be in placed, to ensure compliance with the terms listed in the concession agreement to include but not limited to: timely payments to the City, all necessary licenses, insurance certificates, and performance bonds. . The Administration recommends that the Mayor and City Commission adopt the Resolution and accept the City Manager's recommendation pertaining to the ranking of firms, and authorize the Administration to negotiate an agreement with the top ranked firm of Penrod Brothers, Inc., and if unsuccessful in negotiating an agreement with Penrod Brothers, Inc., authorize the Administration to enter into negotiations with Boucher Brothers. JMG:~JD:GL I f1 T:\AGENDA \2001 \FEB2101 \REGULAR\BEACHRFP.MEM 2/8/01 ~ CITY OF MIAMI BEACH Office of the City Manager Interoffice Memorandum m To: Luis R. Garcia Jr. Commissioner Date: July 12,2001 From: JorgeM. GOllZaleZ\ .A~ City Manager U yv- D BID PROCEDURES Subject: In response to your memorandum dated July 9, 2001 regarding Bid procedures, specifically relating to the Beachfront Concession RFP No. 22-00/01, below please find the answers to your questions. 1. Was the Evaluation Committee presented with all of the pertinent information in order to be able to come to the decision that is most beneficial for the residents and visitor to our City? Yes. The Evaluation Committee was presented with all of the pertinent information in order to be able to render a decision that is most beneficial to the City. The information supplied to the Committee members included copies of the RFP, addendum No.1 to the RFP, and copies of all three (3) proposals submitted together with information made available by the public and committee members. 2. Was there a recent audit of the present concessionaire conducted, if so, was it presented to the Evaluation Committee for consideration? Yes. A recent audit of the present concessionaire was conducted. The audit report was concluded on June 18, 2001. Copies of the audit report were available for the Committee members, if requested; however, the Committee did not request distribution of the audit report. The City Administration normally distributes audit reports to the corresponding City Departments and the firm that is audited. Copies of previous audits of the current concessionaire and other concession operations conducted were requested at the pre-proposal conference and subsequently supplied in Addendum No.1 to the RFP. During the presentation, the Boucher Brothers introduced the recently completed (June 18,2001) audit of the current Beachfront Concessionaire (Penrods Brothers) attached hereto. Subsequently, the Administration made copies of the recent audit report available for the Committee members to review. The Committee members asked questions to the Boucher Brothers regarding the relevance of the audit and did not request any further distribution of the audit report, although the Administration offered to distribute the report. The Committee Chair did not find the report relevant nor did any other Committee member request it be distributed despite its availability. For clarification, the audit report was introduced by the proposers and was not part of the RFP process. The audit is incorporated into the Administration's evaluation process to determine whether to accept the Evaluation Committee's recommendations or to recommend a different proposer. Likewise, the City evaluates all audits of all proposers in this final recommendation process. The audits reviewed by the Administration reflects no major deviation among proposers as it relates to their payment history. 3. Are Mr. Tachmes' allegations that the present concessionaire failed to provide the City with periodic CPA reviews of operations as required by the present contract correct? Yes. Mr. Tachmes' allegations that the present concessionaire failed to provide the City with periodic CPA reviews of "gross receipts" (not operations as Mr. Tachmes states), is true. The Administration demanded that present concessionaire comply with all.contract requirements. 4. If the answer to the previous questions is affirmative, are these grounds for disqualification in future bidding? No, these are not grounds for disqualification as confirmed by the City Attorney's Office. 5. Did all the proposals submitted and evaluated by the Committee comply with aU of the Beachfront Rules and Regulations as mandated by the State and Federal rules and regulations? No, all proposals submitted and evaluated by the Committee did not comply with all Beachfront Rules and Regulations as mandated by State and Federal rules and regulations. In fact, some items shown by the different proposers would require approval by the State before any implementation could be approved. Page 13 of the RFP sets forth that the City "reserves the right to negotiate aesthetic/design issues with the successful proposer during the contract negotiations". Furthermore, the Rules and Regulations are silent as to specific issues you highlight regarding Penrods concept design with exception of prohibiting overnight storage of beach equipment. In some instances, it may be ultimately up to the State to permit issues such as plantings and walkways. In Penrods presentation, the proposer discussed the potential revenue that would be generated as part of this conceptual design and discussed that these revenues were contingent upon successful permitting of the aforementioned design concept. The Administration will negotiate these items as part of contract negotiations. 6. Has a fair comparison taken place as to the revenues that would be generated, and are the City and its taxpayers getting the best financial deal possible? The revenues each proposer indicated they would generate is based on a density and design concept that is subject of contract negotiations. It is the Administration's intention to negotiate the best financial deal possible with the selected proposer; whichever firm is ultimately selected. If you have any further questions, please do not hesitate to contact me. JMG\CMC\rar F:ICMGR\$ALLICHRISTINUMGlBidProcedures CommGarcia.doc c: Honorable Mayor and Members of the City Commission Murray H. Dubbin, City Attorney 2"<UlJ '~/Iics .A1..Ex.ANDER I. TACHMES, RA. BANK OF" AMERICA TOWER AT INTERNATIONAL PlAcE 100 S.E. 2ND STREET. SUITE 3920 MIAMI. FLORIDA 33 1 3 1 TELEPHONE: (305) 374-5343 FACSIMILE: (305) 374-9054 E-MAIL: AlTACHMES@AOL.COM OJ 'IJ")"- '-' -, r"\ ;' ~ J 8- .... ,- oO '-' Ii. I . or'...... =-\.J ell'r . I, L i'1t I VI\{;. ... '", ! ;:_,..., -, - -..)1," rCE June 24, 2001 Murray Dubbin, Esq., City Attorney City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33139 RE: Beachfront Concession Request for Proposals No. 22-00/01 - Boucher Brothers Miami Beach, L.LC. Dear Murray: This law finn represents Boucher Brothers Miami Beach, L.L. C. ("Boucher Brothersj, one of the respondents to the Beachfront Concession Request for Proposals No. 22-00/01 (the "RFPj. This letter is a fonnat protest of results as decided by the Selection Committee Wednesday, June 20, 2001. The following will outline some of the irregularities and inconsistencies in the bid proced:Jre that contaminated the process. 1) Penrod's obtained from the City, for use in Penrod's RFP response, a copy of a 2/22101 City audit of beachfront concessions, alleging that Boucher Brothers and Playtime owed funds to the City. However, the City failed to distribute to Committee members copies of the 6/18/01 City Audit of Penrod's beachfront concession operations, which reads, in relevant part: "Both the Finance Department and the City's Asset Manager agreed that Penrod's has consistently submitted its rental payments late through February 2001." Audit, p. 5. The Audit also found "two separate months for which the City did not receive the correct monies from Penrod's." Audit, p. 4. Other serious violations are found throughout that same audit. By not having the benefit of this recent City audit of Penrod's, the Committee was deprived of highly relevant infonnation. Boucher Brothers suggested during the presentation that Committee members review that most recent Penrod's audit. City staff retrieved and made copies of the audit. However, the copies were, for some reason, not distributed to Committee members. They were not distributed on the day of release, not distributed prior to the day of presentation, not distributed the day of, and to this day remain - not distributed. Had Committee members received the audit, they would have seen vastly different information than that which was contained in an old, outdated 1995 audit of Penrod's which was induded by the City as part of the RFP. As a result, members assigned scores on two heavily weighted evaluation criteria based on outdated information. Additional detail on those criteria and the ftawed ranking process is set forth below. . 2) Obviously, all bids submitted in response to requests for proposal issued by the City must confonn with law. Regarding beachtront concessions, City and State laws are embodied in the City's "Rules and Regulations for Beachfront Concessions" (the "Rules and Regulationsj. The Rules and Regulations were attached as an addendum to the RFP. Although the proposals by Penrod's and Playtime violated the Rules and Regulations. the City did not reveal those violations to Committee members nor direct that the violations be considered in evaluating the criteria. The criteria relevant to the violations were the two most heavily weighted aiteria of the seven used for evaluation. The disclosure of the violations would have. without question, changed the scores. Examples of the violations indude the foRewing: Penrod's plan shows palm trees and an artificial walkway on the beach at its proposed concession. However, concessionaires are forbidden to plant or place trees or create walkways on the beach (except for special events). Penrod's proposes pavilions with tables, chairs and shaded seating areas on the beach. However, such pavilions and seating areas also are forbidden. Because Boucher Brothers' response conforms completely to the Rules and Regulations, the other bidders were evaluated under unfair and advantageous considerations. The City subverted the integrity of the bid process by subjecting different bidders to different standams. 3) The Committee proceedings were scheduled from 9:00 a.m. to 2:00 p.m., Wednesday, June 20, 2001, but continued past 2:00 p.m. Two of the nine Committee members, citing scheduling commitments, left the proceedings prior to their condusion. Those two members completed their score sheets, despite missing valuable information. The remaining seven members asked questions, held discussions and opened the floor to public comment - all without the two departed members and after the two had finished their evaluations. The two departed Committee members never heam Boucher Brothers and Penrod's express a willingness to invest $1,000,000 in connection with the beachfront concession. (Another bidder, Playtime had already answered that question). Consequently, the score sheets suggest that Committee members either lacked knowledge or were confused. All three proposers agreed to the $1,000,000 commitment, yet some committee members ranked Penrod's million higher than Boucher Brothers' minion. What could account for such a difference? Are Penrod's million dollars more valuable? Another of the many inexplicable discrepancies in the scored evaluations occurred in the aiterion .Prior History & Current Operations of Similar Size and Type-. The experience and revenues of the Boucher Brothers businesses, in factual numbers and data, exceed those of Penrod's. However, several Committee members gave considerably higher scores to Penrod's on that aiterion (in the case of one member, six times higher). Again, we can only conclude that evaluators were confused and not provided with appropriate explanation of the grading criteria. 4) The weighting system applied to the various criteria exacerbated the defective scoring. Correcting these discrepancies would not only close what is a 100 point gap currently in Penrod's favor, but likely would give Boucher Brothers the highest score. Here are just a few examples: With regard to the aiterion .Concept Plan and Design, Layout of Equipment I Facilities, - Or. Morris Sunshine gave Boucher Brothers a score of 6 and gave Penrod's a score of 10. As indicated above, Penrod's facilities plan violated the Rules and Regulations. If the Committee was aware of the violation, certainly Penrod's would not have received a score of 10. Assuming that Penrod's received the same score from that Committee member as the BouCher Brothers, because that criterion has a multiplier of 4.4, Penrod's would have lost 17.6 points. Second, regaming the same criterion, Hank Oppenbom gave Boucher Brothers a score of 8 and Penrod's a score of 10. Again, assuming the Committee kneW the plan violated the Rules and Regulations and Penrod's received from that evaluator the same score as Boucher Brothers, Penrod's would have lost 8.8 points. Thim, with regam to the criterion .Oemonstration of Financial Stability,. VIVian Rodriguez, who left the meeting ear1y, gave Boucher Brothers a score of 6 and Penrod's a score of~. However, as indicated above, Ms. Rodriguez did not hear that both Boucher Brothers and Penrod gave the same answer to the question of whether each would commit $1,000,000 to the concession. If Boucher Brothers also received a 9, with a multiplier of 4.4, Boucher Brothers would have gained an additional 13.20 points. Although there are more examples, by looking at only three, the point difference between Boucher Brothers and Penrod's already narrows considerably. 5) The results ofthe scored evaluations were announced erroneously as -1st, 2nd & 3rd p1ace-, disregarding the more significant allocations of point totals based on weighted criteria. Overall point totals were calculated by adding the score attributable to each criterion and then multiplying each criterion's score by a multiplier based on that criterion's importance. Such overall point totals are the best barometer of the Committee's intentions. However, the City merely announced the number of first, second and third place votes that Penrod's and Boucher Brothers were given, which does nothing to communicate the fad that Boucher Brothers' point total was within five percent of Penrod's. Moreover, the Committee never contemplated a ranking based on 1st, 2nd & 3rd place votes. Proposers were to be ranked only by cumulative point totals. The result of the Administration's announcement was to create a misperception as to the margin between and among the evaluations. In light of all the concerns outlined above, we strongly urge the City Manager to examine personally all the proposals and the Selection Committee process, especially with regard to the concerns raised. We respectfully suggest that the City Manager recommend both Boucher Brothers and Penrod's to the City Commission, and that both proposers be brought in to make presentations before the City Commission. The presentations by the Construda and Relati:!d Housing groups in connedion with the 72nd Street RFP'sJ, the presentations by Wolfberg Alvarez and EDAW, and the presentations by URSlGreiner and A4 serve as precedent for such a procedure. 't:lJ ~y ~rswz-- ~chmes For the Finn cc: Boucher Brothers Miami Beach, LL.C. Raul Aguila, Esq., First Assistant City Attorney YJL-~3-2001 17:12 CME CITY MANAGERS OFFICE 305 673 7782 P.01/04 GEIWD K.. SCHwARTZ, ESQ. , BElOFF &: ScHwAR."Fz:: ^."' l f . "... . '7', ~ .'. , - J 1 ~... ATrORNEYsATLAW ... ..' ',.. t ~. :.;': !~; 01 JUL -3 PH I: 57 ll~~ROAD C' f ,. 1 ," "" l\.fJAMI BEAOf, Pl.ORIOA J3U9 t I ""'~',!...: I '.' ".""'I.'-,,I-.i':':L:.II :; OFFiCE ". l'ELEPHoNEPOS)673-1101 F ACSJMILE (305) 67J.ssos E'Mail~t""~~m July 3, 2001 HAND DELIVERY c: ,C/h.,c... ~a..,5' '11frL RIaL- , f) 1I/J'l/2A. . " . '.~ Mr. M1:IR'ay Dubbin, City Attorney City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33139 I' . ~f/lt.. , rn"';w ; Re: BeachfroDt Concession RFP No. 22.00/01 Dear Mr. Dubbin This office represents Penrod Brothers. Inc. (''Penrod''). This letter is in response to the letter of Alexander I. Tachmes on behalf of Boucher Brothers Miami Beach, L.L,C. (''Boucher'') to you of June 24, 2001 in regard to the above referenced matter. Mr. Tachmes listed five specific areas of objections. I will respond to each using the same numbering system. While I believe Mr. Tachmes should have addressed his letter to the City Manager, I too have addressed this to you and have copied the City Manager. I will address each of Mr. Tachmes' issues and show that they are without merit. It should be noted however, that the real issue to be considered is the bad faith e\fidenced by Boucher and their clear intent to UDdermine the selection process. As you will see, four of the five objections raised by Mr. Tachmes could have and should have been raised during the presentation process and prior to the final vote. BOucher intentionally failed to timely raise their objections and should not now be permitted to benefit from their self-serving actions. ' I. The Audit: The Audit of 2/22101 included all lbe beach concessionaires wilb the exception of Peurod's as slated in lbe audit. That audit was specifically requested by lbe Boucher's representatives at the pre-bid conference. It reflected that all of the beach concessionaires Were frotjJ time to time delinquent. Boucher could have easily requested lbe audit of Penrod upon the receipt of their COpy of that audit. They did not. They could have further raised that issue fullowing the presentations when all bidders were present. At the time of the Bid response the Penrod audit hl!li not been finalized and ;n :&ct the only copy that Penrod received Was clearly nun:ked "Draft" for their review and response. To our knowledge the "Draft" audit is still not finalized. ,. \. JUL~03-2001 17:13 CME CITY MANAGERS OFFICE 305 673 7782 P.02/04 Mr. Murray Dubbin, City Attorney City ofMianQ. Beach July 3, 2001 Page 2 The Penrod's Audit was consistent with the general beach audit, reflecting all parties from time to time delinquenl in pa)'lllenls, and as .pecifically slated in the audit. a lack on the pari of the City 10 belte< follow up with all concessionaires. 2. Bids Musl Confo!JQ to the Law: All bidders to the RFP responded in acconIance with lbe mslIUctions specifically given at lbe Pro-Bid Conference, Biddm Were instructed to "let their ~ go". All bidders DDderstood that the City, during the contracl oegotiatiOllS, would impose changes and restrictions on lbem, In fact, lbe Selection Committee agreed that lbe finaJ contract should include language that gave lbe City the right to make cbanges from time 10 time in lbe beach operation. If Boucher was concerned with the legality of the Penrod's presentation, they should have raised that issue to be resol"ed at the presentation. Boucher included the sale of alcohol on the beach which lbe Slale prohibils except by special license, and lbon only for a non-ptOfil organization. If there is a violation to he considered in lbe proposals, thaI, is obviOUSly a violation. We have no Objection to that suggestion and although we think lbe sale of alcohol on the beach Would be inappropriate, Penrod would follow the City'. decision on that issue. It should be DOled that alcohol has been sold behind various hotels that the Bouchers opOl1lte. A short walk along the beach behind the Boucher's hOlels will clearly show that BOUcher does and has violated numerous City regulations including the use of umbrellas with advertising and large unapproved Ilailers, Such violations Were nol raised by City staff or by Penrod at the presentation, as il was always Penrod'. intent until Mr. Taclones' lelte< to deal with a positive presentation. It should also be noled that Penrod has DO violations in its beach OPeration and il regularly adjusts its operation to comply wilb any request the City makes from time to time. 3. Committee Members Left Earll(: If Boucher bad any concern for the fiu:t that a Committee member left before the conclusion, Ibey should hav~ raised that objection at that time so it could have been addressed in a timely manner. The fiu:t that Penrod was consistently rated higher in the categoIy of "Prior History and Cunent OperatiOllS of Similar Size and Type" do.. DOt reflecl confusion, but ralher a total understanding of the question. The undeniable fiu:t is thaI only Penrod operates a public beach having 10 deal wilb the public, hotel. and their guests and Various promoters hosting special """"Is on the beach. The other bidders need only satist'y Ibe demands of one specific holel at a time and do not have to address the needs and the concerns of the public and the surrounding community. Nor do they have to change and mudiJY their operation for various special events and to work co-operativeJy wilb every ptOmoter to accommodate their specific needs and requirements. . 5UL-03r2001 17:13 CME CITY MANAGERS OFFICE 305 673 7782 P.03/04 Mr. M1lIIiIy Dubbin, City Attorney City ofMiatni Beach July 3, 2001 Page 3 To the question raised by Mr. Tacbmes "Are PODrOd's million dollars Dlore valuable than Boucher's?" The answer may be yes, based on 1be long history of credibility PODrOd bas working wilb Ibe City, and the fact that the Penrod's col)lOration includes substantial olber Miami Beach assets. It is alwa:ys easy to respond yes and another thing to produce when you Ill1ISl USe outside financing Or go tbmugb other investors to produce. 4. The Scoring Process: This ftivolous issue raised by Mr. Taclunes could be discussed endlessly and from any perspective the ''what ili;" are endless and should not be pan of any consideration. Six of the nine COIl1Ioittee members could DOl have all mode erron. in Penrod's favor, That line of thought ill totally irrational and is only :relied on by Mr. Tachmes because his claim lacks merit. 5. The Results of the llcoring: The last of Mr. Tacbmes' o~ectioos bas DO greater merit than his four previous o~ectiOJ1S. It is impossible; unless Ibe Bouchers violated the Code of Silence for Mr. Tacbmes to claim "the Committee never contemplated a l1Illking based on 1", 2'" and 3'" place votes. Either his statement is pure hopeful speculation or in fact there was a violation of Ibe City Code. The cmking used by Ibe Administzation Was always contemplated as was evident in 1be pre- presentation discussion and in Mr. BIlIstyn's early remario; during that discussion. Whether PODrOd was 5% or 500/0 ahead of Boucher in Ibe number ofpoiots is iueJevant Penrod was 1be high scorer On six of the nine ballots. A very convincing margin. PODrOd may have been only 5% ahead in total, but three of the nine ballots bad PODrOd ahead by 18.79%, 21.34% and 24.81 %. If we total Ibe percentage of those six selecting Penrod, they avemge 15.72%. Doing 1be sSllle calculation for Ibe three that did DOt select Penrod, they average 6.85%. It is obvious Ibot even if we play various number games as suggested by Mr. Tacluoes, PODrOd ill still the clear choice. There can be no comparison with other RFP's. The ultimate boll om line ill that Penrod was the convincing and overwhehoing selection of the COmmittee, 6 of 9 finlt place votes. Their decision should stand and the process should Dot be violated. The efforts of Tacbmes to question the oUlconie is understandable, but his logic for questioning 1be vote is lacking and tota11y SPeculative based neither on fact or meriL It do.. reflect, however, the true intent and motivation of Boucher. Thot intent and motivation was to uodennine 1be )>I'OCeSs if lbey were not lbe SUCCessful bidder by raising objections (that 1bey should in fact be deemed to have waiVed for failure to raise them in · timely llllIIIoer) in hop.. of creating suflicient COn1i1sion to bring Ibis before the City COIl1Ioission. We believe such action OD their pan to be self-serving and evidence of bad faith. gUL-0~2001 17:14 . CME CITY MANAGERS OFFICE 305 673 7782 P.04/04 Mr. Murray Dubbin, City Attomey Ciry of Miami Beach 1uly 3, 2001 Page 4 Virtually, every ground that Mr. Tachmes has raised was known to him and his client either prior to the presentation or prior to the vote. Items 1 through 4 as raised by Mr. Tachmes could have been addressed by the Committee or the staff prior to the vote. If Boucher was concerned with those issues, they should have raised them at the time. To raise the issues now is detrimental to Penrod, the Administratio~ the process and the Conunittee. This is the loser's effort to get another bite at the apple after they have had the opportunity to have, seen all of the presentations' and understand the ttUriking 'of the Committee. Boucher wDlfully and intentionally failed to timely raise the objections that they DOW assert in furtherance of their best interest Boucher is obviously acting and has acted ill bad faith and they shOuld Dot DOW be permitted to benefit from their own willful acts. The votes clearly reflect that the Committee fully understood their responsibility and the process. Their votes reflect the history, expertise and the superior plan and presentation made by Penrod. To now require the parties to present to the City. Conunission is totally inconsistent with the intent of the process and totally destroys the credibility of the process. We submit that the decision of the Committee should stand and Penrod should be the sole recommendation of the City Manager. Gerald K. Schwartz cc: Mr. Jorge Gonzalez. City Manager ~ Mr. Jack Penrod ":"' ,", ,.' : ,';l;W.l i(!ffjftCA! ALEXANDER I. T ACHl\1ES, EA. BANK OF AMERICA TOWER AT INTERNATIONAL P1AGE 100 S.E. 2ND STREET. SUITE 3920 MIAMI. FLORIDA 33 13 1 TELEPHONE: (305) 374-5343 FACSIMILE: (305) 374-9054 E-MAIL: AITACHMES@AOL.COM July 5, 2001 Murray Dubbin, Esq., City Attorney City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33139 RE: Beachfront Concession Request for Proposals No. 22-00/01 - Boucher Brothers Miami Beach, L.L.C. Dear Murray: As you know, this law firm represents Boucher Brothers Miami Beach, L.L.C. ("Boucher Brothers"), one of the bidders in connection with the above Request for Proposals (the "RFP"). Since our letter of June 24, 2001, we have had more time to examine the bid process. As a . follow-up to our earlier letter, we have set forth below additional points for your consideration. The items in this letter, together with those mentioned in our prior correspondence, conclusively demonstrate that serious irregularities in the bid procedure and inadequate guidance to the Selection Committee prevented the fair and even consideration of all bids. First, as we stated earlier, Penrod's bid does not conform with the City's Rules and Regulations. Although concessionaires are forbidden to plant trees or create walkways on the beach, Penrod's plan shows palm trees and an artificial walkway on the beach at its proposed concession. Penrod's proposes pavilions with tables,.chairs and shaded seating areas on the beach. Such pavilions and seating areas also are forbidden. In the past, the City has taken a firm position and required the removal of structures on the beach that the City considered not permitted by the Rules and Regulations. One example of such a firm stance was the City's demand that the Delano beach village be removed. The RFP indicates, in at least five (5) separate places, that bidders must comply with the City's Rules and Regulations. 1. Subsection I(O) of the RFP (p. 8) states: "0. RULES; REGULA nONS; LICENSING REQUIREMENTS Proposers are expected to be familiar with, and comply with, all Federal, State and Murray Dubbin, Esq., City Attorney City of Miami Beach July 5, 2001 Page 2 of5 local laws, ordinances, codes, and regulations that may in any way affect the services offered, including the Americans with Disabilities Act, Title VII of the Civil Rights Act, the EEOC Uniform Guidelines, and all EEO regulations and guidelines. Ignorance on the part of the Proposer will in no way relieve it from responsibility for compliance." 2. Subsection I(Y) of the RFP (p.ll) states: "Y. CODE OF BUSINESS ETHICS Pursuant to Resolution No. 2000-23879 each person or entity that seeks to do business with the City shall adopt a Code of Business Ethics ("Code'~) and submit that Code to the Procurement Division with your bid/response or within five days upon receipt of request. The Code shall, at a minimum, require your firm or you as a sole proprietor, to comply with all applicable gov.ernmental rules and regulations including, among others, the conflict of interest, lobbying and ethics provision [sic] of the City Code. " 3. Section II, Scope of Services, of the RFP (p. 13) states in relevant part: "The Proposer will be authorized to conduct the kind of businesses and to provide the kind of services in the Concession Areas, in accordance with the terms of a Concession Agreement to be negotiated between the City and the successful Proposer, and in accordance with the City of Miami Beach Rules and Regulations for Beachfront Concession Operations;..." 4. Each bidder was required to complete and sign an Acknowledgment of Addenda form. The form is contained at page 22 of the RFP. As indicated in paragraph 8 of Addendum No. 1 of the RFP, the Ru1es and Regulations were attached to that Addendum as Attachment (A). 5. As stated in the Addendum, each bidder was required to acknowledge that it received the Addendum and, thus, the Rules and Regulations. Page three (3) of . the Addendum states: "Proposers must acknowledge receipt of this addendum to be deemed responsive." (bold and underlined emphasis in original) Simply put, the RFP mandates compliance with law. Boucher Brothers' bid was designed to comply with the law and does so. To consider other bids that violate the law subjects different Murray Dubbin, Esq., City Attorney City of Miami Beach July 5, 2001 Page 3 of5 bidders to different requirements. Other proposers have submitted proposals that would be prevented by law from taking effect. In this scenario, there is no "level playing field." Second, Penrod's bid does not comply with the RFP because Penrod's failed to disclose at least one pending lawsuit in which it is involved. Section III of the RFP (p. 14) requires the disclosure of all pending lawsuits. Penrod's bid failed to disclose a lawsuit, styled Gladstone v. Penrod Brothers Inc., Miami-Dade County Circuit Court Case No. 99-007500. Third, Penrod's gross revenue calculation includes projected revenue (with remuneration to the City as a result thereof) from water sport operations and skate and bike rentals, which are exceptions to the RFP's scope of services. This gross revenue calculation is confirmed by both the video and audio recordings of the Selection Committee proceedings. Section II of the RFP, entitled "Scope of Services," does not list water sport operations or skate and bike rentals as permitted services to be offered in connection with the RFP. Section I(K) of the RFP (p. 7) states as follows: "Proposers must clearly indicate any exceptions they wish to take to any of the terms in this RFP, and outline what alternative is being offered. The City, at its sole and absolute discretion, may accept or reject the exceptions." Boucher Brothers offers water sports and skate and bike rentals as exceptions and clearly indicates the exceptions as a line item in its projections and in its "Remuneration Schedule," which is included in its response and presentation. Penrod's, however, adds projected water sport and bike and skate rental revenue to its gross revenue projection, without clearly indicating by a line item that such total projection is based on exceptions to the scope of services. Thus, there was no fair comparison of Boucher Brothers' and Penrod's remuneration amounts because of the failure of Penrod's to show clearly water sports revenue and bike and skate reIital revenue as exceptions. Fourth, the bid process did not allow sufficient time for the proper consideration of all information. Committee member Dr. Morris Sunshine made a motion to continue the deliberations until the following day in order to have adequate time to consider all of the information. Dr. Sunshine stated at 1:49:35 P.M.: I don't think with an issue of this size that it may be feasible for this board or committee to reach final conclusions today. For example, every one of these presenters, at the last minute, just before they talk, has delivered materials - some of which contain heavy financial stuff that I've not seen before. And this is - the beach is the center of the City - and I'm not sure that I want to go ahead; and I hope people will join me in this. In feeling compelled to make a decision today, one of our members - and I'm not sure she's the only person - is going to be leaving - soon! - will not hear the questions we're going to be putting in the .. J . Murray Dubbin, Esq., City Attorney City of Miami Beach July 5, 2001 Page 4 of5 post-question period - will not be available in our deliberations. I think, if I understand her - she intends to submit her form before she leaves without the benefit of discussing her reactions with us. So we're deprived as well. Therefore, I'd like to put on the table, at least for discussion, that we come back for another short meeting.. .. It is clear that, to date, the Administration's evaluation process relating to the RFP has not treated all bidders equally. Boucher Brothers has been hurt by such unfair treatment because, among other things, bidders have been evaluated using different standards. All bids should be required to comply with law. In.view of the lack of compliance by Penrod's with the RFP's requirements, Penrod's bid should be disqualified for being non-responsive and non-responsible. Based on the points raised in this letter and in our prior letter, we believe the City Manager should not adopt the recommendation of the Committee and should instead recommend that the contract be awarded to Boucher Brothers. If all bidders were treated the same and bidding irregularities did not exist, we believe the Committee would have given Boucher Brothers the highest score. For example, the Committee was not informed of violations contained in Penrod's bid and was not instructed to disregard the matters which were violations of the Rules and .. Regulations. The Committee did not have adequate time to evaluate the bids and, as stated in our prior letter, did not have the benefit of knowing the results of the City's most recent audit of Penrod's. Among other things, the.audit found that, contrary to Penrod's agreement with the City, Penrod's did not subnut to'the City annual statements of gross receipts certified as true, accurate and complete by a Certified Public Accountant. (This matter alone likely would have led to substantially different scores for the evaluation criterion entitled "Prior History and Experience.") In addition, two (2) members of the Committee had to leave the meeting before it concluded and did not hear all of the information in the question and answer periods or the deliberations. At the very least, Boucher Brothers and Penrod's should both be deemed "qualified bidders." In that event, the City should schedule a re-hearing of the full presentations before the Mayor and City Commission and provide proper guidance and evaluation of facts and figures for use during . such deliberations. We appreciate your consideration. Very truly yours, ~~ For the Firm Murray Dubbin, Esq., City Attorney City of Miami Beach July 5, 2001 Page 5 of5 cc: Boucher Brothers Miami Beach, L.L.C. Raul Aguila, Esq., First Assistant City Attorney CY i7!))Jf3 ,Z<UlI l"fittce ALEXANDER I. T ACHMES, EA. BANK OF AMERICA TOWER AT INTERNATIONAL PLACE 100 S.E. 2ND STREET. SUITE 3920 MIAMI. FLORIDA 33 I 3 I TELEPHONE: (305) 374-5343 FACSIMILE: (305) 374-9054 E-MAIL: AITACHMES@AOL.COM July 6,2001 c> o <- C r- , 0') -u :J:l: ~ c.n w lor ~ I Mr. Murray Dubbin, City Attorney City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33139 C') -, -n -:' ..... -., -'c. ~ C-) .~._ fTiE: c '-c",," Re: Beachfront Concession RFP No. 22-00/01 Dear Murray: I have received a copy ofa letter dated July 3, 2001, to you from Gerald K. Schwartz regarding the above captioned matter. Mr. Schwartz' letter to you about . the Beachfront Concession RFP process is obfuscatory and replete with error. Incidentally, this letter, like the prior two (2), is addressed to you because proper practice is to direct correspondence to the recipient's counsel, when such party is represented by counsel. First, name calling and making various allegations of bad faith on the part of my client is not in anyone's interest, and surely is not in the interest of the citizens of Miami Beach. I assure you that Boucher Brothers Miami Beach, L.L.C. ("Boucher Brothers") is interested only in a fair and open competition to provide responsible and responsive beachfront concessions to citizens and visitors in accordance with applicable law. Whether the objections I raised in my letters to you could have or should have been raised by the Boucher Brothers during the presentation process and prior to the final vote is irrelevant. The RFP specifically provides that objections to the bidding process may be made as late as five (5) days after contract award by the City Commission. Accordingly, our objections are well within the RFP's time parameters. Moreover, the bid submitted by Penrod's is either in compliance with local, State and Federal law or it is not. The process either has integrity or it does not. It is not self serving, as Mr. Schwartz complains, to point out errors in a public review process. On the contrary, it is quite in the public interest to ensure that the review process with respect to any government contract be conducted on a level playing field. With respect to Mr. Schwartz' comments about the Penrod audit still being in draft form, he should know that the audit was final by the time the Mr. Murray Dubbin, City Attorney City of Miami Beach July 6, 2001 Page 2 of3 evaluation committee met, and that it was highly relevant to the evaluation criteria being considered by the committee. Whether requested or not by committee members or anyone else associated with administering this process, the evaluation committee should have been informed that an audit had recently been completed concerning the incumbent Penrod's and its findings should have been distributed. To complain now about the timing of when the audit should have been requested is a classic form over substance objection. Mr. Schwartz states in his letter that all bidders responded in accordance with the instructions specifically given at the Pre-Bid Conference. He goes on to state that if Boucher was concerned with the legality of the Penrod presentation, he should have raised that issue at the presentation. Again, Mr. Schwartz misses the point. Proposers of government services are not lawyers charged with the responsibility of monitoring and administering a public review process. City administration is charged with this responsibility. The RFP and its addenda made clear that all proposals must comply with Beachfront Rules & Regulations and other applicable law. The proposals should have been analyzed by staff prior to the meeting and the members of the evaluation committee should have been briefed on the propriety and legality of each proposer's proposal. To now claim that the City would later fix the proposal submitted by the successful bidder during contract negotiations is ludicrous. Making such changes to a bid after it is submitted is contrary to law. In practical terms, that would mean that the successful proposer whose bid was illegal could later adopt the unsuccessful bidder's legal proposal during final contract negotiations. No public bidder should realistically claim that a proposal would be acceptable whether or not it complies with the law, particularly in a case where the public rules and regulations were made a part of the bid package (as was the case here). I should also point out that Mr. Schwartz' reference to serving alcohol at the hotels served by Boucher is irrelevant to this process. However, it should be noted that the Boucher team does not serve alcohol anywhere. Given the above points, any reference to scoring in Mr. Schwartz' letter is also irrelevant, although I am pleased to point out that even with the discrepancies in the evaluation process the difference in raw scores between Boucher and Penrod was minimal. Scoring can be based only on an evaluator's understanding of a legal and proper proposal. The evaluators of the beach concession proposals were not properly infomied and guided and thus their Mr. Murray Dubbin, City Attorney City of Miami Beach July 6, 2001 Page 3 of3 scores are meaningless. Accordingly, the credibility of the process demands a second look at the proposals from Boucher and Penrod by the Commission. Both proposals should be evaluated on the bases of law and propriety. To do otherwise would not be in the best interest of the public. Very truly yours, Alexander I. Tachmes For the Firm CITY OF MIAMI BEACH CITY HALL 1700 CONVENTION CENTER DRIVE MIAMI BEACH, FLORIDA 33139 www.ci.miami-beach.f1.us COMMISSION MEMORANDUM To: Mayor Neisen O. Kasdin and Members of the City Commission Date: July 18, 2001 From: Jorge M. Gonzalez ~ . ~ City Manager ~ 0 R71 - SUPPLE ME TAL INFORMATION/FINANCIAL ANALYSIS Subject: Attached, as supplemental information, is a financial analysis of the return to the City as proposed by the three (3) different respondents to the Beachfront Concession RFP. The attached chart breaks out each Proposer's offer to the City which is summarized as follows: Boucher Brothers: Boucher offered: -Minimum of$412,500, escalated annually by 5% up to year five (5), or 20% of equipment rentals and 15% of food and Beverage sales, whichever is greater. Additionally, if permitted, the Boucher Brothers proposed to pay additional rental, over and above the minimum, to the City consisting of: 20% of waters port rentals 20% of bike and skate rentals 15% of alcohol sales Boucher also proposed that the percentage offered on food/beverage and alcohol sales would increase from 15% up to a maximum of25% of these sales based on 1 % increase for every $250,000 of incremental sales above the $750,000 threshold. Penrod Brothers: Penrod offered: - Minimum of $400,000 or 20% of gross sales, whichever is greater. Playtime Watersport: Playtime offered: - Minimum of $480,000 or 20% of gross sales, whichever is greater. The attached analysis indicates that on a "minimum guarantee basis", Playtime offers the highest guaranteed return, at $480,000; Boucher Brothers offered $412,500/year one, $433, 125/year two, $454,7811year three, $477,521/year four, and $501,396/year five, for an average guaranteed annual return of $455,865 over the first five years; and Penrod offers the lowest annual guaranteed return of$400,000/year. July 18,2001 Commission Memorandum R71 - Financial Analysis Page 2 of2 If sales exceeded the guaranteed minimum, from a percentage perspective, Playtime and Penrod offered a straight 20% return on all gross sales while Boucher Brothers offered 20% return on rentals only and 15% (with a subsequent staggered increase once sales exceed $750,000) on food and beverage sales. To illustrate the differences in the proposals, and based on historical revenue information provided by the current concessionaire (penrod), attached please find three (3) different scenarios based on the following assumptions: (Scenario 1 assumptions reflect the actual gross revenues reported in FY 2000 which totaled $1,610,184 and were comprised of $501,630 in food and beverage sales and $1,108,554 in rental revenue. FY 2001 numbers to date reflect comparable revenue levels). Scenario 1: Assumption: Annual gross revenue on rentals: .........................$1,108,554 Annual gross revenues on food and beverage: .......$501,630 Return: Boucher ..... ...... ...... .................. ...... ...... ..... ............. ..$412,500 Penrod. ....... ...... ...... ...... ...... ...... ...... ... ...... ....... ........ .$400,000 Playtime................................................................. .$480,000 Scenario 2: Assumption: Annual gross revenues on rentals: .......................$2,000,000 Annual gross revenues on food and beverage:........$500,000 Return: Boucher.................................................................. .$475,000 Penrod. ...... ...... ...... ...... ...... ...... ...... ...... ..... ..... ..... ... ..$500,000 Playtime................................................................. .$500,000 Scenario 3: Assumption: Annual gross revenues on rentals: .......................$2,000,000 Annual gross revenues on food and beverage:.....$I,OOO,OOO Return: Boucher.................................................................. .$5 52,500 Penrod.................................................................... .$600,000 Playtime................................................................. .$600,000 Based on Scenario 1, Playtime would offer the highest return to the City, due to their higher minimum guaranteed amount, and Boucher and Penrod would be ranked second and third, respectively. 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