Agreement w/ Tim Wilcox, Inc. 5 lU1 0 aom - a73 ei
Tim Wilcox, Inc.
Concession
Agreement
for
21 & 46 Streets
INDEX
SECTION • TITLE PAGE
1. - TERM 5
2. CONCESSION AREA(S) 5
' 2.1 21 Street Concession Area 5
• 2.2 46 Street Concession Area 6
2.6 Buffer Zones 8
3. USE(S) 8
3.1 Beachfront Concession Area(s) / Rental of Beach Equipment 8
3.2 Food and Beverage Service 11
3.3 Sale of Beach Related Sundries 12
3.5 Storage of Concession Facilities /Equipment 12
3.6 Hurricane Evacuation Plan 13
3.7 Sea Turtles 13
3.8 , City Occupational Licenses 14
4. CONCESSION FEES 14
4.1 Minimum Guarantee 14
4.2 Percentage of Gross (PG) vs. MG 14
4.3 Interest for Late Payment 14
4.4 Sales and Use Tax ' 15
5. MAINTENANCE AND EXAMINATION OF R ECORDS 15
6. INSPECTION AND AUDIT 15
7. TAXES, ASSESSMENTS, AND UTILITIES 16
7.2 . Procedure if Ad Valorem Taxes Assessed 16
8. EMPLOYEES AND INDEPENDENT CONTRACTORS 17
9. HOURS OF OPERATION 17
-10. IMPROVEMENT, MAINTENANCE, REPAIR and OPERATION 18
10.1 Improvements 18
10.2 Garbage Receptacles 19
10.3 Maintenance /Repair 19
• 10.4 Orderly Operation 20
10.5 No Dangerous Materials 20
10.6 Security 21
10.7 Vehicles on the Beach - 21
10.8 Inspection 22
11. INSURANCE 22
- 12. INDEMNITY 23
12.4 Subrogation 24
12.5 Force Majeure 24
12.6 Labor Dispute - 24
12.7 Waiver of Loss from Hazards 24
13. DEFAULT AND TERMINATION 25
13.1 Bankruptcy 25
' 13.2 Default in Payment 25 -
13.3 Non- Monetary Default 25
13.4 City's Remedies for Concessionaire's Default 26
13.6 Termination for Convenience /Partial Termination 26
13:7 Surrender of Concession Areas 27
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•
SECTION TITLE PAGE
14. SECURITY DEPOSIT 27
15. ASSIGNMENT 28
16. SPECIAL EVENTS / SPONSORSHIPS 29
• 16.2 City Special Events 30
16.4 Sponsorships 30
17. NO IMPROPER USE 30
18. PRICE SCHEDULES 30
19:. NOTICES 32
20. LAWS 32
20.1 • Compliance - 32 •
. 20.3 Equal Employment Opportunity 33
20.4 No Discrimination 33
• 21. MISCELLANEOUS 33
. .'21.1 No Partnership 33
21.2 Modifications 33
21.3 - •
Complete Agreement 33
21.4 Headings 33
21.5 Binding Effect 34
• 21.6 Clauses 34
21.7 Severability 34
21.8 Right of Entry 34
21.9 Not a Lease 34
21.10 Signage 34
21.11 Use of Beach 34
21.12 Conflict of Interest 35
21.14 Procedure for Approvals and /or Consents 35
21.15 No Waiver 35
21.16 No Third Party Beneficiary 35
22. LIMITATION OF LIABILITY 36
23. VENUE 36
EXHIBITS
Exhibit 2.1 (a) 37
Exhibit 2.1 (b) 38
Exhibit 2.2 (a) 39
Exhibit 2.2 (b) 40
Exhibit 3.1 41
Exhibit 3.1.1 42
Exhibit 3.1.2 43
Exhibit 3.2.1 44
Exhibit 3.3 46
Exhibit 3.5.1 47
Exhibit 3.6 48
Exhibit 6 49
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CONCESSION AGREEMENT BETWEEN
CITY OF MIAMI BEACH, FLORIDA AND
TIM WILCOX, INC.
•
FOR MANAGEMENT AND OPERATION OF CONCESSIONS
AT 21 AND 46 STREETS
PURSUANT TO REQUEST FOR PROPOSALS NO. 39-05/06
THIS AGREEMENT made on/Mtn/berg, 2010, between the CITY OF MIAMI BEACH, a
municipal corporation of the State of Florida (hereinafter called "City "), having its principal
address at 1700 Convention Center Drive, Miami Beach, Florida, 33139, and TIM
WILCOX, INC., a Florida corporation, with offices at 4299 Collins Avenue, Miami, Florida,
33140 (hereinafter called "Concessionaire ").
WITNESSETH
WHEREAS, on October 14, 2009, the City Commission authorized the issuance of a
Request for Proposals (RFP) to solicit proposals for the management and operation of
concession stands and beachfront concessions, located east of Collins Avenue at 21
Street and 46 Street, respectively; and
WHEREAS, RFP No. 05 -09 -10 was issued on October 20, 1010, and proposals were sent
or provided to over eighty -five (85) firms and concessionaires; and
WHEREAS, on May 12, 2010, the City Commission adopted Resolution No. 2010 - 27391,
accepting the recommendation of the City Manager pertaining to the ranking of firms;
authorized the Administration to enter into negotiations with the top- ranked firm of Tim
Wilcox, Inc.; and further authorized the Mayor and City Clerk to execute an agreement
upon completion of successful negotiations by the Administration; and
WHEREAS, accordingly, the City and Concessionaire have negotiated the following
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Agreement for the management and operation of concessions at 21 st Street and 46
Street, respectively.
NOW THEREFORE, in .consideration of the premises and the mutual covenants and
conditions herein contained and other good and valuable consideration, the receipt and
adequacy of which are hereby conclusively acknowledged, it is agreed by the parties
hereto as follows:
The City hereby grants to the Concessionaire, and the Concessionaire hereby accepts
from the City, the exclusive right to operate the following described concession within the
Concession Areas, as defined below, 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.
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SECTION 1. TERM.
1.1 This Agreement shall be for an initial term of two (2) years, commencing on November
1,.2010.(the "Commencement Date "), and ending on October 31, 2012. For purposes
of this Agreement, a "contract year" shall be defined as that certain one (1) year period
commencing on the November 1 and ending on the October 31
1.2 Provided that the Concessionaire is not in default under this Agreement, and,
further, at the City's sole discretion, commencing upon written notice from
Concessionaire to the City, which notice shall be given in the second contract
year of the initial term, and then no later than ninety (90) days prior to
expiration of said term, (or prior to the expiration of any renewal term, as the
case may be) the City may extend the term of this Agreement, upon the
same terms and conditions, for three (3) individual one (1) year terms.
1.3 Any such renewal may be conditioned upon a requirement that
Concessionaire purchase new equipment (subject to the prior written
approval of the City) for the renewal term. Concessionaire shall deliver to the
City Manager, at least ninety (90) days prior to the expiration of the initial
term or a renewal term, as the case may be: (i) a schedule of any equipment
which was replaced during the term; and (ii) an itemized list of proposed
replacement equipment.
SECTION 2. CONCESSION AREA(S).
The City hereby grants to Concessionaire the right, during the Term of this Agreement, to
- operate a concession as described herein in the following area(s) (hereinafter referred to
individually as a "Concession Area" or collectively as the "Concession Areas "):
2.1 21 Street Concession Area.
a. Concession Building:
This Concession Area is limited to the concession stand building, as
further delineated in Exhibit 2.1 (a).
b. Beachfront Concession Area:
This. Concession Area is located on the beach in the area generally
bounded on the south by a line beginning at the intersection of the
easterly extension of the northernmost line of the 21 Street right -of-
way (ROW) and the Erosion Control Line (ECL) thence extending
easterly to the shore and perpendicular to the ECL; bounded on the
north by a line beginning at the intersection of the extension of the
southernmost line of the 22 Street ROW thence extending easterly
to the shore and perpendicular to the ECL; bounded on the west by a
line running along the trash receptacles, as placed by Miami Dade
County or fifty (50) feet east from the easternmost edge of the Dune,
whichever is furthest east; and bounded on the east either by a line
sixty (60) feet west of the Mean High Water Line (MHWL) or by a line
parallel to the shoreline and five (5) feet west of the westernmost
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lifeguard stand, but never within the lifeguard's line of site of the
shoreline, in this Concession Area, whichever is further east; all as
further delineated in Exhibit 2.1 (b).
2.1.1 Lifeguard Facility Zone:
Concessionaire shall not use or deploy any equipment and /or facilities
on or within those portions of the beach where lifeguard
facilities /stands are currently located, or may be located in the future,
including the area extending from the easternmost foot of the Dune to
the shoreline and bounded by a line twenty five (25) feet north of the
lifeguard stand(s) and bounded by a line twenty five (25) feet to the
south of such stand(s).
. 2.1.2 Southern Handicap Zone:
With regard to the area bounded to the north by a line twenty five (25)
feet north of the southern boundary of the Beachfront Concession
Area (in Subsection 2.1 (b)), 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,
respectively, Concessionaire shall not deploy any equipment, unless
specifically requested by a handicapped patron.
2.1.3 Northern Handicap Zone:
With regard to the area bounded to the south by a. line seventy three
(73) feet south of the northern boundary of the Beachfront
Concession Area (in Subsection 2.1 (b)), 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, respectively, Concessionaire shall not deploy any equipment,
unless specifically requested by a handicapped patron.
2.2 - 46th Street Concession Area.
a. Concession Building:
This Concession Area is limited to the concession stand building
located east of the easternmost line of the public right -of -way, as
further delineated in Exhibit 2.2 (a).
b. Beachfront Concession Area
This Concession Area is located on the beach in the area generally
bounded on the south by a line beginning at the intersection of the
easterly extension of the northernmost line of Lot 6, as recorded in
Miami Dade County plat book 8, page 61., and the ECL thence
extending easterly to the shoreline and perpendicular to the ECL;
bounded on the north by a line beginning at the intersection of the
easterly extension of the northernmost line of Lot 12, as recorded in
Miami Dade County plat book 8, page 61, and the ECL thence
extending easterly to the shoreline and perpendicular to the ECL;
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bounded on the west by a line running along the trash receptacles, as
placed by Miami Dade County or fifty (50) feet east from the
easternmost edge of the Dune, whichever is furthest east; and
bounded on the east either by a Tine sixty (60) feet west of the Mean
High Water Line (MHWL) or by a line parallel to the shoreline and five
(5) feet west of the westernmost lifeguard stand, but never within the
lifeguard's line of site of the shoreline, in this Concession Area,
whichever is further east; all as further delineated in Exhibit 2.2 (b).
2.2.1 Lifeguard Facility Zone:
Concessionaire shall not use or deploy any equipment and /or facilities
on or within those portions of the beach where lifeguard
facilities /stands are currently located, or may be located in the future,
including the area extending from the easternmost foot of the Dune to
the shoreline and bounded by a line twenty five (25) feet north of the -
lifeguard stand(s) and bounded by a line twenty five (25) feet to the
south of such stand(s).
2.2.2 Southern Handicap Zone:
With regard to the area bounded to the north by a line twenty five (25)
feet north of the southern boundary of the Beachfront Concession
Area (in Subsection 2.2 (b)), 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,
respectively, Concessionaire shall not deploy any equipment, unless
specifically requested by a handicapped patron.
2.2.3 Northern Handicap Zone:
With regard to the area bounded to the south by a line seventy three
(733) feet south of the northern boundary of the Beachfront
Concession Area (in Subsection 2.2 (b)), 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, respectively, Concessionaire shall not deploy any equipment,
unless specifically requested by a handicapped patron.
2.3 Intentionally Omitted.
2A Notwithstanding the Concession Area(s) granted to Concessionaire,
Concessionaire hereby understands, agrees, and acknowledges that said
aforestated Concession Area(s), along with any and all other public
beachfront area(s) and /or public facilities not specifically identified herein, are
public and, as such, must remain available for the use and enjoyment of the
general public, whether or not the public chooses to use any of
Concessionaire's 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, as set forth herein, Concessionaire agrees to
allow for his /her continued peaceful enjoyment of said Area. Notwithstanding
the preceding, Concessionaire may designate areas within Concession Area
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buildings for food and beverage service and /or storage which shall not be
open to and /or accessible to the general public (e.g. such as kitchen areas,
pantries, storage closets, etc.).
Concessionaire shall at all times use reasonable efforts to strive to maintain
an equitable ( "equitable" to be determined by the City, in its reasonable
judgment and discretion) amount of beach frontage within the beachfront
Concession Areas free and clear of Concessionaire facilities and beach
equipment, so that such portion of the beach may remain free and clear for
the public's use and enjoyment.
2.5 City and Concessionaire acknowledge that the buffer zones around the
lifeguard stands /facilities referenced above shall not apply to other areas of
the beach (i.e. non- Concession Areas) in which the upland owner is a private
entity, unless the City's Rules and Regulations for Beachfront Concessions
(as same may be amended from time to time), explicitly so provide.
Notwithstanding the preceding sentence, the provisions of this subsection
shall in no way be deemed or otherwise construed as a waiver on the part of
the City of its Rules and Regulations for Beachfront Concessions.
2.6 Buffer Zones:
City and Concessionaire acknowledge that there are certain areas within the
21 Street & 46 Street Concession Areas, respectively, that either lie
outside of the respective Concession Areas, or in which Concessionaire's
use is limited and /or restricted, including Lifeguard Facility Zones (defined in
Sections 2.1.1 and 2.2.1), Handicap Zones (defined in Sections 2.1.2, 2.1.3,
2.2.2 and 2.2.3), and other zones which were designed to facilitate public
access to the beach, ocean and shoreline, and create buffer zones between
Concession Areas and lifeguard facilities.
. SECTION 3. USE(S).
The Concessionaire is hereby authorized to conduct the following kind(s) of businesses
and provide the following kind(s) of services within the Concession Area(s), as provided
below, all at its sole cost and expense:
3.1 Beachfront Concession Area(s) / Rental of Beach Equipment.
This shall generally include the rental of chairs, pads, umbrellas and sun
canopies. The City hereby approves the rental of the aforestated types(s) of
beach equipment and the prices for same, all as more specifically 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 designee prior to such
changes being implemented within the Concession Area(s); and, in that
event, a new updated Exhibit 3.1 will be incorporated into this Agreement.
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3.1.1 The design, type, material, and color of any and all beach equipment,
as defined above, shall also be approved in writing by the City's
Planning Department prior to the Commencement Date of this
Agreement. A photo or photo(s) of such City- approved beach
equipment is incorporated herein as Exhibit 3.1.1.. Thereafter,
Concessionaire shall not change, alter, or modify the design, type,
material and color of any such City - approved beach equipment
without further obtaining the prior written consent of the City Manager
or his /her designee and, if so approved, an updated Exhibit 3.1.1 will
be made a part of and incorporated into this Agreement.
3.1.2 With regard to an individual Beachfront Concession Area, all
respective beach equipment within that Area shall be placed
substantially in accordance with the attached City- approved site •
plan(s), as set forth, by designated Area, in Exhibit(s) 3.1.2, attached
hereto and incorporated herein. Concessionaire shall not deviate from
or alter the approved site plan(s) without the prior written consent of
the City Manager or his /her designee.
3.1.3 The set up of beach equipment to be placed within a Beachfront
Concession Area, (substantially in accordance with the site plan(s)
approved pursuant to Exhibit(s) 3.1.2), shall be permitted daily before
10:OOAM, or as soon thereafter in the event of inclement weather (i.e.
as soon as weather permits) (the "Set Up Period "); during which time
Concessionaire shall be permitted to set up to the maximum number
of beach equipment allowable for that particular area, as enumerated
in the approved site plans. In addition to conformance with the
approved site plan(s), daily placement of beach equipment for the Set
Up Period shall be in accordance with and shall not exceed the
maximum numbers, per Area.
3.1.4 The parties hereby 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 be permitted; provided that, in the aggregate,
Concessionaire does not materially alter, or allow to be materially
{ altered, the configuration of a particular Concession Area, as set forth
in the approved site plan(s) pursuant to Exhibit(s) 3.1.2, and /or an
adjacent "Buffer Zone ". In the event of this occurrence,
Concessionaire shall immediately correct any material alteration
within a Concession Area to bring same back into substantial
conformance with the approved site plan(s).
Notwithstanding anything in this Subsection 3.1.4, the City's Beach
Patrol shall at all times have the 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
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performance of Beach Patrol activities. Concessionaire will cooperate
with Beach Patrol to ensure such compliance.
3.1.5 The City and Concessionaire hereby agree and acknowledge that the
public's use of the beach is a prime consideration and must be
balanced accordingly 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 site plan(s) and maximum numbers (as provided
for in Exhibit(s) 3.1.2), Concessionaire further agrees • that,
notwithstanding its right to set up its maximum numbers during the
Set Up Period, Concessionaire shall endeavor to remove from the
particular area any number of vacant beach equipment not being
rented that equates to the difference between such percentage of
vacant equipment and twenty -five percent (25 %) of such equipment
as described above.
3.1.6 The condition and quality of Concessionaire's concession equipment
shall at all times be maintained in a manner that is consistent with the
condition and quality of beach equipment found in first class
concessions located on public beaches in world class beach resorts
comparable to 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 public
beach concession facilities in world class resorts comparable to Miami
Beach. Accordingly, Concessionaire shall not only, at a minimum,
maintain all beach equipment placed within the Concession Areas in
usable condition, but shall adhere, as indicated in this subsection, to
the highest ongoing maintenance standards for same.
Following the Commencement Date of this Agreement, the City may,
at its option, request that Concessionaire provide it with a full
inventory of all beachfront concession equipment contemplated for
use herein, including types and numbers (per item); dates of lease
and /or purchase; and initial condition, established as of the date of
inventory. Thereafter, City and Concessionaire shall jointly prepare a
plan and schedule for the ongoing replacement and /or updating of
beachfront concession equipment throughout the Term of this
Agreement.
3.1.7 City and Concessionaire hereby acknowledge that the buffer zones
around the lifeguard stands /facilities and the Handicap Zones,
referenced herein, shall not apply to other areas of the beach (i.e.
non- Concession Areas) in which the upland owner is a private entity,
unless the City's Rules and Regulations for Beachfront Concessions
(as same may be amended from time to time,) explicitly so provide.
Notwithstanding the preceding, the provisions of this subsection shall
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in no way be deemed or construed as a waiver on the part of the City
of its Rules and Regulations for Beachfront Concessions.
3.2 Food and Beverage Service.
3.2.1 Concessionaire shall prepare, or cause to be prepared, for sale within
and from the Concession Buildings located at 21 Street and 46
Street, respectively, and as delineated in Exhibits 2.1 (a) and 2.2 (a)
herein, cooked, prepared, and /or pre - packaged foods and non -
alcoholic beverages, as set forth in Exhibit 3.2.1. The City hereby
approves the types of food and beverages, and prices for same, as
set forth in Exhibit 3.2.1. Any amendments to Exhibit 3.2.1, 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 a new updated Exhibit 3.2.1 will be
incorporated into this Agreement.
3.2.2 Intentionally Omitted.
3.2.3 All food and beverages sold within the Concession Areas will be
prepared using only the equipment and /or methodology approved by
the City and shall, further, be properly prepared and served in
compliance with all applicable health and sanitary standards, laws and
regulations.
3.2.4 The quality of food, beverages, and food and beverage service
offered will be first -rate and comparable to that available at public
beach concessions at world class beach resorts on par with the City
of Miami Beach and, at a minimum, comparable to the quality of food,
beverages, and service provided by concessionaires behind privately
owned hotels within the City of Miami Beach.
3.2.5 In addition to Concessionaire's general maintenance obligations for
the Concession Areas, as set forth in Section 10 hereof, the
Concession buildings, any beachfront dispensing /storage facilities,
and the immediately surrounding twenty five (25) foot adjacent areas,
shall at all times be maintained in a clean and sanitary manner. At
least one (1) supervisory employee must possess a Food Service
Management Certification issued by a County Public Health
Department in Florida. In addition, each Concession building (and, if
deemed required, each dispensing facility) must be licensed by the
Florida Department of Business Regulation, Division of Hotels and
Restaurants; and /or the Department of Agriculture; and /or as may
further be required by State law or by corresponding agencies.
3.2.6 Food and beverage services shall be offered daily to patrons at all -
times during the Concession Area(s) hours of operation, as set forth
in Section 9 herein; provided that if Concessionaire can show, to the
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City Manager, or his /her designee's, reasonable satisfaction, that if
either an increase or decrease in demand for such service exists in
one or all of the Concession Areas then, in that event, following
Concessionaire's obtaining the City Manager, or his /her designee's,
prior written consent, Concessionaire shall be allowed to increase or
decrease its hours of operation accordingly. -
3.3 Sale of Beach Related Sundries.
- This shall generally include the sale of those sundry items identified in
Exhibit 3.3, substantially in accordance with the price ranges set forth
therein. Any amendments to Exhibit 3.3, 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 within the
Concession Area(s); and , in event of such approved, a new updated Exhibit
3.3 will be incorporated into this Agreement.
3.4 Intentionally Omitted.
3.5 Storage of Concession Facilities /Equipment.
3.5.1 The design, materials, color, signage, etc. of any structure or facility
to dispense services from the Concession Areas, and /or for storage of
beachfront concession equipment, other than the existing Concession
Buildings identified in Sections 2.1 and 2.2, must obtain City Design
Review approval prior to Commencement of operations. Such
approved facilities shall be incorporated herein as Exhibit 3.5.1. The
location of same must be approved by the City Manager or his /her
designee, and shall be designated within Concessionaire's proposed
site plan(s), (as referenced in Exhibit 3.1.2). Concessionaire shall not
deviate from or change the type, design and /or location of its
• proposed beachfront concession dispensing /storage facilities without
the prior written consent of the City Manager or his /her designee.
3.5.2 Prior to the Commencement Date of this Agreement, Concessionaire
shall provide the City Manager or his /her designee with a written plan
for storage . and removal of Concessionaire's Concession equipment
and dispensing facilities, for the Manager or his /her designee's
approval. This shall include the use of any dispensing and /or storage
facilities contemplated in Subsection 3.5.1 above. The aforestated
shall comply with the City's Rules and Regulations for Beachfront
Concession Operations, as well as any subsequent amendment(s)
thereto.
3.6 Hurricane Evacuation Plan.
Concessionaire agrees that all` its beachfront concession storage and
dispensing facilities, beach equipment, and any and all other equipment or
other items used in the concession operations, will be removed from the
Concession Areas immediately within eight (8) hours of the issuance of a
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Hurricane Warning by the Miami -Dade County Office of Emergency
Management, and stored at an approved, private, off-site location. Prior to
the Commencement Date of this Agreement, 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 document satisfactory to the City Manager and /or his /her designee) of
a proposed hurricane storage facility; both of which shall be referenced in
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 sixty five (65) days prior 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 are 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.
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, and dune topography and vegetation is
prohibited.
3.8 • • City Business Tax Receipts.
Concessionaire shall obtain, at its sole cost and expense, any City required
business tax receipts (formerly referred to as occupational licenses), as
necessary, for the proposed uses contemplated in Section 3 of the
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Agreement. To the extent required by City law, a business tax receipt shall
be obtained for each proposed use within a particular Concession Area (e.g.
{ For example, for the 21 Street Concession Area, Concessionaire would be
required to obtain three (3) business tax receipts for: (i) Rental of Beach
Equipment; (ii) Food and Beverage Service; (iii) Sale of Beach - related
Sundries).
SECTION 4. CONCESSION FEES.
4.1 Minimum Guarantee (MG):
In consideration of the City's granting of the rights provided in this
Agreement, the Concessionaire shall pay to the City a Minimum
Guaranteed Annual Concession Fee (MG) of Forty Eight Thousand
($48,000.00) Dollars. The MG shall be payable in twelve (12) equal monthly
installments of $4,000 each, with the first such installment due upon
execution of the Agreement and each of the remaining monthly installments
due on the first day of every month thereafter during the Term of the
Agreement.
4.2 Percentage of Gross (PG) vs. MG:
For each contract year, the Concessionaire shall pay the City, on an annual
basis, and within thirty (30) calendar days from the end of each contact year
during the Term herein, Percentage Rent (PG) of Concessionaire's total
gross receipts as follows:
Gross Receipts PG
$250,000 26%
$300,000 27%
$350,000 28%
$400,000 29%
$450,000 30%
In the event that the annual PG is Tess than the amount provided in
Subsection 4.3 below, then the Concessionaire shall also pay to the City, on
an annual basis, the difference between the PG amount and the amount
provided in Subsection 4.3 below, no later than thirty (30) days after the
expiration of the initial term, or of any renewal term of this Agreement (as the
case may be).
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.
4.3 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
14
subject to interest at the rate of twelve (12 %) percent per annum, or the
} highest allowable percentage rate under Florida law, whichever is greater;
from the due date of payment until such time as payment is actually received
by the City.
4.4 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, by the City Manager or his
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; and such other records shall be maintained 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, and must be received no later than thirty (30) days after the close of
each month.
SECTION 6. INSPECTION AND AUDIT.
Concessionaire shall maintain its financial records pertaining to its operations 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 them.
Concessionaire shall maintain all such records at its principal office, currently located at
4299 Collins Avenue, Miami, Florida, 33140, or, if moved to another location, 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.
The City Manager or his /her designee shall be entitled to audit Concessionaire's records
pertaining to its operations as often as the City deems reasonably necessary throughout
the Term of this Agreement, and three (3) times within the three (3) year period following
termination of the 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
(5 %) percent or more in Concessionaire's statement of gross receipts for any year or years
audited, in which case Concessionaire shall pay to the City, within thirty (30) days of the
15
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. 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 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 the business or other activities of Concessionaire upon or in
connection with the Concession Area(s). 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 or activities of Concessionaire upon the Concession
Area(s).
Concessionaire shall be solely responsible for, and shall promptly pay when
due, all charges for gas, electricity, water, sewer, cable, telephone, trash
collection, and any other utility service provided to the Concession Area(s),
including, without limitation, all hook -up fees and impact fees.
Notwithstanding the preceding sentence, the City shall charge .
Concessionaire a flat fee for: 1) electricity, in the amount of Two Hundred
Forty ($240.00) Dollars ($120.00 for each Concession Building) per month;
and 2) water usage, in the amount of Eighty One and 60/100 ($81.60)
16
•
Dollars ($40.80 for each Concession Building) per month. The City reserves
the right, at its sole discretion, to adjust the flat monthly fees charged to
Concessionaire for electric and water use, at any time during the term of this
Agreement, upon thirty (30) days prior written notice to Concessionaire. In
addition to other rights and remedies hereinafter reserved to the City, upon
the failure of Concessionaire to pay for such utility services when due, City
may elect to pay same whereby Concessionaire agrees to promptly
reimburse the City upon demand. In no event, however, shall the City be
liable, whether to Concessionaire or to third parties, for an interruption or
failure in the supply of any utilities or services to the Concession Area(s).
7.2 Procedure If Ad Valorem Taxes Assessed.
Notwithstanding Subsection 7.1 above, the parties agree that the operations
contemplated herein are for public purposes and, therefore, no ad valorem
taxes should be assessed by the Miami -Dade County Tax Appraiser. If,
however, said taxes are assessed, Concessionaire shall be solely
responsible for prompt and timely payment of same.
SECTION 8. EMPLOYEES AND INDEPENDENT CONTRACTORS.
8.1 In connection with the performance of its responsibilities hereunder,
Concessionaire shall hire its own employees and /or independent contractors,
who will be employees and /or independent contractors of Concessionaire
and not of the City. 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.
8.2 Concessionaire and 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 is acting within the
scope of such employment or such independent contractor relationship. All
employees and /or independent contractors shall observe all the graces of
personal grooming. The Concessionaire shall hire people to work in its
concession operation who are neat, clean, well groomed, and who 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 or managers overseeing
the concession operations at all times.
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 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.
17
SECTION 10. IMPROVEMENTS, MAINTENANCE, REPAIR and OPERATION.
The Concessionaire accepts the use of all the Concession Area(s) (including, without
limitation, the concession buildings) provided in this Agreement in their "AS IS" "WHERE
IS" condition. Concessionaire assumes sole responsibility and expense for maintenance of
the Concession Area(s) and all facilities and equipment thereon, and the Dune area
landward and adjacent thereto. This shall include daily removal of litter, garbage and debris
at the sole responsibility and expense of Concessionaire. Daily maintenance shall be
accomplished 365 days per year throughout the Term hereof. Concessionaire agrees, also
at its sole cost and expense, to pay for all garbage disposal generated by its operations.
10.1 Improvements.
10.1.1 Concessionaire accepts the concession buildings, as defined in
Sections 2.1 (a) and 2.2 (a), in their present "AS IS" "WHERE IS"
condition and shall, at its sole cost and expense, construct or cause to
be constructed, all interior and exterior improvements and
maintenance to the concession buildings, as reasonably necessary
for it to carry on its permitted use(s), as set forth in Section 3;
provided, however, that any plans for such improvements shall be
submitted to the City Manager or his /her designee for their prior
written approval. All permanent (fixed) improvements to the
concession buildings shall remain the property of the City upon
termination and /or expiration of this Agreement. Upon termination
and /or expiration of this Agreement, all personal property and non-
permanent trade fixtures may be removed by the Concessionaire from
the concession buildings without damage to the concession buildings.
Concessionaire will permit no liens to attach to the concession
buildings arising from, connected with, or related to the design and
construction of any improvements. Moreover, any .permitted
construction shall be accomplished through the use of licensed,
reputable contractors who are acceptable to the City. Any and all
permits and or licenses required for the installation of improvements
shall be the sole cost and responsibility of Concessionaire.
10.1.2 Notwithstanding Subsection 10.1.1 above, upon termination and /or
expiration of this Agreement, and at City's sole option and discretion,
any and all alterations or additions made by Concessionaire to or in
the concession buildings shall, upon written request from the City
Manager or his /her designee, be promptly removed by
Concessionaire at its cost and expense, and Concessionaire further
hereby agrees, in such event; to restore the concession buildings to
their original condition prior to the Commencement Date of this
Agreement.
- 10.1.3 The above requirements for submission of plans and the use of
specific contractors shall not apply to improvements (which term, for
purposes of this Subsection 10.1.3 only, shall also include
18
improvements necessary for Concessionaire's ongoing maintenance
and repair of the concession buildings) which do not exceed Five
Hundred ($500.00) Dollars; provided that the work is not structural,
and provided further that it is permitted by applicable law.
10.2 Garbage Receptacles.
With respect to litter, garbage and debris removal, the Concessionaire shall
provide, at its sole cost and expense, receptacles within the confines of the
Concession Area(s) and shall provide a sufficient number of these
receptacles for its own use and for the use of the public. Disposal of the
contents of said receptacles and removal of litter, garbage and debris within
the Concession Area(s), shall be done on a daily basis, and shall be the sole
responsibility of the Concessionaire. 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 to, and become the responsibility of, the
Concessionaire. The dumping or disposal of any refuse, discards, trash or
garbage, generated by, or as a result of the concession operations, into any
of the Miami -Dade County trash receptacles, by the Concessionaire
(including its staff and employees), shall be strictly prohibited. Determination
of the "number" of receptacles shall at all times be within the City Manager or
his /her designee's sole discretion, and Concessionaire shall agree to be
bound by same.
10.3 Maintenance /Repair.
The Concessionaire must maintain, at its own cost and expense, all facilities
(including, without limitation, the concession buildings), equipment and
furnishings required to operate the concession. The Concessionaire shall
maintain said facilities, equipment, and furnishings during the Term of this
Agreement at its sole cost and expense. In the event any of the aforesaid
items are lost, stolen, or damaged, they shall be replaced or repaired at the
sole cost and expense of the Concessionaire within fifteen (15) days of
written notice from the City.
10.3.1 Concessionaire shall be solely responsible for the day to day
operation, maintenance and repair of the concession buildings.
Concessionaire shall, at its sole cost and expense, maintain the
concession buildings, and all fixtures and appurtenances thereto, and
shall make all repairs thereto, as and when needed, to preserve them
in good working order and condition. Concessionaire shall be
responsible for all interior walls, and the interior and exterior of all
windows and doors, as well as immediate replacement of any and all
plate glass or other glass in the concession buildings which may
become broken, using glass of the same or better quality.
The City shall be responsible for the maintenance of the roof, the
structural exterior of the buildings, and the exterior structural electrical
and plumbing (not interior electrical and /or plumbing surrounding any
sink within the concession buildings).
19
10.3.2 All damage or injury of any kind to the concession building(s), and /or
to their respective fixtures, glass, appurtenances, and equipment,
except damage caused by the wrongful acts or negligence of the City,
shall be the obligation -of Concessionaire, and shall be repaired,
restored or replaced promptly by Concessionaire, at its sole cost and
expense, to the satisfaction of the City.
10.3.3 All of the aforesaid repairs, restorations and replacements shall be in
quality and class equal to or better than the original work or
installations and shall be done in good and workmanlike manner.
10.3.4 If Concessionaire fails to make such repairs, restorations and /or
replacements, the same may be made by the City, at the expense of
Concessionaire, and all sums spent and expenses incurred by the
City shall be collectable by the City and shall be paid by
Concessionaire within ten (10) days after rendition of a bill or
statement thereof.
10.3.5 It shall be Concessionaire's sole obligation to insure that any
renovations, repairs and /or improvements made by Concessionaire to
the concession buildings comply with all applicable building codes and
life safety codes of governmental authorities having jurisdiction.
10.3.6 IN ALL OTHER RESPECTS, CONCESSIONAIRE ACCEPTS THE
CONCESSION BUILDINGS IN THEIR PRESENT "AS IS" "WHERE
IS" CONDITION.
10.4 Orderly Operation.
The Concessionaire shall have a neat and orderly operation at all times and
shall be solely responsible for the necessary housekeeping services to
properly maintain the Concession Area(s) and all facilities incident thereto.
There shall be no living quarters nor shall anyone be permitted to live within
the facilities and /or Concession Area(s). The Concessionaire shall make
available all facilities within the Concession Area(s) under its control for
examination during hours of operation by the City Manager or his /her
authorized representative.
10.5 No Dangerous Materials.
The Concessionaire agrees not to use or permit in the Concession Area(s) or
facilities the storage and /or use of gasoline, fuel oils, diesel, illuminating oils,
oil lamps, combustible powered electricity producing generators, turpentine,
benzene, naphtha, propane, 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
Area(s) shall be immediately removed. This subsection shall not apply to any
substances permitted by the City's Rules and Regulations for Beachfront
Concession Operations; provided such substances are used or stored in
connection with concession operations, and are not (at any time) otherwise
20
prohibited by County, State or Federal law.
Concessionaire shall indemnify and hold City harmless from any Toss,
- 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;
provided, however, Concessionaire shall have no liability in the event of the
willful misconduct or gross negligence of the City, its agents, servants or
employees. The provisions of this Subsection 10.5 shall survive the
termination or earlier expiration of this Agreement.
10.6 ` Security.
The Concessionaire shall be responsible for and provide reasonable security
measures which may be required to protect the Concession Area(s) and any
of the equipment, materials and facilities thereon. Under no circumstances
shall the City be responsible for any stolen or damaged equipment, materials
and facilities, nor shall City be responsible for any stolen or damaged
personal property of Concessionaire's patrons, guests, invitees, and /or other
third parties.
10.7 Vehicles on the Beach.
Concessionaire's vehicles shall include (i) any "on -road vehicle" and /or
trailers licensed in accordance with applicable County, State and Federal
law, to operate on public streets and roadways and shall also include any (ii)
non "on- 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 vehicles shall only be allowed on the beachfront for
purposes of supplying the concession operations, and to remove equipment
at . the close of operations each day, and must be removed from the
beachfront immediately thereafter. Anyone operating a vehicle for or on
behalf of Concessionaire must have a current valid Florida Driver's License.
Said supplying and removal operations shall only be permitted during regular
hours of operation, and shall be completed safely and expeditiously. No
vehicular traffic will be permitted on the beach after sunset or prior to sunrise.
Access to the beach shall only be permitted via specifically designated dune
crossovers authorized for such use and nearest to the concession operation.
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 predetermined and assigned access ramp. After transporting
equipment to a Concession Area, the vehicles shall be removed from the
beachfront area and parked in a legally authorized location. Driving 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 from one Concession Area, concession facility and /or
concession location to another to service, supervise, or for any other reason,
21
is prohibited. Concessionaire must exit to the street as provided above to
access other locations. All vehicles operated on the beach must have a tire-
to- ground pressure of ten pounds per square inch (10 p.s.i) or less.
Eighteen -inch (18 ") high cones, orange in color, shall be placed in front of,
and at the rear of the vehicle when parked. Vehicle operator must inspect the
vehicles perimeter and surrounding area, prior to turning the vehicles ignition
switch, to assure a clear path of egress and only proceed with extreme
caution. Vehicles must always remain on the "hard- packed" sand area.
Driving or parking on any "soft- sand" area is prohibited.
All vehicles must have signage, on each side, with the name of the
concession operator in 4" high letters on a contrasting background.
A total of two (2) 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 two
(2) are herein permitted, and shall be properly marked and identified as in
accordance with the applicable guidelines for vehicles provided above.
Provided, however, that in order to contain vehicular traffic on the beach to a
minimum, the City Manager or his /her designee, must approve any additional
"on- road" and /or non "on- road" vehicles to be used by Concessionaire prior
to such use.
10.8 Inspection.
The Concessionaire agrees that the Concession Area(s) and all buildings,
facilities, equipment, and operations thereon, may be inspected at any time
during hours of operation by the City Manager or his /her designee, or by any
other Municipal, County, State officer, or other agency having responsibility
and /or jurisdiction 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 with the concession
operation by 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 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 of this Agreement:
a. Comprehensive General Liability, in the minimum amount of One Million
($1,000,000.00) Dollars per occurrence for bodily injury and property
damage. This policy must also contain coverage for premises operations,
products and contractual liability.
b. Workers Compensation Insurance shall be required in accordance with the
laws of the State of Florida.
22
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 Commencement Date of this Agreement,
Concessionaire shall provide City with a Certificate of Insurance for each such
policy. 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 (10 %) percent 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 (12 %) percent until
paid, and such failure shall be deemed an event of default hereunder.
SECTION 12. INDEMNITY.
12.1 In consideration of a separate and specific consideration of Ten ($10.00)
Dollars 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 agents, servants and employees 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
subconcessionaire(s), agents, servants or employees in the performance of
services under this Agreement.
12.2 In addition, in consideration of a separate and specific consideration of Ten
($10.00) Dollars 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 agents, servants and
employees from and against any claim, demand or cause of action of
whatever kind or nature arising out of any misconduct of Concessionaire not
included in the paragraph in the subsection above and for which the City, its
agents, servants or employees 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
•
23
liability, that arises as a result of the willful misconduct or gross negligence of
the City, its agents, servants or employees.
12.4 Subrogation.
The terms of insurance policies referred to in Section 11 shall preclude
subrogation claims against Concessionaire, the City and their respective
officers, employees and agents.
12.5 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:
a. fire which renders at least thirty (30%) percent 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
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 payment(s) to the City for
that contract year is greater than the applicable percentage payment, then
the City Manager or his /her designee, in his /her 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.
12.6 Labor Dispute.
In the event of a labor dispute which results in a strike, picket or boycott
affecting the Concession Area(s) or operation 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.
12.7 Waiver of Loss from Hazards.
The Concessionaire hereby expressly waives all claims against the City for
loss or damage sustained by the Concessionaire resulting from fire, water,
natural disasters /acts of God (e.g. hurricane, tornado, etc.), civil commotion,
riot, or any other Force Majeure contemplated in Subsection 12.5 and Labor
Dispute in Subsection 12.6 above, and the Concessionaire hereby expressly
24
waives all rights, claims, and demands against the City and forever releases
and discharges the City of Miami Beach, Florida, from all demands, claims,
actions and causes of action arising from any of the aforesaid causes.
SECTION 13. DEFAULT AND TERMINATION.
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 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 Fifty ($50.00) Dollars 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 Concession Agreement
without being prejudiced as to any remedies which may be available to it for
breach of contract; and may begin procedures to retain the Security Deposit
required 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
25
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, 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 retain the
Security Deposit 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 Area(s) to City pursuant to the provisions
of Subsection 13.7.
13.6 Termination for Convenience /Partial Termination.
13.6.1 Concessionaire acknowledges that the City may develop a schedule
of capital improvements and /or beach renourishment projects in or
26
around the 21 Street and /or 46 Street Concession Areas which may
entail a closure of all or a portion of the Concession Area(s), to be
determined at the City Manager's sole discretion. In the event that the
City closes down a Concession Area(s) for the purpose of undertaking
a capital improvement and /or renourishment project(s) thereon, then
the parties agree that that portion of the Agreement referencing the
closed Concession Area(s) shall be partially terminated for
convenience, without cause and without penaltyto either party. Such
a termination shall become effective upon sixty (60) days prior written
notice to Concessionaire.
13.6.2 In the event of termination or partial termination by City of the
Agreement pursuant to this subsection, Concessionaire hereby
acknowledges and agrees that itshall not have any claim, demand, or
cause of action of whatsoever kind or nature, against the City, its
agents, servants and employees (including, but not limited to, claims
for interference in business or damages for interruption of services or
interference in its concession operations). Additionally, in the events
of a partial termination, the parties agree and acknowledge that the
Agreement shall remain in full force and effect as to the remainder of
the open Concession Area(s).
13.7 Surrender of Concession Areas.
At the expiration of this Agreement, or earlier termination in accordance with
the terms of this Agreement, Concessionaire shall surrender the Concession
Area(s) in the same condition as the Concession Area(s) 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,
personal property, etc. upon forty -eight (48) hours written notice from the City
Manager or his /her 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 the Agreement
shall constitute trespass by the Concessionaire, and may be prosecuted as
such. In addition, the Concessionaire shall pay to the City One Thousand
($1,000.00) Dollars per day as liquidated damages for such trespass and
holding over.
SECTION 14. SECURITY DEPOSIT.
Concessionaire shall, on or before the Commencement Date of this Agreement, furnish to
the City Manager or his /her designee a cash security deposit, in the amount of Twelve
Thousand ($12,000.00) Dollars, for the payment of which Concessionaire shall bind for the
faithful performance and terms and conditions of the Agreement. All interest that accrues
in connection with any financial instrument or sum of money referenced above shall be the
property of Concessionaire, except in an event of default, in which case the City shall be
entitled to all interest that accrues after the date of default.
27
SECTION 15. ASSIGNMENT.
Except as otherwise provided in this subsection, Concessionaire shall not assign;
sublease;_ grant any concession or license; 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 forgoing are herein after referred to collectively as
"transfers "), without the prior written consent of the City, 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 (33.4 %) percent 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. Any change of the ownership, directly or
indirectly, of thirty -three and four tenths (33.4 %) percent or less of the voting or ownership
interest or 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, 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 abide by the City's Special Events Permit Requirements and
Guidelines, as same may be amended from time to time. For any use, other
than those provided for in this Agreement, a special events permit may be
• required and shall be obtained through the City's Office of Arts, Culture and
Entertainment. The City Manager's authorization must be obtained for any
such special event.
28
The City shall evaluate requests for special events permits on a case by case
basis, in accordance with the City's Special Event Permit Requirements and
Guidelines, as same may be amended from time to time. 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 is scheduled to
occur within the Concession Area(s) and would cause the operations within
that particular Area(s) to cease, wholly or partly, and provided
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 permit applicant to allow use of the Concession Area(s) during
the period of the special event, including set -up and break -down time. City
agrees that, to the extent the special event permittee provides food and
beverage service at the special event and does not utilize the
Concessionaire for said service, the special event permittee will be required
to remit twenty percent (20 %) of the gross revenues generated at the event
to the City. The City agrees to remit thirty percent (30 %) of said remittance to
the Concessionaire as a use fee in consideration of the special event
permittee's use of the Concession Area(s).
16.2 City Special Events.
Notwithstanding Subsection 16.1 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 and /or
sponsored special events and /or City produced and /or sponsored
productions, including without limitation 1) Art Basel and 2) The Polo World
Cup. Additionally, any such events may also require additional time for load-
in and load -out of the event. In such cases, the City may request that the
Concessionaire cease and desist operations during the term of, and in the
area of, the special event and /or production, and the Concessionaire shall
cease and desist during said term. If the Concessionaire is not required to
close, or the City Manager or his /her designee determines that
Concessionaire may remain open in such a manner as prescribed by the
City, that will not interfere with the special event and /or production,
Concessionaire shall use its best efforts, in either case, in cooperating with
the City. If the Concessionaire is allowed to remain open during 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 special
events and /or productions without the prior written permission of the City
Manager or his /her designee. To the extent that the normal daily complement
of equipment and staff is displaced by the special event and /or production,
the Concessionaire may reallocate such displaced equipment and staff on a
pro -rata basis within the Concession Area(s) not being utilized by the special
event.
16.3 Notwithstanding anything to the contrary, if a special event occurs in all or
any portion of any Concession Area(s), Concessionaire shall not be liable for
29
any charge, fee or other expense, governmental or otherwise, in connection
with such special event. To the extent the preceding sentence conflicts with
the City's Rules and Regulations for Beachfront Concession Operations or
conflicts with .any other City rule, law, regulation, charter or code provision,
this Agreement governs.
16.4 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. Any and all benefits derived from an endorsement and /or
sponsorship agreement based on the marketing value of a City trademark
property, brand, logo and /or reputation, shall belong exclusively to the City.
Concessionaire shall be specifically prohibited from entering into, or
otherwise creating any, sponsorships and /or endorsements with third parties
which are based solely or in any part on the marketing value of a City
trademark, property, brand, logo and /or reputation.
SECTION 17. NO IMPROPER USE.
The Concessionaire will not use, nor suffer or permit any person to use in any manner
whatsoever, the Concession Area(s) or facilities 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 agents, employees and contractors 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 act, neglect or omission of the Concessionaire, Subconcessionaire, or
any employee or agent regarding the Concession. In the event of any violation by the
Concessionaire or if the City or its authorized representative shall deem any conduct on the
part of the Concessionaire to be objectionable or improper, the City shall have the right to
suspend the operation of the concession should the Concessionaire fail to correct any such
violation, conduct, or practice to the satisfaction of the City 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 operation during the suspension until the violation has been corrected to
the satisfaction of the City.
SECTION 18. PRICE SCHEDULES.
Concessionaire agrees that prices charged for beach equipment rentals, sale of food and
beverage service, and /or sale of beach related sundries, will be consistent with the price
schedule(s) herein submitted by the Concessionaire and approved by the City and
incorporated herein as exhibits 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 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
30
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.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
31
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:
Tim Wilcox, Inc.
4299 Collins Ave
Miami Beach, FL 33140
Attn: Tim Wilcox
All notices from the Concessionaire 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 copy to:
Asset Manager
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 Intentionally Omitted.
32
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, color, national origin,
religion, sex, gender identity, sexual orientation, disability marital or familial
status or age.
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 or 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 Area(s). 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.
20.4.1 Pursuant to the Cit of Miami Beach Human Rights Ordinance, as
identified in Chapter 62, of the Miami Beach City Code
Concessionaire, by executing this Agreement, certifies that it does not
discriminate in its membership or policies based on race, color,
national origin, religion, sex, gender identity, sexual orientation,
disability marital or familial status or age.
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 /her 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.
33
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 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 Area(s) 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
34
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)
which may now, or in the future (during the Term hereof), be owned,
operated, managed, or otherwise controlled by Concessionaire, with regard
to its responsibilities pursuant to this Concession Agreement.
21.13 Intentionally Omitted.
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, C oncessionaire 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 reasonable
efforts to provide written notice to Concessionaire approving of, consenting
to or disapproving of the request within sixty (60) days from receipt of the
approved request. Notwithstanding, the proceeding, however, the City
Manager or his /her designee's failure to consider such request within this
time provided shall not be deemed a waiver of the City's rights, 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.
35 .
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 Fifty Thousand ($50,000.00)
Dollars. Concessionaire hereby expresses its willingness to enter into this Agreement with
a Fifty Thousand ($50,000.00) Dollar limitation on recovery for any action for breach of
contract. Accordingly, and in consideration of the separate consideration of Fifty Thousand
($50,000.00) Dollars, the receipt of which is hereby acknowledged, the City shall not be
liable to Concessionaire for damages to Concessionaire in an amount in excess of Fifty
Thousand ($50,000.00) Dollars, 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).
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.
Attest:. CITY OF MIAMI BEACH, FLORIDA
(au P a,CC1»\
- Robert Parcher, CITY CLERK j tti Herre a Bow MAYOR
Attest: TIM WI c OX, INC.'
/ ..1111 ANJ
Signatu // re /Se cr: . ry Ti Wilco Pr:. id nt
f'J - PR. - I AS TO
Print Name - ORM : • NGUAGE
-OR EXECUTION
F:\ RHCD\$ALL\ECON \$ALL\ASSET.Beach Concession RFP \Tw Agreement Draft 08 -13 -10 A. /
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.,'. �es� A� a i'.�..u`� SR ` t r� se � b.} � ° '" ;.+k '*s.�y :� "�'` ��� t .S'
' µ Y , ' g� ^a,» _
sti+z' t ,�,,z5a #'F�`°g
�� ` �' r p ��'�r UNE
'?<rrr t f' r �� �`§.� n Y" c�,.�MZ. �w �,,6 -�{'�i �., .^ � a ia ✓ s ? ''�.^,�ar� '^'� :..
n CONCESSION .Y
a aa> �r�`a' x
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r 1 [
�, a a y },as, aY < i "d z'" a s
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it ;- �rs� � "� ` 41
, �� x `K iF '[' "r�2,s d # ,,. ta �. - ,s�;...�*i,'y ".' z - ffdv I �s�7 Yes �x 1 8 3
.00NCESSI0N AREA � �` � ^' � � ..�
+ c > _. • a^ :t swx ,A.`,''�'•.�' "z"t�suTr a ''` n a� �." t
a k' r n 1 tF ''•s"X h ?•s' £ a F '+Y .v i' �7. Fz 'z Y, !"¥ '
'71� fn, ,'S -«,q ? s- y r
BU
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• v .. s'�
* °" w s ;* ""'"'"� tiss#`,,.#,x fis. • w�" �. , s �`v a
RIGf-IT OF WAY
JNE EXTENSION ',y�
� s9 ! -.a 'z � � s•:- • 2�' ? •
} £ III€ * a
,
UFEGACtRt3 eUNE^�
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F R O M ��
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` � �•• '� x 1 *# �* �,y�;�t� � 'rr `{ a �r - 2 �� � � z a.r7�� � r
{ 4F ° ; 8 � : � ' -7 r � $�� ��;' '` ��� �• `� b} y�� � �����1�vN � z �� y Y � f t } �'4�
. -.• 'cc3 �5 -- t S >j - - -- .- - a„m -�1 {Sw� -- lu g y -.. t-r .t..
,.,.. "rs �mrt�" --- ��?w3 atvY,.�t.,. o-� rc a iriat.. � afa3 -.F � 4
38
•
EXHIBIT 2.2 (a)
•
•
,
/ . ,
1 •
i ° 'Sai ri.` it ir k 1 r ' .,
,.
. , „ i 1.L...,.)..:../ !• i
__,
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t u I Uir,q " (,,r) y ? A
■ •
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e '
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•
ka
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.. 4 ' . r . { - ma ' � e AI- " ' - „ : r ro
•
`3. a. ,a ' s § {,�
39 •
EXHIBIT 2.2 (b)
f 1 = Is 'a r o y � 1 x g ks _ _ 3 t�� .
� tea': ^., � � s � ! f : � 4 .+ a y ' ! r �t�M . � `� �-'� «� .
e � . 8 '4 ' r 'e '}qp4 i. i
e y ¢ z 8 T I C LINE . - x447,1; Sid '
• ° d w 3• ! 3 a@^ uA,E..•,^ y �' q� "ry. . f f t 'tl. b' W ,40.,::::.4
�q »ISdS�
�1 �.'� ,�'� � � � a " x ,� �. � # F� � -0�,,. dr -_ """ � ,�, ��
rye #� - ' T Vt; � - _ EU F `f ER,. m:-. ` ! s+ #z :t r i " T : " °# c;:-', z , ( , " j e , k ,�"y' .' k peg ttlet •
t K ds S. i ,f' J
f q•
.� f,-0--:-,-.4,z 4
# , � , . y�;k- r d �S ads '' � F� +� '&7 p / ' � , pk ' ' t •' ' w„ k ' a111�+" 1 ' F 5 +� r.Y � , ,xa,� `i �a� � " - CBI 1 2 . 111 G }t+I � �` �;�x: �� .mss , :',':,;:',;-:',,,..:414,:i'l.k:,',',. -cd''!::',.''
r $ i , .«r - g , o._ ,,yr 't. } ': y �+.c,g.. "-.4,'.1---''4.'", t � 6 CD -f z t r y N
` . a * ` k f z ' `£! ; 1 : " . ate' , a +. y l it g
»+ s a� � +te � � � .� a � � we z „�• � �� a e �.�:.
'4144 � 44411-1. x « r �+ r � X a � � e r
$� -t . � ? x '',01°4."4.-A" k � E " � 4 nS �. w .* g d ' < ,�a''E.,�. �
. V'a r cc' �" ; 4t . „; - �a rM` 5"'4' $i�` x t� ! '
`, " � y ji } ny r i ' ; � � t � -1 f a" f { ' #� }r s t 4 ,#` a� .,
a 1' w � w _ t e FEGAURD daft- `, •
,r t a �' �,, � � � '� w.s IIF, SI GH7 I�. � + � , r K:�' ,�� � � i �' F # r
'' �+�. i k � �. �, xr�, x°i�,�'� ,^y � t�' � r � ^ ^��`gc i' �fR� }t � � � � p. � I� l ��'�S E. �i � "{.
t s .i �?y� i IGH 1i1AT R L k ° " r ; � f
t� { 1 e � '` a uj 1 r Tiltit, I
I ° � .., ,� a si c ,�a"st r
r a y ; � r. " d a' j �} "mot` ,3 % $&4o-: , 1 1`�?
Y + ' ii 3 � Ci ' C ., 4' t , ; ` ME A } w < J � // /// /��''�00'' fh k l y s '� '1'�
�xs ,,. v ) :...4 . 14 . :-. ! ' � , ^ TM y a ' " 3 # : '§' 4' 4 t, µ , % k : :
#� y � pg Y
7 y'� �$�� g` a �kr ' , 1 4'3 r �IS : , ^tl s u ,�a s z * �� • • �= .� - :•,.....„ ;; „ i q i , :°� I i f " ,,'' mss :rk 4.: P
h
PROPERTY � t z � , T+'
I Fl E X T ENS ).$;t3.40,0: a 1 ! r a s :7
_.� �+isNYi�- '!' � tf � �.. I�1 x �� � { ��' °T {' � 'w:S4+ � ^t � �
¢ " ->.E 1 4 4 - --, � ;,4%,:'%." �1` +.v n+.. ''''' 1 _ 1 ' ' .°e 3 ' :4y R�
$ ' , m y ' j ' .., ,1,,, ,,^" yam -r. -4; t , .. ... S !q * . ,, t �# -
.a }, a 1 k t . i� .r r�, , ,$� ,�,'���3 r' " � } Pf ', aka a c # r�vr r f
•
40
I
EXHIBIT 3.1
(Section 1 of 2)
Approved Beach Rental Equipment & Pricing
21 Street Concession
Beach Rentals
Chaise lounge $5.00
Chaise lounge w/ pad and towel $10.00
Umbrella $12.00
Sun canopy $10.00
Suntan lotion and oils $25.00
VIP- Section luxury set (to be developed) $10,$15,$15
*Cabana $50.00
41
EXHIBIT 3.1
(Section 2 of 2)
Approved Beach Rental Equipment & Pricing
46st Street Concession
Beach Rentals
Chaise lounge $5.00
Chaise lounge w/ pad and towel $10.00
Umbrella $12.00
Sun canopy $10.00
Suntan lotion and oils $25.00
VIP- Section luxury set (to be developed) $10,$15,$15
*Cabana $50.00
•
42
EXHIBIT 3.1.(a)
t "� -�t.�' y e s „,,,,,,,;.W., �, , J �,'°'s AX.:41` ' "4' '"�' Sbt
.,,,,. ;
1 044414:4:''
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f k �!F b 4Y9 ; : .6-.: , . v.i , a f a §
{ - s t `'fi . i i x Y �*, i , -. V �.,,,,a '- gym” , pt*
't OF: WA '
E > ; U N E • EX TENSION ' � n�
x 5 .
, =x^ n k 4 y 4+ r x's.+ . E v , ..j" I A d s .
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r Via' : F,X` z f Y r ▪ } sa -- ' ,� ,yy� 'y
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� � °a, r ' N , . .. s , :- M ,1r ,41,E a `' ,".4,v,„:„,,.-:, k
��' a �' v,.'"
MODE COUNTY ^ _ ` SS8 8 8S8 ` ° ` E _
f e £ '' ". f F ly 7t TICLI ' O gagman,. € i ▪ f' � a r lG #y
K COUEC11ON LINE x r �;
Y
r s r o f "�
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"m�4 C . O Alta OIIIt 11111111 , d - , - , '{ 3 -- A^ � .-
z I
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� . � ���,� `�" , CGNCESSI f3 N ARE "' �,�F � �' A"'�s � � t ' �
s ® ggg ex * r r3 x n4
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fir. m7 ,4,t^' x � F . "` } �lu 4 � - s;,, "� + : ..
e ` az x , `'4..r+ ,•.4 t ' .3Z-,4:-.-!,..,':W. r Y r ok a , x ; 4 4 %4 4 X is1
? , y{ LIFEGAU r t r a c B^f, , ,If,," „� $$ f v ,, a
1
v v a '�,� � - � A a ', r'
W � r CONCESS A R E A cn w x
� 9 *,t
': .:3. 1, ,�"aN.S z _.s c. . .n, ; + � , r ' c X t j N�t R .k
B ZONE f t ,� , s cn
{{ '''' £ a ` -� rr y - x ' n a- . .', x.�'x= s 41"w ": } ;* x , k t -t
5 R I G HT' O F WAY b .� h x
s UNE E}( TEtdSIQN F • , 1 0 ,4
.,( � ', r a ;� Y� yr, 4 �' 4 '�^� d a, „�. ti
4 i F -z' ! . ▪ 4 r . d r nrif' '1 , "� 57 t ': ' € 1
a ,t?: 1 , 3 ..< y.FC vt". „ 4 }. -� ” - c ; p F ?r
,' UFEGAURD UNE y .'". t. u r '. t,''r � t x °
a � � i ,f O $Ic HT s OR " x ri # a % ° .
. i: ` y 2 , r .:'44 ; :. 1 O F ROf�f i` k G +* x l �, k k4 ..� ` C b , +3i S? * 3 b r
' C,V � HIGH % ATER UNE, z , , ' `; �, , �+ , .
S te , ^ } . �Y�k�
4 X �� k r y ' '.1, Y " a r T P : g t - ▪ hcMt y °fi
r x
EXHIBIT 3.1. (b)
I b. a +� # i
'lam' REL.PTCCL_ s 3
3y�. a y .LLC F 7 ) t t
c �. ' y = •rt`'- t� i t� wit
�+`"� COL
� �..� �„ �� � � •
�� ° � z s J " k K T
f� -a e"`` ' - ' x;- t_ � . 0.f'{' + 1.
- .3 �� ..;_ ci t-PPEPERT+Y X14
L
--' �' t�*✓,�'� a�mv �'+�iE ERtx�tCN z f�" „�
,( -, . ,+" 4 ¢t '`'qb Pik W s;'..g # (j f fi ,.°�'
�T -� +4 6 1 -35 jl�
r Es t . %k' - A ' _ ; t { § yfu # ..5 S S
r
y �„uKN R 1
.s�4 t'6,y_ � ,- 1 'N'�f � �E- ;. gi S S gi
SS-\ I { .
CC-iCE1 i ' ' '
` }} r;:s tea Lii.EsA�R 1 �. `< ; '�y" �" { {
.�. � x , �,� .—xe y kt_._. f -'
- 7 _(
u
r
u �'..� 5
xt"..§ 1 '. sr
fl k
'. .,.'� .-
, .rl J #Dr"� 1 $ iO FRCd'1
aI`r:" L t +;w#' a .,v''g�, + a•, x ,;t:�av '
r {� kA`1# ., S -SY 1st
11 �.�+
�f �!- l'�'�35.. }�1 } ..nF' ��k�
t r �r .s G'17AJ ESSlilty A4� tcs s.
42 sy .;i,1
t ,� (q
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s as a�3 pRCPERTY:�t +,
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' 9h '�
_ .- _ -. - a ;i.11 � , 1 - RUFFER ZE, IE.
._ -' " .w"� f"'..azt� � F���x�� � 1
lrJ tt f E
L
�`� t ._mac ���r._�' 4 .•.�.k„"'. x'�= �'a�;'r ._....__._.__ ._,. ,..�,_..'._
EXHIBIT 3.1
(Section 2 of 2)
Approved Beach Rental Equipment & Pricing
46 Street Concession
Beach Rentals
Chaise lounge $5.00
Chaise lounge w/ pad and towel $10.00
Umbrella $12.00
Sun canopy $10.00
Suntan lotion and oils $25.00
VIP- Section luxury set (to be developed) $10,$15,$15
*Cabana $50.00
42
Menu for 2 1 St Garden Salad
Fr esh Greens, Cheeses, S$��l , Veggies, Egg, and Crisp
Bacon
Beach BBQ
Baby Back Ribs:... $10.00
Y Rack of Lean and Tender Ribs. "Meat. Falls. Off
Gourmet Wraps • $6.00 The Bone!" Your Choice of Our Original "Award.
Winning" BBQ Sauce, or our "Sweet Georgia
The Beach Caesar Brown" Sauce
Chicken Breast Strips, Romaine Lettuce, Backyard BBQ Chicken $8.00
Parmesan Cheese & Caesar Dressing wrapped in
a Zesty Herb Tortilla Tender Half Chicken that has been seared over
a smoldering wood fire and basted with our
The Fried. Beach. Chicken Original "Sweet BBQ" Sauce
Southern; Fried: Chicken, Mixed Greens, Jack & Smoked Pulled Pork.... $8.00
Cheddar Cheese, Tomatoes, Bacon, &Onion '
Wrapped in a White Tortilla Pulled Pork Slowly Smoked Until Tender topped
with Creamy Cole Slaw
The Beach BBQ
Smoked & Pulled BBQ Chicken Drizzled with Our Beef Hotdogs .:.$4.00
"Sweet Georgia Brown" Sauce wrapped in a The Beach Dog
White Tortilla
All Beef' Hotdog served 'in a bun with your
The Veggie Beach choice of toppings
Assorted Fresh Veggies, Mixed Greens, Fruit Smoothies ....$500
Tomatoes, Jack & Cheddar Cheese Wrapped in a Ocean Breeze
Zesty Herb Tortilla Strawberries, Pineapples, Oranges & Mango
Salads • $6.00
Paradise Passion
Southern Fried Chicken Salad Strawberries, Bananas, & Pineapples
Fried Chicken, Jack & Cheddar Cheese, Mixed Sunset Ma
Greens, Veggies, Bacon and Onion Oranges, Strawberries, & Bananas
Smokehouse BBQ Salad ,
``- South Beach Berry
Strawberries & Non -Fat Yogurt
Fresh Greens Topped with chopped BBQ Pork,
Cheeses, Egg, Veggies, Bacon & Red "Onions Sunrise Passion
Pineapples, Orange, & Non -Fat Yogurt
4?.?-411-4~ 3 r "or` '` r' ,' ? s ...` 'x n .ry �s # ?s ,..a: �..r "`3' Y •k - ;.*•:. .."' s "'e s r ,y N i. 7''. F``tt aca `; .-r ^i ,.: ,,, '...
f
. ' EXHIBIT 3.3
21st & 46th STREET
SUNDRY ITEMS & PRICES * .
ASSORTED BEACH TOYS S 7,50
20" Beach Ball $11.00
48" Jumbo Beach Ball . ) .
$19.25
Bazooka Water Gun $1925
Beach Girl set ,_
' " (includes bucket, castle mold, watering can, shovel and rake) $13.4
5
Beach Bag & Inflatable .
(a beach bag Ythat converts to a floater) $10.25
Beach - Bucket with two sand shovels $$110.25
Complete Sand 8, Water Beach Play Set
- (includes toys, watering can, bucket, shovel, bag and more..
.75
• Leaf Rake (PVC free). $.75
Life Vest (for kids) $1100 $18.25
- River.Tube $ 7.45
•
'Sand Scoop (PVC free). ,: $19:25
• Sevylor 4 Piece Beach Set .
(includes a- mattress, a chair, a ring and an hammock-Inflatable)
$21.45
Scope Snarkei ,: • $18.25 •
Swim Set-with fins'." $25.75
Swim tube:"
- Truck with 5 beach accessories $23:75
•
{includes a pail, 2 shovela and 2 sand molds) •
$18,25
• Water Wings
ASSORTED SUN CARE PRODUCTS $12.99 ' Sunblock 15+ SPF 8-oz
$12.99
Sunblock 30+ SPF 8 oz $1$122.99
Sunblock 45k SPF . 8 oz
:Golden Tanning Lotion 6 SPF 8 ox $.11.$ :99 99
Gold Tanning Dry Oil 6 SPF ' - 8 oz
0.14oz $ 2:2
L Balm 45+ SPF $5•50 to $16x25
r "
ASSORT -
* all Pr ices include 7% sales tax
EXHIBIT 3.5.1
Equipment Storage and Removal Plans
All umbrellas and chaise pads will be stored at each location in a storage box made
of an approved plan from the planning department it will be 8 feet by 4 feet and 39
inches high. The Chaise lounges will be stored in stacks of ten high by 5 rows at
each location. At the 2lstreet location their will be two sections so there will be two
areas when stacks that each will have five rows with ten chaise lounges. If business
call for it and more lounges are need on a busy weekend or in the summer all
additional lounge will be removed with my trailer and truck at the end of each
business day.
EXHIBIT 3.6
Hurricane Evacuation Plan
At 46 Street and at 21s both of the beaches will have their equipment removed
when the city give us the notice that there is a hurricane or tropical storm
approaching. Upon receiving notice all lounges, storage sheds and Gazebo will be
loaded on to a flatbed truck and be driven to my storage facility at 249 NEll
street in Miami. When the city give us permission all the equipment will be
returned in the same manner as it was removed.
EXHIBIT 6
(page 1 of 3)
CITY OF MIAMI BEACH
TIM WILCOX, INC.
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 concession 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
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 Concession Area.
a. Document the procedures, if any, for determining how Concession Areas are recorded as
open and closed.
b. For months, test manual Open and Closed Concession Area sheets to Daily Revenue
• sheets for days to determine if for Concession Areas opened revenues are recorded
• and that for closed Concession Areas, proper supervisory approval is evidenced. Agree
earned revenues to entries on master Consolidated Sales schedule.
c. Determine that all Daily Revenue 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 Revenue schedule for the year ended , prepared in
conformity with the Concession Agreement between the City of Miami Beach and Tim Wilcox, Inc.
dated . Recalculate concession fees for the period based on sales per the
schedule and the terms of the Concession Agreement.
4. Review the Concession Agreement and inquire about major changes, if any, in the definition of which
sales are included and excluded from the Consolidated Revenue schedule.
5. Perform an analytical test of sales by obtaining a schedule summarizing sales by revenue type (i.e.
food and beverage, beach equipment, sundries, 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 Revenue schedule provided to the City of Miami Beach. Also, 'obtain or prepare an
• analysis of sales summarized by revenue type. Perform the following procedures:
49
• EXHIBIT 6
(page 2 of 3)
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.
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 he 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 may be 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 revenues from equipment rentals to Daily Sheets. Check for proper sign -off approval .
by attendant and supervisor.
•
• g. Agree daily deposits to daily revenue sheets and bank statements.
h. Foot and cross foot selected months of Consolidated Revenue schedule and other
• linked spreadsheets to verify their accuracy.
Compare total sales for selected months to sales tax returns filed with the applicable taxing
jurisdictions.
9. Verify that the Concessionaire's payments were remitted timely in adherence to the dates designated
by the City.
10. Review the products and prices charged by the Concessionaire to determine if the City Manager or
his /her designee has approved them.
a. Obtain pricing from site visits to beach locations.
b. Compare prices to Concession Agreement terms. Recalculate any increase to determine if it
falls with the limits of the Concession Agreement.
•
c. Determine if the City has authorized any price increases and verify if the Concessionaire has
the authorization in its files.
50
•
EXHIBIT 6 .
(page 3 of 3)
11. Verify the status of operations at both 21 Street and 46 Street.
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 Tim Wilcox, Inc. for explanation.
12. Verify that the 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 Concession Areas (including the Concession Buildings) 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 Revenue schedule.
14. . • Determine and document how management verifies which Concession Areas were open on a
particular day. •
•
a. Agree food and beverage sales to reports. Agree amounts sold to daily inventory sheets.
b. Using sales documentation or daily cash register 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 may be 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 unusually 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 changes 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's follow -up.
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