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2015-29166 Reso RESOLUTION NO.. 2015-29166 A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, APPROVING AND AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE AMENDMENT NO. 1 TO THE CONCESSION AGREEMENT (CONTRACT) BETWEEN THE CITY AND TIM WILCOX, INC.,WHICH PERFORMS BEACHFRONT CONCESSION SERVICES FOR 21st AND 46th STREETS, WITH THE CURRENT TERM ENDING ON OCTOBER 31, 2015; SAID AMENDMENT EXTENDING SAID CONTRACT, ON A MONTH-TO-MONTH BASIS, UNTIL SUCH TIME AS THE RFP PROCESS FOR THE MANAGEMENT AND OPERATION OF CONCESSION STANDS AND BEACHFRONT CONCESSIONS, LOCATED EAST OF COLLINS AVENUE NEAR BOTH 21st AND 46th STREETS, MAY BE COMPLETED AND A NEW CONCESSION AGREEMENT EXECUTED, AND PROVIDING THE CITY WITH THE RIGHT TO TERMINATE THE CONTRACT FOR CONVENIENCE AND WITHOUT CAUSE; AND FURTHER ACCEPTING THE RECOMMENDATION OF THE CITY MANAGER PERTAINING TO THE RANKING OF FIRMS, PURSUANT TO REQUEST FOR PROPOSAL (RFP) NO. 2015-205-WG FOR THE MANAGEMENT AND OPERATION OF CONCESSION STANDS AND BEACHFRONT CONCESSIONS, LOCATED EAST OF COLLINS AVENUE, NEAR BOTH 21st STREET AND 46th STREET, AUTHORIZING THE ADMINISTRATION TO ENTER INTO NEGOTIATIONS WITH BOUCHER BROTHERS MIAMI BEACH 21 & 46 ST, LLC., AS THE HIGHEST RANKED PROPOSER; AND FURTHER AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE A CONCESSION AGREEMENT WITH BOUCHER BROTHERS MIAMI BEACH 21 & 46 ST, LLC., UPON CONCLUSION OF SUCCESSFUL NEGOTIATIONS BY THE ADMINISTRATION. WHEREAS, on November 22, 2010, pursuant to Request for Proposals (RFP) No. 39-05/06, the Mayor and City Commission passed Resolution No. 2010-27391, authorizing the Administration to negotiate a concession agreement with Tim Wilcox, Inc., the top ranked proposer; and further authorized the Mayor and City Clerk to execute an agreement upon successful negotiations by the Administration; and WHEREAS, the City entered into a concession agreement (Contract) with Tim Wilcox, Inc., having an effective date of October 1, 2010, having an initial term of two years with three (3) one (1) year renewals; and WHEREAS, all renewals have been exercised and the agreement will expire on October 31, 2015; and WHEREAS, on July 8, 2015, the City Commission authorized the issuance of Request for Proposals (the RFP) 2015-205-WG for the Management and Operation of Concession Stands and Beachfront Concessions, Located East of Collins Avenue, Near Both 21St Street and 46th Street; and WHEREAS, pending completion of the RFP process and execution of a new concession agreement, the Administration recommends that the Mayor and City Commission authorize the execution of Amendment No. 1, extending the existing Contract on a month-to-month basis for Beachfront Concession Services for 21St and 46th Streets, and providing that the Contract may be terminable by the City for convenience and without cause; and WHEREAS, Request for Proposal No. 2015-205-WG (the RFP) was issued on July 10, 2015, with an opening date of August 25, 2015; and WHEREAS, a voluntary pre-proposal meeting was held on July 23, 2015; and WHEREAS, the City received three (3) proposals from Blissberry, LLC., Boucher Brothers Miami Beach 21 &46 St, LLC. and M&M Beach Concessions, Inc.; and WHEREAS, on September 1, 2b15, the City Manager via Letter to Commission (LTC) No. 342- 2015, appointed an Evaluation Committee which convened on September 28, 2015 to consider the proposal received by Blissberry, LLC., Boucher Brothers Miami Beach 21 & 46 St, LLC. and M&M Beach Concessions, Inc.; and WHEREAS, the Committee was provided an overview of the project, information relative to the City's Cone of Silence Ordinance and the Government Sunshine Law; general information on the scope of services, and a copy of the proposal; and WHEREAS, the Committee was instructed to score and rank the proposals pursuant to the evaluation criteria established in the RFP; and WHEREAS, after reviewing all the submissions and the Evaluation Committee's rankings, the City Manager exercised his due diligence and is recommending that the Administration be authorized to enter into negotiations with Boucher Brothers Miami Beach 21 & 46 St, LLC., as the highest ranked proposer NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City Commission hereby approve and authorize the Mayor and City Clerk to execute Amendment No. 1 to the concession agreement(Contract) between the City and Tim Wilcox, Inc., which performs beachfront concession services for 21S and 46t Streets, with the current term ending on October 31, 2015; extending said Contract, on a month to month basis, until such time as the RFP process for the Management and Operation of Concession Stands and Beachfront Concessions, East of Collins Avenue, near Both 21st and 46th Street, may be completed and a new concession agreement executed, and providing the City with the right to terminate the Contract for convenience and without cause; and further accept the recommendation of the City Manager, pursuant to Request for Proposals No. 2015-205-WG (the RFP), for the Management and Operation of Concession Stands and Beachfront Concessions, Located East of Collins Avenue, Near Both 21st Street and 46th Street; authorize the Administration to enter into negotiations with Boucher Brothers Miami Beach 21 &46 St, LLC., as the highest ranked proposer; and further authorize the Mayor and City Clerk to execute an Agreement with Boucher Brothers Miami Beach 21 & 46 St, LLC., upon conclusion of successful negotiations by the Administration. PASSED AND ADOPTED this /ey day of QCTOb-er— 2015. ATTEST: Air d i1 1,6 .> Rafae E. •- ado, ity Jerk P e Q 't� ip Levin- zeo.,7 . . 0 T:\AGENDA\2015\October\PROCUREMENT\ 01.5-20\,iM-i-g$et an Op./.tion of Concession Stands and Beachfront Concessions,Located East of Collins Avenue $�"'~��t th ee* s•. ion.doc• :INCORP ORATED_ Lo APPROVED AS TO FORM & LANGUAGE & FOR EXECUTION City Attorney Dote COMMISSION ITEM SUMMARY Condensed Title: A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA,ACCEPTING THE RECOMMENDATION OF THE CITY MANAGER PERTAINING TO THE RANKING OF FIRMS, PURSUANT TO REQUEST FOR PROPOSAL(RFP) NO.2015-205- WG FOR THE MANAGEMENT AND OPERATION OF CONCESSION STANDS AND BEACHFRONT CONCESSIONS, LOCATED EAST OF COLLINS AVENUE, NEAR BOTH 21st STREET AND 46th STREET. Key Intended Outcome Supported: Improve Alliance with Key Business Sectors, Namely Hospitality, Arts & International Business With A Focus On Enhanced Culture, Entertainment& Tourism. Supporting Data (Surveys, Environmental Scan, etc: N/A Item Summary/Recommendation: On July 8, 2015,the City Commission approved the issuance of the subject Request for Proposal. The RFP was released on July 10, 2015.A pre-proposal conference to provide information to the proposers submitting a response was held on July 23, 2015. On August 25, 2015, the City received three(3)proposals from Blissberry, LLC., Boucher Brothers Miami Beach 21 &46 Street, LLC. and M&M Beach Concessions, Inc. On September 1, 2015,the City Manager appointed,via letter to Commission(LTC)No. 342-2015, an Evaluation Committee which convened on September 28, 2015, to consider the proposals received. The Committee was instructed to score and rank the proposal pursuant to the evaluation criteria established in the RFP.The results of the evaluation committee process were presented to the City Manager for his recommendation to the City Commission. After reviewing the submissions and the Evaluation Committee's ranking of the proposals received, the City Manager exercised his due diligence and is recommending that the Mayor and the City Commission authorize the Administration to enter into negotiations with Boucher Brothers Miami Beach 21st and 46th Street, LLC. The RFP is revenue generating and should not create any operational costs for the City. Boucher Brothers Miami Beach 21st and 46th Street, LLC., has proposed an annual minimum guarantee of$122,000.04 be provided to the City. RECOMMENDATION ADOPT THE RESOLUTION. Advisory Board Recommendation: N/A Financial Information: Source of Amount Account Funds: 1 2 Financial Impact Summary: This RFP is intended to be revenue generating and should not create any operational costs for the City. City Clerk's Office Legislative Tracking: [-Alex Denis, Extension 6641 Sign-Offs: D •artmen irector A istant City Manager City M ager MS A KB MT JLM LI1 T:\AGENDA\2015\October\PROCUREMENT\RFP 2015-205-WG Concessions 21st&46th-Summary.doc MIAMIBEACH AGENDA ITEM C 7H DATE 10-1(1- �� MIAMI BEACH City of Miami Beach, 1700 Convention Center Drive,Miami Beach, Florida 33139,www.miamibeachfl.gov COMMIS ION MEMORANDUM TO: Mayor Philip Levine and Members •� the City Co mission FROM: Jimmy L. Morales, City Manager ! - DATE: October 14, 2015 SUBJECT: A RESOLUTION OF THE MAYO` AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, APPROVING AND AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE AMENDMENT NO. 1 (AMENDMENT) TO THE CONTRACT EXECUTED PURSUANT TO REQUEST FOR PROPOSALS (RFP) 39-05/06, BETWEEN THE CITY AND TIM WILCOX, INC.,WHICH PERFORMS BEACHFRONT CONCESSION SERVICES FOR 21st AND 46th STREETS, WITH THE CURRENT TERM ENDING ON OCTOBER 31, 2015; SAID AMENDMENT EXTENDING SAID CONTRACT, ON A MONTH-TO-MONTH BASIS, UNTIL SUCH TIME AS THE RFP PROCESS FOR THE MANAGEMENT AND OPERATION OF CONCESSION STANDS AND BEACHFRONT CONCESSIONS, LOCATED EAST OF COLLINS AVENUE NEAR BOTH 21st AND 46th STREETS, MAY BE COMPLETED AND A NEW CONTRACT EXECUTED, AND PROVIDING THE CITY WITH THE RIGHT TO TERMINATE THE CONTRACT FOR CONVENIENCE AND WITHOUT CAUSE; AND FURTHER ACCEPTING THE RECOMMENDATION OF THE CITY MANAGER PERTAINING TO THE RANKING OF FIRMS, PURSUANT TO REQUEST FOR PROPOSAL (RFP) NO. 2015-205-WG FOR THE MANAGEMENT AND OPERATION OF CONCESSION STANDS AND BEACHFRONT CONCESSIONS, LOCATED EAST OF COLLINS AVENUE, NEAR BOTH 21st STREET AND 46th STREET, AUTHORIZING THE ADMINISTRATION TO ENTER INTO NEGOTIATIONS WITH BOUCHER BROTHERS MIAMI BEACH 21 &46 STREET, LLC., AS THE HIGHEST RANKED PROPOSER; AND FURTHER AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE AN AGREEMENT WITH BOUCHER BROTHERS MIAMI BEACH 21 & 46 STREET, LLC., UPON CONCLUSION OF SUCCESSFUL NEGOTIATIONS BY THE ADMINISTRATION. ADMINISTRATION RECOMMENDATION Adopt the resolution. KEY INTENDED OUTCOME SUPPORTED Improve Alliance with Key Business Sectors, Namely Hospitality, Arts & International Business With A Focus On Enhanced Culture, Entertainment&Tourism. FUNDING This RFP is intended to be revenue generating and should not create any operational costs for the City. BACKGROUND On November 22, 2010, pursuant to Request for Proposals (RFP) No. 39-05/06, the Mayor and City Commission passed Resolution No. 2010-27391, authorizing the Administration to negotiate a contract with Tim Wilcox, Inc., the top ranked proposer; and further authorized the Mayor and City Clerk to execute an agreement upon successful negotiations by the Administration. The City entered into a contract (Contract) with Tim Wilcox, Inc., set forth in the attached Exhibit "A", under Contract No. 39-05/06, having an initial term of two years with three (3) one (1) year renewals, commencing on November 1, 2010. The Mayor and City Commission approved and authorized the Administration to exercise all renewal terms, extending the Contract until October 31, 2015. Commission Memorandum —RFP 2015-205-WG Management and Operation of Concession Stands and Beachfront Concessions, Located East of Collins Avenue, Near Both 21st Street and 46th Street October 14, 2015 Page 2 Pending completion of the RFP process and execution of a new Contract, the Administration recommends that the Mayor and City Commission authorize the execution of Amendment No. 1, extending the existing Contract on a month-to-month basis for Beachfront Concession Services for 21st and 46th Streets; said Amendment providing that the Contract, under said extension, will be terminable by the City for convenience and without cause. RFP PROCESS On July 8, 2015, the City Commission approved the issuance of the subject Request for Proposal. The RFP was released on July 10, 2015. A pre-proposal conference to provide information to the proposers submitting a response was held on July 23, 2015. On August 25, 2015, the City received three (3) proposals from Blissberry, LLC., Boucher Brothers Miami Beach 21 & 46 Street, LLC. and M&M Beach Concessions, Inc. On September 1, 2015, the City Manager appointed, via letter to Commission (LTC) No. 342-2015, an Evaluation Committee (the Committee), consisting of the following individuals: • Dan Kipnis—Waterfront Protection Committee, Resident • Tom Morgan— Region Manager, Coastal Park & Marinas Enterprise Miami-Dade County Parks, Recreation and Open Spaces • John Ripple—Beach Maintenance Director, Parks and Recreation Department, City of Miami Beach • Susan Simpson—Director, Cultural and Community Services Department, Sunny Isles Beach • Elizabeth Wheaton—Assistant Director, Building Department, City of Miami Beach The following individuals were listed as alternates: • Jeff Feldman— Resident • Elizabeth Valera— Deputy Director, Parks and Recreation Department, City of Miami Beach The Committee convened on September 28, 2015, to consider the proposals received. The Committee was provided an overview of the project, information relative to the City's Cone of Silence Ordinance and the Government in the Sunshine Law. The Committee was also provided general information on the scope of services, and a copy of each proposal. The Committee was instructed to score and rank the proposal pursuant to the evaluation criteria established in the RFP. Proposer Experience and Qualifications, including Financial Capability 30 Approach and Methodology 20 Scope of Services 20 The RFP also stipulated that additional points would be applied, if applicable pursuant to the City's Veteran's Preference Ordinance. However, none of the proposers were eligible for the veteran's preference. The Committee discussed the proposer's qualifications, experience, and competence, and further scored the proposals accordingly. The final ranking is as follows: -Commission Memorandum —RFP 2015-205-WG Management and Operation of Concession Stands and Beachfront Concessions, Located East cif Collins Avenue, Near Both 21st Street and 46th Street October 14, 2015 Page 3 RFP#2015-205-WG co Management and `m o Operation of Concession RJ j . LOW Stands and Beachfront c r in -c c AGGRE Concessions Located 2 .n c . GATE East of Collins Near Both E N y .N r TOTAL 21st Street and 46th 2 Ranking CO Ranking co Ranking w Ranking S Blissberry,LLC. 50 3 42 3 40 3 50 3 12 3 Boucher Brothers 97 1 98 1 90 1 91 1 4 1 M&M Beach Concessions, Inc. 72 2 85 2 75 2 70 2 8 2 Minimum Guarantee(MG) Maximum Allowable Total Points Proposer Total Cost Points Awarded* Blissberry, LLC. $ 60,000.00 30 15 Boucher Brothers Miami Beach $ 122,000.04 30 30 M&M Beach Concessions $ 80,004.00 30 20 In determining responsiveness and responsibility of the firm, the Procurement Department verified compliance with the minimum requirements established in the RFP, financial capacity as contained in the Dun & Bradstreet Supplier Qualifier Report, and past performance through client references submitted by each proposer. MANAGER'S DUE DILIGENCE After reviewing the submissions and the Evaluation Committee's ranking of the proposals received, the City Manager exercised his due diligence and is recommending that the Mayor and the City Commission authorize the Administration to enter into negotiations with Boucher Brothers Miami Beach 21st and 46th Street, LLC. The RFP is revenue generating and should not create any operational costs for the City. Boucher Brothers Miami Beach 21st and 46th Street, LLC., has proposed an annual minimum guarantee of$122,000.04 be provided to the City. CONCLUSION That the Mayor and City Commission of the City of Miami Beach, Florida, approve and authorize the Mayor and City Clerk to execute Amendment.No. 1 (Amendment) to the contract executed pursuant to Request for Proposals (RFP) 39-05/06, between the City and Tim Wilcox, Inc., which performs beachfront concession services for 21st and 46th Streets, with the current term ending on October 31, 2015; extending said contract, on a month to month basis, until such time as the RFP process for the Management and Operation of Concession Stands and Beachfront Concessions, East of Collins Avenue, Near Both 21st and 46th Street, may be completed and a new contract executed, and providing the City with the right to terminate the contract for convenience and without cause; and further approve the resolution accepting the recommendation of the City Manager, pursuant to Request for Proposal (RFP) No. 2015-205-WG, for' Management and Operation of Concession Stands and Beachfront Concessions, Located East of Collins Avenue, Near Both 21st Street and 46th Street, authorizing the Administration to enter into negotiations with Boucher Brothers Miami Beach 21st and 46th Street, LLC.; and further authorizing the Mayor and City Clerk to execute an agreement with Boucher Brothers Miami Beach 21st and 46th Street, LLC., upon completion of successful negotiations by the Administration. JLM /KB/ MT/ MS/AD T:\AGENDA\2015\October\PROCUREMENT\RFP 2015-205-WG Concessions Memo.doc 5/12110 cola- x739/ Tim Wilcox , Inc . Concession Agreement for 21St & 46t" Streets INDEX •• . SECTION --•• • TITLE •PAGE . 1. TERM' 5 . 2. CONCESSION AREA(S). •5 2.1 21'Street Concession Area 5 • : 2.2 46th 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 RECORDS 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 • 1.0.7 • 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 1.2.7 . • 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 • 1 • 2 • I . . • • • • • . . • • 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 • - ,• - . • • • • • . . 3 • CONCESSION AGREEMENT BETWEEN • CITY OF MIAMI BEACH, FLORIDA AND TIM WILCOX, INC. • • FOR MANAGEMENT AND OPERATION OF CONCESSIONS AT 21St AND 46th STREETS PURSUANT TO REQUEST FOR PROPOSALS NO. 39-05/06 THIS AGREEMENT made on/lOVegiber2Z, 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 21st -Street and 46th 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 following9 Agreement for the management and operation of concessions at 21st 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. 4 • • • 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 1st, and ending on the October 31St • 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 • V . term or a renewal term, as the case may be: (i)a schedule of any equipment V • - which was replaced. during the term; and V(ii) an itemized list of proposed • replacement equipment. V • • • 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 21St Street Concession Area. a. Concession Building: . This Concession Area is limited to the concession stand building, as • further delineated in Exhibit 2.1 (a). V b. Beachfront Concession Area: V 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 21St 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"d 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 . • • 5 • • • 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; • . . 6 • • • 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(M.HWL)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. • 2.4 - 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 7 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. Buffer Zones: . . . • City and Concessionaire acknowledge that there are certain areas within the 21st Street & 46th 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. • 8 • • • • 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 pursuantto Exhibit(s)3.1.2), shall be permitted daily before 10:00AM, 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(') 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 anyway impede and/or obstruct-sightlines, or have any • other effect whatsoever which would directly or indirectly impede the 9 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 • 10 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 21st Street and 46th 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 servte 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 rnanner. At • least one (I supervisory empioyee 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.. • • 32.6 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 • 11 • . 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 O, PP P 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 . • 12 • • • •. 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 1st, 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. 1. 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 13 • • • • • • 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 21st 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 less 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 •opporttunity 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, g g , 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 loss, damage, cost, or. expense. of the City, including,. without limitation, reasonable attorney's fees, incurred as a result of,arising from,or connected with the placement by Concessionaire of any "hazardous substance" or "petroleum products" on, under, in or upon the Concession Areas as those terms are defined by applicable Federal and State Statute, or any environmental rules and environmental regulations promulgated thereunder; 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, 0 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 21st Street and/or 46th 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 penalty•to 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 it shall 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-to the City shall be deemed duly served upon receipt,if • mailed by registered or certified mail return receipt requested to the City of Miami Beach at the following addresses: City Manager City of Miami Beach 1700 Convention Center Drive Miami Beach, FL 33139 With 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 suc h 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,Concessionaire shall send • to the City Manager a written request for approval or consent(the"Approval . • Request"). The City Manager or his/her designee shall us a 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 ($50,000.00) Dollars, for any action for breach of contract arising out of the performance or non-performance of any obligations imposed upon the City by this •Agreement. Nothing contained in this paragraph or elsewhere in this Agreement is in any way intended to be a waiver of limitation placed upon the City's liability as set forth in Florida Statutes, Section 768.28. • SECTION 23. VENUE. This Agreement shall be deemed to have been made and shall be construed and interpreted in accordance with the laws of the State of Florida. This Agreement shall be enforceable in Miami-Dade County, Florida, and if legal action is necessary by either party with respect to the enforcement of any and all the terms or conditions herein, exclusive venue for the enforcement of same shall lie in Miami-Dade County, Florida. CITY AND CONCESSIONAIRE HEREBY KNOWINGLY AND INTENTIONALLY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING THAT CITY AND CONCESSIONAIRE MAY HEREIN AFTER INSTITUTE AGAINST EACH OTHER WITH RESPECT TO ANY MATTER ARISING OUT OF OR RELATED TO THIS AGREEMENT • . OR THE CONCESSION AREA(S). IN WITNESS WHEREOF, the parties hereto have caused their names to be signed and-their seals to be affixed, all as of the day and year first above written, indicating their a.g:reement. . Attest:: CITY OF MIAMI BEACH, FLORIDA r alf/CLe/\ .46e/hr ,• (1. • - Robert Parcher, CITY CLERK i.tti Herre a Bow, MAYOR i Attest: TIM WI c OX, INC. Signature/Secr: ry Ti Wilco Pr:. id nt ���i✓�M •PR• . -• AS TO Print Name ORM •NGUAGE -Ott EXECUTION F:\RHCD1$ALLIECONI$ALLIASSET1Beach Concession RFPVTW Agreement Draft 08-13-10;. / reolorer / /19 1t 36 �;!�mey Da e • { EXHIBIT 2.1 (a) • ., --_ \.,4,.4 ./,•-"-p --.. ----- 4,s_•f\--Te-,-- \ • \ \, ` r I , • a .•f a r a 7 j 1 f i•••'—^ ' • • 1_1■1��■'1)11...1114==l- ■■■4i�l■■■ 1. •.f. r s•.t.• r r I - a I L , t <[•. . 1' I! `f - • • ' • a f f ' ' f,r) ■• . c... '1 ' i..f• a ' f a c ' E■.■■■■GI■O :■..` 'f' .f... a..., .ice: •. L r'f , r , .f •r I f I. . 4 t ••t L• �, • .. I 1• .♦ i / / • t. t f.[I a Y .• • + ra •r I& / .. 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M .I !r , � 1 , "� l i y. r ( 5-1,,,,,,,..„.:ti r }1, . --•i' r _ ..%_ 7 .: 4eE .try • S ,V,,,,J„.1,2,.'"_L.- - • 40 . • i • EXHIBIT 3.1 (Section 1 of 2) Approved Beach Rental Equipment& Pricing 21st 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 • • • I - 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 $50.00 • • • • • 42 • EXHIBIT 3.1.(a) . • • ..:�.. 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Y 4r414,-•-df:S '�, K.k rte. _ -:..y;-7\{_ , • •vlr.ti� .•f�" ,:..:gq.4-I - i4. .;,fit H'150>,.- ' .:•�.k'g• • _;':ie..i,:=..2:tl:�i• '. r�� l . ..' 'I-�;�+�ya` '',,,,,*,7-61, •'' t 1f uri c g g E ,_ ' -, ...4,:;,,,- =r:�i:. ; •-II` � ' 1u: i' ' i a, C[S Ci+u l '11CONLESSION A 'e r• .. y t.-,.. I ,• j}. ...,,,.''''''w • t J``�-l ▪2 aN qti S „ g -i. 1 i.' :.#".;7 3-` 19'?:t';'2"t - eJ1p }il' _,.t.F.• PROPER' ,,,. 7-z,:x_ . . g"s: {» i r .-.? - tt ai z '(�. si ° ttn: • L!riE ExTGiJ$:4il� aTn•�- \ ® f'. ( r"Ir w W -t _,. .d 0 '^.. i"'..r •-T-..77,,,,-•;C- i�g h':' - 4� ? e '6.- `'' : 3£+'7'47... i1 ter `>; . h-1 _•r�;r> 1 L� : ?-- : r_'il'', _ >-i 2,,:.'.e.:5";-, i k d�'' �..''�1*-,. ai >r�a.. Kid 'etc ira` - t \\ BUFFER ZOIIE "c , 711• ' ^« t4 ..i•. -emu j,.- gt.'ba'r` -•• .:,: ,,e '7-'- 9,,,, ,4:4-„,,,,,,::-, i!-.' ': 'J:-�.u, ,.47 C :W._~ _ -�Yt 2vYj» r�y3 4 ;.k3 3l l .. +�•SArn«,. .i ° .,--,z tic. 'x 4 ly t�' .------7------.-----9' '„-+'_I; y_t,.. .`,:t7 -.,b�•4 a ar 5,.r.• rr .:'�!'��' .:�:.c_, t i •?-L: ° ?~" ,.. yes,=' ri7='''�Q. 7.97.mot.•: . :,r;c %t- ,z.. ice. 16�:',.�. .. .;'t+'.'...�4'y., i,- t-.�,;.w•t';- a - .t.._..25` _ -rt.,-,;� • :-%'.t : ` •�'; L :. 9 ,��„._ ,,,, �r 6,_,..._%y+` ,.•-• - a s i in.RSA 'Zi kF' 'J �Pt� S VIX yCX 1( F_> •�';,�[*.+ '• 4iTca.s }:F "t�,.' ! f _ ._ Ya�Y: 1 -.r. . ▪_ . S4,-s • • • • • 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 • • Menu for 21St Garden Salad • Concession Stand Fresh Greens,Cheeses,Veggies;Egg,and Crisp; Bacon Beach_B.BQ } • • • 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.Fned.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 a Pulled Pork Slowly Smoked Until Tender topped with Creamy Cole Slaw The Beach BBQ • • Smoked&Pulled BBQ Chicken Drizzled with•Our 'Beef Hotdogs::x:.:$4.00 Sweet Georgia Brown Sauce wrapped in a The Beach bog __ : . . • _ White Tortilla f ot .served:in a bun with your The Veggie Beach choice of H toppings dog Assorted Fresh Veggies, Mixed Greens, Fruit Smoothies:..- .'.$5:00: `- Tomatoes,lack&Cheddar Cheese:W rapped_in a '- • Ocean Drive Breeze ._ze • . = Zesty Herb Tortilla Strawberries,:Pineapples;Oranges&Mango • • Salads • :$6.00 : Paradise.Passion Southern Fried Chicken Salad Strawberries,Bananas,&Pineapples - ` Fried Chicken;Jack&Cheddar Cheese;Mixed :„_ .._•• S unset_Magic Greens,Veggies,Bacon and Onion- Oranges,Strawberries;&Bananas • •Smokehouse BBQ Salad south Beach Berry • • Strawberries&Non-:Fat Yogurt •. Fresh Greens Topped with choppedBBQ Pork;, . Cheeses,Egg,Veggies,Bacon&Red"Onions Sunrise Passion ' - Pineapples,Orange,&Non Fat Yogurt -- 5...•4is _ -,m e.._±� . :--__.• .c--Y.J-, `..t._.r - 4-- � ,�`yR---�..� '« .i^�ay r_-Y:.; �_- Y, 1:..., r ?L._--____•� . :-fin i-+:•o ff. • . EXHIBIT 3.3'.•: : : - •. : '21st.&46 ':STREET' SUNDRY ITEMS &.PRICES* . :ASSORTED BEACH°TOYS :'$. 7,�0 20"Beach Ball' .- - 1 • • 48"Jumbo Beach Ball $1$11.00 00 Bazooka-Water Gun•.:;., $18.25•. : ' Beach Girl 5-pc set ti ' . (includes bucket,castle mold,watering can shovel and rake) $1345 Bag'&Inflatable ,.• - • • (a beach bag'that converts to a:floater) ..$10.25 •.Beach-Bucket•with.two sand shovels, $10 25 • Complete Sand&Water Beach Play Set - '(includes-toys,watering can bucket,shovel,bag and more..) • $1x.75 - • Leaf:Rake'(PVC fee. e): $3225 Life Vest(for kids) $18.25 ' -River.Tube $. 8.25 Sand Scoop( PVC free), .. $19:25• • • Sevylor 4 Piece•Beach Set ! - • (includes a Mattress,a chair,a ring and an hammock-Inflatable) Scope&Snorkel • : $18.25 Swim$et,:with fins: $25.75 • Swim tube: $25.75 - r Truck with 5 beach:accessories , ' • • (inciudes:a pail;:2:shovels and.2 sand molds) ' '$18.25 • Water Wings .: -- -..ASSORTED SUN CARES PRODUCTS . $12.99 Sunbiock 15+SPF 8-oz • � - . . -' Soz � $12.99 Sunblock 30+SPF ': - - $13.99 Sunblock 45#SPF • ' 8 oz : • • •• :Golden Tanning Lotion 6 SPF - soz $11.99: $11.99 . : • ' .Golden Tanning Dry•Oil 6 SPF:.,:::. ,8 oz, , .• ::;Lt Balm 45+SPF :Q14._ ,� 2.25 Lip--Balm �. � � ... $5.S0.to$16:25 . A • SSORTED:HATS • *all prices 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 46th Street and at 21's 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 h 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. . • J • • • . . 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. i. Compare total sales for selected months to sales tax returns filed with the applicable taxing • jurisdictions. • • • • • -9. Verify that the Concessionaire's payments were remittedtimely 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 . (page3of3) 11. Verify the status of operations at both 21 st Street and 46th Street. • • .. t• 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. I . • • 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. -• • • [. 51 •