Concession Agreement with Woosh Miami Beach LLC • 0?01 02
CONCESSION AGREEMENT
BETWEEN
CITY OF MIAMI BEACH, FLORIDA
AND
WOOSH MIAMI BEACH LLC
FOR THE IMPLEMENTATION, MANAGEMENT AND
OPERATION OF A PILOT PROGRAM OF SMART WATER STATIONS
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INDEX
SECTION TITLE PAGE
1. TERM 5
2. CONCESSION AREA(S)AND CONCESSION SERVICE ZONE 6
2.1 Concession Service Zone 6
2.2 Concession Area (s) 6
2.3 Unsuitable Concession Area(s)/New Concession Area(s) 6
2.4 Under-utilized Concession Area(s) 6
2.5 High-Risk Concession Area(s) 7
2.6 Relocation of Concession Area(s) 7
2.7 Concession Service Zone non-exclusive with City 7
2.8 Exclusivity within Protected Zone 8
2.9 No Prohibition as to areas outside Concession Service Zone 8
3. USE(S) 8
3.1 Water Stations Services 8
3.2 Design, Permitting and Installation of Water Stations 9
3.3 Project Schedule 9
3.4 Construction Insurance 9
3.5 Operational Ceiling for Program 10
3.6 Price Schedules 10
3.7 Water Stations property of Concessionaire 10
3.8 City Contribution to Program 10
4. CONCESSION FEES 10
4.1 Percentage of Gross Sales Receipts (PG) 11
4.2 Interest on Late Payments 12
4.3 Sales and Use Tax 12
4.4 Advertisement Revenues 12
4:5 Concessionaire's Termination for Convenience 13
-5. UTILITY CONNECTIONS AND PAYMENT OF UTILITIES ...13
5.1 Utility Connections 13
5.2 Payment of Utilities 13
6. MAINTENANCE AND EXAMINATION OF RECORDS 13
6.1 Concessionaire Reports 14
6.2 City Reports 14
7. INSPECTION AND AUDIT OF FINANCIAL RECORDS 14
8. TAXES AND ASSESSMENTS 14
8.1 Concessionaire responsible for Assessments and Licenses 15
8.2 Procedure if Ad Valorem Taxes Assessed 16
9. EMPLOYEES AND INDEPENDENT CONTRACTORS 15
9.1 Concessionaire's Employees 15
9.2 Personal Appearance of Employees 16
9.3 Hiring of Unemployed Miami Beach workers 16
9.4 City Manager's Designee 16
10. HOURS OF OPERATION 17
11. MAINTENANCE, REPAIR AND OPERATION 17
11.1 Maintenance/Repair 17
11.2 Performance by City in an Emergency 18
11.3 Orderly Operation 18
11.4 No Dangerous Materials 18
11.5 Security 18
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11.6 Inspection 19
12. INSURANCE 19
12.2 Subrogation 20
13. INDEMNITY 20
14. Force Majeure 21
14.2 Waiver of Loss from Hazards 21
15. DEFAULT AND TERMINATION 21
15.1 Bankruptcy 21
15.2 Default in Payment 22
15.3 Non-Monetary Default 22
15.4 Continuous Operation 22
15.5 City's Remedies for Concessionaire's Default 22
15.6 Default by City 23
15.7 Surrender of Concession Areas/ Removal by Concessionaire of
Equipment/Improvements 23
15.8 Substitute Performance 24
16. PERFORMANCE BOND OR ALTERNATE SECURITY 24
17. ASSIGNMENT 25
18. SPONSORSHIPS 25
18.2 Marketing of Program 25
19. NO IMPROPER USE 25
20. NOTICES 26
21. LAWS 27
21.1 Compliance 27
21.2 Governing Law 27
21.3 Equal Employment Opportunity 27
21.4 No Discrimination 27
22. MISCELLANEOUS .27
22.1 No Partnership 28
22.2 Modifications 28
22.3 Complete Agreement 28
22.4 Headings 28
22.5 Binding Effect 28
22.6 Clauses 28
22.7 Severability 28
22.8 Right of Entry 29
22.9 Not a Lease 29
22.10 Signage 29
22.11 Procedure for Approvals and/or Consents 29
22.12 No Waiver 30
22.13 No Third Party Beneficiary 30
22.14 No Lien 30
23. LIMITATION OF LIABILITY 30
24. JURY TRIAL WAIVER 31
EXHIBITS
Exhibit 1 Concession Area Site Plan/ Concession Area Site List 33
Exhibit 2 Program Equipment: Water Station Specs 34-36
Exhibit 3 Price Schedule 37
Exhibit 3.1 Utility Connections 38
Exhibit 4 Project Schedule 39
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CONCESSION AGREEMENT
BETWEEN
CITY OF MIAMI BEACH, FLORIDA
AND
WOOSH MIAMI BEACH LLC
FOR THE IMPLEMENTATION, MANAGEMENT AND OPERATION
OF A PILOT PROGRAM OF SMART WATER STATIONS
THIS CONCESSION AGREEMENT ("Agreement")"A reement") made on JariA , 2016
(Effective Date), between the CITY OF MIAMI BEACH, a municipal corporation of the
State of Florida, having its principal address at 1700 Convention Center Drive, Miami
Beach, Florida, 33139 (hereinafter called the "City"), and WOOSH MIAMI BEACH LLC,
a Florida limited liability company, with offices at 33-C Venetian Way, Suite 66, Miami
Beach, Florida 33139 (hereinafter called "Concessionaire").
WITNESSETH
WHEREAS, bottled water is one of the most "invisible" industry polluters, as water is
typically packaged in single serve bottles made of polyethylene terephthalate (PET); and
WHEREAS, most produced PET bottles are discarded and pile up in garbage dumps
and landfills; and
WHEREAS, a significant percentage of the discarded bottles find their way to the ocean
and, due to their long "lifespan", they don't degrade and pollute many ecological
systems; and
WHEREAS, on the municipal level, piled-up plastic bottles waste causes, in some
cases, blockage in sewer systems or other pipelines; and
WHEREAS, moreover, a high level of carbon is generated during the comprehensive
process of production and sale of the bottled water; and
WHEREAS, Concessionaire offers a new municipal service for the benefit of the citizens
and visitors of the City of Miami Beach; and
WHEREAS, Concessionaire aims to deploy and operate a network of Smart Water
Systems across the City; and
WHEREAS, the network of stations will provide purified and chilled drinking water in a
smart and fun way for people "on-the-go"; and
WHEREAS, the service is provided as an alternative to environmental-harmful plastic
bottles at a fraction of the price; and
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WHEREAS, implementing the service is a strong statement by the City that it actively
promotes health and environmental values for the benefit of its citizens; and
WHEREAS, the City's Sustainability Committee, at its January 22, 2015 meeting,
recommended that City staff explore potential partnerships with Concessionaire in order
to reduce single serve plastic bottles in Miami Beach; and
WHEREAS, on July 31, 2015, the City Commission adopted Resolution No. 2015-
' 29102, accepting the recommendation of the Sustainability Committee, and authorizing
the Administration to negotiate an agreement with Concessionaire in connection with the
operation of a pilot program of Smart Water stations in the City of Miami Beach; and
WHEREAS, accordingly, the City and Concessionaire have negotiated the following
Agreement for the implementation, management and operation of a pilot program for a
City-wide network of purified, filtered and refrigerated, bottled water refilling stations (the
"Program water stations" or the "water stations") at the Concession Areas (as defined in
Section 2.2) (the "Program").
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 right to operate the Program (as further described herein) within the
Concession Service Zone and upon the Concession Areas (both as defined herein), in
conformance with the purposes and for the period stated herein and subject to all the
terms and conditions herein contained and set forth.
SECTION 1. TERM.
1.1 The initial term of this Agreement (the "Term") shall be for three (3) years,
commencing on the Operational Rollout Date (the "Commencement Date"). The
"Operational Rollout Date" shall be.defined as the first date that all the water
stations in the Program are operational and available for the public's use.
1.1.1 Concessionaire shall provide the City Manager or his designee with
written notice of the Operational Rollout Date no later than thirty(30) days
prior to the commencement of said date.
1.2 If the Operational Rollout Date does not occur within a year from the Effective
Date, either party may terminate this Agreement for convenience; following
which, each party shall be discharged from any and all liabilities, duties, and
terms arising out of, or by virtue of, this Agreement.
1.3 At the City's sole discretion, and provided further that the Concessionaire is not in
default under this Agreement, the City may extend the term of this Agreement,
for one (1) year.
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1.4 For purposes of this Agreement, a "Contract Year" shall be defined as
that certain 365 day period commencing on the Operational Rollout Date.
SECTION 2. CONCESSION AREA(S) AND CONCESSION SERVICE ZONE.
The City hereby grants to the Concessionaire the right, during the Term of this
Agreement, to operate the Program, as described herein, generally in the following
Concession Service Zone (as defined in Subsection 2.1 below) and, specifically, upon
the Concession Areas defined in Subsection 2.2 and identified in Exhibit 1 to this
Agreement (hereinafter, such Areas shall be referred to individually as a Concession
Area, or collectively as the Concession Areas):
2.1 Concession Service Zone.
The Concession Service Zone means the geographical boundaries for the
Program, which shall be limited to be in exterior (i.e. outdoor) spaces
owned or operated by the City of Miami Beach.
2.2 Concession Area (s).
There shall be a total of twenty-five (25) Concession Areas, as more
particularly set forth in Exhibit 1 to this Agreement.
, Concessionaire shall not install and operate additional water stations
(unless Concessionaire is undertaking the repair or replacement of an
existing water station in an approved Concession Area), nor identify
additional or alternate locations for same (other than as identified in
Exhibit 1), without the prior written approval of the City Manager. Any
changes to Exhibit 1 shall require the prior written approval of the City
Manager, and Exhibit 1 shall be amended accordingly.
2.3 Unsuitable Concession Area (s)/ New Concession Area(s).
In the event that an approved Concession Area in Exhibit 1 is
subsequently found by the City, through its City Manager, in his sole
discretion, to be unsuitable for a water station location, Concessionaire
and the City Manager shall use reasonable efforts to find a replacement
Concession Area, and Exhibit 1 shall be amended accordingly; provided,
however, that any proposed replacement Concession Area shall also be
subject to the prior written approval of the City Manager. The same
procedure shall be followed for the addition of new Concession Areas.
2.4 Under-utilized Concession Area (s).
The City Manager, in his sole discretion, may deem a Concession Area
an "Under-utilized" Concession Area, following a written request by
Concessionaire to the City Manager. Concessionaire's request shall
include usage data for that Concession Area, which indicates that the
quantity of daily fills per water station, or member uses of that Concession
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Area, falls 50% below the Average Program Usage (as defined below).
The "Average Program Usage" ("APU") shall be defined as the average
number of fills/uses per day, per water station, operating in the Program
during a given calendar month. In the event that the City Manager
determines that a Concession Area is an Under-utilized Concession Area,
the City shall use reasonable efforts to cooperate with Concessionaire to
identify a new Concession Area and, if such new Concession Area is
approved, in writing, by the City Manager, Exhibit 1 shall be amended
accordingly.
2.5 High-Risk Concession Area is).
The City Manager, in his sole discretion, may deem a Concession Area a
"High-Risk" Concession Area, following a written request by
Concessionaire to the City Manager, when its incidence of vandalism is
50% higher than the Average Vandalism Rate. The "Average Vandalism
Rate" ("AVR") shall be defined as the average number of acts of
vandalism per water station operating in the Program within a given
calendar month. The Concessionaire's written request shall include usage
data for the Concession Area in question which indicates that the rate of
vandalism is 50% higher than the Average Vandalism Rate. In the event
that the City Manager determines that a Concession Area is a High-Risk
Concession Area, the City shall use reasonable efforts to cooperate with
Concessionaire to identify a new Concession Area, and if approved in
writing by the City Manager, Exhibit 1 shall be amended accordingly.
2.6 Relocation of Program Water Station ..(s). Any relocation of the water
stations shall be at the sole cost and expense of Concessionaire
including, without limitation, all costs associated with permitting, approval,
and installation of the water station at a new Concession Area; any
required site work (in the new Concession Area and/or surrounding
areas); and any and all costs associated with permitting and
disconnection of the water station at the existing Concession Area,
including any required site work at the existing Concession Area and
surrounding areas relating to the disconnection and restoration of the
existing Concession Area (collectively referred to as "Relocation Costs").
Notwithstanding the foregoing, if the City chooses to relocate a
Concession Area for its own purposes (exclusive of any Concession Area
on Lincoln Road, for which Concessionaire shall be responsible for any
Relocation Costs regardless of the reason or which party requests the
relocation), and not at the request of Concessionaire, then, in such case,
the City shall be responsible for the Relocation Costs.
2.7 Concession Service Zone Non-Exclusive. Except for the limited
exclusivity delineated in Section 2.8 and subject to the terms contained
therein, the Concessionaire's rights under this Agreement are not
exclusive. The City shall be entitled to install and/or operate any type and
any number of water fountains or bottle refilling stations anywhere in the
Concession Service Zone ("City Water Stations").
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2.8 Exclusivity within Protected Zone. During the Term of this Agreement,
and so as not to directly compete with a Program water station, the City
agrees not to install or permit to be installed, a freestanding, refrigerated,
and filtered bottled water refilling station or a similar product to the
Program water station ("Exclusivity") within a 300 foot radius of any
Program water station ("Protected Zone"). This Exclusivity within the
Protected Zone shall not prevent the City from installing and shall not
apply to: (1) any non-refrigerated City Water Station within the Protected
Zone; (2) any indoor refrigerated or non-refrigerated City Water Station
within the Protected Zone; or(3) any refrigerated City Water Station
which is installed on the exterior of a City-owned or City-operated facility
or structure within the Protected Zone.
2.9 No Prohibition as to areas outside Concession Service Zone. This
Agreement shall not be construed to prevent Concessionaire from
installing or operating water stations outside of the Concession Service
Zone, subject to Concessionaire securing all requisite ownership and
governmental approvals, including, without limitation, all regulatory and
permitting requirements.
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 related to the operation of the Program
within the Concession Area(s); all at its sole cost and expense:
3.1 Water Stations Services
Concessionaire shall provide purified water bottle refilling at automated,
self-service water stations in the Concession Areas, on a pay per use and
subscription basis. The City herein approves: (i) Concessionaire's
concept plan design as to the type of water station, which plan is attached
as Exhibit 2 hereto; and (ii) the prices per fill, and/or subscriptions for
same, as set forth in Exhibit 3, hereto. Any amendments to Exhibits 2
and/or 3, including, without limitation, as to type of water station, or as to
changes in prices, must be approved, in writing, by the City Manager prior
to such changes being implemented within the Concession Area(s), and
the corresponding exhibit(s)will be amended accordingly.
Notwithstanding the above, the City and Concessionaire hereby acknowledge and agree
that the City's approval in Subsection 3.1(i) above, as to the type of water station, is
given by the City solely in its proprietary, and not in its regulatory, capacity.
Notwithstanding such proprietary City approval, Concessionaire acknowledges
and agrees that proposed locations of a water station within a certain Concession
Area may also trigger and require review and approval by one (or more) of the
City's land use boards. Accordingly, in such circumstances, Concessionaire shall
be required, at its sole cost and expense, to obtain any and all required final, non-
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appealable development approvals and/or orders for such water stations, prior to
implementation of said water stations in those Concession Areas.
3.2 Design, Permitting and Installation of Water Stations
3.2.1 Concessionaire shall provide, at its sole cost and expense, any
and all design services including, but not limited to, architectural
and engineering services, as reasonably required in connection
with the permitting, approval, and installation of the Program water
stations.
3.2.2 Concessionaire agrees to secure, at its sole cost and expense, all
required approvals from all governmental authorities having
jurisdiction over the Program, in connection with the permitting,
installation and operation of the Program water stations.
3.2.3 In addition to the design, fabrication, construction, and installation
of the Program water stations, Concessionaire shall also be solely
responsible (including cost) and shall pay for the design,
fabrication, construction, and installation of any and. all other
improvements to a Concession Area or Areas.
3.3 Project Schedule.
Within thirty (30) days from the Effective Date, Concessionaire and City Manager
shall mutually agree upon a detailed written schedule for the fabrication,
construction, permitting, and installation of the water stations. At a minimum, the
schedule shall specify {and include specific milestones and timelines for) the
permitting phases; fabrication time; commencement and completion
of construction; commencement and completion of installation;
and implementation and set-up date (up to the Operational Rollout Date). Said
schedule, when completed, shall be attached and incorporated as Exhibit 4 to
this Agreement (as approved, the Project Schedule). The Project Schedule, or
specific dates and/or milestones therein, may be extended by the City Manager,
in writing, at his sole discretion, upon written request from the Concessionaire,
which notice shall state the reason for the request and the anticipated period of
time requested.
3.4 Construction Insurance.
3.4.1 The City shall not be liable for any claims, losses or damages suffered by
third parties arising from Concessionaire's, or its officers', agents', employees' or
contractors' fabrication, construction, and installation of the water stations.
3.4.2 Concessionaire shall maintain, or require that its contractor(s) maintain,
the following insurance coverages in connection with the installation of the water
stations:
A. Worker's Compensation insurance in at least the minimum amounts
required by Florida law; and
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B. Commercial General Liability on a comprehensive basis, including
Contractual Liability, Products/Completed Operations, in an amount
not less than $1,000,000 combined single limit per occurrence for
bodily injury and property damage. The City of Miami Beach, Florida
shall be included as an additional insured with respect to this
coverage.
3.4.3 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 designee. Prior to the commencement of the installation of
the Program water stations, Concessionaire shall provide the City with
Contractor's Certificate of Insurance for the insurance requirements contained in
Section 3.4.2. 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.
3.5 Operational Ceiling for Program.
The "Operational Ceiling" in the Concession Service Zone shall be defined as the
maximum number of water stations permitted to be operating and available to the
public at any time during the Term of this Agreement. FOR PURPOSES OF THIS
AGREEMENT, THE OPERATIONAL CEILING SHALL BE 25 WATER
STATIONS.
3.6 Price Schedules.
Concessionaire agrees that prices charged for water fill and membership
subscriptions will be consistent with the price schedule(s) (herein submitted by
the Concessionaire and approved by the City) in Exhibit 3 hereto. All subsequent
price schedule changes must be approved, in writing, by the City Manager. The
City Manager shall have the final right of approval for all such price schedules,
including requested price changes contained therein, but said approval shall not
be arbitrarily or unreasonably exercised.
3.7 The water stations shall be the sole and exclusive property of Concessionaire
during the Term of this Agreement.
3.8 City's Contribution to Program. The City agrees to also provide Concessionaire
with the following non-monetary assistance for the Program:
A. Banner and link for Program on City's website;
B. Monthly feature in Miami Beach Magazine (PSA's, Editorials
and/or other placements) during the first Contract Year
following the Operational Rollout Date. (Concessionaire shall
provide camera-ready artwork);
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C. Quarterly e-mail blasts to all City employees and others on
City e-mail lists during first Contract Year following Operational
• Rollout Date; and
D. Regular PSA features on Channel 77 for the first six (6)
months following the Operational Rollout Date, to announce
Program implementation and, thereafter, on at least
a quarterly basis throughout the Term.
SECTION 4. CONCESSION FEES.
4.1 Percentage of Gross Sales Receipts (PG): Commencing on the Operational
Rollout Date, the following sums shall be due and payable by Concessionaire to
the City within fifteen (15) days following the end of each calendar month (during
each Contract Year throughout the Term)through the end of the initial Term.
The term "gross sales receipts" is understood to mean all income retained or
accrued as a result of sales activity derived by the Concessionaire under the
privileges granted by this Agreement, including, without
limitation, Concessionaire's sales from fills, subscriptions, 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. Any sales which result in credit card chargebacks where
the customer's credit card company refuses or denies payment on transactions
shall not be calculated as a part of any revenues subject to revenue sharing.
A. Concessionaire shall pay the City a percentage of gross sales receipts
(PG) Concessionaire generates from operating the Program under this
Agreement (Operational Revenue), as follows:
(i) during the first Contract Year, an amount equal to ten percent
(10%) of Concessionaire's gross sales receipts shall become due
and payable by Concessionaire to the City;
(ii) during the Second Contract Year, an amount equal to twelve
percent (12%) of Concessionaire's gross sales receipts shall
become due and payable by Concessionaire to the City; and
(iii) during the third Contract Year, an amount equal to fifteen percent
(15%) percent of Concessionaire's gross sales receipts shall
become due and payable by Concessionaire to the City;
B. Grace Period for Operational Revenue Sharing. From the Operational
Rollout Date and continuing 1) during the first eighteen (18) months
following the Operational Rollout Date; or 2) until Concessionaire
generates revenues under the Program totaling $1,300,001.00,
whichever occurs first, Concessionaire shall be exempt from any
revenue sharing with the City for the Operational Revenue (except
relating to the Utility Connection up-front cost required under Subsection
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5.1, which will be reimbursed to the City no later than September 1,
2016), in order to provide Concessionaire with an opportunity (but without
a guaranty) to recapture its agreed upon estimated upfront investment.
C. Gross sales receipts generated from the sale or distribution of a pre-paid
card shall be exempted from revenue sharing until point of sale, as all
purchases/uses at the water stations shall be booked as a sale at each
water station for purposes of revenue sharing, based upon the approved
price list.
4.2 Interest on Late Payments.
Any payment which Concessionaire is required to make to City which is
not paid on or before the respective date provided for in this Agreement
shall be subject to interest at the rate of eighteen percent (18%) per
annum, or the maximum interest allowable pursuant to Florida law,
whichever is less, from the due date of payment until such time as
payment is actually received by the City.
4.3 Sales and Use Tax.
Any required Florida State Sales and Use Tax shall be paid
by Concessionaire directly or added to 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.
4.4 Advertisement Revenues. As of the Effective Date, the City Code does
not allow advertising to be placed on the water stations (including without
limitation, the respective Concession Areas thereof). Concessionaire has
requested that it be permitted to place advertisements on the following
portions of the water stations: 1) the touch screen of the water station;
and 2) the body of the water station (i.e. as a wrap). In order for this to be
permitted, an amendment to the City Code would be required.
Accordingly, upon Concessionaire securing the sponsorship of a City
Commissioner in connection with advertising privileges on the Program
water stations, the Administration will place an item for the approval of the
sponsored advertising privilege. Thereafter, Concessionaire, at its own
cost and expense, shall secure all requisite approvals, as may be
required pursuant to Section 118-162 of the City Code, including, but not
limited to, planning board approval. Upon securing the requisite approvals
pursuant to Section 118-162 of the City Code, the Administration shall
place an agenda item for the approval of a City Code Amendment
consistent with the approved advertising privilege. If said City Code
• amendment is approved by the City Commission, then the City and
Concessionaire shall use reasonable efforts to negotiate an amendment
to the Agreement, providing for the terms and conditions pertaining to
Concessionaire's advertising and sponsorship privileges, and such
amendment shall be presented to the City Commission for approval
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(which approval, if granted at all, shall be at the Commission's sole
discretion).
4.5 Concessionaire's Termination for Convenience. Concessionaire
shall have six (6) months from the Effective Date in which to
terminate this Agreement for Convenience (Termination for
Convenience Period), based upon the following: (1) if within the
Termination for Convenience Period, the City Commission does not
approve the proposed advertisement or a City Code Amendment
permitting the advertisement on the water stations; or (2) if
Concessionaire and the City do not execute an amendment relating
to any approved advertising privileges. Concessionaire shall
provide the City with written notification of a termination pursuant to
this subsection within the Termination for Convenience Period;
following which, each party shall bear its own costs and fees in
connection with this Agreement, and each party shall be discharged
from any and all liabilities, duties, and terms arising out of, or by
virtue of, this Agreement. If Concessionaire does not terminate this
Agreement during the Termination for Convenience Period,
Concessionaire shall be deemed to have accepted the Agreement
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without advertising privileges.
SECTION 5. UTILITY CONNECTIONS AND PAYMENT OF UTILITIES.
5.1 Utility Connections.
The City, at its own cost and expense, agrees to provide the connections for the
water, including a water meter, and the electricity (collectively, Utility
Connections) ready for Concessionaire to then connect the water stations for the
Program to said Utility Connections, up to the not to exceed amount of $140,000.
Concessionaire shall reimburse the City the initial outlay for the Utility
Connections during the first Contract Year; however, no later than September 1,
2016. THIS SHALL BE THE CITY'S ONLY EXPENDITURE WITH REGARD TO
THIS AGREEMENT. ALL OTHER COSTS SHALL BE THE SOLE
RESPONSIBILITY OF CONCESSIONAIRE. The Utility Connections will be
completed in accordance with Exhibit 3.1. The City will notify Concessionaire
when the Utility Connections have been completed.
5.2 Payment of Utilities.
Concessionaire shall pay the water usage associated with the Program, on a
monthly basis, upon receipt of the water bill from the City's Utility Department.
Initially, and subject to adjustment by the City, through its City Manager or
designee, Concessionaire shall pay electricity, in the amount of $5.00 per month
per water station, as a flat fee for the electrical usage associated with the
Program. The flat fee may be adjusted periodically, but not more frequently than
quarterly, by the City, through its City Manager or his designee, based upon the
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usage by Concessionaire, as estimated from the water usage of each water
station.
SECTION 6. MAINTENANCE AND EXAMINATION OF RECORDS.
Concessionaire shall maintain current, accurate, and complete financial records (on an
accrual basis) related to its operations herein. 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
notice, whether verbal or written, and during normal business hours. Such records and
accounts shall include, at a minimum, a breakdown of gross sales receipts, expenses,
and profit and loss statements. In the event Concessionaire accepts cash as a form of
payment, it shall maintain accurate receipt-printing registers or the like which will record
and show the payment for every sale made or service provided in the Concession 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.
6.1 Concessionaire Reports. A monthly report of gross sales receipts must be
submitted to the City, through the Finance Department's Revenue Supervisor, to
be received no later than thirty (30) days after the close of each month (during
each Contract Year throughout the Term). Additionally, upon the request of the
City Manager or designee, Concessionaire shall submit a monthly (or at such
greater intervals, i.e. quarterly or annually, as requested by the City) report
reflecting the water usage at each of the water stations, a maintenance report
reflecting routine maintenance performed on the water stations, including any
repairs performed on any of the water stations.
6.2 City Reports. Concessionaire shall provide the City Manager or designee with an
API access or a dashboard for purposes of obtaining historical data from water
stations, including, all gross sales receipts generated at each water station
(including purchase of cards or subscriptions, water usage, number of plastic
water bottles saved, and other similar information which may be requested by the
City in order to evaluate the Program.
SECTION 7. INSPECTION AND AUDIT OF FINANCIAL RECORDS.
Concessionaire shall maintain its financial records pertaining to its operations herein for
a period of three (3) years after the expiration or other termination of this Agreement,
and such records shall be open and available to the City Manager or his designee, as
deemed necessary by them. Concessionaire shall maintain all such records at its
principal office, currently located at 33-C Venetian Way #66, Miami Beach, Florida
33139, 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' notice
(written or verbal)from the City.
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The City Manager or his designee shall be entitled to audit Concessionaire's records
pertaining to its operations, as often as he 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 sales receipts for any
year or years audited, in which case Concessionaire shall pay to the City, within thirty
(30) days of the audit being deemed final by the City, the cost of the audit and a sum
equal to the amount of the deficiency revealed by the audit, plus interest. 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 (throughout the Term), an
annual statement of gross sales receipts, in a form consistent with generally accepted
accounting principles. Additionally, such statement shall be accompanied by a report
from an independent CPA firm licensed to practice in the State of Florida.
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 shall meet with the City Manager or
his designee 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 8. TAXES, ASSESSMENTS.
8.1 Concessionaire agrees and shall pay before delinquency all taxes
(including but not limited to Resort Taxes) and assessments of any kind
levied or assessed upon a Concession Area or the Concession Areas,
and/or on Concessionaire by reason of this Agreement, or by reason of
Concessionaire's business and/or operations within a Concession Area or
Areas. "Concessionaire will have the right, at its own expense, to contest
the amount or validity, in whole or in part, of any tax by appropriate
proceedings diligently conducted in good faith. Concessionaire may
refrain from paying a tax to the extent it is contesting the imposition of
same in a manner that is in accordance with law. 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, if so ordered.
Concessionaire shall also be solely responsible (at its sole cost and
expense) for obtaining and maintaining current any applicable licenses or
permits, as required for the operations contemplated in this Agreement
including, without limitation, any occupational licenses required by law for
the proposed uses contemplated in Section 3 and for each Concession
Area (if required).
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8.2 Procedure If Ad Valorem Taxes Assessed.
If ad valorem taxes are assessed against a Concession Area or the
Concession Areas (or any portion thereof) by reason of Concessionaire's
business and/or operations thereon, Concessionaire shall be solely
responsible for prompt and timely payment of same.
SECTION 9. EMPLOYEES AND INDEPENDENT CONTRACTORS.
9.1 Concessionaire's Employees.
9.1.1 Concessionaire shall select, train and employ such number of employees
or contractors as is necessary or appropriate for Concessionaire to satisfy
its responsibilities hereunder. Concessionaire shall be the sole authority
to hire, terminate and discipline any and all personnel employed by
Concessionaire.
9.1.2 Concessionaire shall designate a competent full-time employee to
oversee the day-to-day operations, and who shall act as the contract
administrator for the Program and serve as Concessionaire's primary
point-person with the City. This individual shall have the requisite amount
of experience in operating, managing, and maintaining the Program and
operations contemplated herein. The employee shall be accessible to the
City Manager or his designee at all reasonable times during normal
business hours to discuss the management, operation and maintenance
of the Program, and within a reasonable time frame during non-business
hours in the event of emergency. Consistent failure by the employee to
be accessible shall be reported to Concessionaire's principal(s), and if not
rectified, shall be grounds for replacement of the employee.
9.2 Concessionaire's employees and/or contractors shall wear identification badges
and uniforms approved by the City Manager or his designee, during all hours of
operation when such employee or contractor is acting within the scope of such
employment or such contractor relationship. All employees and/or contractors
shall observe all the graces of personal grooming. The Concessionaire shall hire
people to work in its operation who are neat, clean, well groomed, and who shall
comport themselves in a professional and courteous manner. The
Concessionaire and any persons hired or otherwise retained by Concessionaire,
shall never have been convicted of a felony.
9.3 Concessionaire shall use reasonable efforts to hire employees and/or contractors
for the Program from among unemployed workers in the City of Miami Beach
workforce.
9.4 City's Contract Manager/City Manager's designee. Except for those
responsibilities expressly set forth in this Agreement for, respectively, the City
Commission and/or the City Manager, the City Contract Manager/City Manager's
designee, who shall be the Director for the Public Works Department, shall serve
as the City's day to day representative and point person for Concessionaire with
respect to the Agreement.
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SECTION 10. HOURS OF OPERATION.
All Concession Areas and operations thereon shall be open every day of the year,
weather or events of force majeure permitting, and shall be open to the public 24 hours
per day, 365 days per year. No water station shall be inoperable for more than
fifteen (15) consecutive calendar days.
SECTION 11. MAINTENANCE, REPAIR AND OPERATION
The Concessionaire accepts the use of any and all Concession Areas provided in
this Agreement "AS IS," "WHERE IS," and "WITH ALL FAULTS," existing as of
the Effective Date.
11.1 Maintenance/Repair.
The Concessionaire shall maintain, at its sole cost and expense, the Concession
Areas and any equipment thereon (as required to operate the Program)
including, without limitation, the water stations.
Concessionaire shall be solely responsible for the day to day operation,
maintenance and repair of all Concession Areas. Concessionaire shall maintain
the Concession Areas and any equipment thereon including, without limitation,
the water stations, in good working order and condition. Concessionaire shall
keep all water stations free of graffiti. Many small/light maintenance items may be
done on-site by Concessionaire and/or its subcontractors to eliminate or
minimize unit downtime, while moderate to heavy maintenance may
require equipment to be removed from circulation and serviced
at Concessionaire's repair center. Notwithstanding the foregoing, no
maintenance shall cause a water station to be non-operational for a period of
more than five (5) days from the date Concessionaire undertakes such
maintenance.
All damage of any kind to a Concession Area and any equipment thereon
including, without limitation, the water stations, shall be the sole obligation of
Concessionaire, and shall be repaired, restored or replaced promptly by
Concessionaire, at its sole cost and expense, to the reasonable satisfaction of
the City Manager or his designee In the event that a water station is damaged for
any reason, Concessionaire shall, at a minimum, commence repairs within
twenty four (24) hours, and, in any event, complete repairs or(if irreparable), or if
stolen, replace the damaged or stolen water station so that same is fully
operational, no later than five (5) days from the date Concessionaire
first becomes aware of the damage or theft.
All of the aforesaid repairs, restorations and replacements shall be in quality and
class equal to or better than the original work (or equipment) and shall be done in
good and workmanlike manner.
It shall be Concessionaire's sole obligation to ensure that any renovations,
repairs and/or improvements made by Concessionaire to the Concession Areas
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comply with all applicable building codes and life safety codes of governmental
authorities having jurisdiction.
Concessionaire agrees, also at its sole cost and expense, to pay for all garbage
disposal generated by its operations.
11.2 Performance by City in an Emergency. If the City Manager, in his sole discretion,
deems that the City needs to act immediately in order to protect the public health,
safety, and general welfare of its citizenry, the City reserves the right to take any
and all necessary actions including, without limitation, interrupting, curtailing or
suspending the provision of any utility service, eradicating graffiti, securing the
area surrounding the water station, or removing a water station or parts thereof
(collectively "Emergency Actions"). Concessionaire hereby waives all claims
against the City for compensation for loss or damage sustained in connection
with said Emergency Actions.
11.3 Orderly Operation.
The Concessionaire shall conduct a neat and orderly operation at all times
and shall be solely responsible for the necessary housekeeping services
to properly maintain the Concession Areas and any equipment thereon.
The Concessionaire shall make available all equipment within a Concession
Area for examination by the City Manager or his designee upon reasonable
verbal and/or written notice from the City.
11.4 No Dangerous Materials.
The Concessionaire agrees not to use or permit the storage and/or use of
gasoline, fuel oils, diesel, illuminating oils, oil lamps, combustible powered
electricity producing generators, turpentine, benzene, naphtha, propane, natural
gas, or other similar substances, combustible materials, or explosives of any
kind, or any substance or thing prohibited in the standard policies of fire
insurance companies in the State of Florida, on or within any of the Concession
Areas, or on any City property and/or right of way.
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 11.4
shall survive the termination or earlier expiration of this Agreement.
11.5 Security.
The Concessionaire may, at its sole option, employ or provide reasonable
security measures, as it may deem necessary to protect the Concession Area
and any equipment thereon. Under no circumstances shall the City be
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responsible for any stolen or damaged equipment, nor shall City be responsible
for any stolen or damaged personal property of Concessionaire's employees,
contractors, agents, patrons, guests, invitees, and/or other third parties.
Notwithstanding the preceding paragraph, Concessionaire shall not be obligated
to provide security services (whether manned or automated) to patrons using the
Program, as the Program is contemplated as an unattended self-service and
automated system. Concessionaire shall not employ any recorded video
surveillance without the prior written approval of the City Manager.
11.6 Inspection.
The Concessionaire agrees that any Concession Area (including, without
limitation, any equipment thereon) may be inspected at any time by the City
Manager or his designee, or by any other municipal, County, State officer, or
officers of any other agency(ies) 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 as a result of inspection by any public
agency(ies) or officials, (including, without limitation, by reason of any such public
agency or official in enforcing any laws, ordinances, or regulations as a result
thereof). Any such interference shall not relieve the Concessionaire from any
obligation hereunder.
SECTION 12. INSURANCE.
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12.1 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.
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
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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
designee. Prior to Concessionaire securing the first building permit for the"first
water station,~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 (1'5) days of
demand such failure shall be deemed an event of default, and the total sum
owed shall accrue interest at the rate of eighteen (18%) percent per annum, or
the highest rate permitted by law, whichever is less, until paid.
12.2 Subrogation.
The terms of insurance policies referred to in Section 12.1 shall preclude
subrogation claims against Concessionaire, the City and their respective
officers, employees, contractors, agents, and servants.
SECTION 13. INDEMNITY.
13.1 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 officials, directors, members, employees, contractors, agents,
and servants from and against any and all loss, cost, expense, damage, injury,
liability, claim, demand, penalty or cause of action (including reasonable
attorneys' fees and legal costs at trial and on appeal) arising from or in any way
related to, or resulting from: 1) Concessionaire's breach of the terms of this
Agreement or its representations and warranties herein; 2) the operation of the
Program; or 3) the negligent acts, errors, omissions, or misconduct of
Concessionaire, its officials, directors, members, employees, contractors, agents,
and servants.
13.2 Subsection 13.1 shall survive the termination or expiration of this Agreement.
Subsection 13.1 shall not apply, however, to any such liability that arises as a
result of the willful misconduct or gross negligence of the City or its officers,
employees, contractors, agents or servants.
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SECTION 14. FORCE MAJEURE.
14.1 Neither party shall be obligated to perform hereunder and neither party shall
be deemed to be in default if performance is prevented by:
a. Any act or chain of related acts resulting in destruction, vandalism or theft
of water stations which render at least fifty (50%) percent of the
Concession Areas unusable at any one point in time and which is not
caused by negligence of Concessionaire;
b. earthquake; hurricane; flood; act of God; direct act of terrorism; or civil
commotion occurring which renders at least fifty (50%) percent of the
Concession Areas unusable.
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 which renders at least fifty (50%) percent of the
Concession Areas unusable.
14.2 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 any Force Majeure
contemplated in Subsection 14.1 above, and the Concessionaire hereby
expressly 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 15. DEFAULT AND TERMINATION.
Subsections 15.1 through 15.4 shall constitute events of default under this Agreement.
An event of default by Concessionaire shall entitle the 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 15.5 and Section 16.
15.1 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
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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.
15.2 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 five percent (5%) of
the payment amount due, in addition to, and not in lieu of, the interest at
the rate of eighteen percent (18%) per annum or the highest rate
allowable by law, whichever is less. If any payment and accumulated
penalties are not received within fifteen (15) days after the payment due
date, and such failure continues seven (7) 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 collect the Performance Bond required in Section 16
herein.
15.3 Non-Monetary Default.
In the event that Concessionaire or the City fails to reasonably perform or
observe the non-monetary covenants, terms or provisions under this
Agreement, and such failure continues thirty (30) days after written notice
thereof from the other party hereto, such non-defaulting party may
immediately or at any time thereafter, and without further demand or
notice, terminate this Agreement without being prejudiced as to any
remedies which may be available to it for breach of contract. In the event
that a default is not reasonably susceptible to being cured within such
period, the defaulting party shall not be considered in default if it shall,
within such period, commence with due diligence and dispatch to cure
such default and thereafter completes with dispatch and due diligence the
curing of such default, but in no event shall such extended cure period
exceed ninety (90) days from the date of written notice thereof. In the
event Concessionaire cures any default pursuant to this subsection, it
shall promptly provide the City Manager with written notice of same.
15.4 Continuous Operation.
The failure of any water station to be operational for a period of time
exceeding fifteen (15) continuous calendar days, after written notice from
the City, shall constitute a default under this Agreement. No additional
cure period shall apply to a default under this Subsection 15.4.
Notwithstanding the foregoing, Concessionaire shall not be in default
under this Section 15.4 in connection with any downtime resulting from
the City's action or a utility company's action.
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15.5 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 expiration of the 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 15.7. 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, the Performance Bond in
Section 16 herein.
In addition to the rights set forth above, the 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.
15.6 If an event of default by the City shall occur, the Concessionaire may,
after expiration of the cure periods, as provided above, terminate this
,Agreement upon written notice to the City. 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 15.7.
15.7 Surrender of Concession Areas / Removal by Concessionaire of
Equipment/Improvements.
Upon expiration, or earlier termination of this Agreement, Concessionaire
shall surrender the Concession Areas in the same condition as the
Concession Areas were prior to the Commencement Date,
reasonable wear and tear excepted. Concessionaire shall, at its sole
expense and at no charge to the City, remove all equipment from the
Concession Areas, (as well as any other permanent or fixed
improvements) no later than sixty (60) days after the conclusion of the
Term, (or from the date of earlier termination of this Agreement) unless a
longer time period is agreed to, in writing, by the City Manager.
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Concessionaire's obligation to observe or perform this covenant shall
survive the expiration or other termination of this Agreement. Continued
occupancy of any Concession Areas after termination of the Agreement
shall constitute trespass by the Concessionaire, and may be prosecuted
as such. In addition, should Concessionaire fail to remove all of the
equipment from the Concession Areas, including any permanent or fixed
improvements, and remediate the Concession Area to the condition it was
prior to the Commencement Date, reasonable wear and tear excepted,
within ninety (90) days after the conclusion of the Term (or the date of
earlier termination of this Agreement), the Concessionaire shall pay to the
City One Thousand ($1,000.00) Dollars per day per Area as liquidated
damages for such trespass and holding over.
15.8 Substitute Performance
In the event that the Concessionaire fails to properly perform the removal
of any equipment and restoration of the Concession Areas to their original
condition in accordance with the terms of the Agreement, then the City
shall have the right to undertake and/or purchase, as the City Manager
deems appropriate, any such supplies, materials, services, etc., covered
herein and to charge Concessionaire for all actual costs thereby incurred
by the City. Concessionaire shall be responsible for paying all of said
costs.
SECTION 16. PERFORMANCE BOND OR ALTERNATE SECURITY.
Concessionaire shall, within thirty (30) days from obtaining the first building permit,
furnish to the City Manager or his designee a Performance Bond in the penal sum stated
below for the payment of which Concessionaire shall bind itself for the faithful
performance of the terms and conditions of this Agreement. A Performance Bond, in the
amount of One Hundred Thousand ($100,000.00) Dollars, shall be provided by the
Concessionaire in faithful observance of this Agreement. A cash deposit, irrevocable
letter of credit, or certificate of deposit may also suffice, as determined by the City
Manager or his designee, in his sole and reasonable discretion. The form of the
Performance Bond or alternate security shall be approved by the City's Chief Financial
Officer. In the event that a Certificate of Deposit is approved, it shall be a One Hundred
Thousand ($100,000.00) Dollar one-year Certificate of Deposit in favor of the City, which
shall be automatically renewed, the original of which shall be held by the City's Chief
Financial Officer. Concessionaire shall be so required to maintain said Performance
Bond or alternate security in full force and effect throughout the Term of this Agreement.
Concessionaire shall have an affirmative duty to notify the City Manager or his designee,
in writing, in the event said Performance Bond or alternate security lapses or otherwise
expires. 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.
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SECTION 17. ASSIGNMENT.
Concessionaire shall not assign all or any portion of its costs or obligations under this
Agreement without the prior written consent of the City Commission, which shall not be
unreasonably withheld. Concessionaire shall notify the City Manager of any proposed
assignment, in writing, at least sixty (60) days prior to the proposed effective date of
such assignment. In the event that any such assignment is approved by the City
Commission, the assignee shall agree to be bound by all the covenants of this
Agreement required of Concessionaire.
SECTION 18. SPONSORSHIPS.
18.1 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.
It is further acknowledged that the name, likeness, equipment, concepts,
logos, designs and other intellectual property rights of Concessionaire
shall remain in the exclusive possession and control of Concessionaire at
all times; provided, however, that Concessionaire hereby grants City an
irrevocable license to use any Concessionaire trademark, brand, and/or
logo, for purposes of the City's promotion of the Program and including,
without limitation, the right to use such trademarks, brand, and/or logo in
all media (for such public marketing purposes)whether now existing or as
may exist in the future.
18.2 Marketing of Program. Any marketing efforts and materials relating to the
Program shall require the coordination and prior written approval of the
City Manager.
SECTION 19. NO IMPROPER USE.
The Concessionaire will not use, nor suffer or permit any person to use in any
manner whatsoever, any Concession Areas or improvements on equipment thereon, for
any illegal, improper, immoral or offensive purpose, or for any other 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 officials, employees, contractors, and agents from and against damage, penalty,
fine, judgment, expense or charge suffered, imposed, assessed or incurred for any
violation, or breach of any law, ordinance, rule, order or regulation occasioned by any
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act, neglect or omission of the Concessionaire, or any official, director, agent, contractor,
or servant 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
concession operation should the Concessionaire fail to correct any such violation,
conduct, or practice to the satisfaction of the City Manager or his designee within two (2)
business days following written notice of the nature and extent of such violation,
conduct, or practice. Such suspension to continue until the violation is cured to the
satisfaction from the City Manager or his designee.
SECTION 20. NOTICES.
All notices from the City to the Concessionaire shall be deemed duly served upon
receipt, if mailed by registered or certified mail return receipt requested, or on the next
business day after delivery to a nationally recognized business courier prior to their
deadline for next day delivery to the Concessionaire at the following address:
Itay Tayas Zamir, Manager
WOOSH MIAMI BEACH LLC
33-C Venetian Way, Suite 66
Miami Beach, Florida 33139
With copies to: Alfredo J. Gonzalez, Esq.
GREENBERG &TRAURIG, P.A.
333 Avenue of the Americas
Miami, FL 33131
All notices from the Concessionaire to the City shall be deemed duly served upon
receipt; if mailed by registered or certified mail return receipt requested or on the next
business day after delivery to a nationally recognized business courier prior to their
deadline for next day delivery 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: City of Miami Beach
1700 Convention Center Drive
Miami Beach, FL 33139
Attn: Public Works Director
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 Agreement must be
in writing.
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SECTION 21. LAWS.
21.1 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.
21.2 Governing Law.
Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida. Any civil action arising in any
way from this Agreement or the activities of the parties under this Agreement
shall be brought only in a court of competent jurisdiction located in Miami-Dade
County, Florida.
21.3 Equal Employment Opportunity.
Neither Concessionaire nor any affiliate of Concessionaire performing services
hereunder, or pursuant hereto, will discriminate against any employee or
applicant for employment because of race, creed, sex, color, national origin,
sexual orientation, and disability (as defined in Title I of ADA). Concessionaire
will take affirmative steps to utilize minorities and females in the work force and in
correlative.business enterprises.
21:4 No Discrimination.
Concessionaire agrees that there shall be no discrimination as to race, color,
national origin, religion, sex, intersexuality, sexual orientation, gender identity,
marital and familial status, or age, or handicap, in the operations referred to in
this Agreement; and, further, there shall be no discrimination regarding any use,
service, maintenance, or operation within the Concession Areas. All operations
and services offered in the Concession Areas shall be made available to the
public, subject to the right of.the Concessionaire and the City to establish and
enforce reasonable rules and regulations to provide for the safety, orderly
operation, and security of the Areas and improvements and equipment thereon.
Pursuant to Sections 62-90 and 62-91, of Chapter 62, of the Miami Beach City
Code entitled "Human Relations", Concessionaire, by executing this Agreement,
certifies that it does not discriminate in its membership or policies based on race,
color, national origin, religion, sex, intersexuality, sexual orientation, gender
identity, marital and familial status, age, or handicap.
27
- a
SECTION 22. MISCELLANEOUS.
22.1 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.
22.2 Modifications.
This Agreement cannot be changed or modified except by Agreement in writing
executed by all parties hereto. Concessionaire acknowledges that
no modification to this Agreement may be agreed to by the City unless
approved by the Mayor and City Commission except where such authority has
been expressly provided herein to the City Manager or his designee.
22.3 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.
22.4 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.
22.5 -Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns.
22.6 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.
22.7 Severability.
If any provision of this Agreement or any portion of such provision or
the application thereof to any person or circumstance shall be held to be
invalid or unenforceable, or shall become a violation of any local, State, or
Federal laws, then the same as so applied shall no longer be a part of
this Agreement but the remainder of the Agreement, such provisions and
the application thereof to other persons or circumstances, shall not be
affected thereby and this Agreement as so modified shall remain in full force and
effect.
28 110
Z
22.8 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.
22.9 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.
22.10 Signage.
Concessionaire shall provide, at its sole cost and expense, any signs utilized for
its Program. All 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 shall be subject to the prior
approval of the City as to size, shape and placement of same, and no such
approvals will be unreasonably withheld.
City shall be responsible to provide, at its sole cost and expense, and as (or if) it
deems necessary in its sole and reasonable judgment and discretion, any traffic,
regulatory or public safety signs, whether related directly or indirectly to the
Program.
22.11 Procedure for Approvals and/or Consents.
In each instance in which the approval or consent of the City Manager or
his 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 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 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 designee shall use reasonable efforts to provide
written notice to Concessionaire approving of consent to, or disapproving of
the request, within thirty (30) days from the date of Approval Request (or
within such other time period as may be expressly set forth for a particular
approval or consent under this Agreement). However, the City Manager or
his designee's failure to consider such request within this time provided shall
not be deemed a waiver, nor shall Concessionaire assume that the request
is automatically approved and consented to. The City Manager or his
designee shall not unreasonably withhold such approval or consent. This
subsection shall not apply to approvals required herein by the Mayor and
City Commission.
29 (D• 0
22.12 No Waiver.
It is mutually covenanted and agreed by and between the parties hereto that the
failure of the City to insist upon the strict performance of any of the conditions,
covenants, terms or provisions of this Agreement, or to exercise any option
herein conferred, will not be considered or construed as a waiver or
relinquishment for the future of any such conditions, covenants, terms, provisions
or options but the same shall continue and remain in full force and effect. A
waiver of any term expressed herein shall not be implied by any neglect of the
City to declare a forfeiture on account of the violation of such term if such
violation by continued or repeated subsequently and any express waiver shall not
affect any term other than the one specified in such waiver and that one only for
the time and in the manner specifically stated.
The receipt of any sum paid by Concessionaire to the City after breach of any
condition, covenant, term or provision herein contained shall not be deemed a
waiver of such breach, but shall be taken, considered and construed as payment
for use and occupation, and not as rent, unless such breach be expressly waived
in writing by the City.
22.13 No Third Party Beneficiary.
Nothing in this Agreement shall confer upon any person or entity, including, but
not limited to sub concessionaires, other than the parties hereto and
their respective successors and permitted assigns, any rights or remedies
by reason of this Agreement.
22.14 No Lien
In the event any notice or claim of lien shall be asserted against the interest of
the City on account of or arising from any work done by or for Concessionaire, or
any person claiming by, through or under Concessionaire, or for improvements or
work, the cost of which is the responsibility of Concessionaire, Concessionaire
agrees to have such notice or claim of lien cancelled and discharged within
fifteen (15) . days after notice to Concessionaire by City. In the event
Concessionaire fails to do so, City may terminate this Agreement for cause
without liability to City.
SECTION 23. 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 One Hundred
Thousand ($100,000.00) Dollars. Concessionaire hereby expresses its willingness to
enter into this Agreement with a One Hundred Thousand ($100,000.00) Dollars
limitation on recovery for any action for breach of contract. Accordingly, and in
consideration of the separate consideration of One Hundred Thousand ($100,000.00)
Dollars, the receipt of which is hereby acknowledged, the City shall not be liable to
30
Concessionaire for damages to Concessionaire in an amount in excess of One Hundred
Thousand ($100,000.00) Dollars, for any action for breach of contract arising out of the
performance or on-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 24. JURY TRIAL WAIVER.
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).
THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.
31
T. I-
IN WITNESS WHEREOF, the parties hereto have caused their names to be signed and
their seals to be affixed, all as of the day and year first above written, indicating
their Agreement.
Attest: CITY OF MIAMI BEACH, FLORIDA
%%%%%%p\,,,1
Bs
a 11 " INCORP ORAT DE *' '1111■■r.A11113
'
afael E. Granado, City Cler'•�'••. :� �,y L Moral. s, City Manager
Date: 2- 7 t4
Attest: WOOSH MIAMI BEACH LLC
I
Dani Oren, anager Itay Tayas Zamir, Manager
Date: ��Z
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
zis -
City Attorney Ai Date
32
Exhibit 1
Concession Area Site Plan/ Concession Area Site List
33 0 -0
7-
swoosh.
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Miami Beach Pilot, Suggested Locations
1/4
A A
Surf
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y A S 1 or in
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1e 88th St g (7,7A)
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85th St :..5th St
Stillwater Dr 84th St Alt 13
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.": 82nd St Space ark
81st St . I
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Daytona Rd S p rs
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I" :)� 77th St
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76th St
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,- island 5
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Miami Beach Pilot, Suggested Locations
2/4
La Gorce 4
Island , 24
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t
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Werth Cr
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W 46th st 21
W 46th St CT)
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Miami Beach Pilot, Suggested Locations
3/4
�s y 1 W 43rd st
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d� V 42nd sr
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. W 40th st
- > ' Courtyard Cadillac
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. . * W 34th St m
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. —7 -, I. , a saThe Palm-
tyVitw Or 29th St +�
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W 28th St , c
2 Bayshore N.Nr
`` W 27th St ;r.4.-.7 ' Municipal a°►
31 .. . G lCourse –
Sunset Islands 3'.;'.. '�Beach Golf Club F
«:r w 25th St
e,
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W 24th St .� °
W 33rd St ,e+
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23rd St
22nd St 22rads
W21stSt 2) .
�,4,; std
mid ��& m 2Q16
20th St 7 St ~t A—
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Con�tion Center 6 Alt 9
AIL 11�, < 18th St t L
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0ab�" 17th St De
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Miami Beach Pilot, Suggested Locations
4/4
.w.
16 15 2 14
13
; K:otn Road Mall AIME, CUL9 Cigil
lOb
16th St K 16th St `_'0 n ro ! ..., Dews Miami Ber�,.,ii
oW
Co eD ni Alt 8
rat aa. 15th St 151! St �- a'
Espanola Way ( 12
C ( 14th Pt 1:�.s 5
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D- MI Z iliED 11
�� 8 s �. Alt. Miarnt Beach •
A
p D
'9 & mitt o 7
and Pool
11th:;£ rat j
5 Alt 6
loth St i �" ':
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Al t Alt 5
9stft St 6 pica!Cate
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30 = a Commas Park •
, y. fflx ti
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Sth St 6th St
4th St
lik,111111111 1 3rd St I- a,
"V;� Alt 3
St 2 8 c lir
0 04
IA St 1 Alt2
Nikki Beach Ma y,
4r+,4= tive.,i rah AI
1111111111' i South Pointe Dr 'I i `
oilth
Pointe Park
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Link to map https://www.Roogle.com/maps/d/edit7mid=zQlbPu1HQX18.k8atPAMTv bk&usp=sharing
-. _ 14"N
1 South Pointe Park Beach South Beach Park is big,two spots possible-one closer to the beach or playground 25.76525,-80.13294
Access/Public Park
2 1st Street/South Pointe Drive entrance to beach Beach Access South Beach Right by nikki beach,by the beach entrance 25.7684,-80.13153
3 Ocean between 5th/6th Beach Access South Beach Next to the bathroom,opposite Fritz and Jalapeno Restaurant 25.7753,-80.13125
Pedestrian area/
4 7th St.@ Ocean Dr. Park/Beach South Beach Park beach entrance,near Citibike station 25.77662,-80.13096
rntrance
S Collins Ave @ 10th Pedestrian area South Beach Side walk,Essex house nearby, 25.78057,-80.13177
6 Lummus Park area 9th/Mangos Beach Access South Beach Next to covered Citibike station&outdoor gym and volleyball court 25.7791,-80.13042
Park/Pedestrian South Beach on sidewalk,west end of park 25.78269,-80.13012
7 Ocean Dr&12 P
area
Public Park, Several possible locations within flamingo park,by the pool,by the basketball
8 Flamingo Park South Beach 25.78409,-80.13804
Playground courts
9 Flamingo Park,football field and running track Sporting Facility South Beach Next to football field and running race 25.78286,-80.13965
l0a 14th and Collins Street South Beach Next to Citibike station,large sidewalk near walgreens 25.78538,-80.13094
Pedestrian area/
10b Collins Ave.@ Trail to beach(btw 15th&16th) Beach Access South Beach Entrance to path to beach,small garden 25.78873,-80.13026
11 14th Street and Beach Boardwalk Beach Access South Beach Next to CitiBike station and bathrooms 25.78499,-80.12952
Pedestrian area/
12 Ocean Dr&14th Place Park/Beach South Beach Park Entrance,noth-west corner,Near Citibike&Starbucks 25.78672,-80.12942
rntrance
13 Lincoln Road Beach Boardwalk Beach Access South Beach On boardwalk 25.79082,-80.12795
By the pool/fountain.
14 Lincoln Road(g Washington Pedestrian Mall South Beach Lincoln Mall spots should not interfere with pedestrians or too much street 25.7906,-80.13229
furniture
Just past the green park,there is a fountain/pool and covered structure-
15 Lincoln Road 670 Lincoln Pedestrian Mall South Beach comers for good placement. 25.79052,-80.13523
Lincoln Mall spots should not interfere with pedestrians or too much street
furniture
By the fountain.
16 Lincoln Road 9 Lennox Pedestrian Mall South Beach Lincoln Mall spots should not interfere with pedestrians or too much street 25.79049,-80.14015
furniture
17 Collins Ave 91 17th st. Pedestrian area South Beach Next to bus stop&Citibike 25.79222,-80.12974
18 Collins Park,22nd/21st Beach Access South Beach wide area,exact location-TBD 25.79704,-80.12873
19 Collins @24th st. Pedestrian area City Center Between bus stop and bike share station 25.80024,-80.12708
20 41st and Chase Pedestrian area Mid Beach Intersection by elementary school,temple,shops 25.81373,-80.13177
Beach
21 45th and Collins Mid Beach Eden Rock beach Boardwalk and Indian Beach Park,Citbike Near by 25.82069,-80.12118
access/Public Park
22 Fisher Park,Alton Road 51" Public Park Mid Beach Busy kid/family park 25.82632,-80.13157
outdoor gym,and
23 53r0 street beach park 91 Collins beach point of Mid Beach outdoor gym,and beach point of entry 25.8313,-80.12027
entry
65th and Collins Parking lot at Alison Park,65th and
Parking Lot,Public
24 beach entry Park and Beach North Beach Citibike station at Allison park 25.84749,-80.11966
Access
Beach Access,
25 North Beach Bandshell at 73rd Street Concert and Event North Beach Public event space right near entrance to the beach 25.85841,-80.12036
Venue
Public Park,
ALt1 South Pointe Park 2--by washington,citibike playground South Beach North-west entrance to park,next to Citibike location 25.76723,-80.13571
Alt 2 Ocean Dr.9)1st st. Pedestrian area South Beach Pier Park Parking lot,Near Citibike station 25.76945,-80.13301
Beach Many locations within the park,by the bathrooms,playground,old phone at
Alt 3 Marjory Stoneman Douglas Ocean Beach Park(3rd/4th) Access/Public South Beach the street 25.77141,-80.13237
Park/Playground
Alt 4 9th Street&Washington Ave. Pedestrian area South Beach Citibike station near by(on 9th) 25.77945,-80.1333
Alt 5 Art Deco Welcome Center(10th)-- Beach Access South Beach Next to art deco center 25.78044,-80.12994
Alt 6 10th and Beach Boardwalk Beach Access South Beach Green Space at 10th,opposite clevelander,next to CitiBikestation 25.78082,-80.1299
Alt 7 13th St.91 Washington Ave. Pedestrian area South Beach In front of post office,next to Citibike station 25.78426,-80.13233
Alt 8 Ocean Drive and 15th Beach Access South Beach at ocean drive entrance to the boardwalk 25.7876,-80.12957
Alt 9 Collins Ave.(D 18th St. Pedestrian area South Beach Near bus stop,citibike nearby on 18th 25.79402,-80.12964
In front of Miami Beach Teen Club(21st St.Recreation Center),near Citibik
Alt 10 Washington ave ft 20th St Pedestrian area South Beach Station 25.79679,-80.13216
Public Park,
Alt 11 Maurice Gibbs Park Playground, South Beach Exact location to be decided-parking lot/playground,boardwak 25.79319,-80.14492
Sporting facility
Alt 12 Collins Ave.@ 69th St. Pedestrian area North Beach Sidewalk,in front of chase bank,commercial area 25.85437,-80.12054
Alt 13 NorthBeach Open Shore Park 84th Public Park,Beach North Beach 25.86822,-80.12006
Access
e
Exhibit 2
Program Equipment: Water Station spec
• Model: Woosh1 Outdoor
• Raw Water: City's mains
• Capacity: Up to 24 Gallons/hour. Up to 90 people per hour
• Power Consumption* per Fill = 0.009 KWH.
• Power Consumption per Rinse = 0.008 KWH.
• Catalogue Number: WOD010500-110V
• Water inlet connection: 3/8" pipe PE type
• Drain connection: 3/8" pipe PE type
• Electrical connection requirements: 1 phase, 110, 60 Hz, 20A Line
• Electric & water connections: Underground infrastructure required
• Required area: 39.5"x39.5", 29" deep
• Water inlet pressure: Min: 1 Bar, Max 8
• Water inlet flow: min 2 GPM
(*) Our power consumption tests were made under extreme conditions of surrounding
temperature 95°F/ direct sunlight/ 40 fills per hour/tap water inlet temperature 72°F
34
rz
Exhibit 2
Program Equipment: Water Station Image
For Informational Purposes Only, Subject to Planning/Zoning Approval and
modification as necessary.
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35
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Exhibit 2
Program Equipment: Typical Site Plan
For Informational Purposes Only, Subject to Planning/Zoning Approval and modification
as necessary.
See Annex A
36
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woosh ®
-CONFIDENTIAL-
Dimensions- Outdoor Station
C
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39 5in
l8in
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1
Ground Level
Bucket MIO it) wow .
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Concrete
Base I*
39.5 in
Side View Top View
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-CONFIDENTIAL-
Deployed Outdoor Stations
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EXHIBIT 3
Price Schedule
Pay per Use- per half a litter(-20oz.)
For Visitors - $0.50
For City's residents—$0.35
37 0, 0
Exhibit 3.1
Utility Connections
38
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Exhibit 3.1
Utility Connections
positive drinking
System Units
Unit Description
Fill rate:'1 GPM
Water Avg.Fill process:13 seconds
dlspenslnB
system Fills Any type of bottle I glass I cup etc.
1 j Resulated fixed fllllns quantities:5.33 oz.(150.1000 ml)
Water treatment unit ensures the outlet water's quality,Improves taste
Water treatment and removes bad odors.Prevents bacterlalsrowth and contamination.
unit
Treatment unit Is automated(PLC operated)
Cooling system controls and maintains outlet water's temperature.
Water cooling , Temperature can be modified manually by the technician.
system
Range:45"F-55"F(*)
On site.Ozone(1)3) based bottle cleanslns system.
Bottles Bottle disinfection and removal of bad taste&odor.Encourages the end
cleansing user to re-use his own bottle and enjoy the water quality.
system Cleanslns process:15 Seconds
Suitable for reusable bottles
Excess water Collection and disposal of excess water to drain.
collection unit No water spillage around the station
Wooshl Outdoor WOD010fS00 110V /nsml/atlon Manual 1"edition Jan 2016
CCopyrlghtwoosh wstar sy..lsms Ltd. Phone:+ 972 72 2643850 Fax:+972 3 9214515
8 Martin Gahai St POB 3137,Klryst Arye.Petach-Tikva 49130. /sraal
MIA 184919334v4
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Installation
The wooshestations installation is"plug-n-play".The assembly of the stations is done in
the factory. The outdoors installation requires the following elements:
• Electric connection: 'I phase,110,60 Hz.20A
o Station's Nominal current:14.67 amps at 110 volts.
o Electrical connection cable:14 AWG 3X2.1mm'TYPE- XLPE
o See the power line connection in Figure 5.
• Water connection:A 3/8"pipe Is required. The pipeline connects to the station
underground in a protected 1"plastic pipe.See Figure 5.
• Drain connection:The station generates a minimum amount of water excess when
operating.The drainage pipeline connects underground from the station In a 3/8"
pipe a drainage system. See Figure 5
• Tools&Machinery required:
Item Remal'Ics
Small Crane Max weight- 300 KG
Cargo Straps
Small Excavator/Shovel
Gravel 15 cubic feet
Security Torx(pin-in Torx)screwdriver Head= @
Electricity screwdriver Flat head
Teflon tape
Wrench 3/4"(19mm),15/16"(24mm)
Measuring tape
Pipe cutter
Level
Anti-Seize Lubricant for stainless steel
Woosh1 Outdoor WOD010500-1101/ Installation Manuel 15' edition Jan 2015
®Copyright woosh water systems Ltd. Phone:+972 72 2643850 Fax:+972 3 9214515
8 Marlin Gehel St.,POB 3137.KlryetArye.Pelech-Tikve 49130,,Israel
MIA 184919334v4 pc0
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positive drinking
• Insert the connective infrastructure (water&drainage)into the pit.Each infrastructure .
should be positioned aligned to its counterpart connection on the bucket.See Figure 5:
o Power line- Upper connector
o Water pipe-Mid connector
o Drainage-Lower connector
41.1 Power cable
Water inlet
4.Drainage
1
mow ®® moms
Base Connectors
Figur, 5
• Take the water pipe and Insert it through a 32" pipe and in to the mid cable fitting(PG
13.5)located in the bucket.
o Keep 3.5 feet of the pipe free Inside the bucket
o Connect a 3/8" connector to the end of the water pipe(inside the bucket)
OC Waroioa:make sure that the electric cable Is disconnected from -
a oower suooly durina base installment.Never work on a Ilve wirelll
• Take the drainage pipeline and connect it to the designated 3/8"connector
• After all connections are set In their locations,fill the remaining surrounding of the
pit(around the bucket)with gravel up to the ground level.
Woosh 1 Outdoor WOD010500-110V Installation Manual 1- edition Jan 2015
@Copyright woosh water systems Ltd. Phone:+972 72 2643850 Fax:+972 3 9214515
• 8 Martin Gahel St.,POB 3137,KlryatArye, Petac/rTikva 49130„Israel
Israel
MIA 184919334v4 0- e 3
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Exhibit 4
Project Schedule
F:ATTO/TORG/AGREEMENTS/WOOSH FINAL 1/28/2016
39
- F.