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2017-29923 Resolution
RESOLUTION NO. 2017-29923 A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, APPROVING, IN SUBSTANTIAL FORM, AMENDMENT NO. 1 TO THE CONCESSION AGREEMENT, DATED FEBRUARY 12, 2016, BETWEEN THE CITY AND WOOSH MIAMI BEACH LLC, FOR THE IMPLEMENTATION, MANAGEMENT AND OPERATION OF A PILOT PROGRAM OF SMART WATER STATIONS; SAID AMENDMENT INCREASING THE CAP FOR THE CITY'S UPFRONT, REIMBURSABLE CAPITAL COSTS RELATING TO THE UTILITY CONNECTIONS FOR THE TWENTY-FIVE (25) WATER STATIONS FROM $140,000 TO $250,000; PROVIDING FOR THE REIMBURSEMENT PAYMENT TO THE CITY WITHIN THIRTY (30) DAYS FROM COMPLETION OF EACH UTILITY CONNECTION INSTALLATION; PROVIDING THE OPTION, AT THE CITY'S DISCRETION, TO TRANSFER THE RESPONSIBILITY FOR THE INSTALLATION OF THE UTILITY CONNECTIONS TO CONCESSIONAIRE, WITH CONCESSIONAIRE DIRECTLY PAYING FOR SAID COSTS; AND EXTENDING THE PERFORMANCE WINDOW FOR THE ROLLOUT OF THE WATER STATIONS (AFTER WHICH THE CITY MAY TERMINATE THE AGREEMENT) FROM ONE (1) YEAR TO TWO (2) YEARS; AND FURTHER AUTHORIZING THE CITY MANAGER TO EXECUTE THE FINAL NEGOTIATED AMENDMENT, SUBJECT TO REVIEW AND FORM APPROVAL BY THE CITY ATTORNEY. WHEREAS, on July 8, 2015, the Mayor and City Commission adopted Resolution Number 2015-29063, 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, on July 31, 2015, the Mayor and City Commission adopted Resolution Number 2015-29102, waiving, by 517th vote, the competitive bidding requirement, finding such waiver to be in the best interest of the City, and authoring the City Manager to execute a concession agreement (the Agreement), containing the essential terms set forth in the term sheet, in connection with the operation of a pilot program of twenty-five (25) smart water stations in the City of Miami Beach; and WHEREAS, on February 12, 2016, the City and Concessionaire executed the Agreement; and WHEREAS, pursuant to the Agreement, the Concessionaire is responsible for reimbursing the City for the upfront, reimbursable capital costs associated with the installation of the service connections for the water and electricity (Utility Connections) for the twenty-five (25) smart water stations, subject to the cap of$140,000; and WHEREAS, since the execution of the Agreement, there have been delays in the deployment of the Program; and WHEREAS, the estimate for the total cost associated with the Utility Connections for the smart water stations has increased to $250,000; and WHEREAS, the Administration recommends amending the Agreement, increasing the cap for the city's upfront, reimbursable capital costs relating to the Utility Connections from $140,000 to $250,000; providing the option, at the city's discretion, to transfer the responsibility for the installation of the Utility Connections to the Concessionaire, with Concessionaire directly paying for the installation costs; and extending the performance window for the rollout of the water stations (after which the city may terminate the Agreement) from one (1) year to two (2) years; and WHEREAS, the Administration recommends the approval, in substantial form, of Amendment No. 1 to the Agreement, incorporated herein by reference and attached to this Resolution as Exhibit "1". NOW, THEREFORE, BE IT DULY RESOLVED THAT THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City Commission hereby approve, in substantial form, Amendment No. 1 to the Concession Agreement, dated February 12, 2016, between the City and Woosh Miami Beach LLC, for the implementation, management and operation of a pilot program of smart water stations; said amendment increasing the cap for the City's upfront, reimbursable capital costs relating to the Utility Connections for the twenty-five (25) water stations from $140,000 to $250,000; providing for the reimbursement payment to the City within thirty (30) days from completion of each Utility Connection installation; providing the option, at the city's discretion, to transfer the responsibility for the installation of the Utility Connections to Concessionaire, with Concessionaire directly paying for said costs; and extending the performance window for the rollout of the water stations (after which the City may terminate the Agreement) from one (1) year to two (2) years; and further authorize the City Manager to execute the final negotiated amendment, subject to review and form approval by the City Attorney. PASSED and ADOPTED this 04 day of Jul 2017. ATTEST: 8/7/fl Rafae . Granado, City Clerk •�N+o g� ikliii14•hilip L-'' ;f'afor T:\AGENDA\2017\7-July\Public Works\ I-t, '; �,Lo...• RASO 'll -1 ► .docx y �c =, N e2.--- p••ORAED ye, % ..,, c i ..:)Cs,/ �scCT . APPROVED AS TO FORM & LANGUAGE & FO EXECUTION (e. ---- 9 (t7'((fl e City Attorney Oh/ Date AMENDMENT NO. 1 TO CONCESSION AGREEMENT BETWEEN THE CITY OF MIAMI BEACH, FLORIDA AND WOOSH MIAMI BEACH LLC This Amendment No. 1 (the Amendment) to the Concession Agreement (the Agreement), dated February 12, 2016, by and between the City of Miami Beach, Florida, a municipal corporation organized and existing under the laws of the State of Florida, having its principal place of business at 1700 Convention Center Drive, Miami Beach, Florida 33139 (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 (the Concessionaire), is entered into this day of , 2017 (Effective Date). • RECITALS WHEREAS, on July 8, 2015, the Mayor and City Commission adopted Resolution Number 2015-29063, 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, on July 31, 2015, the Mayor and City Commission adopted Resolution Number 2015-29102, waiving, by 517th vote, the competitive bidding requirement, finding such waiver to be in the best interest of the City, and authoring the City Manager to execute a concession agreement (the Agreement), containing the essential terms set forth in the term sheet, in connection with the operation of a pilot program of twenty-five (25) smart water stations in the City of Miami Beach, for an initial term of three (3)years, with one (1) one-year renewal term; and ( WHEREAS, on February 12, 2016, the City and Concessionaire executed the Agreement; and WHEREAS, pursuant to the Agreement, the Concessionaire is responsible for reimbursing the City far the upfront, reimbursable capital costs associated with the installation of the service connections for the water and electricity (Utility Connections) for the twenty-five (25)smart water stations, subject to the cap of$140,000; and WHEREAS, since the execution of the Agreement, there have been delays in the deployment of the Program; and WHEREAS, the estimate for the total cost associated with the Utility Connections for the smart water stations has increased to $250,000; and WHEREAS, on , 20_, the Mayor and City Commission adopted Resolution No. , approving and authorizing the City Manager to execute Amendment No. 1 to the Agreement, increasing the cap for the City's upfront, reimbursable capital costs relating to the Utility Connections for the twenty-five (25) water stations from $140,000 to $250,000; providing for the reimbursement payment to the City within thirty (30) days from com•leti•i • -ach Utility Connection installation; EXHIBIT Page V62 of 2495 providing the option, at the city's discretion, to transfer the responsibility for the installation of the Utility Connections to Concessionaire, with Concessionaire directly paying for said costs; and extending the performance window for the rollout of the water stations (after which the City may terminate the Agreement) from one (1) year to two (2) years, as more particularly set forth herein. NOW THEREFORE, in consideration of the mutual promises and conditions contained herein, and other good and valuable consideration, the sufficiency of which is hereby acknowledged, the City and Concessionaire hereby agree to amend the Agreement as follows: 1. ABOVE RECITALS. The above recitals are true and correct arid arettprporated as part of this Amendment. =" 2. MODIFICATIONS. The Agreement is hereby modified (d lii t, mS c d it ok thr -;end inserted items underlined) as follows ' Kr` (a) Subsection 1.2 of the Attebiviintjs hereby`P'(odified to read as follows: i S 1.2 If the Operaticnal Rolti4 Date do` :snot ocWithin a year two (2) years from, ,..ew_4 ctive Date;,hither aid,;" .y te.. elate this Agreement for gip..•. �';, uh all be discharged from c�>��` rience„�311owing w`�1f�h���•r.� p� �; g any aniekl liabilities, ,duties, AOS ti r'ms arisir 'out of, or by virtue of, this Agree pt. k - tionf f the Agreamer -'i;$ hereby deleted in its entirety and replaced .+cith the, towing * y The Cif*itfOrees provide the connections for the water, including a water me and the ctricity (collectively, Utility Connections) for Concon Are ready for Concessionaire to then connect Lech Program ater station to the corresponding Utility Connections, tikikan amoqnt not to exceed $250,000. As the City completes the Utiii _`on sec on for each Concession Area, the City will notify ConcS SO* in writing and invoice Concessionaire for the cost related te corresponding Utility Connection. The invoices shall be due and payable within thirty (30) days from the date received by Concessionaire. Any upfront costs which the City has incurred in connection with Utility Connections, from the Effective Date of the Agreement through the Effective Date of this Amendment, shall be paid by Concessionaire on or before September 1, 2017. THE FOREGOING WORK AND COSTS ASSOCIATED WITH THE UTILITY CONNECTIONS SHALL BE THE CITY'S ONLY UPFRONT, REIMBURSABLE CAPITAL ASSISTANCE WITH REGARD TO THIS AGREEMENT. Notwithstanding the foregoing, at the City's sole option and discretion, upon providing Concessionaire with ten (10) days Page 863 of 2495 written notice, the City may transfer the responsibility for the installation of the Utility Connections to the Concessionaire, with Concessionaire directly paying for said costs. In such case, the City shall continue to provide Concessionaire with the water meter for installation by Concessionaire, at Concessionaire's sole cost. (c) Exhibit 1 to the Agreement is deleted in its entirety and replaced with the attached Exhibit 1. (d) Exhibit 4 to the Agreement is deleted in its entirety and replaced with the - attached Exhibit 4. 3. RATIFICATION. Except as amended herein, all other terms t'0564410ns of the Agreement shall remain unchanged and in full force and``'ef>Fect. Iiijile event there is a conflict between the provisions of this AmendrgOn id the Agrei r nt, the provisions of this Amendment shall govern. 454" IN WITNESS WHEREOF, the parties ereto have,caused this endment to be executed by their appropriate officials, as of th ; ite first entered above "> ;.. FOR CITY: CIT1�'OF/;MIAMI BEACH, FLORIDA ATTEST: M x By: Rafael E. Graflado, City'Clerk ••w.:,••-.., Jimmy L. Morales, City Manager x k=Date'4:-!kr,,,, FOR CONCESSIJ ZAIRE `' WOOSH MIAMI BEACH LLC ATTEST: By: Print Name Print Name Date F:ATTO/TORG\GISELAIFORMSIAMENDMENTSIAMENDMENTTEMALATE Page 864 of 2495 Resolutions- C7 N MIAMI BEACH COMMISSION MEMORANDUM TO: Honorable Mayor and Members of the City Commission FROM: Jimmy L. Morales, City Manager DATE: July 26, 2017 SUBJECT.A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, APPROVING, IN SUBSTANTIAL FORM, AMENDMENT NO. 1 TO THE CONCESSION AGREEMENT, DATED FEBRUARY 12, 2016, BETWEEN THE CITY AND WOOSH MIAMI BEACH LLC, FOR THE IMPLEMENTATION, MANAGEMENT AND OPERATION OF A PILOT PROGRAM OF SMART WATER STATIONS; SAID AMENDMENT INCREASING THE CAP FOR THE CITY'S UPFRONT, REIMBURSABLE CAPITAL COSTS RELATING TO THE UTILITY CONNECTIONS FOR THE TWENTY-FIVE (25) WATER STATIONS FROM $140,000 TO $250,000; PROVIDING FOR THE REIMBURSEMENT PAYMENT TO THE CITY WITHIN THIRTY (30) DAYS FROM COMPLETION OF EACH UTILITY CONNECTION INSTALLATION; PROVIDING THE OPTION, AT THE CITY'S DISCRETION, TO TRANSFER THE RESPONSIBILITY FOR THE INSTALLATION OF THE UTILITY CONNECTIONS TO CONCESSIONAIRE, WITH CONCESSIONAIRE DIRECTLY PAYING FOR SAID COSTS; AND EXTENDING THE PERFORMANCE WINDOW FOR THE ROLLOUT OF THE WATER STATIONS (AFTER WHICH THE CITY MAY TERMINATE THE AGREEMENT) FROM ONE (1) YEAR TO TWO (2) YEARS; AND FURTHER AUTHORIZING THE CITY MANAGER TO EXECUTE THE FINAL NEGOTIATED AMENDMENT, SUBJECT TO REVIEW AND FORM APPROVAL BY THE CITY ATTORNEY. ANALYSIS On April 22, 2015 the Sustainability and Resiliency Committee recommended that Woosh work with City staff to develop a pilot program. On July 8, 2015, the Mayor and City Commission adopted Resolution Number 2015-29063, accepting the recommendation of the Sustainability and Resiliency Committee and authorizing the Administration to negotiate an agreement with Woosh in connection with the operation of a pilot program of smart water stations. On July 31, 2015, the Mayor and City Commission adopted Resolution Number 2015-29102, waiving, by 5/7th vote, the competitive bidding requirement, finding such waiver to be in the best interest of the City, and authoring the City Manager to execute an agreement, containing the essential terms set forth in the term sheet, in connection with the operation of a pilot program of smart water stations. Woosh is a company internationally renowned for their Smart Water Stations and water "on-the-go" concept. The water stations are computerized and are programed to provide filtered, chilled drinking water to residents and visitors for a faction of the price of what a regular bottle of water would cost at a store. The stations also have a bottle cleansing system feature for reusable bottles, thereby reducing plastic waste and promoting carbon footprint awareness. These Smart Water Stations are Wi-Fi enabled, contain LCD screens that can be used as City message boards and/or for Page 809 of 2495 advertisement purposes, feature online monitoring and remote control, and have a powerful cooling system. The City entered into the attached agreement effective February 12, 2016. Since that time, there have been delays in the installation of the pilot program. Pursuant to the Agreement, Woosh is responsible for reimbursing the City for the upfront, reimbursable capital costs associated with the installation of the service connections for the water and electricity(Utility Connections)for the twenty- five (25) smart water stations, subject to the cap of $140,000. The costs associated with the installation of the water and electrical services needed for each station have dramatically increased. The Agreement had an estimated cost that was to be paid within the first fiscal year and the parties wish to amend the Agreement to reflect that the reimbursement payments to the City will be paid upon within 30 days of invoicing. The Administration recommends amending the Agreement, increasing the cap for the city's upfront, reimbursable capital costs relating to the Utility Connections from $140,000 to $250,000; providing the option, at the City's discretion, to transfer the responsibility for the installation of the Utility Connections to Woosh, with Concessionaire directly paying for the installation costs; and extending the performance window for the rollout of the water stations (after which the City may terminate the Agreement)from one(1)year to two(2)years. CONCLUSION The Administration recommends approving the resolution. Legislative Tracking Public Works ATTACHMENTS: Description o Agreement o form approved reso o exhibit 1 Page 810 of 2495 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 1 r) Page 811 of 2495 --r 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 Page 812 of 2495 ° 0 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 Page 8]3 of 2495 ' `) 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 Fe � THIS CONCESSION AGREEMENT ("Agreement") made on Japery 12- , 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 4 Page 814 of 2495 Q ° 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. 5 Page 815 of 2495 1./ 4 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)1 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 6 Page 816 of 2495 r'1 - 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 (s). 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"). 7 Page817of2495 0.0 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 ail required final, non- 8 Page 818 of 2495 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 9 Page 819 of 2495 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); 10 0.0 Page 820 of 2495 1.•Z 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 11 nn D. Page 821 of 2495 YJ 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 12 Page 822 of 2495 J (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 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 13 Page 823 of 2495 O.0 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. 14 0 Page 824 of 2495 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). 15 D o Page 825 of 2495 7 Z 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. 91.2 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. • 16 Page 826 of 2495 TJ 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 17 Page 827 of 2495 T. 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 Emeroencv. 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 18 Page 828 of 2495 - 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. 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 19 Page 829 of 2495 -0 �.2 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 (15) 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 ail 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. 20 Page 830 of 2495 0' 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 21 Page 831 of 2495 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. 22 Page 832 of 2495 D 0 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. 23 Page 833 of 2495 0_0 7r t- 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. 24 Page 834 of 2495 L.L2 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 25 Page 835 of 2495 , 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. 26 Page 836 of 2495 D. 0 �'G 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 Page 837 of 2495 0.0 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 Page 838 of 2495 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 Nota 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 0-3 Page 839 of 2495 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 Page 840 of 2495 ' 7/2- 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 Page 841 of 2495 T J 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 BE pH, FLORIDA ,i 2 •� -afaei E. Granado, Cit_' \ B „, Mora es, City Manager L a ltr * iNCORP ORATED a%at,OH 26 ' Attest: WOOSH MIAMI BEACH LLC Ant-Orem-Manager Itay Tayas Zamir, Manager Date: Z" Z - (t? APPROVED AS TO FORM&LANGUAGE &FOR E�CUT,ION z.6 -(4 City Attorney AC Dote 32 Page 842 of 2495 Exhibit 1 Concession Area Site Plan/Concession Area Site List 33 Page 843 of 2495 J `t 2 swoosh Miami Beach Pilot, Suggested Locations 1/4 I fiurfsitie ,111 C:reek * a -,,,_ i 91st St 111(.11 . 4. .,.. < 4' .z. b . .c. 90th St ..,,, tem- ci Cl It NO * cg 2 89th St ft. > < Bi , ya Island 88th St v. . n .4.- 86th St ••< ft 85th St * tit ., Stillwater Dr 84th St 3 i Sho pe a ..r 82ild St 7 SpaCP rk , _. 81st St ( 4, 2 ' - ' --- p, 04.° CO 0 Cleeland Fil El -..mmortaarattsirtio 4 ii, r: Da ti,mi.t Rd /0 ,1, i t)•,,,, rtiti Si fitt (6th S• I.oirviray Dr r:s Ft ......m., ye 74th SI 25 1 „on iift N CD IF-ose -ark Vgew r 73rd 81 VM tt, and ' o It '4 r2rtcl Si I') 4.... ft iiivirk SS.c6)t i>‘ ,,,„st ••:, t...).. AlW 1Z I74 Y...... ..,/ v, to,ay 01 , 77.. .1 , '• 'OS ibs t, treau,dle Ilt1 D' 40,2 net,. t lk.itartit 0•••%—...) Page 844 of 2495 1- ... .,., — .UJOOSh Miami Beach Pilot, Suggested Locations 2/4 La Gorce island - .- ... t .,... - .. ,.7.--- lison'slaw icr : ,.. 0* _ . . ..\ -,-., il --2.1,p , ' ., ''.1-1::._ - o , 0 --- i;:.,--m ...._ ,. Delign.Suites .,.. at CulieBeacti ' AIA) 23 r ,, the Al— Ocea- - '-* - 2qyj 44 50th St ? , . fr S. ,.rise W 40th St LakevIew Ot Wat 4, 4 7 W46th St kt".17t st 21 .. _ w 46th St TO) Page 845 of 2495 0,0 .2.--- courtYC1-81''''' '''' Th'e Pal ll .; 'WOOSh . Miami Beach Pilot, Suggested Locations il 3/4 0 ,td,. 20 0,. W 40th St s. t c o., E Mtamo Beach; s., . ... .0 0 it ''... 0 cas ns .t3 Io i 4.• c „ 1, W 30th St rb -- it; g . _ fix* 1, a, 'CZ: ..qview nr a 29th St ttov . jet .4- c W 28th St 1 cr. t -' Bayshore Ailutuctpal 0 W W 27th St ..,, ..c , " Golf Course '' .,' g. .c. Sunset Islands tiouir W 25th St C.,.) W 24111 St : — , Miami Beach holt Club I I . .7. ic-3 c,- . . W 23rd St -10.00... ?2nd St I "." 0„..,. t8 t *,,,,'AO ,14nril vv 21st St 4e',„. (t9,9410. --- 20th St ...., o 0 n- kt...1_,) , Miami Beach • 2 19th St „,, Convention Center F` `4,-AV co o, - Ali!.11 I:: ,,,„....." i sib St -..... ,x, .-d 04- i. _ , ... Page 846 of 2495 -I-- 1 •waosh Miami Beach Pilot, Suggested Locations 414 tE.' 16 15 X14 �_ 13 n Ntcotn Road Mall a NOR 11 I, Vis, nj Mb 16th St o 16th St `�' y „„.,�i�" loevrs t tt `° % ro AI B R. I sin sr. 15t^St K.' Espanola Way .2 t 14th PI "Ti �.wr a -� 1 lOa. E-, - coin 1i1 1tie , il> = Alt 7 %harm Beach . 9e< 7 11r,'-,tmaga laCaitandPool — 'x It6 3 5 loth s1 c n 9th StAl t 5 47, cilyy 9 2 m v x C x a "— a a Lummus F'n • R fp D K > A A T `ro fith St 6th St al a n t r 3rd St C Alt 3 '';., ?nd St m z k+1 H 1st St 3fi Alt2 Ntkkt Beach M1X, 2 cut,th t`it,rSte Of Alt 1 1 nil Page 847 of 2495 131 lint to map: hitpy//nfn1w.aowk.c Jrn9p3M/adlttint.e0bPu1NOOIBklatPAhrIrbilimus-shor e I Location/Intarsedion 3..`J TOP. Alae Not.. Coordinates Beach 1 Sm.Forme Pari South Beach Park hbig two spots possible-me timer to the beach or playground j25,75525,&013294 «m./Public Park 2 1st Street/South Pointe orwe entrance to beach Beach Access South Beads Right by nhkt beach,by the beach entrance 25.7184.-80.13113 3 Ocean between Sth/6th Beach Access South Beach Nest to the bathroom,oppasite Oct.and latapeno Restaurant 25.7153,-10.11125 Pedestrian a70/ 4 7th SI a Ocean 2' Park/Beach South Beach Pah beach entrance,near Cittbhe station 25.77662,-80.13096 tnerance 5 Collins Ave @ 100 Pedestrian area f South Beach Side walk.Esser house nearby, 25./8057,-80.13177 6 Lummus Park area 9th/Mangos Beach Access South Beach Nert to covered Ceibikc Bladon&outdoor gym and voleybei court 25.7791.-80.13042 1 Ocean Dr112 Park)Pedestrian South Beath on sidewalk west end of arra Oark 25.76269,-10.I3012 8 Hamm Purl. Public Park south Beach Several possible locations within flamingo park,by the POW,by the basketball eo Playground courts 25.78409,-10.13806 9 flsmmeo Park,football hent and running track Sporting caclkry South Beath Neat to fooetet held and running race 25.78288 4013965 II. 14th and Cotnt Street South Beach Neat to CctiWe station,large sidewalk near walgeeens 26.78638,-8013(54 106 Collins Are.@ I-rad to beach @Iw 15th&lbthi Pedestrian area/ South Beach Entrance to path to brach.'mal Beech Access garden 25.T8813,8013026 11 14th Street and Beach Boardwalk Reach Access South Beath Next to CrtiElike statin and bathrooms 25.78499,-80.12912 Pedestrian area/ 12 Ocean Or&loth Place Park/Beach South Beach Part Entrance,noth.west corner,Near Crttbrke&Starbucks 25.78872.8012942 13 tanbcir Road Beach Boardwalk l Beach Access South Beach On boardwalk 25,79012,-10.12195 l by the eooifiountUm, 14 linrom Road 11 Washington itMearun Mall South Beach I irunln Mall spots should not intertrre seh pedestrians or too mush street 25.7906.-60.13229 turnnete Mil past the green park,there Is a ratntam/pmol and covered structure• 15 thstoln Road 6701icoln �Pedestrian Mail South Beach corners for good 1patement 25.79052,8013523 Lincoln MaN Spots should not interfere with pedestrians or too much street furniture By the fountain 16 Lincoln Road @ Lennon Pedestrian Map South leach Lincoln Mall toots should not interfere with pedesrilans or too much street 15.79049.-80.14015 furniture 17 Cobra Ave @ 17th st. Pedestrian area South Beach Next to bus stop&Citibike 25 79222.80.12974 12 Colin.Park.22nd/21st Beach Access South Beach wide area,eaact location•760 2579704.-80,12873 19 Cohn.2/24th s•. rPedestrian area City Center Between bus slap and bike share statron 25.80024,-80.12708 20 41St and Chase Pedestrian area Mid leach intersecbpn by elementary shoot temple,shops 25 31371,-8013177 Preach 21 45th and Collins ! cess/Public Park Mb Beach Iden Rock beat.Boardwalk and Indbn Beach Park.Cit.,Near by 25.82069.-30.12118 22 Fisher Palk,Allen Road 51" IPulit Park Md Brach Busy knl/Iamxiv Park 25.82632,10.13117 Outdoor gym.and 23 53'a street beach park@Collins beach porn of fatal Beath outdoor gym,and beach point of entry 25.3313,10.12027 entry rt 64(1 and ColYns Pecking at at Alison Park,45th and P ing lot,Public --- 24 beach mM Park and Beath North Beach OObike station at Allison pa rk 25,84749,80,11966 Access Basch Amore, 24 North beach bandshel at 53rd Street Concert and(vent loch Beach Public event space right near entrance to the beach 2515141,.10 12036 Venue Mal South Pointe Park 2 by washingtan,eitibiba Public Park' Mal South/Mach North-west entrance to park,nowt to Citeblke 501.1100 25 76721,-8013571 Playground Alt 2 Ocean 0r,@ 1st st. Pedestrian area South Beach Per Park Parking lot Near C4ibike station 25.76945,-10.13301 Beach Many locations within the park,by the bathrooms playground.old phone at Ana Marjory Stoneman Douglas Ocean Beach Park Ord/401) Access/Public South Beach Ilse street $577!41,10.S3I37 Park/Playground Alt 4 9th Street&Washington Ave. Pedestrian area South Beath Cdtbrke station year by Ion 9111 25.77945,-80.1333 ANS Art Peso Welcome Centel 110th)" Beach Atce.. South leach Nen to art deco center 25 73049,80.(2994 A16 loth and Beach Boardwalk Beech Access South Beach Green Space at 10th,opposite cievetander,neat to Cili9ikelotlon 25 18082,-10,1299 AN 7 13th 51.¢Washington Ave. Pedestnan area South Beath In front of post off e,next to Cdlbike stub. 25 78426.80.13233 APS Ocean prove andalth beech Atten South Hach at ocean dnreentranle to theboardee.N 25.1116.a0.12eS7 Alt9 Collins Ave la 18th St. Pedestrian area South leach Near hub stay,eitibike nearby on 11111 25 79402,-10.12064 A110 Wesh In front or Ataml Beach Teen Outs II St.Parse.. neer CM. 25 79671,-10:3316 irylon eve @ 20tH St Pedestrian area South leach Slabon Public Park, AN 11 Maurice Gibbs Pah Playground, South leach Exact lotauon to be decided-parking lot/playground,boardwak 25.79319,80.14492 Sporting faddy Alt 12 aCnllms Ave-E7 69th 5t. Pedestrian area 0005 leach Sidewalk,in front of chase bank,commercial area 2585431,40 12054 Alt13 Nonh/each Open Shore Part 84(1 PAPcarsVXk'Beach North Beath 25.86822,-80.12006 _s Page 848 of 2495 0,0 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: 318" 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 Page 849 of 2495 IIIIIII II Exhibit 2 Program Equipment: Water Station Image For Informational Purposes Only, Subject to Planning/Zoning Approval and modification as necessary. z d. i i iiiitio.a 35 Page 850 of 2495 D.0 Z.a Exhibit 2 Program Equipment: Typical Site Plan For Informational Purposes Only, Subject to Planning/Zoning Approval and modification as necessary. See Annex A 36 Page 851 of 2495 .woosh -CONFIDENTIAL- Dimensions- Outdoor Station C co b 39 Sir 18in Ground Level F c Bucket Mr Concrete Base 39.5 in f s 0-i Side View Top View 0 .0 Page 852 of 2495 . 2- •woosh -CONFIDENTIAL- Deployed Outdoor Stations A. 4', ..,, 1 .I. •i. uf, . r,F r. ,,' ::3 if .. '' 1,14.4. • f+ Age *. a r n,, 0 i ..: + R Iiii , i i ;,te‘ II ... A ' .. .. , r , , vgaia i — 4 ter . Page 853 of 2495 T 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 Page 854 of 2495 -�_ Exhibit 3.1 Utility Connections 38 7 Page 855 of 2495 Exhibit 3.1 Utility Connections System Units Unit Desulpdon Fill rate:1 GPM Water Avg.Fill process 13 seconds dlsper.slnB system Fills Any type of bottle I glass!cup etc Resulated fixed fllllnsquantities.5.33 oz.1150.1000 mlI Water treatment unit ensures the outlet waters quality,Improves taste Water treatment and removes bad odors Prevents bacteralsrowth and contamination. unit Treatment unit Is automated i PIC 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 i•I On site.Ozonein3i based bottle cleanslns system. Bottles Bottle disinfection and removal of bad taste&Door.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 disposalof excess water to drain. collection unit No water spillage aroui d the station Wooster Outdoor WO©OW/SOO 110V /nsaWe1ion Marual 1"aditrcrt Jan 2016 CCooyrrgPlwoosh wstar sy ;sirs Ltd Phone+972 72 2543850 Fax+972 39214515 aLlarrm Goa SI PQ831J7 Krryst arye nelach-Ttrv3 4)x32. tsraal r)r U MIA 18J91P334v4 '2' Page 856 of 2495 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. 1 phase,110,60 Hz,20A o Station's Nominal current:1 4,67 amps at 110 volts. o Electrical connection cable:14 AWG 3X2.1mm •TYPE- XLPE u 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 I"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 Woosh I Outdoor W00010500-1101/ Installation Manuel 1', edrtton Jan 2015 5Copyr+yht woosh water systerns Ltd. Phone.+972 72 2643850 Fax +.t 3 9214515 6Martin GehelSt. POB 3137.KIryet Arye_Petech-rikve 49130..Israel pro MIA 184979334 v4 Page 857 of 2495 - 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 • 4o,Pavel rabic, 4• Maw Inlet Om Drainage ,EmEno. lase Connectors - 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 318" connector to the end of the water pipe(inside the bucket) iroioa.make sure that the electric cable l ected from olv durino base instalment Never work • 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. woos,/r Outdoor WODO10,50O-1 10V Installatton Manual ettbon Jan 2055 @Covrght wnosh water systems Ltd Phone 9 72 72 2643850 Far 972 3 921451.5 • Maim'Gape,Sc_P08 3137 KlryatArye PeracirTiOwa 49130,.israel P ° MIA 1849193344,4 T Page 858 of 2495 Exhibit 4 Project Schedule F:ATTO/TORG/AGREEMENTS/WOOSH FINAL 1/28/2016 39 P, Page 859 of 2495