Resolution 2023-32825RESOLUTION NO. 2023-32825
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, APPROVING THE CONCESSION AGREEMENT
WITH BOUCHER BROTHERS PIER PARK, LLC, PURSUANT TO REQUEST
FOR PROPOSALS (RFP) NO. 2023-479-KB FOR THE MANAGEMENT AND
OPERATION OF A HIGH -END BEACH ESTABLISHMENT AND AUTHORIZING
THE CITY MANAGER AND CITY CLERK TO EXECUTE THE CONCESSION
AGREEMENT.
WHEREAS, on May 17, 2023, pursuant to Resolution 2023-32612, the City Commission
directed the Administration to prepare and issue Request for Proposals (RFP) 2023-479-KB for
the management and operation of a high -end beach establishment at One Ocean Drive, also
known as Pier Park, and the adjacent concession area (collectively, the "Concession Area"), with
the new agreement taking effect after the expiration of the existing Penrod Lease and Penrod
Concession Agreements, which end on May 6, 2026; and
WHEREAS, the RFP allowed bidders to submit proposals for up to two independent
proposal alternates - Option 1 for an agreement having a term of less than 10 years and Option
2 for an agreement having a term of up to 30 years; and
WHEREAS, on August 31, 2023, the City received proposals from the following firms for
Options 1 and 2:
Option 1
• Boucher Brothers Management, Inc.
• Tao Group Hospitality/
One Ocean Hospitality
• The Group US Management LLC
Option 2
• Boucher Brothers Management, Inc.
• RH
• Tao Group Hospitality/One Ocean Hospitality
• The Group US Management LLC; and
WHEREAS, on September 11, 2023, the Evaluation Committee appointed by the City
ManagerJconvened to consider the proposals received; and
WHEREAS, for Option 1, the proposal submitted by Boucher Brothers was the
unanimously top -ranked proposal by the Evaluation Committee, and for Option 2, the Evaluation
Committee process resulted in a tie between the proposals submitted by Boucher' Brothers and
The Group US Management; and
WHEREAS, after a thorough review of the facts of the procurement, the results of the
evaluation committee process, the financial analysis of the 10-year option versus the 30-year
option, and the best interests of the City with regard to the property, on September 27, 202.3, the
City Manager recommended that the Mayor and City Commission authorize the Administration to
negotiate an agreement for Option 1 with Boucher Brothers, the unanimous top -ranked bidder for
Option 1; and
WHEREAS, the full details and analysis of the RFP process are included in Attachment B
to the Memorandum accompanying this Resolution; and
WHEREAS, on September 27, 2023, the Mayor and City Commission approved
Resolution No. 2023-32783, accepting the recommendation of the City Manager with regard to
the proposalsreceived in response to the RFP and authorizing the Administration to negotiate an
agreement with Boucher Brothers based on its Option 1 proposal; and
WHEREAS, as directed by the Mayor and City Commission, the Administration and
Boucher Brothers ("Concessionaire") have finalized negotiations on a concession agreement for
the management and operation of a high -end beach club in the Concession Area; and
WHEREAS, the negotiated Concession Agreement for the Management and Operation of
a High -End Beach Establishment is attached as Attachment A to the Commission Memorandum
accompanying this Resolution (the "Concession Agreement"); and
WHEREAS, the material terms of the agreement are as follows:
1. Important Dates
• Effective Date means the date that the agreement is fully executed by all parties, typically
ten (10) days after contract approval.
• Occupancy Date means the date upon which the Concessionaire is permitted to occupy
and use the Concession Area, which is anticipated to be May 7, 2026.
• Commencement Date means August 1, 2027, subject to extension due to Unavoidable
Delays (as defined in the Concession Agreement agreement), or the date on which any of
the Concession Operations are fully open to the public for business, whichever occurs
first.
2. Concession Area
The Concession Area is depicted in Attachment D to the Commission Memorandum
accompanying this Resolution and generally includes all areas in the existing Penrod Lease and
Penrod Concession Agreements (i.e., the building and adjacent outdoor areas, the beach
concession area) as well as the parking lot. As to the parking lot, the City will retain 72 parking
spaces for municipal uses.
3. Uses
The Concessionaire is authorized to conduct the following kinds of businesses and provide the
following kinds of services in the Concession Area.
• Rental of Beach and Pool Equipment. In'connection with the Beachfront Operations and
the Pool Operations, Concessionaire shall be permitted to rent Beach and Pool Equipment
including, but not be limited to, beach beds, beach chairs (including lounge chairs), pads,
umbrellas, cabanas, sun canopies, flotation devices and such other related equipment as
approved by the City Manager or his/her designee pursuant to this Agreement.
Restaurant Operations and Cafe Operations. The Concessionaire shall enter into a
subcontract with Major Food Group with respect to the Restaurant Operations and Cafe
Operations at the Concession Area. The Restaurant Operations shall consist of the
construction and operation of three (3) distinct dining concepts at the Concession Area, with
the initial concepts being a daytime casual dining concept on the first floor of the building on
the Concession Area, another being an evening upscale dining concept on the second floor
of the building on the Concession Area, and the third being an outdoor upscale cafe concept
(the "Outdoor Cafe"). The proposed final dining concepts, or any change in the future, shall
be submitted to the City by or before April 1, 2024, for the prior written approval of the City
Manager or his or her designee.
Kids Club. Concessionaire shall enter into a subcontract with Nannywisdom, LLC, d/b/a
itavi®, with respect to the Kids Club operations at the Concession Area. The Kids Club
Operations shall be a high -end quality children's center operated in accordance with the
itavi® Method and will provide free childcare services, subject to availability, for the children
or legal wards of patrons of the restaurants, health and wellness center and/or retail pavilion
while patrons are physically present on -site. The Kids Club shall be a dedicated, secure,
indoor location inside the building on the Concession Area and will include a secure, private
bathroom for children from the approximate ages of 4 to 12 years of age and furnished with
age -appropriate furniture.
• Health and Wellness Center. The Concessionaire shall have the right to operate or
subcontract for the operation of the wellness operations, which shall consist of a high -end
quality health and wellness facility.
• Sale of Beach -Related Sundries and Skin Care Products by Concessionaire.
Concessionaire shall have the right to sell beach -related sundries and skin care products
(such as lotions, oils, and other skin care products) in the beachfront area and pool area.
• Retail Pavilion. Concessionaire shall have the right to operate the retail pavilion consisting
of, among other things, a collection of retail shops which may include, but not be limited to,
art galleries comprised of unique, emerging local talent side by side with established artists,
artisanal food shops, fashion and design shops and floral shops.
• Prohibited Uses. Concessionaire shall not use the Concession Area for any of the following
purposes: (a) for the sale of second-hand goods, war surplus articles, insurance salvage
stock, fire sale stock, merchandise damaged by or held out to be damaged by fire, except
merchandise damaged by fire or smoke occurring in the Concession Area, and then only for
thirty (30) days after the date of any such damage; (b) as an auction or flea market; (c) any
business in which Concessionaire is engaged in intentionally deceptive or fraudulent
advertising or selling practices or any other act or business practice contrary to honest retail
practices; (d) amusement centers (as defined in § 33.1 of the Code of Miami -Dade County
or its successor provision); (e) coinbox entertainment (pinball, video games, moving pictures
operated by coins); (f) casino gambling or games of change or reward (provided, however,
that the sale of State of Florida lottery tickets shall not be prohibited); (g) any unlawful or
illegal business, use or purpose, or for any business, use or purpose which is immoral or
disreputable (including "adult entertainment establishments" and "adult' bookstores) or for
any purpose or in any way in violation of Concessionaire's Certificate(s) of Occupancy (or
other similar approvals of applicable governmental authorities); (h) movie theatre; (i) medical
facilities and offices; 0) check cashing facilities; (k) pawn shops; (1) the sale of firearms; (m)
tattoo parlors, fortune tellers, psychics, palm readers, body piercing shops; (m) places of
worship; (n) political offices; (o) military recruiting; (p) consular, legation or any other offices
of foreign governments; (q) tire sales; (r) the sale of animals or birds of any kind and/or
products of a nature typically sold in pet shops; (s) offices for the practice of veterinary
medicine; (t) the sale of major appliances as a primary business; (u) housing or sleeping
quarters; (v) grocery stores (other than specialty gourmet shops); (w) second hand stores;
and/or (x) in any manner that will violate any Certificate of Occupancy or Certificate of Use
for the Concession Area or any portion thereof, or which will violate any Requirements
applicable to the Concession Area.
4. Term
The term of the agreement with Boucher Brothers is nine (9) years and 364 days, commencing
on August 1, 2027, subject to any Unavoidable Delays, or the date on which any of the
Concession Operations are fully open to the public for business, whichever occurs first. While the
Concession Agreement becomes effective upon execution, the term is scheduled to begin after
the renovations, which are expected to take 13 months, have been completed. Boucher Brothers
may begin the design process, permitting, and the required, regulatory approvals following the
effective date of the agreement but may not begin the actual construction work until after the
expiration of the existing Penrod Lease and Penrod Concession Agreements on May 6, 2026.
5. Hours of Operation .
• Beach Concession: open 1 hour after sunrise and close 1 hour prior to sunset
• First -floor outdoor Mediterranean restaurant: 11 am-7 pm
• Second -floor Japanese steakhouse: 5 pm-11 pm
• Sadelle's Boardwalk Cafe: 9 am-5 pm
• Outdoor lounge, pool, Kids Club, wellness, retail: 11 am-7 pm
6. Renovations
Boucher Brothers will invest $26,226,920 in the renovation of the facility, which will include
renovating the main building, outdoor areas, parking lot, and adjacent public restrooms, and the
addition of a pool and retail areas. The planned renovations must comply with all applicable
development regulations, and the approval of the Building and Planning Departments, as well as
the Design Review Board and the Planning Board.
The agreement requires Boucher Brothers to invest the full proposed amount of $26,226,920 into
the project. Any savings will be placed into an account, the use of which must be mutually agreed
upon by the parties.
7. Maintenance
The Concessionaire accepts the use of the Concession Area in its "as is, where is" condition with
all faults other than any hazardous materials or other environmental issues existing in the
Concession Area prior to the Occupancy Date. Concessionaire shall maintain or cause to be
maintained, at its own cost and expense, the Concession Area, the Concession Area Structures,
and the Public Parking Area in a first-class manner which is at least equal to the condition and
quality of high -end beach establishments in other world -class beach resorts.
8. Early Termination of Agreement in the Event of a Financial Emergency
In the event of a financial emergency, as defined in the agreement, and the City Commission's
tentative approval (i.e., subject to any other required approvals, including a voter referendum) of
a sale of the City property that encompasses the Concession Area, then -the City shall have the
right to terminate this Agreement upon not less than one hundred eight (180) days prior written
notice to Concessionaire, provided that (a) the early termination notice shall not be earlier than
the first day of the sixth (6t") Agreement Year and (b) the City shall pay Concessionaire the early
termination payment. The early termination payment is intended to compensate the
Concessionaire for the loss of anticipated profits that it would derive from the operations for the
time remaining in the term, less the fair market value of any FF&E (furniture, fixtures and
equipment) to be removed by Concessionaire from the Concession Area) plus the reasonable
costs incurred in connection with the early termination. The loss of anticipated profits and fair
market value of FF&E is to be determined by mutual agreement of the parties, but if the parties
cannot agree, these amounts are to be determined pursuant to appraisal provisions included in
Section 25 of the Agreement.
9. Public Benefits
The public benefits included in the agreement are detailed in Attachment C to the Commission
Memorandum accompanying this Resolution, including the salary of two police officers and a park
ranger; a minimum of 250 square feet for a police sub -station or other uses as determined by the
City; a reservation application (app) and discounts for Miami Beach residents; funding for the
mobile food pantry, senior programs, City public schools, dune maintenance/restoration, and the
Victory Community Garden; mechanical sifting from Government Cut to 5` Street; litter clean-up;
and, improvements at the children's playground at 13 Street and Ocean Drive, and at the Bark
Park on Washington Avenue; and, accessibility equipment.
10. Revenue
Upfront Payments: Concessionaire shall pay to the City a total of $4,000,000.00 in upfront
payments, payable in four (4) equal non-refundable installments of $1,000,000.00 due on (a)
the Effective Date, (b) on or before January 10, 2025, (c) on or before January 10, 2026, and
(d) on or before January 10, 2027. Such upfront payments shall be applied to the 1st year
minimum rent guarantee. The upfront payments shall be applied to the minimum guarantee for
the first year of the term.
• Minimum Annual Guarantee: The Concessionaire shall pay the City an annual minimum
guarantee of $4,000,000.00, which shall be increased by 3% annually beginning in year 2. In
addition, after the fifth term year, the minimum guarantee will be reset to the greater of (a) the
existing Minimum Fixed Rent or (b) 80% of the average of the actual rent paid during the past
five (5) years. The projected minimum revenue to the City over the term is $45,855,517.
• Percentage of Gross Receipts: Annually, the Concessionaire shall pay to the City ten percent
(10%) of Gross Receipts in excess of the amount of the then -current minimum annual
guarantee. In addition, the Concessionaire shall pay the City an additional five percent (5%) of
gross receipts between $65,000,000 and $70,000,000; and
WHEREAS, based on the foregoing, the Administration recommends that the Mayor and
City Commission approve the negotiated Concession Agreement for the Management and
Operation of a High -End Beach Establishment with Boucher Brothers Pier Park, LLC.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City
Commission hereby approves the Concession Agreement for the Management and Operation of
a High -End Beach Establishment with Boucher Brothers Pier Park, LLC in the form attached as
Exhibit A hereto; and further, authorize the Administration to finalize the Agreement; and further
authorize the City Manager and City Clerk to execute the Concession Agreement.
PASSED AND ADOPTED this /8 day of 0610hir 2023.
ATTEST:
OCT 2 0 2023
RA AEL E. GRANADO, CITY CLERK
�'
OR�TED
' CORP
DAN GELBER, MAYOR
APPROVED AS. TO
FORM & LANGUAGE_
& FOR EXECUTION
City Attorneys Date
Exhibit A
Concession Agreement for the Management and Operation of a High -End Beach
Establishment
Competitive Bid Reports - R2 A
&AIAAAI BEACH
COMMISSION MEMORANDUM
TO: Honorable Mayor and Members of the City Commission
FROM: Alina T. Hudak, City Manager
DATE: October 18, 2023
SUBJECT:A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY
OF MIAMI BEACH, FLORIDA, APPROVING THE CONCESSION
AGREEMENT WITH BOUCHER BROTHERS MANAGEMENT LLC,
PURSUANT TO REQUEST FOR PROPOSALS (RFP) NO.2023-479-KB FOR
THE MANAGEMENT AND OPERATION OF A HIGH -END BEACH
ESTABLISHMENT AND AUTHORIZING THE CITY MANAGER AND CITY
CLERK TO EXECUTE THE CONCESSION AGREEMENT.
RECOMMENDATION
Pursuant to Resolution 2023-32783, the Administration has negotiated a concession agreement
with Boucher Brothers for the operation of a high -end beach establishment at One Ocean Drive.
The concession agreement is attached hereto (see Attachment A) for the consideration and
approval of the Mayor and the City Commission.
BACKGROUND/HISTORY
On May 17, 2023, pursuant to Resolution 2023-32612, the City Commission directed the
Administration to prepare and issue Request for Proposals (RFP) 2023-479-KB for the
management and operation of a high -end beach establishment at One Ocean Drive, also known
as Pier Park, and the adjacent concession area (the "Concession Area"), with the new
agreement taking effect after the expiration of the existing Penrod Lease and Penrod
Concession Agreements, which end on May 6, 2026. The RFP allowed bidders to submit
proposals for up to two independent proposal alternates - Option 1 for an agreement having a
term of less than 10 years and Option 2 for an agreement having a term of up to 30 years.
un Auqust ;J1, 1u1;j, the un received
Option 1
• Boucher Brothers Management, Inc.
• Tao Group Hospitality/One Ocean
Hospitality
• The Group US Management LLC
us trom the twowng terms for u tions i and 1
Option 2
• Boucher Brothers Management, Inc.
• RH
• Tao Group Hospitality/One Ocean
Hospitality
• The Group US Management LLC
On September 11, 2023, the Evaluation Committee convened to consider the proposals
received. For Option 1, the proposal submitted by Boucher Brothers was the unanimously top -
Page 865 of 2240
ranked proposal by the Evaluation Committee. For Option 2, the Evaluation Committee process
resulted in a tie between the proposals submitted by Boucher Brothers and The Group US
Management.
After a thorough review of the facts of the procurement, the results of the evaluation committee
process, the financial analysis of the 10-year option versus the 30-year option, and the best
interests of the City with regard to the property, on September 27, 2023, the City Manager
recommended that the Mayor and City Commission authorize the Administration to negotiate an
agreement for Option 1 with Boucher Brothers, the unanimous top -ranked bidder for Option 1.
The full details and analysis of the RFP process are included in the attached City Commission
memorandum dated September 27, 2023 (see Attachment B).
On September 27, 2023, the Mayor and City Commission approved Resolution 2023-32783,
accepting the recommendation of the City Manager with regard to the proposals received in
response to the RFP and authorizing the Administration to negotiate an agreement with Boucher
Brothers based on its Option 1 proposal.
ANALYSIS
As directed by the Mayor and City Commission, the Administration and Boucher Brothers
("Concessionaire") have finalized negotiations on a concession agreement for the management
and operation of a high -end beach club in the Concession Area. The negotiated concession
agreement is attached as Attachment A. The material terms of the agreement are as follows.
Important Dates
Effective Date means the date that the agreement is fully executed by all parties, typically ten
(10) days after contract approval.
Occupancy Date means the date upon which the Concessionaire is permitted to occupy and
use the Concession Area, which is anticipated to be May 7, 2026.
Commencement Date means August 1, 2027, subject to extension due to unavoidable delays,
or the date on which any of the Concession Operations are fully open to the public for business,
whichever occurs first.
Concession Area
The Concession Area is depicted in Exhibit 1.0 to the Concession Agreement and generally
includes all areas in the Penrod lease and concession agreements, which is inclusive of the
building and adjacent outdoor areas, the beach concession area, and the parking lot. As to the
parking lot, the City will retain 72 parking spaces for municipal uses.
Uses
The Concessionaire is authorized to conduct the following kinds of businesses and provide the
following kinds of services in the Concession Area.
• Rental of Beach and Pool Equipment. In connection with the Beachfront Operations and
the Pool Operations, Concessionaire shall be permitted to rent Beach and Pool Equipment
including, but not be limited to, beach beds, beach chairs (including lounge chairs), pads,
umbrellas, cabanas, sun canopies, flotation devices and such other related equipment as
approved by the City Manager or his/her designee pursuant to this Agreement.
Page 866 of 2240
• Restaurant Operations and Cafe Operations. The Concessionaire shall enter into a
subcontract with Major Food Group with respect to the Restaurant Operations and Cafe
Operations at the Concession Area. The Restaurant Operations shall consist of the
construction and operation of three (3) distinct dining concepts at the Concession Area, with
the initial concepts being a daytime casual dining concept on the first floor of the building on
the Concession Area, another being an evening upscale dining concept on the second floor
of the building on the Concession Area, and the third being an outdoor upscale cafe
concept (the "Outdoor Cafe"). The proposed final dining concepts, or any change in the
future, shall be submitted to the City by or before April 1, 2024, for the prior written approval
of the City Manager or his or her designee.
• Kids Club. Concessionaire shall enter into a subcontract with Nannywisdom, LLC, d/b/a
itavi®, with respect to the Kids Club operations at the Concession Area. The Kids Club
Operations shall be a high -end quality children's center operated in accordance with the
itavi® Method and will provide free childcare services, subject to availability, for the children
or legal wards of patrons of the restaurants, health and wellness center and/or retail pavilion
while patrons are physically present on -site. The Kids Club shall be a dedicated, secure,
indoor location inside the building on the Concession Area and will include a secure, private
bathroom for children from the approximate ages of 4 to 12 years of age and furnished with
age -appropriate furniture.
Health and Wellness Center. The Concessionaire shall have the right to operate or
subcontract for the operation of the wellness operations, which shall consist of a high -end
quality health and wellness facility.
Sale of Beach -Related Sundries and Skin Care Products by Concessionnaire.
Concessionnaire shall have the right to sell beach -related sundries and skin care products
(such as lotions, oils, and other skin care products) in the beachfront area and pool area.
• Retail Pavilion. Concessionaire shall have the right to operate the retail pavilion consisting
of, among other things, a collection of retail shops which may include, but not be limited to,
art galleries comprised of unique, emerging local talent side by side with established artists,
artisanal food shops, fashion and design shops and floral shops.
Prohibited Uses. Concessionaire shall not use the Concession Area for any of the
following purposes: (a) for the sale of second-hand goods, war surplus articles, insurance
salvage stock, fire sale stock, merchandise damaged by or held out to be damaged by fire,
except merchandise damaged by fire or smoke occurring in the Concession Area, and then
only for thirty (30) days after the date of any such damage; (b) as an auction or flea market;
(c) any business in which Concessionaire is engaged in intentionally deceptive or fraudulent
advertising or selling practices or any other act or business practice contrary to honest retail
practices; (d) amusement centers (as defined in § 33.1 of the Code of Miami -Dade County
or its successor provision); (e) coinbox entertainment (pinball, video games, moving
pictures operated by coins); (f) casino gambling or games of change or reward (provided,
however, that the sale of State of Florida lottery tickets shall not be prohibited); (g) any
unlawful or illegal business, use or purpose, or for any business, use or purpose which is
immoral or disreputable (including "adult entertainment establishments" and "adult"
bookstores) or for any purpose or in any way in violation of Concessionaire's Certificate(s)
of Occupancy (or other similar approvals of applicable governmental authorities); (h) movie
Page 867 of 2240
theatre; (i) medical facilities and offices; 0) check cashing facilities; (k) pawn shops; (1) the
sale of firearms; (m) tattoo parlors, fortune tellers, psychics, palm readers, body piercing
shops; (m) places of worship; (n) political offices; (o) military recruiting; (p) consular, legation
or any other offices of foreign governments; (q) tire sales; (r) the sale of animals or birds of
any kind and/or products of a nature typically sold in pet shops; (s) offices for the practice of
veterinary medicine; (t) the sale of major appliances as a primary business; (u) housing or
sleeping quarters; (v) grocery stores (other than specialty gourmet shops); (w) second hand
stores; and/or (x) in any manner that will violate any Certificate of Occupancy or Certificate
of Use for the Concession Area or any portion thereof, or which will violate any
Requirements applicable to the Concession Area.
Term
The term of the agreement with Boucher Brothers is nine (9) years and 364 days, commencing
on August 1, 2027, subject to any unavoidable delays, or the date on which any of the
Concession Operations are fully open to the public for business, whichever occurs first. While
the agreement becomes effective upon execution, the term is scheduled to begin after the
renovations, which are expected to take 13 months, have been completed. Boucher Brothers
may begin the design process, permitting, and the required regulatory approvals following the
effective date of the agreement but may not begin the actual construction work until after the
Penrod agreement expires on May 6, 2026.
Hours of Operation
Beach Concession: open 1 hour after sunrise and close 1 hour prior to sunset
First -floor outdoor Mediterranean restaurant: 11 am-7 pm
Second -floor Japanese steakhouse: 5 pm-11 pm
• Sadelle's Boardwalk Cafe: 9 am-5 pm
• Outdoor lounge, pool, Kids Club, wellness, retail:11 am-7 pm
Renovations
Boucher Brothers will invest $26,226,920 in the renovation of the facility, which will include
renovating the main building, outdoor areas, parking lot, and adjacent public restrooms, and the
addition of a pool and retail areas. The planned renovations must comply with all applicable
development regulations, and the approval of the Building and Planning Departments, as well as
the Design Review Board and the Planning Board.
The agreement requires Boucher Brothers to invest the full proposed amount of $26,226,920
into the project. Any savings will be placed into an account, the use of which must be mutually
agreed upon by the parties.
Maintenance
The Concessionaire accepts the use of the Concession Area in its "as is, where is" condition
with all faults other than any hazardous materials or other environmental issues existing in the
Concession Area prior to the Occupancy Date. Concessionaire shall maintain or cause to be
maintained, at its own cost and expense, the Concession Area, the Concession Area
Structures, and the Public Parking Area in a first-class manner, at the sole discretion of the City
Manager, which is at least equal to the condition and quality of high -end beach establishments in
other world -class beach resorts.
Page 868 of 2240
In the event of a financial emergency, as defined in the agreement, and the City Commission's
tentative approval (i.e., subject to any other required approvals, including a voter referendum) of
a sale of the City property that encompasses the Concession Area, then the City shall have the
right to terminate this Agreement upon not less than one hundred eight (180) days prior written
notice to Concessionaire, provided that (a) the early termination notice shall not be earlier than
the first day of the sixth (6t') Agreement Year and (b) the City shall pay Concessionaire the early
termination payment. The early termination payment is intended to compensate the
Concessionaire for the loss of anticipated profits that it would derive from the operations for the
time remaining in the term, plus the reasonable costs incurred in connection with the early
termination.
Public Benefits
The public benefits included in the agreement are detailed in Attachment C, including the salary
of two police officers and a park ranger; a minimum of 250 square feet for a police sub -station
or other uses as determined by the City; a reservation application (app) and discounts for Miami
Beach residents; funding for the mobile food pantry, senior programs, City public schools, dune
maintenance/restoration, and the Victory Community Garden; mechanical sifting from
Government Cut to 5t' Street; litter clean-up; and, improvements at the children's playground at
13 Street and Ocean Drive, and at the Bark Park on Washington Avenue; and, accessibility
equipment.
Revenue
• Upfront Payments: Concessionaire shall pay to the City a total of $4,000,000.00 in upfront
payments, payable in four (4) equal non-refundable installments of $1,000,000.00 due on (a)
the Effective Date, (b) on or before January 10, 2025, (c) on or before January 10, 2026, and
(d) on or before January 10, 2027. Such upfront payments shall be applied to the 1st year
minimum rent guarantee. The upfront payments shall be applied to the minimum guarantee for
the first year of the term.
Minimum Annual Guarantee: The Concessionaire shall pay the City an annual minimum
guarantee of $4,000,000.00, which shall be increased by 3% annually beginning in year 2. In
addition, after the fifth term year, the minimum guarantee will be reset to the greater of (a) the
existing Minimum Fixed Rent or (b) 80% of the average of the actual rent paid during the past
five (5) years. The projected minimum revenue to the City over the term is $45,855,517.
Percentage of Gross Receipts: Annually, the Concessionaire shall pay to the City ten
percent (10%) of Gross Receipts in excess of the amount of the then -current minimum annual
guarantee. In addition, the Concessionaire shall pay the City an additional five percent (5%) of
gross receipts between $65,000,000 and $70,000,000.
SUPPORTING SURVEY DATA
N/A
a I Z F-I'Ll 14 q TJ 4 1 a; 161 XTXY W
Amount(s)/Acount(s):
Financial information is included in the Analysis section above. This will be a revenue producing
agreement.
Page 869 of 2240
CONCLUSION
Based on the foregoing, it is recommended that the Mayor and City Commission approve the
agreement with Boucher Brothers for the operation of a high -end beach establishment at One
Ocean Drive.
Applicable Area
South Beach
Is this a "Residents Right Does this item utilize G.O.
to Know" item. pursuant to Bond Funds?
City Code Section 2-14?
Yes No
Legislative Tracking
Facilities and Fleet Management/Procurement
J
ATTACHMENTS:
Description
D Resolution
D Attachment A- Concession Agreement 2023 Pier Park
o Attachment B - Commission Memorandum dated September 27, 2023, for the award of the RFP
o Attachment C - Public Benefits
Page 870 of 2240
Exhibit A
Concession Agreement for the Management and Operation of a High -End Beach
Establishment
Page 877 of 2240
Attachment A
Boucher Brothers Pier Park, LLC
Concession Agreement for Management and Operation of a High -End
Beach Establishment
Page 878 of 2240
Attachment A
CONCESSION AGREEMENT BETWEEN
CITY OF MIAMI BEACH, FLORIDA
AND
BOUCHER BROTHERS PIER PARK, LLC
FOR
MANAGEMENT AND OPERATION OF HIGH -END BEACH ESTABLISHMENT
CONCESSIONS
THIS CONCESSION AGREEMENT FOR MANAGEMENT AND OPERATION OF A
HIGH -END BEACH ESTABLISHMENT ("Agreement") is made this day of ,
2023 (the "Effective Date"), between the CITY OF MIAMI BEACH, a municipal corporation of the
State of Florida ("City"), having its principal address at 1700 Convention Center Drive, Miami
Beach, Florida, 33139, and BOUCHER BROTHERS PIER PARK, LLC, a Florida limited liability
company, with offices at 1451 Ocean Drive, Suite 205, Miami Beach, Florida 33139
("Concessionaire"). -
WHEREAS, on May 17, 2023, pursuant to Resolution 2023-32612, the City Commission
directed the City Administration to prepare and issue a Request for Proposals ("RFP") to seek
proposals from firms interested in being considered to negotiate an agreement(s) with the City for
the management or operation of a high -end beach establishment and ancillary uses on the
property located at One Ocean Drive and adjacent beachfront concession area as legally defined
and graphically depicted on Exhibit 1.0 hereto (the "Concession Area"), with the agreement(s)
taking effect after the expiration of an existing Lease Agreement dated November 7, 1985
between the City and Penrod Brothers, Inc. and an existing Concession Agreement dated
February 25, 2004 between the City and Penrod (the "Existing Concession Area Agreements"),
both of which will expire on May 6, 2026 and which collectively encompass a majority of the
Concession Area;
WHEREAS, on June 13, 2023, RFP 2023-479-KB for the management or operation of a
high -end beach establishment was issued;
WHEREAS, on September 27, 2023, as recommended by the City Manager, the Mayor
and City Commission authorized the City Administration to negotiate with Boucher Brothers Pier
Park, LLC, the successful proposer; and
WHEREAS, on , 2023, the Mayor and City Commission adopted Resolution
No. 2023- , approving this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged by the parties, the City and Concessionaire agree as follows:
SECTION 1. TERM AND CERTAIN DEFINITIONS.
1.1 This Agreement shall be effective as of the Effective Date, but the Term hereof shall not
commence until the earlier of: (a) August 1, 2027 subject to extension due to Unavoidable
Delays (as hereafter defined) and (b) the date on which any of the Concession Operations
(as hereinafter defined) have been issued a certificate of use or certificate of completion,
as applicable, and are fully open to the public for business (the earlier of such dates, the
Page 879 of 2240
Attachment A
"Commencement Date"). The term hereof (the "Term") shall begin on the Commencement
Date and shall expire at 11:59 p.m. on the three hundred and sixty-fourth (364th) day of
the tenth (10th) year (the "Expiration Date"). Within five (5) days of the Commencement
Date of the Term, City and Concessionaire shall complete and execute a Confirmation of
Commencement Date Certificate in the form attached hereto as Exhibit 1.1 to document
the beginning and end of the Term.
1.2 The City shall have the right to terminate this agreement prior to the Expiration Date
pursuant to Section 19 (Event of Default) and Section 25 (Early Termination Right in Event
of Financial Emergency), when applicable.
1.3 Concessionaire shall be permitted to use and occupy the Concession Area for all purposes
contemplated by this Agreement on or after the Occupancy Date subject to satisfaction of
the following conditions precedent (the "Occupancy Conditions"):
(i) There exists no uncured Event of Default;
(ii) Concessionaire shall have provided to City, and City Manager or his or
her designee shall have approved the Plans and Specifications;
(iii) all final, non -appealable Project Approvals shall have been issued;
(iv) Concessionaire shall have entered into, and delivered to the City a duly
executed copy of, the General Construction Contract (and all then
existing change orders thereto);
(v) Concessionaire shall have obtained, and shall have delivered to Owner a
copy of, all Permits and Approvals necessary for the Work, including the
Building Permit; and Concessionaire's parking and transportation plan for
off -site parking and transportation;
(vi) Concessionaire shall have delivered to the City the Payment and
Performance Bond;
(vii) Concessionaire shall have delivered to the City a parking mitigation plan
in form and substance acceptable to the City in its sole discretion that
addresses both loss of parking by providing for alternate parking within
proximity of the existing public parking spaces (not greater than one-half
mile) and loss of revenue to the City;
(viii) Concessionaire shall have delivered to the City certificates of insurance
evidencing that all insurance coverages required under this Agreement
are in place;
(ix) Concessionaire shall have delivered to the City, a duly executed
assignment of Plans and Specifications, and a duly executed assignment
of General Construction Contract and assignment of Construction
Agreements, pursuant to which the City shall have the right, without
assuming the Concessionaire's obligations, to enforce the Architect's and
General Contractor's, as applicable, full and prompt performance under
their respective agreements, subject only to payment by the City, which
Page 880 of 2240
Attachment A
assignment of Construction Agreements shall be substantially in the form
attached hereto as Exhibit 1.3;
(x) The representations and warranties made by Concessionaire pursuant to
Section 30 of this Agreement are true and correct on and as of the
Occupancy Date;
(xi) no lawsuit shall be pending, which prevents or restricts Concessionaire
from using or occupying the Concession Area and/or commencing
construction of the Work; and
(xii) Concessionaire shall have delivered a duly executed written notice by
Concessionaire to the City certifying that all Occupancy Conditions have
been satisfied in form and substance acceptable to the City, which notice
shall be acknowledged and countersigned by the City.
1.4 For all purposes of this Agreement, the terms defined in this Section 1.2 shall have the
meanings set forth below:
1.4.1 "Affiliate" or "Affiliates" means, with respect to any Person, any other Person that, directly
or indirectly, through one or more intermediaries, Controls or is Controlled by, or is under
common Control with, such Person.
1.4.2 "Agreement Year" means each one (1) year period during the Term commencing on the
Commencement Date, provided, the final Agreement Year shall be the period of three
hundred sixty-four (364) days commencing on the ninth anniversary of the
Commencement Date and ending at 11:59 p.m. on the Expiration Date.
1.4.3 "Budget" means the budget for the design, permitting, and development of the Concession
Area (including the costs of construction for the Work) submitted by Concessionaire to the
City with its RFP proposal, a copy of which is attached hereto as Exhibit 1.4.3. The Budget
does not include costs of so-called "OS&E" (e.g., chinaware, glassware, silverware,
smallwares, cookware, linens, housekeeping equipment, uniforms, disposables, etc.).
1.4.4 "Building Permit" means a "Full Building Permit" as such term is defined in the City's Land
Development Regulations, issued by the Building, Department of the City, which allows
building or structures to be erected, constructed, altered, moved, converted, extended,
enlarged, or used, for any purpose, in conformity with applicable codes and ordinances.
1.4.5 "Business Day" or "business day" means a day other than Saturday, Sunday or a day on
which banking institutions in the State of Florida are authorized or obligated by law or
executive order to be closed.
1.4.6 "City Land Development Boards" means, collectively, the Design Review Board and the
Planning Board.
1.4.7 "Concession Area" has the meaning set forth in the Recitals, provided, for the avoidance
of doubt, where the context requires, Concession Area shall be deemed to include all
Concession Area Structures.
Page 881 of 2240
Attachm2nt A
1.4.8 "Contractor" means any contractor, subcontractor, supplier, vendor or materialman
supplying services or goods in connection with construction of the Work or any other
renovations or construction at the Concession Area.
1.4.9 "Control" "Controlling" and "Controlled" means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of a Person,
whether through the ownership of voting securities, by contract, by Governmental
Requirements or otherwise, or the power to elect in excess of fifty percent (50%) of the
directors, managers, general partners or other Persons exercising similar authority with
respect to such Person (it being acknowledged that a Person shall not be deemed to lack
Control of another Person even though certain decisions may be subject to "major
decision" consent or approval rights of limited partners, shareholders or members, as
applicable).
1.4.10 "Development Order" means any order granting, denying or granting with conditions an
application for a Development Permit.
1.4.11 "Development Permit" includes any building permit (including the Building Permit), zoning
permit, subdivision approval, rezoning, certification, special exception, variance, or any
other official action of local government having the effect of permitting the development of
land.
1.4.12 "Financial Emergency" shall have the meaning set forth in Section 25.
1.4.13 "Force Majeure Event" means the following: acts of God; strikes, lockouts or other
industrial disturbances; acts of public enemies, whether actual or threatened; restrictions
or restraints imposed by law, rules, regulations or orders of any civil or military authority
(collectively, "Restraints"); civil disorder; insurrections; riots; acts of terrorism; war;
sabotage; epidemics such as Ebola, Zika, SARD and swine flu; pandemics such as
COVID-19 coronavirus; any public health emergency requiring quarantine, business
closures mandated by Governmental Authorities or shelter in place orders; any
governmental moratorium preventing the issuance of Permits and Approvals; landslides;
earthquakes; lightning; fires; hurricanes; storms; floods; earthquake; windstorm; natural
disaster; tropical depressions; red tides; algae blooms; seaweed inundations; significant
beach erosion; oil spills; other environmental issues materially adversely impacting the
Concession Area; street closures or adjusted traffic patterns which prevent access by the
public to the Concession Area; sabotage; riots, civil disturbances; fires; explosions; floods;
washouts and other natural disasters; verifiable and industry -wide inability to procure or a
general shortage of labor, equipment, utilities, facilities, materials or supplies in the open
market, or failure or unavailability of transportation generally; or other similar extraordinary
causes beyond the commercially reasonable control of the party claiming such inability. In
no event shall "Force Majeure Event" include economic hardship, financial inability to
perform specific to the party or the failure to secure Permits and Approvals. When
applicable based on the context, the period of a Force Majeure Event shall extend from
the occurrence of the Force Majeure Event until such time as the Force Majeure Event is
over and any applicable Restraints are lifted.
1.4.14 "General Construction Contract" means the construction contract between
Concessionaire and the General Contractor for the construction of the Work in accordance
with the approved Plans and Specifications for such Phase, within the contract time
Page 882 of 2240
Attachment A
specified therein for completion of the Work for a guaranteed maximum price that as of
the date of commencement of construction will, in the aggregate, equal or exceed the sum
allocated for construction of the Work as reflected in the Budget (except to the extent that
any reduction is reasonably attributable to a reduction in local area construction costs, as
established by a published construction price index or otherwise approved by the City
Manager) and that includes provisions requiring a Performance Bond and Payment Bond
and all other terms or conditions required under this Agreement.
1.4.15 "General Contractor" means the duly licensed general contractor engaged by
Concessionaire for the construction of the Work and approved by the City in accordance
with this Agreement.
1.4.16 "Governmental Authority or Authorities" means the United States of America, the State of
Florida, the City (acting in its governmental, not proprietary, capacity), Miami -Dade
County, and any agency, department, commission, board, bureau, instrumentality or
political subdivision (including any county or district) of any of the foregoing, now existing
or hereafter created, having jurisdiction over Concessionaire, or any subconcessionaire,
subcontractor or other occupant of, or over or under the Concession Area or any portion
thereof or any street, road, avenue or sidewalk comprising a part of, or in front of, the
Concession Area, or any vault in or under the Concession Area, or airspace over the
Concession Area.
1.4.17 "Improvements" shall have the meaning set forth in Section 11.1.
1.4.18 "Occupancy Date" means the date following the expiration of the Existing Concession
Area Agreements on which the Concessionaire satisfies all of the Occupancy Conditions
and is permitted to use and occupy the Concession Area for the purposes contemplated
in this Agreement.
1.4.19 "Permits and Approvals" means any and all permits and approvals required to be issued
by Governmental Authorities in connection with the Work, including, without limitation, the
City of Miami Beach building permits, the approvals of the City Land Development Boards,
the Miami -Dade County Department of Environmental Resources Management permits,
any required State of Florida Department of Environmental Protection permits, and any
utility access agreements with all applicable utility companies, Development Permits and
Development Orders.
1.4.20 "Person" means an individual, corporation, partnership, joint venture, limited liability
company, limited liability partnership, estate, trust, unincorporated association or other
entity; any Federal, state, county or municipal government or any bureau, department,
political subdivision or agency thereof; a foreign government or any bureau, department,
political subdivision or agency thereof; and any fiduciary acting in such capacity on behalf
of any of the foregoing.
1!.4.21 "Plans and Specifications" means, the final plans and specifications for all Work, including,
as applicable, foundation, structural, electrical, plumbing and HVAC plans, the finish
schedule, the program and such other plans and specifications customarily required to
obtain a Full Building Permit in the City of Miami Beach, Florida, each as established in
accordance with Section 7.
Page 883 of 2240
Attachment A
1.4.22 "Preliminary Plans and Specifications" has the meaning set forth in Subsection 7.1.1.
1.4.23 "Project Approvals" means the approval of the applicable City Land Development Boards
for the Work.
1.4.24 "Project Approvals Delays" means the number of days in excess of one hundred twenty
(120) days (with such 120-day period being measured from the date of Concessionaire's
submission of its initial application to the City Land Development Boards) after which
Concessionaire obtains approvals from the City Land Development Boards but only to the
extent such additional days in excess of one hundred twenty (120) days are the result of
the City Land Development Boards' requirement of any revisions to the Preliminary Plans
and Specifications that were approved by the City in accordance herewith.
1.4.25 "Requirements" means:
(a) any and all laws, constitutions, rules, regulations, orders, ordinances, charters, statutes,
codes, executive orders and requirements of all Governmental Authorities having
jurisdiction over a Person and/or the Concession Area or Concession Area Structures or
any street, road, avenue or sidewalk comprising a part of, or lying in front of or adjacent
to, the Concession Area or Concession Area Structures or any vault in, or under the
Concession Area or Concession Area Structures (including, without limitation, any of the
foregoing relating to handicapped access or parking, the Florida Building Code and the
laws, rules, regulations, orders, ordinances, statutes, codes and requirements of any
applicable Fire Rating Bureau or other body exercising similar functions, the Americans
with Disabilities Act, Title VII of the Civil Rights Act, the EEOC Uniform Guidelines and all
EEO regulations and guidelines);
(b) conditions set forth in any Permits and Approvals;
(c) the temporary and/or permanent certificate or certificates of occupancy issued for the
Concession Area or Concession Area Structures as then in force;
(d) the requirements of the City of Miami Beach Prevailing Wage Ordinance, Miami Beach
City Code, Section 31-27;
(e) the requirements of the City of Miami Beach Workforce Participation Program, Miami
Beach City Code, Section 31-40; and
(f) any and all provisions and requirements of any property, casualty or other insurance policy
required to be carried by Concessionaire under this Agreement.
1.4.26 "Unanticipated Site Conditions" means (a) concealed or subsurface conditions within or
proximate to the Concession Area that could not have been reasonably anticipated by
Concessionaire or reasonably discoverable and/or is not actually discovered by
Concessionaire through customary diligence, including, for example, Hazardous Materials
(as defined in Section 10.7.1) or other environmental issues or conditions, unmapped
utilities or any unknown environmental condition, geothermal system, geotechnical
condition, or similar concealed condition not reasonably discoverable prior to the
commencement of Construction Work; and (b) encumbrances on the Concession Area
that are either unrecorded or revealed by any title update obtained by Concessionaire
following the Effective Date (and were not disclosed in any prior title report or commitment
Page 884 of 2240
Attachment A
or otherwise contemplated by this Agreement), which materially and adversely impact the
prosecution of the Work.
1.4.27 "Unavoidable Delays" means a delay arising out of (a) a Force Majeure Event, (b)
Unanticipated Site Conditions, (c) any lawsuit is filed and pending which prevents or
restricts Concessionaire from using and occupying the Concession Area or commencing
construction of the Work, and/or (d) a Project Approvals Delay, in each case, which
actually prevents or delays performance and that (i) is beyond the reasonable control of
Concessionaire, (ii) is not due to the negligent or intentional act, error or omission of
Concessionaire and (iii) if occurring after the commencement of any construction work,
directly impacts the progress of such construction work. "Unavoidable Delay" shall not
include technological interruption or malfunction, failure of equipment supplied by
Concessionaire, shortage of funds, failure of suppliers to deliver equipment and materials
except where such failure is itself the result of an Unavoidable Delay, or failure of
Concessionaire or any Contractor to secure the required permits for prosecution of the
Work (except to the extent caused or contributed to by a Project Approvals Delay);
provided that Concessionaire delivers written notice to the City of such Unavoidable Delay
within ten (10) business days after first becoming aware of the occurrence thereof, which
notice shall describe in reasonable detail the events giving rise to the Unavoidable Delay,
and Concessionaire shall diligently use commercially reasonable efforts to attempt to
remove, resolve or otherwise seek to mitigate such delay and keep the City advised with
respect thereto. Time is of the essence with respect to this provision, and any failure by
Concessionaire to timely deliver notice of an Unavoidable Delay shall be deemed a waiver
of Concessionaire's right to delay performance or to postpone any dates as a result of
such Unavoidable Delay. Notwithstanding the provisions of Section 23, for purposes
hereof, notice by Concessionaire shall be deemed sufficiently given to the City if
transmitted via electronic transmission to the City Manager and City Attorney; provided
that as soon as reasonably practicable thereafter a copy of such notice is delivered
pursuant to the terms of Section 23 hereof. The times for performance set forth in this
Agreement (other than for monetary obligations of Concessionaire) and the
Commencement Date shall be extended to the extent performance is delayed by
Unavoidable Delay, except as otherwise expressly set forth in this Agreement. If two or
more separate events of Unavoidable Delay are concurrent with each - other,
Concessionaire shall only be entitled to an extension of time for each day of concurrent
critical path delay, and Concessionaire shall not be entitled to double recovery thereon.
For illustration purposes only, if two events of Unavoidable Delay are concurrent for two
days, Concessionaire shall only receive an extension of time, if at all, of a total of two days,
and not four days: In no event shall (i) Concessionaire's financial condition or inability to
fund or obtain funding or financing constitute an Unavoidable Delay, or (ii) any delay
arising from Concessionaire's default (whether or not the default is subsequently cured)
under this Agreement constitute an Unavoidable Delay.
1.4.28 "Work" means the design, permitting, development and construction of improvements
substantially in accordance with the Plans and Specifications approved by the City in
accordance herewith, including all design, architectural, engineering and other
professional services, demolition and construction services, supervision, administration
and coordination services and the provision of all drawings, specifications, labor,
materials, equipment, supplies, tools, machinery; utilities, fabrication, transportation,
storage, insurance, bonds, permits and conditions thereof, zoning approvals, changes
required to comply with building codes and Permits and Approvals, licenses, tests,
inspections, surveys, studies, and other items, work and services that are necessary or
Page 885 of 2240
Attachment A
appropriate for the demolition of existing structures and other preparatory or remediation
work on the applicable portion of the Concession Area; utility relocations, installations,
hook-ups or other infrastructure as may be required in connection with the improvements
and the Concessionaire's proposed operations thereon and to obtain certificates of
occupancy or certificates of completion for the Work; and total design, construction,
installation, and functioning of all improvements to the extent necessary to obtain
certificates of occupancy for the Concession Operations, and together with all additional,
collateral and incidental items, work and services required for completion of construction
of the improvements.
1.4.29 In the event of a dispute between the City and Concessionaire as to the meaning of "first-
class" or "world -class" and words of similar import used in this Agreement, the City
Manager's (or his or her designee's) decision, in that Person's sole discretion, shall
control.
2.1 The City hereby grants to Concessionaire the exclusive right, during the Term, to
establish, operate and manage all Concession Operations (as defined in Section 2.2 below) upon
the Concession Area and to enter into subcontracts, and grant exclusive rights consistent with
the terms of this Agreement, with approved Subconcessionaires. The Concession Area includes
three (3) structures landward of the Erosion Control Line, including a main building, a storage
building and a public restroom (existing structures together with any new structures constructed
by Concessionaire, the "Concession Area Structures"), that will be improved by Concessionaire.
The rights granted to Concessionaire herein include the exclusive right to occupy and use the
Concession Area Structures. The Concessionaire acknowledges and agrees that the State of
Florida retains ownership over the public sandy beach area east of the Erosion Control Line
included within the Concession Area (the "Beachfront Area") and the City's interest in the
Beachfront Area is limited to management responsibilities pursuant to that certain Management
Agreement dated February 3, 1982 for Certain Lands in the City of Miami Beach, Florida between
the Board of Trustees of the Internal Improvement Trust Fund of the State of Florida ("TIITF") and
the City, as amended by Amendment Number 1 dated February 7, 2007 (as the same may be
amended from time to time during the Term, the "Beachfront Management Agreement"). All of
the terms and conditions of the Beachfront Management Agreement are incorporated herein by
this reference and any amendments to the Beachfront Management Agreement shall
automatically be incorporated into this Agreement. If the Beachfront Management Agreement
expires or is terminated at any time and for any reason during the Term, the City shall give prompt
written notice thereof to Concessionaire and the Beachfront Area shall be excluded from the
Concession Area for all purposes of this Agreement from and after the expiration or termination
date. The City and Concessionaire shall meet promptly and renegotiate, if and as necessary, the
Minimum Guaranteed Annual Concession Fee (as defined in Section 4.2) in good faith by
reviewing Gross Receipts derived from the Beachfront Operations (as defined in Section 2.2),
including Gross Receipts attributable to food and beverage sales and the sale of Beach -Related
Sundries in the Beach Area in the three (3) prior Agreement Years.
2.2 The concessions to be operated by Concessionaire at the Property, directly or indirectly
through a subcontract (as duly approved by the City as provided herein), shall include (a)
operations for the rental of Beach and Pool Equipment at the Beachfront Area (the "Beachfront
Operations") as delineated on the site plan attached hereto as Exhibit 2.2 and incorporated
Page 886 of 2240
Attachment A
herein by this reference ("Site Plan"); (b) operations for the rental of Beach and Pool Equipment
at the Cabana Area (also referred to as the "Spoils Area") and Pool Area as delineated on the
Site Plan (collectively, the "Pool Operations"); (c) operations for the preparation and sale of food
and beverages at the Restaurant Area as delineated on the Site Plan (the "Restaurant
Operations"); (c) operations for the preparation and sale of food and beverages at the Cafe Area
as delineated on the Site Plan (the "Cafe Operations"); (d) operations for childcare services at
the Kids Club Area as delineated on the Site Plan ("the Kids Club Operations"); (f) operations for
health and wellness services at the Health and Wellness Center Area as delineated on the Site
Plan (the "Wellness Operations"); (g) operations associated with retail shops at the Retail Pavilion
as delineated on the Site Plan (the "Retail Operations") and (h) any incidental revenue -generating
operations and activities ancillary to the foregoing in the Concession Area, including without
limitation the sale of Beach -Related Sundries ("Incidental Concessions", and together with the
Beachfront Operations, the Pool Operations, the Restaurant Operations, the Cafe Operations, the
Childcare Operations, the Health and Wellness Operations and the Retail Operations, the
"Concession Operations").
2.3 The Concession Operations in the Beachfront Area are subject to the following specific
limitations.
2.3.1 Southern Accessibility Zone:
With regard to the area bounded to the north by a line 50 feet north of the southern
boundary of the Beach Area; to the south by the southern boundary of the
Beachfront Area; and bounded to the east and west by the easternmost and
westernmost boundaries of the Beachfront Area, Concessionaire shall not deploy
any Beach and Pool Equipment within this zone (the "Southern Accessibility
Zone"), unless specifically requested by a patron who uses a wheelchair.
2.3.2 Northern Accessibility Zone:
With regard to the area bounded to the south by a line 50 feet south of the northern
boundary of the Beachfront Area; to the north by the northern boundary of the
Beachfront Area; and bounded to the east and west by the easternmost and
westernmost boundaries of the Beachfront Area, Concessionaire shall not deploy
any Beach and Pool Equipment within this zone (the "Northern Accessibility
Zone"), unless specifically requested by a patron who uses a wheelchair.
2.3.3 Beach Front and Other Areas:
The City and Concessionaire agree and acknowledge that the public's use of the
Beachfront Area is of prime consideration. Accordingly, the Concessionaire shall
use commercially reasonable efforts to strive to maintain approximately forty-nine
(49%) percent of the beach frontage within the entire Beachfront Area free and
clear of Beach and Pool Equipment and any other facilities and equipment, so that
such portion of the beach may remain free and clear for the public's use and
enjoyment.
Concessionaire hereby acknowledges and agrees that the Beachfront Area, along
with any and all other public beachfront areas not specifically identified herein, are
public and, as such, must remain open, accessible and available for the use and
enjoyment of the public, whether or not the public chooses to use any of
Page 887 of 2240
Attachment A
Concessionaire's facilities and/or equipment, purchase its products, or engage in
any of the services it provides. In the event that a member of the public is within
the Beachfront Area, Concessionaire agrees to use good faith, diligent efforts to
allow for his/her quiet and peaceful enjoyment of same.
All remaining portions of the Concession Area (i.e., all portions of the Concession
Area other than the Beachfront Area) are intended to be used in full for Concession
Operations thereon to be run by Concessionaire and its approved
Subconcessionaires to fulfill the purposes of this Agreement.
2.3.4 Lifeguard Stands: Lifeguard Facility Zones
City and Concessionaire acknowledge that there are lifeguard stands within the
Concession Area. Concessionaire acknowledges and agrees that in the event the
City determines in its sole discretion that additional lifeguard stands are necessary
within the Concession Area during the Term, the size of the Beach Area may be
reduced to accommodate the appropriate buffer area around any such additional
lifeguard stands.
Concessionaire shall not use or deploy any Beach and Pool Equipment or any
other facilities and/or equipment on or within those portions of the beach where
lifeguard stands are located, including the area extending from the easternmost
foot of the Dune to the shoreline, and bounded by a line fifty (50) feet (each) to the
north and south of a lifeguard stand (each, a "Lifeguard Facility Zone," and together
with the Southern Accessibility Zone and the Northern Accessibility Zone, the
"Buffer Zones").
2.4 Concessionaire shall initially invest (including amounts that are financed) not less than
$26,226,920 (the "Committed Investment") on all costs associated with, and directly related to,
the planning, design, and construction of the Improvements, including soft costs, hard costs,
kitchen equipment and FF&E, but expressly excluding OS&E (collectively, "Project Costs"),
substantially in accordance with the amounts allocated to Project Costs in the categories reflected
in the Budget. Amounts allocated to specific line items in the Budget may be reallocated to other
line items subject to any adjustments due to increased or decreased costs in particular categories
provided such reallocations do not change the design quality or scope of the improvements,
landscaping and FF&E described and reflected in the renderings included in Concessionaire's
RFP Proposal Tab 4, Section 4.1 - Conceptual Design. Notwithstanding the foregoing, if there is
an overall savings on the Project Costs resulting from favorable market conditions, any savings
will be placed. into a separate, interest -bearing account and the use of such funds must be
mutually agreed upon by the parties.
SECTION 3. USES.
Concessionaire is hereby authorized by the City, in its proprietary capacity, to conduct the
following kinds of businesses and provide the following kinds of services upon the Property, all of
which shall be provided at Concessionaire's sole cost and expense. As hereinafter set forth,
Concessionaire is hereby authorized and permitted to enter into subcontracts with different
Subconcessionaires to provide the services (each a "Subconcession Agreement" and collectively,
"Subconcession Agreements"). The Subconcession Agreements, or any subsequent changes or
amendments thereto, are subject to the prior approval of the City Manager or his or her designee.
For the avoidance of doubt, the Concessionaire shall be solely responsible for obtaining any and
Page 888 of 2240
Attachment A
all amendments to the City's Comprehensive Plan and Land Development Regulations of the City
Code that may be required for any of the proposed uses herein, provided the City shall reasonably
cooperate with the Concessionaire.
3.1 Rental of Beach and Pool Equipment.
3.1.1 In connection with the Beachfront Operations and the Pool Operations,
Concessionaire shall be permitted to rent Beach and Pool Equipment including, but not
be limited to, beach beds, beach chairs (including lounge chairs), pads, umbrellas,
cabanas, sun canopies, flotation devices and such other related equipment as approved
by the City Manager or his/her designee pursuant to this Agreement. Concessionaire shall
operate the Beachfront Operations and the Pool Operations in compliance all applicable
Requirements.
By or before April 1, 2024, the Concessionaire shall submit a detailed list of all types of
Beach and Pool Equipment proposed to be available to patrons at the Beachfront Area
and Pool Area (including luxury offerings), and the prices for same, for the approval of the
City Manager or his or her designee, and, as approved, shall be attached hereto as
Exhibit 3.1.1. The City acknowledges and agrees that Concessionaire shall be entitled to
charge market pricing consistent with pricing for similar offerings at first-class resorts in
Miami Beach for luxury offerings of Beach and Pool Equipment (e.g., Nova Umbrella, the
Luxury Cabana, Luxury Daybed and Luxury Lounge) and such other luxury products as
may be approved by the City Manager or his or her designee. Any amendments to Exhibit
3.1.1, whether as to types of Beach and Pool Equipment to be rented, or as to changes in
prices for same, must be approved in writing by the City Manager or his/her designee prior
to such changes being implemented within the Concession Area (and, if approved, an
updated Exhibit 3.1.1 will be incorporated into this Agreement).
Concessionaire shall be entitled in its sole discretion to disallow the use of products and
equipment for safety reasons, including, but not limited to, in the event of inclement
weather, water conditions or the condition of patrons.
3.1.2 Concessionaire agrees to provide City resident discounts in accordance with the
schedule and criteria set forth in Exhibit 3.12. Changes to the discount schedule or criteria
must be approved in writing by the City Manager or his/her designee prior to such changes
being implemented within the applicable Concession Area (and, if approved, an updated
Exhibit 3.12 will be incorporated into this Agreement).
3.1.3 The condition and quality of Beach and Pool Equipment shall at all times be
maintained in good working order and condition, and in a first-class manner which is equal
to, or better than, the condition and quality of beach and pool equipment,found in public
beach concessions in other world -class beach resorts on par with the City of Miami Beach.
Concessionaire hereby agrees and acknowledges that the City and has a substantial
economic interest in continuing to promote the City of Miami Beach as a world -class beach
destination comparable to other world -class beach destinations and that the quality of the
Concession Operations will have a material impact on the manner in which the City of
Miami Beach is perceived by the public and news media. Accordingly, Concessionaire
shall not only, at a minimum, maintain all Beach and Pool Equipment placed within the
Concession Areas in good working order and condition, but shall adhere, as indicated in
this subsection, to first-class maintenance standards comparable to those followed by
high -end beach establishments in other world -class beach resorts.
Page 889 of 2240
Attachment A
3.1.4 By or before April 1, 2024, Concessionaire shall submit sketches, renderings and
specifications that include the design, type, material, and color of any and all Beach and
Pool Equipment together with photos of same for the approval of the City Manager or his
or her designee, and, as approved, shall be attached hereto as is attached and
incorporated as Exhibit 3.1.4. Concessionaire shall not change, alter, or modify the
design, type, material, and color of any City -approved Beach and Pool Equipment without
the prior written consent of the City Manager or his/her designee (and, if so approved, an
updated Exhibit 3.1.4 will be incorporated into this Agreement).
3.1.5 By or before April 1, 2024, Concessionaire shall submit a detailed site plan
reflecting the proposed placement and maximum number of all Beach and Pool Equipment
within the Beachfront Area and Pool Area (including the number of standard chairs and
luxury chairs in the Beachfront Area and Pool Area) for the approval of the City Manager
or his or her designee, in the City's proprietary capacity, and, as approved, shall be
attached hereto as Exhibit 3.1.5 (the "Beach Equipment Site Plan"). Such Beach
Equipment Site Plan shall also reflect the proposed location for all Beach and Pool
Equipment concession dispensing facilities and storage facilities within the Concession
Area. During the Term, all Beach and Pool Equipment shall be placed substantially in
accordance with the City -approved Beach Equipment Site Plan. Concessionaire shall not
alter the approved Beach Equipment Site Plan without the prior written consent of the City
Manager or his/her designee. City and Concessionaire may meet periodically to review
and, subject to mutual agreement, revise the maximum numbers for Beach and Pool
Equipment in the Beachfront Area and/or Pool Area, and if so revised, an updated Exhibit
3.1.5 will be incorporated into this Agreement. For the avoidance of doubt, all site plans
for the Concession Area (including the Beach Equipment Site Plan) will be subject to
review by the appropriate City departments, in the City's regulatory capacity.
3.1.6 Except as otherwise provided in this Agreement, the "Set -Up Period" for Beach
and Pool Equipment in the Beachfront Area shall commence daily no earlier than one (1)
hour after sunrise (or, in the event of inclement weather, as soon thereafter as such
weather permits). During the Set -Up Period, Concessionaire shall be permitted to set up
to the maximum number of Beach and Pool Equipment allowable for the Beachfront Area.
3.1.7 The parties acknowledge that Concessionaire's patrons may themselves relocate
chairs and other Beach and Pool Equipment within the Beachfront Area and/or to an
immediately adjacent Buffer Zone. Such relocation shall generally be permitted; provided,
that, in the aggregate, Concessionaire shall not materially alter, and use good -faith,
diligent efforts not to allow to be materially altered, the configuration of the Beachfront
Area from what is set forth in the approved Beach Equipment Site Plan for the Beachfront
Area. In such event, Concessionaire shall be responsible for promptly correcting any
material alteration made by the patrons (when they leave) to bring the Beachfront Area
back into substantial conformance with the approved Beach Equipment Site Plan for the
Beachfront Area.
Moreover, if Concessionaire elects to replace a certain number of standard chairs with
luxury chairs (above the number of luxury chairs approved pursuant to Section 3.1.5), but
not to exceed the aggregate maximum number of chairs permitted under this Agreement,
and if at any time thereafter a patron desires a standard chair which is unavailable, due to
such replacement, then Concessionaire shall provide the patron with a luxury chair at the
standard chair rate.
Page 890 of 2240
Attachment A
3.1.8 The City and Concessionaire agree and acknowledge that the public's use of the
beach is a prime consideration and must be balanced with the services to be provided to
the public, and the respective financial remunerations to City and Concessionaire pursuant
to this Agreement. Accordingly, Concessionaire further agrees that, notwithstanding its
right to set up its maximum numbers during the Set -Up Period, if during the period of time
between the Set -Up Period and 1:00 PM Eastern Standard Time (or 2:00 PM daylight
savings time, as applicable) on any day during Concessionaire's hours of operation, more
than twenty-five percent (25%) of Concessionaire's maximum number of chairs for the
Beachfront Area are vacant ("vacant" being defined for purposes of this subsection as not
being rented), then Concessionaire shall remove, at 1:OOPM EST (or 2:OOPM daylight
savings time, as applicable) that day, from the Beachfront Area, that number of chairs that
is determined by subtracting the number of chairs equal to twenty-five percent (25%) of
the maximum number of chairs. permitted for the Beachfront Area from the number of
vacant chairs at the relevant time. For example, assuming that 100 chairs are the
maximum, if 100 chairs are set up in the Beachfront Area during the Set -Up Period, and
60 are rented and 40 are vacant then, at 1:OOPM EST (or 2:OOPM, daylight savings time,
as applicable), Concessionaire must remove 15 chairs, which equals the difference
between the'actual number of vacant chairs in the Beachfront Area (i.e., 40) minus 25%
of the maximum number of chairs allowable in the Beachfront Area during the Set -Up
Period (i.e., 25). If chairs are removed as provided in the preceding sentence,
Concessionaire may, later that same day, increase the number of chairs based upon
demonstrated increased demand up to the maximum number of chairs permitted for the
Beachfront Area.
3.1.9 Notwithstanding anything in this Section 3.1, the City's Ocean Rescue Division
shall at all times have the sole and absolute discretion to require Concessionaire, and/or
Concessionaire's patrons, to relocate chairs and other Beach and Pool Equipment in the
event that such chairs and/or other Beach and Pool Equipment in any way impede and/or
obstruct sightlines or have any other effect whatsoever which would directly or indirectly
impede the performance of Ocean Rescue activities. Concessionaire will use good -faith,
diligent efforts to cooperate with Ocean Rescue to promptly ensure compliance with the
preceding requirement.
3.1.10 Concessionaire shall procure and maintain the insurance policies required
pursuant to Section 14 (Exhibit 14) to cover exposures associated with the Beachfront
Operations and the Pool Operations. For the avoidance of doubt, as indicated in Exhibit
14.3, Concessionaire may elect not to procure business interruption coverage for its
Beachfront Operations subject to the requirements set forth in such Exhibit.
3.2 Restaurant Operations and Cafe Operations.
3.2..1 - Concessionaire shall enter into a subcontract with Major Food Group, LLC, a
Delaware limited liability company, duly qualified to do business within the State of
Florida ("MFG"), with respect to the Restaurant Operations and Cafe Operations
at the Property (the "MFG Subcontract"). The Restaurant Operations shall consist
of the construction and operation of three (3) distinct dining concepts at the
Property, the areas for which are delineated on the Site Plan attached as Exhibit
2.1(collectively, the Restaurants"), with the initial concepts being a daytime casual
dining concept on the first floor of the building on the Property (the "Downstairs
Restaurant"), another being an evening upscale dining concept on the second floor
Page 891 of 2240
Attachment A
of the building on the Property (the "Upstairs Restaurant") and the third being an
outdoor upscale family oriented caf6 concept (the "Outdoor Cafe"). The proposed
final dining concepts shall be submitted to the City by or before April 1, 2024 for
the prior written approval of the City Manager or his or her designee. Prior to the
opening of the Restaurants to the public, Concessionaire shall provide to the City
Manager alcoholic beverage licenses for each of the Restaurants. In the event of
a termination or expiration of the MFG Subcontract and in the event that
Concessionaire desires to subcontract with another entity (the "Replacement
Restaurant Subconcessionaire") to provide food and beverage services and
delivery at and from the Restaurants, in the manner and to the extent contemplated
under this Subsection 3.2, such new request shall be subject to the
Concessionaire submitting information with respect to such Replacement
Restaurant Subconcessionaire for the City Manager's or his/her designee's prior
review and written approval. Furthermore, if the Concessionaire, MFG or another
Replacement Restaurant Concessionaire desires to modify one or more of the
approved dining concepts, any alternate dining concept shall be submitted to the
City for the prior approval of the City Manager or his or her designee.
Notwithstanding the approval of MFG or a Replacement Restaurant
Subconcessionaire, Concessionaire remains directly responsible to the City for
payment of the PG upon the Gross Receipts (as said terms are hereinafter
defined) relating to Gross Receipts generated by such Subconcessionaire's
Restaurant Operations even if the Subconcessionaire fails to make payment of
any amount due to Concessionaire under its Subcontract. .
3.2.2 By or before April 1, 2025, Concessionaire shall submit the material terms to be
included in the MFG Subcontract to the City for the approval of the City Manager
or his or her designee, and, as approved, shall be attached hereto as Exhibit3.2.2.
At the request of Concessionaire, such terms may be amended subject to the prior
approval of the City Manager or his or her designee. The terms of the MFG
Subcontract or of any contract entered into with any Replacement Restaurant
Subconcessionaire shall include waivers of recovery against the City and
indemnification in favor of the City substantially as set forth in paragraphs 2 and 3
of Exhibit 7.6.
3.2.3 Concessionaire shall cause MFG to submit proposed types of food and beverages
to be prepared and served at each of the Restaurants and pricing for the approval
of the City Manager or his or her designee, and, as approved, shall be attached
hereto as Exhibit 3.2.3. Any amendments to Exhibit 3.2.3, whether as to type of
food and beverages to be sold, or as to changes in prices for same, must be
approved, in writing, by the City Manager or his/her designee prior to such changes
being implemented within the Concession Area (and, if approved, an updated
Exhibit 3.2.2 will be incorporated into this Agreement).
3.2.4 Concessionaire shall be permitted to deliver food and beverages from the
Restaurants Concession Areas to the Beachfront Area and Pool Area and to
"offsite" customers and, in connection therewith, to utilize an internet based
application or other form of electronic software program or any other platform or
means of communication (e.g., website, third -party food delivery apps, telephone
orders, etc.) (collectively, the "F8B Apps") provided, that, (i) the only food and
beverage menu items offered on the F8B Apps are those permitted to be provided
by Concessionaire under this Agreement within the applicable Concession Areas;
Page 892 of 2240
Attachment A
(ii) no items whatsoever, other than those provided for under this Agreement, shall
be offered on the F&B Apps within the Concession Areas; and (iii) the City shall be
entitled to receive its percentage of Gross Receipts in accordance with Section 4
for any and all additional revenue received by Concessionaire (or Restaurant
Operator) in conjunction with use of the F&B Apps whether such orders are filled
from or at the Concession Area or elsewhere .
3.2.5 All food and beverages sold within the Property will be properly prepared and
served in compliance with all applicable health and sanitary standards, laws and
regulations and the Restaurants shall be operated in compliance with all
Requirements: Concessionaire shall use products to serve food and beverage that
are environmentally friendly. The use of expanded polystyrene containers or other
food service articles and plastic (or other non -biodegradable) straws is strictly
prohibited.
3.2.6 The quality of food and beverages contemplated in Subsection 3.2.1, and food
and beverage service, will be first-rate and comparable to similar food and
beverage operations at public beach concessions in other world class beach
resorts on par with the City of Miami Beach.
3.2.7 All facilities within the Concession Area where the preparation, storage, cooking,
heating and/or packaging of food occurs shall be properly cleaned and maintained
in accordance with all applicable health and sanitary standards, laws and
regulations and any other applicable Requirements. At least one supervisory
employee at each Restaurant during each shift must possess a Food Service
Management Certification issued by a County Public Health Department in Florida.
In addition, each Restaurant or other food and beverage dispensing facility within
the Concession Area, if any, must be licensed by the Florida Department of
Business Regulation, Division of Hotels and Restaurants, and as may further be
required by State law and/or by corresponding agencies.
3.2.8 The City acknowledges that the Restaurant Operations will be delegated by
Concessionaire to the Restaurant Subconcessionaires, provided that no such
delegation will act to release Concessionaire from its obligations hereunder and
Concessionaire shall remain responsible for compliance with all provisions of this
Agreement.
3.2.9 Concessionaire shall maintain (or shall cause any MFG and/or any approved
Replacement Restaurant Subconcessionaire to maintain) the following minimum
insurance coverage (i) Comprehensive General Liability in limits of not less than
$1,000,000.00 per occurrence and $5,000,000 general aggregate; (ii) Workers'
Compensation in statutory limits under Florida law and Employer Liability
Insurance for bodily injury or disease with limits of not less than
$1,000,000/$1,000,000/$1,000,000; and (iii) Automobile Liability Insurance
covering any automobile, if Concessionaire (or MFG and/or other approved
Replacement Restaurant Subconcessionaire) has no owned automobiles, then
coverage for hired and non -owned automobiles, with limits of not less than
$1,000,000 combined per accident for bodily injury and property damage; (iv)
Liquor Liability Insurance on an occurrence basis, including property damage,
bodily injury and personal & advertising injury with limits no less than $1,000,000
per occurrence; (iv) Crime/theft policy in limits of not less than $300,000.00 per
Page 893 of 2240
Attachment A
occurrence; (v) Damage to Premises Rented to You insurance with I limits of not
less than $1,000,000.00; (vi) Business Interruption Insurance effective no later
than the date on which the Restaurant Operations commence to include so-called
"Rent Insurance" on an "All Risk" basis in an amount not less than any minimum
Subconcession fee payable to Concessionaire and otherwise consistent with the
requirements set forth in Exhibit 14.3; and (vii) an umbrella policy of not less than
$5,000,000.00 per occurrence, with policies issued by a carrier with a current A.M.
Best Company rating of at least A: VII, on an "occurrence" basis (other than
Workers' Compensation) and maintained with insurers authorized to do business
in the State of Florida and shall be endorsed to list the City as an additional insured.
Copies of certificates of insurance and the Additional Insured Endorsement shall
be provided to the City prior to commencing operations. Such policies shall comply
with the "General Provisions Applicable to All Policies" set forth in Exhibit 14. In
addition, the City reserves the right to modify these requirements, including limits,
based on the nature of the risk, prior experience, insurer, coverage, or other
special circumstances. Concessionaire shall maintain all necessary licenses as
may be required by Federal, state and/or local laws to legally perform the
Restaurant Operations and Cafe Operations.
3.3 Kids Club
3.3.1 Concessionaire shall enter into a subcontract with Nannywisdom, LLC, d/b/a
itavi®, a Florida limited liability company ("Itavi®" ), with respect to the Kids Club
Operations in accordance with this Section 3.3 and other provisions of this
Agreement relating to the Kids Club Operations at the Property. The terms of the
subcontract with Itavi® or any replacement providing similar childcare services at
the Concession Area shall include waivers of recovery against the City and
indemnification in favor of the City substantially as set forth in paragraphs 2 and 3
of Exhibit 7.6. The Kids Club Operations shall be a high -end quality children's
center operated in accordance with the itavi@ Method and will provide free
childcare services, subject to availability, for the children or legal wards of patrons
of the Restaurants, Health and Wellness Center and/or Retail Pavilion while
patrons are physically present in the Restaurants, Health and Wellness Center
,and/or Retail Pavilion. The Kids Club shall be a dedicated, secure, indoor location
inside the building on the Property in the area delineated by the Site Plan and will
include a secure, private bathroom for children from the approximate ages of 4 to
12 years of age (potty trained only) and furnished with age -appropriate furniture.
Subject to any necessary suspension or reduction of operations due to a Force
Majeure Event, the Kids Club shall be open, at a minimum, during the operating
hours of the Concession Operations on all weekends, federal holidays and all days
on which public schools 'in Miami -Dade County are closed (including without
limitation teacher work days, winter break and summer break) and staffed with at
least three (3) childcare professionals to ensure a ratio not to exceed 8:1 children
per childcare professional, with one of such childcare professional designated as
the Kids Club Supervisor to oversee management and daily operations. The itavi®
Subcontract shall stipulate that itavi® shall provide duly qualified and licensed
childcare professionals with the following qualifications: (a) all childcare
professionals shall be at least eighteen (18) years of age and be certified in First
Aid and CPR; (b) itavi® shall have conducted appropriate background screenings
and reference checks on all its child care providers, including, without limitation,
criminal background checks and verification of their motor vehicle license (through
Page 894 of 2240
Attachment A
Checkr or such other comparable company that shall be used from time to time);
(c) all Kids Club patrons who book the childcare services will be required to
complete an intake form and waiver form to disclose the physical and medical
needs of the child to be cared for; (d) itavi® shall provide an online booking service
for patrons; (e) childcare professionals at the Kids Club shall wear uniform shirts
with the itavi® logo; (f) in performing its duties under the Subcontract, itavi® shall
comply with all applicable Requirements; (g) itavi® shall be responsible for hiring,
terminating and making all other personnel decisions regarding those persons who
will be working on itavi's® behalf to provide the Services; (h) itavi® childcare
professionals shall not take the child(ren) off the Kids Club premises nor to the
Beachfront Area or Pool Area; and (i) itavi® shall maintain all necessary licenses
as required by Federal, state and/or local laws to legally perform the childcare'
services to be offered at the Kids Club pursuant to the Subcontract.
3.3.2 itavi® shall maintain insurance during the term of the Subcontract provided for the
following minimum insurance coverage: (i) Comprehensive General Liability in
limits of not less than $1,000,000.00 per occurrence and $3,000,000 general
.aggregate; (ii) Workers' Compensation. in statutory limits under Florida law; (iii)
Professional Liability coverage in limits of not less than $1,000,000.00 per
occurrence and $2,000,000.00 in the aggregate and Employer Liability Insurance
for bodily injury or disease with limits of not less than
$1,000,000/$1,000,000/$1,000,000; (iv) Crime/theft policy in limits of not less than
$300,000.00 per occurrence; (v) Sexual and/or Physical Abuse coverage in limits
of not less than $1,000,000.00 per occurrence and $2,000,000.00 in the
aggregate; (vi) Business Interruption Insurance effective no later than the date on
which the Kids Club Operations commence to include so-called "Rent Insurance"
on an "All Risk" basis in an amount not less than any minimum Subconcession fee
payable to Concessionaire and otherwise consistent with the requirements set
forth in Exhibit 14.3 and (vii) an umbrella policy of not less than $5,000,000.00 per
occurrence, with policies issued by a. carrier with a current A.M. Best Company
rating of at least A: VII, on an "occurrence" basis (other than Workers'
Compensation) and maintained with insurers authorized to do business in the
State of Florida and shall be endorsed to list the Concessionaire and the City as
additional insureds, with itavi® delivering certificates of insurance and the
Additional Insured Endorsements to Concessionaire and the City prior to
commencing services and annually thereafter. Such policies shall comply with the
"General Provisions Applicable to All Policies" set forth in Exhibit 14. In addition,
the City reserves the right to modify these requirements, including limits, based on
the nature of the risk, prior experience, insurer, coverage, or other special
circumstances.
3.3.3 In the event of a termination or expiration of the itavi® Subcontract and in the event
that Concessionaire desires to subcontract with another entity (the "Replacement
Kids Club Subconcessionaire") to provide Kid Club services, in the manner and to
the extent contemplated under this Subsection 3.3, such new request shall be
subject to the Concessionaire submitting information with respect to such
Replacement Kids Club Subconcessionaire for the City Manager's or his/her
designee's prior review and written approval. Notwithstanding the approval of
itavi® or a Replacement Kids Club Subconcessionaire, Concessionaire remains
directly responsible to the City for payment of the PG upon the Gross Receipts
Page 895 of 2240
Attachment A
from the Subconcessionaire's Operations even if the Subconcessionaire fails to
make payment of any amount due to Concessionaire under its Subcontract.
3.4 Health and Wellness Center
3.4.1 Concessionaire shall have the right to operate, or subcontract for the operation of
the Wellness Operations, which shall consist of a high -end quality health' and
wellness facility to be located in the area delineated on the Site Plan.
Concessionaire shall provide an online booking service for patrons.
Concessionaire in performing its duties hereunder shall comply with all applicable
Requirements. Concessionaire shall be responsible for hiring, terminating and
making all other personnel decisions regarding the Health and Wellness Center
personnel except to the extent undertaken by the Health and Wellness
Subconcessionaire (as hereafter defined). In the event that Concessionaire
desires to subcontract with another entity (the "Health and Wellness
Subconcessionaire") to provide the Wellness Operations, such request shall be
subject to the Concessionaire submitting information with respect to such
Subconcessionaire for the City Manager's or his/her designee's prior review and
written approval. The terms of the subcontract with any Health and Wellness
Subconcessionaire shall include waivers of recovery against the City and
indemnification in favor of the City substantially as set forth in paragraphs 2 and 3
of Exhibit 7.6. Notwithstanding the approval of any Health and Wellness
Subconcessionaire, Concessionaire remains directly responsible to the City for
payment of the PG upon the Gross Receipts from the Subconcessionaire's
Operations even if ,the Subconcessionaire fails to make payment of any amount
due to Concessionaire under its Subcontract.
3.4.2 Concessionaire shall maintain (or shall cause any approved Subconcessionaire to
maintain) the following minimum insurance coverage (i) Comprehensive General
Liability in limits of not less than $1,000,000.00 per occurrence and $5,000,000
general aggregate; (ii) Workers' Compensation in statutory limits under Florida law
and Employer Liability Insurance for bodily injury or disease with limits of not less
than$1,000,000/$1,000,000/$1,000,000; and (iii) Professional Liability coverage in
limits of not less than $1,000,000.00 per occurrence and $2,000,000.00 in the
aggregate; (iv) Crime/theft policy in limits of not less than $300,000.00 per
occurrence; (v) Sexual and/or Physical Abuse coverage in limits of not less than
$1,000,000.00 per occurrence and $2,000,000.00 in the aggregate; (vi) Business
Interruption Insurance effective no later than the date on which the Wellness
Operations commence to include so-called "Rent Insurance" on an "All Risk" basis
in an amount not less than any minimum Subconcession fee payable to
Concessionaire and otherwise consistent with the requirements set forth in Exhibit
14.3; and (vii) an umbrella policy of not less than $5,000,000.00 per occurrence,
with policies issued by a carrier with a current A.M. Best Company rating of at least
A: VII, on an "occurrence" basis (other than Workers' Compensation) and
maintained with insurers authorized to do business in the State of Florida and shall
be endorsed to list the City as an additional insured. Copies of certificates of
insurance and the Additional Insured Endorsement shall be provided to the City
prior to commencing services. Concessionaire shall maintain all necessary licenses
as may be required by Federal, _state and/or local laws to legally perform the
Wellness Operations. Such policies shall comply with the "General Provisions
Page 896 of 2240
Attachment A
Applicable to All Policies" set forth in Exhibit 14. In addition, the City reserves the
right to modify these requirements, including limits, based on the nature of the risk,
prior experience, insurer, coverage, or. other special circumstances.
3.4.3. By or before April 1, 2026, Concessionaire shall submit all proposed patron rates
for the Health and Wellness Center services to be provided to the City Manager
for approval by the City Manager or his or her designee and, as approved, shall be
attached hereto as Exhibit 3.4.3. Any amendments to Exhibit 3.4.3 must be
approved, in writing, by the City Manager or his/her designee prior to such changes
being implemented within the Health and Wellness Center Operations (and if
approved, an updated Exhibit 3.4.3 will be incorporated into this Agreement).
3.5 Sale of Beach -Related Sundries and Skin Care Products by Concessionaire.'
3.5.1 Subject to the terms of this Section 3.5, Concessionaire shall have the right to sell
beach -related sundries and skin care products (such as lotions, oils and other skin care
products) in the Beachfront Area and Pool Area, subject to compliance with all applicable
Requirements. On or before April 1, 2026, Concessionaire shall submit a schedule
reflecting all proposed beach -related sundries and skin care products to be sold and the
pricing therefor to the City Manager for approval by the City Manager or his or her
designee and, as approved, shall be attached hereto as Exhibit 3.5.1(collectively, the
"Beach -Related Sundries"). Any amendments to Exhibit 3.&1, whether as to changes
and/or additions of items to be offered for sale, or in the respective price ranges for same,
must be approved in writing by the City Manager or his/her designee, prior to such
changes and/or additions being implemented (and, if approved, an updated Exhibit 3.6.1
will be incorporated into this Agreement).
3.5.2 Notwithstanding the City's approval of the sale of Beach -Related Sundries and
Skin Care Products by Concessionaire on the Property pursuant to this Subsection, the
City Manager may subsequently elect, in his/her sole option and discretion (and with or
without cause), to rescind such approval, upon ninety (90) days prior written notice to
Concessionaire, and without any liability to the City under this Agreement.
3.5.3 Concessionaire shall procure and maintain the insurance policies required pursuant to
Section 14 (Exhibit 14) to cover exposures associated with the sale of Beach -Related
Sundries and other Incidental Concessions.
3.6 Retail Pavilion
3.6.1 Concessionaire shall have the right to operate the Retail Operations in a retail
pavilion (the "Retail Pavilion") to be located in the area of the Concession Area delineated
on the Site Plan, consisting of, among other things, a collection of retail shops which may
include, but not be limited to, art galleries comprised of unique, emerging local,talent side
by side with established artists, artisanal food shops, fashion and design shops and floral
shops. Concessionaire shall not use or occupy any portion of the Retail Pavilion or any
other area within the Concession Area, and neither permit nor suffer the Retail Pavilion or
other area within the Concession Area to be used by any subconcessionaire for any
Prohibited Uses as defined in Subsection 3.8 of this Agreement. Concessionaire in
performing its duties hereunder shall comply with all applicable Requirements and
maintain (or cause subconcessionaires to maintain) all necessary licenses.
Concessionaire shall be responsible for hiring, terminating and making all other personnel
Page 897 of 2240
Attachment A
decisions regarding the Retail Pavilion personnel except to the extent undertaken by the
Retail Pavilion Subconcessionaire (as hereafter defined). In the event that
Concessionaire desires to subcontract with another entity (a "Retail Pavilion
Subconcessionaire") to provide services or sell goods within any part of the Retail Pavilion,
such request shall be subject to the Concessionaire submitting information with respect to
such Subconcessionaire for the City Manager's or his/her designee's prior review and
written approval of such Subconcessionaire by the City Manager or his/her designee.
Notwithstanding the approval of any Retail Pavilion Subconcessionaire, Concessionaire
remains directly responsible to the City for payment of the PG upon the Gross Receipts
from the Subconcessionaire's Operations even if the Subconcessionaire fails to make
payment of any amount due to Concessionaire under its Subcontract.
3.6.2 Concessionaire shall maintain (or shall cause any approved Subconcessionaire to
maintain) the following minimum insurance coverage: (i) Comprehensive General Liability
in limits of not less than $1,000,000.00 per occurrence and $5,000,000 general aggregate;
(ii) Workers' Compensation in statutory limits under Florida law and Employer Liability
Insurance for bodily injury or disease with limits of not less than
$500,000/$500,000/$500,000; and (iii) Professional Liability coverage in limits of not less
than $1,000,000.00 per occurrence and $2,000,000.00 in the aggregate; (iv) Crime/theft
policy in limits of not less than $300,000.00 per occurrence; (v) Business Interruption
Insurance effective no later than the date on which the Retail Operations commence to
include so-called "Rent Insurance" on an "All Risk" basis in an amount not less than any
minimum Subconcession fee payable to Concessionaire and otherwise consistent with the
requirements set forth in Exhibit 14.3; and (vi) an umbrella policy of not less than
$5,000,000.00 per occurrence, with policies issued by a carrier with a current A.M. Best
Company rating of at least A: VII, on an "occurrence" basis (other than Workers'
Compensation) and maintained with insurers authorized to do business in the State of
Florida and shall be endorsed to list the City as an additional insured. Copies of certificates
of insurance and the Additional Insured Endorsement shall be provided to the City prior to
commencing services. Concessionaire shall maintain (and cause any Subconcessionaires
to maintain) all necessary licenses as may be required by Federal, state and/or local laws
to legally operate the Retail Pavilion as contemplated by this Agreement. Such policies
shall comply with the "General Provisions Applicable to All Policies" set forth in Exhibit 14.
In addition, the City reserves the right to modify these requirements, including limits, based
on the nature of the risk, prior experience, insurer, coverage, or other special
circumstances.
3.6.3 All use of space and goods to be sold at the Retail Pavilion are subject to the prior
approval of the City Manager or his or her designee. On or before April 1, 2026,
Concessionaire shall submit all proposed rates for subconcessions for use of space and
cost of goods at the Retail Pavilion to the City Manager for approval by the City Manager
or his or her designee and, as approved, shall be attached hereto as Exhibit 3.6.2. Any
amendments to Exhibit 3.6.2 must be approved, in writing, by'the City Manager or his/her
designee prior to such changes being implemented (and, if approved, an updated Exhibit
3.6.2 will be incorporated into this Agreement).
3.7 Concession Facilities and Concession Storage Facilities
3.7.1 The design, materials, color, etc. of Concessionaire's dispensing facilities and
storage facilities within the Beachfront Area must be approved by the City's Planning
Department and receive design review approval from the appropriate City Land Use
Page 898 of 2240
Attachment A
Board(s) prior to the Occupancy Date. The location of the dispensing facilities and storage
facilities shall be included in Exhibit 3.1.5. Concessionaire shall not deviate from or
change the type, design, and/or location of its proposed dispensing or storage facilities
without the prior written consent of the City Manager or his/her designee.
3.7.2 On or before April 1, 2024, Concessionaire shall submit a written plan for storage
and removal of Concessionaire's Beach and Pool Equipment and dispensing facilities, for
the approval of the City Manager or his or her designee, and, as approved, shall be
attached hereto as Exhibit 3.7.2, which plan shall include the use of any storage facilities
contemplated in Subsection 3.7.1,above. Any change thereto shall be subject to approval
of the City Manager or his/her designee.
3.7.3 In the event that, at any time during the Term, the State of Florida determines that
Concessionaire's dispensing and storage facilities (for purposes of this subsection, the
"facilities") do not comply with State law, then Concessionaire shall, at its sole cost and
responsibility, immediately take such actions, as reasonably necessary, to bring same into
compliance, including, without limitation, revising its storage plan and/or either altering or
removing the non -complying facilities from the Beachfront Area. Concessionaire herein
further acknowledges that it shall indemnity and hold the City harmless for any expenses
and/or other damages incurred as a result of Concessionaire's non-compliance with State
requirements pursuant to in this subsection and Concessionaire shall be solely
responsible for any cost or other liabilities incurred (a) by the City as a result of
Concessionaire's noncompliance or (b) by Concessionaire as a result of removal of the
facilities or, in the alternative, bringing such facilities into compliance with State law.
3.8 Prohibited Uses. Notwithstanding any other provision of this Agreement, Concessionaire
shall not use the Concession Area nor permit any part thereof to be used for any of the
following purposes ("Prohibited Uses"): (a) for the sale of second-hand goods, war surplus
articles, insurance salvage stock, fire sale stock, merchandise damaged by or held out to
be damaged by fire, except merchandise damaged by fire or smoke occurring in the
Property, and then only for thirty (30) days after the date of any such damage; (b) as an
auction or flea market; (c) any business in which Concessionaire is engaged in
intentionally deceptive or fraudulent advertising or selling practices or any other act or
business practice contrary to honest retail practices; (d) amusement centers (as defined
in § 33.1 of the Code of Miami -Dade County or its successor provision); (e) coinbox
entertainment (pinball, video games, moving pictures operated by coins); (f) casino
gambling or games of change or reward (provided, however, that the sale of State of
Florida lottery tickets shall not be prohibited); (g) any unlawful or illegal business, use or
purpose, or for any business, use or purpose which is immoral or disreputable (including
"adult entertainment establishments" and "adult" bookstores) or for any purpose or in any
way in violation of Concessionaire's Certificate(s) of Occupancy (or other similar approvals
of applicable governmental authorities); (h) movie theatre; (i) medical facilities and offices;
0) check cashing facilities; (k) pawn shops; (1) the sale of firearms; (m) tattoo parlors,
fortune tellers, psychics, palm readers, body piercing shops; (m) places of worship; (n)
political offices; (o) military recruiting; (p) consular, legation or any other offices of foreign
governments; (q) tire sales; (r) the sale of animals or birds of any kind and/or products of
a nature typically sold in pet shops; (s) offices for the practice of veterinary medicine; (t)
the sale of major appliances as a primary business; (u) housing or sleeping quarters; (v)
grocery stores (other than specialty gourmet shops); (w) second hand stores; and/or (x)
in any manner that will violate any Certificate of Occupancy or Certificate of Use for the
Concession Area or any portion thereof, or which will violate any Requirements applicable
Page 899 of 2240
Attachment A
to the Concession Area. Immediately upon its discovery of any Prohibited Use by, through
or under Concessionaire, Concessionaire shall take all reasonably necessary steps, legal
and equitable, to compel discontinuance of such business or use including, if necessary,
the removal from the Concession Area of any subconcessionaires, licensees, or invitees,
subject to applicable Requirements.
3.9 Emergency Liaison: Hurricane Evacuation Plan.
Concessionaire shall assign an employee and a backup employee to act as an emergency
liaison (each, an "Emergency Liaison") with the City. Upon City's request, a Liaison will
attend meetings held by the City in connection with emergency situations, such as extreme
weather events, terrorist acts, etc. The Emergency Liaison will serve as the point of contact
during any emergency crisis. Concessionaire agrees that fifty percent (50%) of all its
storage and dispensing facilities, Beach and Pool Equipment and any other equipment
and facilities used in the Concession Operations will be removed from the beachfront
immediately within eight (8) hours of the issuance of a Tropical Storm or Hurricane Watch
by the Miami -Dade County Office of Emergency Management, and stored in accordance
with Subsection 3.7.2 above, and the remaining fifty percent (50%) of the above -
referenced facilities and equipment will be removed from the beachfront immediately
within eight (8) hours of the issuance of a Tropical Storm or Hurricane Warning by the
Miami -Dade County Office of Emergency Management, and stored in with Subsection
3.7.2 above. On or before April 1, 2024, Concessionaire shall submit its hurricane
preparedness/evacuation plan, which shall include the location, and proof of ownership
and/or control by Concessionaire (either through a deed, lease or other form reasonably
satisfactory to the City Manager or his designee), of its proposed hurricane storage
facilities, for approval by the City Manager or his or her designee and, as approved, shall
be attached hereto as Exhibit 3.9 to this Agreement. Any amendments to Exhibit 3.9
must be, approved, in writing, by the City Manager or his/her designee (and if approved,
an updated Exhibit 3.9 will be incorporated into this Agreement). In the event that the City
seeks reimbursement from the Federal Emergency Management Agency ("FEMA") and/or
any comparable federal or state agency for the costs and expenses involved in connection
with hurricane preparedness and/or restoration of the Beachfront Area, the City shall
provide written notice thereof to Concessionaire and agrees to the extent permitted by law
to include those costs and expenses ("Concessionaire's losses") incurred by
Concessionaire as well, if requested by Concessionaire. Concessionaire agrees to provide
such documentation to the City as may be required by the City, FEMA and/or any
comparable federal or state agency to document Concessionaire's losses and to seek
such reimbursement (the "Concessionaire Reimbursement"). In the event of any such
reimbursement to the City with respect to the Concessionaire Reimbursement, the City
shall grant to Concessionaire a credit against the next MG or PG, as the case may be,
due and payable under Section 4 in an amount equal to the amount of Concessionaire
Reimbursement received by the City. The foregoing shall not create an agency
relationship between the City and Concessionaire and shall not create an obligation by
the City to pursue further any Concessionaire Reimbursement not approved or paid by
FEMA.
3.10 Sea Turtles.
Concessionaire agrees and understands that the State of Florida has advised that, in order
to place facilities and/or equipment on the beach, surveys for marine turtle nesting activity
must be ongoing or beginning April 1s' — October 315t, of each year. The Beachfront Area
Page 900 of 2240
Attachment A
is currently surveyed by the Beach Maintenance Division of the Miami -Dade County Parks
and Recreation Department. Accordingly, as to the Beachfront Area, Concessionaire
agrees as follows:
a. It is the responsibility of the Concessionaire to abide by any order issued by the
State of Florida and/or cooperate with Miami -Dade County to ensure that nesting
surveys may be conducted in accordance with the conditions set forth by the State.
b. In the event an unmarked marine turtle nest is exposed, or a dead, injured, or sick
marine turtle is discovered, the Florida Marine Patrol (1-800-DIAL-FMP) shall be
notified immediately such that appropriate conservation measures may be taken.
C. Except for the headlights required to be used by Concessionaire pursuant to
Subsection 10.9, no temporary lighting associated with the concession will be
permitted at any time during the marine turtle nesting season and no permanent
lighting is authorized.
d. The placement and removal of facilities and equipment on the beach seaward of
230 feet from the high water line shall be conducted during daylight hours (Set -Up
to take place daily after inspection of the particular Concession Area by the Miami -
Dade Sea Turtle Conservation representative each morning and removal within
one (1) hour before sunset) and shall not occur in any location prior to completion
of the necessary marine turtle protection measures.
e. The Beachfront Area seaward of the 230-foot setback from the high water line
should be cleared of all furniture and equipment, except lifeguard equipment, at
nights during the turtle -nesting season. `
f. Disturbing the existing beach (other than as contemplated by this Agreement),
dune topography and vegetation is prohibited.
3.11 City Business Tax Receipts.
Concessionaire and Subconcessionaires shall obtain, at their respective sole cost and
expense, any Business Tax Receipts (BTR's) required by City law, as amended from time
to time, for all proposed uses, as contemplated in Section 3 of this Agreement.
3.12 Value -Added Enhancements.
Concessionaire agrees to provide the Value -Added Enhancements listed in Exhibit 3.12
attached hereto and made a part hereof throughout the Term.
3.13 Affiliates.
Concessionaire shall have the right to subcontract the Concession Operations to be
provided in the Concession Areas to any wholly -owned Affiliate without the approval of the
City Manager or his/her designee, effective upon prior written notice to the City, provided,
that, Concessionaire shall remain liable to pay the Concession Fees (as defined in Section
4 below) to the City.
3.14 Sponsorships. Subject to the provisions and restrictions set forth below in this Subsection
3.14 and Subsection 21.5, Concessionaire shall have the right to enter into sponsorship
agreements relating to the various Concession Operations and sale of goods on the
Property including, but not limited to, preferred providers, promotional opportunities, logo
placement and marketing materials (Sponsorships"). Any such Sponsorship request shall
be subject to the Concessionaire submitting information with respect to such sponsor for
Page 901 of 2240
Attachment A
the City Manager's or his/her designee's prior review and written approval and including
any proposed contract or agreement which shall also be subject to the prior written
approval of the City Manager or his/her designee. In no event will any Sponsorship violate
any intellectual property rights of the City nor will Concessionaire enter into any
Sponsorships with competitors of any existing City sponsor or any future City sponsor of
which Concessionaire is notified by the City. Notwithstanding the foregoing or anything in
this Agreement to the contrary, Concessionaire acknowledges and agrees that the City
has existing contracts with PepsiCo Beverage Sales, LLC and "Red Bull" beverage
companies which grant exclusive pouring rights at City facilities, including the Concession
Area, in the following beverage categories: Pepsi Cola (soda, water, juice, isotonics,
protein, kombucha, iced tea, iced coffee, etc., but excluding hot coffee (dispensed), hot
tea and hot cocoa) and (Red Bull) energy drinks. Accordingly, (i) Concessionaire shall
observe (and shall cause any subconcessionaires and/or subcontractors to observe) such
exclusive pouring rights and (ii) Concessionaire shall not secure sponsorships in the soda,
water, juice, isotonics, protein, kombucha, iced tea, iced coffee, etc., but excluding hot
coffee (dispensed), hot tea and hot cocoa) or energy drink categories. Further,
Concessionaire may not secure sponsorships involving the following categories: tobacco,
vaping, firearms, intimate apparel, religious or political, gambling, prescription medication,
intimate personal products (including male enhancement or feminine hygiene products)
and any other category that is now or hereafter prohibited by federal law, state law, the
Miami -Dade County Code or the City Code.
SECTION 4. CONCESSION FEES.
In consideration of the grant of the concession to Concessionaire, Concessionaire agrees to pay
to the City the following (collectively, the "Concession Fees"):
4.1 Upfront Payment.
Concessionaire shall pay to the City a total of Four Million and No/100 Dollars
($4,000,000.00) (the "Upfront Payment"), payable in four (4) equal non-refundable
installments of One Million and No/100 Dollars $1,000,000.00 due on (a) the Effective
Date hereof, (b) on or before January 10, 2025, (c) on or before January 10, 2026, and
(d) on or before January 10, 2027. The Upfront Payment shall be credited to the MG
payments due in respect of the first Agreement Year pursuant to Section 4.2.
Page 902 of 2240
Attachment A
4.2 Minimum Guarantee (MG).
In consideration of the City's execution of this Agreement and granting the rights provided
herein, but subject to reduction as may (only) expressly be provided in this Agreement,
and after applying the credit for the Upfront Payment set forth in Section 4.1 above,
commencing from and after the Commencement Date, Concessionaire shall pay to the
City a Minimum Guaranteed Annual Concession Fee ("MG") in the total amount of Four
Million and No/100 Dollars ($4,000,000.00) per Agreement year. The MG shall be
increased annually commencing on the first anniversary of the Commencement Date and
each anniversary of the Commencement Date thereafter by three percent (3%). In
addition, at the commencement of the sixth (6th) Agreement Year, the annual MG shall be
adjusted to the greater of (a) the amount of the MG during the fifth Agreement Year
increased by three percent (3%) or (b) eighty percent (80%) of the average of the actual
Concession Fees paid during the first five (5) Agreement Years. For the second (2nd)
through ninth (9th) Agreement Years, the MG shall be paid in two equal installments with
fifty percent (50%) of the MG for the applicable Agreement Year payable at the
commencement of such Agreement Year and the remaining fifty percent (50%) of the MG
for such Agreement Year payable at the commencement of the seventh (7th) month of
such Agreement Year. By way of example, if the Commencement Date is August 1, 2027,
then with respect to the, 2nd Agreement Year, $2,060,000 (or fifty percent (50%) of
$4,120,000) will be payable by or before August 1, 2028 and an additional $2,060,000 will
be payable by or before February 1, 2029.
4.3 Percentage of Gross (PG).
For each Agreement Year during the Term, Concessionaire shall pay to the City ten
percent (10%) of Gross Receipts (as hereinafter defined) in excess of the amount of the
then current MG (the "Percentage of Gross" or "PG"), payable no later than the day that
is one hundred twenty (120) days following the last day of such Agreement Year. Byway
of example, if the Commencement Date is August 1, 2027, then the PG in respect of the
first Agreement Year shall be due and payable by or before November 28, 2028. In
addition, on or before the date that is one hundred twenty (120) days after the end of each
Agreement Year, Concessionaire shall pay the City an additional five percent (5%) of the
first Five Million Dollars ($5,000,000) of Gross Receipts in excess of $65,000,000 (the
"Additional PG"). For example, if the Gross Receipts for a particular Agreement Year is
$72,000,000, Concessionaire will pay the City a total of $7,200,000 in MG and PG, and
will pay the City the Additional PG in the amount of $250,000 on or before the date that is
ninety (90) days following the last day of such Agreement Year.
4.4 Gross Receipts.
The term "Gross Receipts" as used herein shall mean any and all receipts, revenues and
income of any nature derived directly or indirectly from all business conducted at, upon or
from the Concession Area (including all Concession Operations) by Concessionaire, all
Subconcessionaires, ,licensees, assignees and any and all others, whether evidenced by
cash, check, credit, charge account, exchange or otherwise, including, without limitation,
receipts from the sale of food, beverage, alcoholic beverages, services, merchandise,
equipment rental and parking, so-called "location fees," sponsorship or advertising fees or
other consideration, from vending or other machines, and from orders for any of the
Page 903 of 2240
Attachment A
foregoing taken at the Concession Area or through any website, application or other
interface (whether such orders are filled from or at the Concession Area or elsewhere).
The term "Gross Receipts" shall also include any Displacement Fee or Alternative
Consideration. The term "Gross Receipts" shall exclude: (a) amounts of any Federal,
State, or City sales tax, use tax, excise tax, resort tax or other tax, governmental
imposition, assessment, charge or expense of any kind, collected from customers,
provided that the amount thereof is added to the selling price and remitted to the taxing or
other governmental authority; (b) all credits and refunds given or made to customers for
returns of merchandise; (c) all sums received in settlement for lost or damaged
merchandise; (d) sales of machinery, equipment or trade fixtures after use thereof in the
conduct of the Operations and not made to customers in the ordinary course of business;
(e) the value of meal discounts to Concessionaire's employees, not to exceed two percent
(2%) of Gross Receipts attributable to Restaurant Operations per year; and (f) as to the
Restaurant Operations, Beachfront Operations, Pool Operations and Wellness
Operations, service charges paid by customers to the extent paid to employees as tips
and gratuities.
4.5 Interest for Late Payment.
Any payment which Concessionaire is required to make to City which is not paid within
five (5) days of the date provided for in this Agreement shall be subject to a late charge of
Fifty and 00/100 ($50.00), plus interest at the rate of eighteen percent (18%) per annum
(but not more than the highest rate allowable by law), from the due date of payment until
such time as payment is actually received by the City.
4.6 Sales and Use Tax.
It is also understood that the required Florida State Sales and Use Tax shall be added to
Concessionaire's payments and forwarded to the City as part of said payments. It is the
City's intent that it is to receive all payments due from Concessionaire as net of such
Florida State Sales and Use Tax. Notwithstanding the foregoing, in the event the
Concessionaire obtains an opinion from the Florida Department of Revenue that payments
made to a municipality are not subject to sales tax, then Concessionaire shall not be
required to pay sales tax.
4.7 Beach Operations Opening.
Immediately following expiration of the Existing Concession Area Agreements, and subject
to satisfaction of the Occupancy Conditions, Concessionaire shall have the right, in its
discretion, to commence Beachfront Operations. If Concessionaire so elects, the Term
and Concessionaire's obligation to pay the Concession Fees shall commence on the date
such Beachfront Operations commence.
SECTION 5. RECORDS, ACCOUNTS, STATEMENTS AND AUDITS.
5.1 Concessionaire shall keep at the Concession Area, or such other place approved by City,
true, accurate, and complete records and accounts of all sales, gross sales, subcontract
payments, and business being transacted upon or from the Concession Area maintained
in accordance with generally accepted accounting principles and shall give City or City's
representative access during reasonable business hours, with advance notice, to examine
Page 904 of 2240
Attachment A
and audit such records and accounts. It is acknowledged that Concessionaire will
implement an electronic and primarily cashless Point of Sale system (the "POS System")
to provide greater control and monitoring through the implementation of the SQUARE®
POS software licensed by Concessionaire or such other similar POS system that the
Concessionaire shall use from time to time. Subject to such reasonable system security
rules that Concessionaire may implement from time to time, the Concessionaire shall
provide access to limited number of City employees from the Office of Asset Management
(the current administrator of this Agreement) (the "POS Employees") and log -in credentials
for the POS System so that they will have access for purposes of monitoring
Concessionaire's performance. Concessionaire shall maintain all records and accounts
(and shall require each Subconcessionaire to so maintain all records and accounts) for a
period of three (3) years following expiration (or other termination) of this Agreement
(regardless of whether such termination results from the expiration of the Term or for any
other reason).
5.2 Within fifteen (15) days after each month of the Term hereof, Concessionaire shall deliver
to City a written monthly statement of the Gross Receipts for such month certified by
Concessionaire to be true, accurate, and complete. Any PG payable in respect of such
month shall accompany such monthly statement.
5.3 Within ninety (90) days after each Agreement year, Concessionaire shall deliver to City a
written annual statement of the Gross Receipts for such Agreement Year. Said statement
shall be certified as true, accurate and complete by Concessionaire, by and through a duly
authorized officer of Concessionaire. The City's auditor or his/her designee shall have the
right, during regular business hours and upon the City's written request to Concessionaire
to audit, inspect, examine and copy the Concessionaire 's fiscal and financial records,
books, ledgers, statements, reports, tax returns and documents relating to this Agreement
and the Concessionaire's revenues thereunder through the Term of this Agreement and
for three (3) years following its expiration or cancellation. The Concessionaire agrees to
have such audit(s) conducted at the Concession Area or at such other locations within the
City of Miami Beach, Florida as are mutually agreeable to the parties.
SECTION 6. TAXES, ASSESSMENTS, AND UTILITIES.
6.1 Concessionaire agrees to, and shall pay before delinquency, all taxes (including but not
limited to resort taxes, ad valorem, sales and use taxes, as applicable) and assessments
of any kind assessed or levied upon the Concession Area and any improvements thereon,
including without limitation the Concession Area Structures, along with all taxes and
assessments of any kind levied by reason of any business or activities conducted on the
Concession Area by Concessionaire or any Subconcessionaire (collectively,
"Impositions"). Concessionaire will have the right, at its own expense, to contest the
amount or validity, in whole or in part, of any tax and/or assessment by appropriate
proceedings diligently conducted in good faith. Concessionaire may refrain from paying a
tax or assessment to the extent it is contesting the assessment or imposition of same in a
manner that is in accordance with law; provided, however, if, as a result of such contest,
additional delinquency charges become due, Concessionaire shall be responsible for such
delinquency charges, in addition to payment of the contested tax and/or assessment if so
ordered.
Page 905 of 2240
Attachment A
6.2. Concessionaire shall pay for any fees imposed by law for licenses or permits for any
business(es) or activities of Concessionaire conducted in the Concession Areas.
6.3 Concessionaire shall pay before delinquency any and all charges for utilities used by, for,
or on behalf of the Operations contemplated herein (including, but not limited to, water,
electricity, gas, heating, cooling, sewer, telephone, ice machine, trash collection, etc.).
6.4 Notwithstanding Subsection 6.1, historically no ad valorem taxes have been assessed by
the Miami -Dade County Tax Appraiser with regard to uses that are for public purposes
and, accordingly, certain areas within the Concession Area may not be subject to ad
valorem tax. If, however, such taxes are validly assessed at any time during the Term, the
Concessionaire shall be solely liable for the payment of same.
SECTION 7. CONCESSIONAIRE IMPROVEMENTS.
7.1 Plans and Specifications.
7.1.1. Concessionaire shall retain the services of such architecture, engineering and design firms
for the Work as approved by the City Manager or his/her designee pursuant to this
Agreement. On or before April 1, 2024, Concessionaire shall submit to the City (acting in
its proprietary capacity as owner of the Concession Area) all of the preliminary plans and
specifications for the renovations and improvements to be made to the Property, which
shall substantially conform to the conceptual designs presented by Concessionaire with
its RFP submission (the "RFP Conceptual Designs") and shall include a site plan and all
items constituting architectural plans and exhibits and landscape plans and exhibits that
are required by the City Land Development Boards to be included in the application for
Project Approvals (the "Preliminary Plans and Specifications"). The City Manager shall
have twenty (20) Business Days to review the Preliminary Plans and Specifications solely
for substantial conformity with the RFP Conceptual Designs. The City Manager shall not
unreasonably withhold or delay his or her approval if the Preliminary Plans and
Specifications for substantially conform to the Project Concept Plan for such Phase; it
being agreed however, that the City's failure to so notify Owner of its disapproval within
ten (10) Business Days after a second written request bearing the legend specified in
Subsection 26.13 of this Agreement shall be deemed to constitute the City's conclusive
approval of such Preliminary Plans and Specifications (subject to Concessionaire's
compliance with Subsection 26.13 of this Agreement). If the City Manager disapproves
the Preliminary Plans and Specifications, then Owner shall within thirty (30) days after
such disapproval, submit a revised modification to the Preliminary Plans and
Specifications that substantially conform to the Project Concept Plan to the City Manager
pursuant to the foregoing process until such Preliminary Plans and Specifications for such
Phase have been approved by the City Manager.
7.1.2 Promptly following the City Manager's approval of the Preliminary Plans and
Specifications for the Work in accordance with Subsection 7.1.1 above, Concessionaire
shall submit same to the applicable City Land Development Boards and deliver a copy of
such submittal to the City. Thereafter, Concessionaire shall use diligent, good faith efforts
to obtain all Project Approvals on or before July 1, 2024. The City and Concessionaire
acknowledge and agree that the City Land Development Boards and/or any other
applicable Governmental Authority may require revisions to the Preliminary Plans and
Specifications for the Work as a condition to the issuance of the Project Approvals;
provided, however, that any revisions that will cause the Preliminary Plans and
Page 906 of 2240
Attachment A
Specifications to substantially deviate from the RFP Concept Plans shall be subject to
approval by the City Manager in his or her reasonable discretion. The Preliminary Plans
and Specifications for each Phase of the Project, as revised to conform to conditions to
the issuance of the Project Approvals and, if applicable, any such revisions have been
approved by the City Manager to the extent required herein, are referred to in this
Agreement as the "Approved Preliminary Plans".
7.1.3 Upon receipt of the Project Approvals for the Work, Concessionaire shall prepare the
Plans and Specifications for construction of the Work, substantially consistent with the
Approved Preliminary Plans, for review by the City (acting in its proprietary capacity as
owner of the Concession Area). The City Manager shall have twenty (20) Business Days
to review the Plans and Specifications for substantial consistency with the Approved
Preliminary Plans; it being agreed however, that the City's failure to so notify
Concessionaire of its disapproval within ten (10) Business Days after a second written
request bearing the legend specified in Subsection 26.13 of this Agreement shall be
deemed to constitute the City's conclusive approval of such Plans and Specifications
(subject to Concessionaire's compliance with Subsection 26.13 of this Agreement). If the
City Manager disapproves the Plans and Specifications for either Phase of the Project,
then Developer shall, within thirty (30) days after such disapproval, submit revised Plans
and Specifications so that they substantially conform to the Approved Preliminary Plans
and then re -submit them to the City Manager pursuant to the foregoing process until the
Plans and Specifications have been approved by the City Manager. Concessionaire shall
pursue approval by the City of the Plans and Specifications diligently and in good faith and
shall use diligent, good faith efforts to obtain the Full Building Permit on or before
December 31, 2025.
7.2 The City hereby grants to Concessionaire the right, from and after the Occupancy Date,
to undertake the Work, subject to compliance with the provisions of Section 7.1. The Work shall
include converting the asphalt parking lots to permeable pavers and an expanded tree canopy for
the parking lot and shall otherwise substantially conform to the RFP Conceptual Designs. The
Work shall include a public parking component consisting of at seventy-two (72) public parking
spaces, all of which spaces shall be located in the rows closest to entrance(s) on Ocean Drive or
in such other location as the City shall approve in connection with its approvals of the Plans and
Specifications (the "Public Parking Area"). The renovations and improvements shall be designed
to meet LEED Gold or Living Building Challenge certification requirements and compliance with
the Sustainability Fee program in accordance with Chapter 133 of the City Code. Subject to
Unavoidable Delays, the Work shall be completed substantially in accordance with the projected
timeline set forth in Exhibit 7.2.
7.3 Concessionaire acknowledges and agrees that the Work to be performed pursuant to
Section 7.1 is for the design and construction of public facilities and that the Concessionaire shall
ensure compliance by the primary general contractor retained by Concessionaire (the "Prime
Contractor") with the requirements of Section 255.05, Florida Statutes, including, but not limited
to, the provision of bonds and payment of claims, provided, that, no bonds shall be required from
the Concessionaire or third parties whose estimated scope of work is $200,000.00 or less.
Concessionaire hereby waives, releases and relinquishes any right to claim or file a construction
lien against the Property including, but not limited to, any rights Concessionaire may have under
Chapter 713, Florida Statutes. Concessionaire shall include a provision substantially similar to
this subsection in each of its contracts, subcontracts and purchase orders, requiring contractors,
subcontractors and vendors to waive any claim or entitlement to a construction lien on the
Property and to look solely to the credit of Concessionaire or its surety for payment of any sums
Page 907 of 2240
Attachment A
due on the Property.
7.4 Prior to commencing the Work or any other renovations or construction at the Concession
Area, Concessionaire shall provide the City's Risk Manager with evidence, consisting of
certificates of insurance and bonds issued by Florida insurers and/or sureties rated A- or better
per A.M. Best's Key Rating Guide, latest edition, for the General Contractor. The General
Contractor must carry and maintain throughout the term of such construction and at least until
final completion and acceptance of the Work, all lines of insurance coverage as depicted in
Exhibit 7.4 and the General Contractor shall provide the Payment and Performance Bonds to be
provided by the general contractor in substantially the form prescribed for a public construction
bond by Section 255.05, Fla. Stat. (2012), guaranteeing performance and payment of all
subcontractors, material persons, and suppliers as set forth therein. As municipal property cannot
be encumbered or liened under Florida Law, the Payment and Performance Bonds provided by
the Prime Contractor must be equal to the construction bid amount. The City and Concessionaire
shall be named as additional insureds and obligees on the Payment and Performance Bonds.
The amount of insurance coverage required from the General Contractor will not be less than the
amounts set forth in Exhibit 7.4. Subcontractors providing smaller levels of service than that
provided by the General Contractor shall also be required to maintain the insurance coverage as
depicted in Exhibit 7.4. The Concessionaire shall furnish to the City's Risk Manager certificates
of insurance evidencing the coverage required hereunder and the required Payment and
Performance Bond from the General Contractor for the City's Risk Manager to review, comment
and approve at least thirty (30) days prior to commencement of construction on the Concession
Area. All such policies shall provide that the City and the Concessionaire shall be given thirty (30)
days prior written notice of any cancellation, lapse, or material modification of said insurance
coverage and/or bonds or, if the insurer will not do so, the covenant of the General Contractor to
provide such written notice.
7.5 Concessionaire's selection of the General Contractor shall be subject to the advance
approval of the City Manager or his or her designee, which approval shall not be unreasonably
withheld, conditioned or delayed provided the proposed General Contractor satisfies the
qualifications listed below, after consultation with the City Attorney, as to the qualifications and
responsibility of the proposed General Contractor to perform the General Construction Contract,
based on the contractor's licensure, bonding capacity, financial capacity, history of compliance
with laws, and satisfactory past performance on similar projects. Provided that the General
Contractor proposed by Concessionaire for such Phase does not have a significant history of
material non-compliance with the law, The City agrees to approve any General Contractor
proposed by Concessionaire that satisfies each of the following:
(i) Has a State of Florida Building and Business License;
(ii) Has completed at least five projects of similar size and scope as the Project
within the last ten (10) years; and
(iii) Has total bonding capacity in excess of $50,000,000.00.
7.6 All Construction Agreements shall include the provisions set forth on Exhibit 7.6 (or
language substantially similar thereto which is approved in advance by the City Manager). The
City (solely in its capacity as the owner of the Concession Area and not in its governmental
capacity) shall reasonably cooperate with Concessionaire in obtaining the Permits and Approvals,
including but not limited to building permits (including phased permits) and any other building and
development permits, curb cut permits, site plan approvals, and water and sanitary sewer tap
Page 908 of 2240
Attachment A
permits and/or such other permits, licenses, or approvals as may be necessary for the
development, construction and operation of the Concession Area Structures and Concession
Operations and any necessary utility access agreements, shall sign any applications, joinders,
consents and/or other authorizations reasonably requested by Concessionaire which are required
in order to obtain such Permits and Approvals and shall provide Concessionaire with any
information and/or documentation not otherwise reasonably available to Concessionaire (if
reasonably available to the City) which is necessary to procure such Permits and Approvals and
utility access agreements. Concessionaire shall reimburse the City, within thirty (30) days after
the City's demand, for any reasonable out-of-pocket cost or expense payable to the City's
technical consultants (other than City's employees), such as architects and engineers, so incurred
by the City in connection with the City's reasonable cooperation in obtaining the Permits and
Approvals as set forth in this Subsection 7.6. The City shall identify a City point person or persons
(the make-up of which may change over time) to liaise with the various City departments in
connection with the Project. Any such cooperation, accommodation or other action by the City
pursuant to this Subsection shall be without prejudice to, and shall not constitute a waiver of, the
City's rights to exercise its discretion in connection with its governmental or regulatory functions
and any failure to do so shall not constitute or result in a breach or default by the City of any of
the terms or conditions of this Agreement.
SECTION 8. EMPLOYEES AND INDEPENDENT CONTRACTORS.
8.1 In connection with the performance of its responsibilities hereunder, Concessionaire shall
select, train, and employ (or otherwise retain) such number of employees and/or
independent contractors, as is reasonably necessary or appropriate for Concessionaire to
satisfy its responsibilities hereunder. Concessionaire shall have the sole responsibility to
recruit, hire, terminate and discipline any and all personnel employed (or otherwise
retained) by the Concessionaire to satisfy its responsibilities hereunder. Concessionaire
shall select the number, function, qualifications, compensation, including benefits (if any),
and may, at its discretion and at any time, adjust or revise the terms and conditions relating
to such employees and/or independent contractors. None of the employees or contractors
of Concessionaire shall be deemed to be employees or contractors of the City for any
purpose whatsoever. Without limiting the generality of the foregoing, Concessionaire shall
have the sole responsibility to recruit and employ a full-time general manager and any
necessary administrative and accounting personnel that are responsible for the overall
management and operation of the Concession Area and Concession Area Structures.
Concessionaire shall have the sole responsibility to recruit and employ sufficient personnel
to maintain the following functions: general security; janitorial, housekeeping and cleaning;
maintenance of electrical systems, plumbing; and air conditioner operation; painting and
general overall maintenance of the Concession Area to ensure it is being maintained
consistent with other similar first-class facilities. Concessionaire shall maintain personnel
policies that assure employment practices do not discriminate on the basis of race, creed,
sex, color, national origin, religion, sex, gender identity, sexual orientation, disability,
marital or familial status or age.
8.2 Despite any subcontracts by Concessionaire approved by the City Manager or his/her
designee and the delegation of certain responsibilities and obligations of Concessionaire
as set forth in this Section 8 thereunder, Concessionaire shall remain responsible for
ensuring that any such subcontractors perform the services required to be provided under
this Agreement are performed in accordance with the terms and conditions of this
Agreement.
Page 909 of 2240
Attachment A
SECTION 9. HOURS OF OPERATION.
9.1 During the Term, all Concession Areas and Concession Operations thereon shall be open
every day of the year, subject to weather (as to outdoor areas) and Force Majeure Events. The
hours of operation for the Concession Operations shall be as follows:
(i) Beach Operations, from one (1) hour after sunrise until one (1) hour prior to sunset,
with set-up to occur at sunrise and take down to be completed by sunset;
(ii) Restaurant Operation — first floor (casual concept) from 11:00 a.m. until sunset;
(iii) Restaurant Operation — second floor (upscale concept) from 5:00 p.m. until 11:00
p.m.;
(iv) Caf6 Operations from 9:00 a.m. until 5:00 p.m.
(v) Pool Operations, from 11:00 a.m. until sunset; and
(vi) Kids Club, Health and Wellness Center and Retail Pavilion (if opened) from 11:00
a.m. until 7:00 p.m.
Notwithstanding the foregoing, subject to approval of the City Manager or his/her
designee, Concessionaire may make application for certain Concession Operations to be
closed for specific national or religious holidays, including Christmas Eve. If
Concessionaire can show that an increase or decrease in demand for certain services
within the Concession Area exists, then Concessionaire may request an extension or
decrease, as applicable, in the hours during which such services are offered. The City
Manager or his or her designee will determine, in his or her sole discretion, whether
allowing such an extension or decrease in the hours of service in question would be in the
best interests of the City taking all relevant factors into account, including, without
limitation, whether an extension in hours of service would not have an adverse effect on
the quality of life of Persons residing in the vicinity of the Concession Area.
As to the Beachfront Area and Pool Area, Concessionaire shall, at its option, be entitled
to cease rentals of Concessionaire's Equipment at 5:00 p.m. in order for an orderly wind
down of daily operations. Sunrise and sunset shall be established on a daily basis by the
National Weather Service.
SECTION 10. MAINTENANCE AND REPAIR.
10.1 City Has No Obligation to Maintain or Repair.
The City shall have no responsibility to maintain or repair any part of the Concession Area,
including without limitation, any Concession Area Structure, or the Public Parking Area,
landscaping and lighting, electricity lines, water lines, sanitary sewer lines, gas lines, or
telephone and cable lines serving the Concession Area. Notwithstanding the foregoing or
any other provisions of this Agreement, but subject to Section 18, if any part of the
Concession Area is damaged or destroyed or requires repair, replacement, or alteration
and/or if Concessionaire fails to maintain the Concession Area in accordance with the
Maintenance Standards, the City shall have the right to perform same and the cost of such
repairs, replacement, alterations and/or maintenance shall be paid by Concessionaire to
City within ten (10) days of written demand. In addition, if, in an emergency, it shall become
necessary to make promptly any repairs or replacements required to be made by
Concessionaire, City may proceed forthwith to have the repairs or replacements made
and pay the costs thereof. Within ten (10) days after written demand, Concessionaire shall
Page 910 of 2240
Attachment A
reimburse City for the cost of making the repairs. For the avoidance of doubt, the City shall
remain responsible for maintaining and repairing water and sewer mains and stormwater
infrastructure, if any, lying within the Concession Area, but the City shall have no
responsibility to maintain or repair any lines connecting the City's water and sewer mains
to any portion of the Concession Area or any drains and lines that allow for the drainage
of stormwater from the Concession Area into the City's stormwater infrastructure.
10.2 Maintenance and Repairs by Concessionaire.
10.2.1 The Concessionaire accepts the use of the Concession Area in its "AS IS, WHERE
IS" condition with all faults other than any Hazardous Materials or other environmental
issues existing in the Concession Area prior to the Occupancy Date. Concessionaire shall
maintain or cause to be maintained, at its own cost and expense, the Concession Area,
the Concession Area Structures and the Public Parking Area in a first-class manner which
is at least equal to the condition and quality of high -end beach establishments in other
world -class beach resorts (the "Required Condition"), in compliance with all applicable
Requirements, both inside and out, including, without limiting the generality of the
foregoing, Concessionaire is specifically required to maintain and make repairs to: (i) all
pipes, lines, ducts, wires, or conduits contained within the Concession Area; (ii) windows,
plate glass, doors, and any fixtures or appurtenances composed of glass (including,
without limitation, interior and exterior washing of windows and plate glass); (iii)
Concessionaire's signage; (iv) any heating or air conditioning equipment serving the
Concession Area ("HVAC") (which shall include, without limitation, a preventive
maintenance HVAC service contract that includes, without limitation, preventive HVAC
maintenance no less than quarterly); (v) all or any portion of the Work including, without
limitation, any materials, machinery, finishings, fixtures, and equipment related thereto;
(vi) all building safety systems including, but not limited to, smoke, fire, and carbon
monoxide detector systems, backup generator operation, emergency battery backup
functions, emergency lighting, emergency egress, special needs and blackout
preparedness equipment, emergency water and fire sprinkler system (all building safety
systems shall be tested on at least an annual basis or as required by applicable
Requirements and maintained in good operating condition at all times); (viii) ceilings,
stairways, floor slabs and floor coverings, sidewalks, walkways, hallways, corridors,
landscaping (irrigation system), canopies (awnings and frames), loading dock/service
areas, utility rooms, electric rooms, building structure including envelope, roof, siding,
painting, structural integrity; (ix) regular inspections of elevator and escalator controls,
motors, suspension systems, and related equipment, and shall maintain such systems
substantially in accordance with manufacturer required standards (collectively, the
"Maintenance Standards"). The Maintenance Standards shall also include
Concessionaire's obligation: (x) to furnish, maintain, and replace all electric light bulbs,
tubes, and tube casings located within or serving the Concession Area and
Concessionaire's signage, all at Concessionaire's sole cost and expense; (y) to maintain
sufficient garbage collection areas so that garbage is not overflowing and enclosures
remain closed at all times unless garbage is actively being disposed or collected. The
Concession Area shall further be kept in good order, condition and repair by
Concessionaire, and in a clean, sanitary and safe condition in accordance with all laws,
including without limitation, the ADA, and directions, rules and regulations of the health
officer, fire marshal, building inspector or other officers of any governmental agencies
having jurisdiction, all at the sole cost and expense of Concessionaire. Concessionaire
shall also be responsible for replacing all fixtures and equipment which are stolen
damaged beyond repair or worn out. The interior wall finishes, interior flooring finishes,
Page 911 of 2240
Attachment A
fixtures, and furniture in the Concession Area shall be repaired, replaced, and/or
maintained by Concessionaire, at Concessionaire's sole cost and expense, periodically
as to keep the Concession Area in a condition that satisfies the Required Condition.
10.2.2 All repair and maintenance performed by Concessionaire shall be performed by
contractors or workmen approved by the City Manager or the City Manager's designee.
10.2.3 Concessionaire's compliance with the Maintenance Standards shall be subject to
City's reasonable discretion. Concessionaire and City shall inspect the physical structure
of the Concession Area not less frequently than every three (3) years, at the expense of
the Concessionaire, and using a contractor mutually agreed upon by the parties, to identify
deferred maintenance items and develop a schedule of renewal and replacement projects
for the following three (3) years.
10.2.4 At the expiration or earlier termination of the Term, Concessionaire shall surrender
the Concession Area to City in as good condition and repair as Concessionaire is required
to maintain the Concession Area throughout the Term, reasonable wear and tear
excepted.
10.2.5 Despite any subcontracts by Concessionaire approved by the City Manager or
his/her designee and the delegation of certain responsibilities and obligations of
Concessionaire 'as set forth in this Section 10, Concessionaire shall remain responsible
for ensuring that any such subcontractors perform the services required to be provided
under this Agreement are performed in accordance with the terms and conditions of this
Agreement.
10.3 Ownership of Improvements and Fixtures; Removal.
All improvements, furnishings, and equipment constructed or installed on the Concession
Area by Concessionaire shall be personal property and Concessionaire shall have legal
title thereto during the term of this Agreement. Upon the expiration or termination of the
Agreement, title to all permanent improvements constructed on the Concession Area shall
vest in City. Title to all supplies, furnishings, inventories, and removable equipment and
other personal property shall remain in Concessionaire, and Concessionaire shall have
the right to remove such items from the Concession Area without damaging the
Concession Area unless Concessionaire is in default under this Agreement.
Concessionaire may, during the Term, in the usual course of its business, remove its trade
fixtures, provided that Concessionaire is not in default under this Agreement; and
Concessionaire shall, at the expiration or earlier termination of the Term, at its sole cost,
remove such of the improvements and trade fixtures in the Concession Area as City shall
require to be removed and restore the Concession Area to the condition existing on the
Commencement Date. Concessionaire shall at its own expense repair any damage
caused to the Concession Area by such removal. If Concessionaire does not remove its
trade fixtures at the expiration or earlier termination of the Term, the trade fixtures shall,
at the option of City, become the property of City and may be removed from the
Concession Area and sold or disposed of by City in such manner as it deems advisable
without any accounting to Concessionaire.
Page 912 of 2240
Attachment A
10.4 Liens.
Concessionaire shall promptly pay for all materials supplied and work done in respect of
the Concession Area by, through, or under Concessionaire so as to ensure that no lien is
recorded against any portion of the Concession Area or against City's or Concessionaire's
respective interests therein. If a lien is so recorded, Concessionaire shall discharge it
promptly by payment or bonding. If any such lien against the Concession Area is recorded
and not discharged by Concessionaire as above required within thirty (30) days following
written notice to Concessionaire, City shall have the right to remove such lien by bonding
or payment and the cost thereof shall be paid immediately by Concessionaire to City. City
and Concessionaire expressly agree and acknowledge that no interest of City in the
Concession Area shall be subject to any lien for improvements made by Concessionaire
in or for the Concession Area, and City shall not be liable for any lien for any improvements
made by Concessionaire, such liability being expressly prohibited by the terms of this
Agreement. Concessionaire hereby agrees to inform all Contractors performing work in or
for or supplying materials to the Concession Area of the requirements of this Section and
to include provisions in all contracts with such Contractors confirming same.
10.5 Beachfront Area Maintenance.
10.5.1 Concessionaire assumes sole responsibility and expense for maintenance,
including the collection and daily removal of litter, garbage and debris of the following
areas: (1) the Beachfront Area, including all facilities and equipment thereon; (2) any
Buffer Zone immediately adjacent to any portion of the Concession Areas (including
without limitation the Southern Accessibility Zone, the Northern Accessibility Zone and any
Lifeguard Facility Zone) (3) the area within fifty (50) feet of any of the Concessionaire's
storage areas located outside of the Beachfront Area (if any are permitted); (4) any area
within fifty (50) feet of a food and beverage dispensing facility located outside of the
Beachfront Area (if any is permitted); and (5) the Dune area landward and adjacent to
any portion of the Concession Area. (Note that, for purposes of this Subsection 10.5.1,
and of any other section of the Agreement which references the term "areas outside of the
Concession Area," that term shall be deemed to reference and include only the specific
areas described in clauses (2) through (5) above).
10.5.2 Facilities/Eouipment/Furnishings.
Concessionaire must provide and maintain, at its own cost and expense, all facilities,
equipment, and furnishings required to operate the Concession Operations. In the event
any of the aforesaid items are lost, stolen, or damaged during the Term, they shall be
repaired or, if irreparable, replaced, at the sole cost and expense of the Concessionaire,
within fifteen (15) days of written notice from the City Manager or his/her designee,
provided, that, if any such item reasonably requires more than such 15-day period to repair
or replace, Concessionaire shall not be in default of this Subsection 10.5.2, provided,
that, it commences to repair and replace promptly after notice thereof from the City and
pursues such repair or replacement with all due diligence.
10.6 Orderly Operation.
Concessionaire shall keep a neat and orderly operation at all times and shall be solely
responsible for the necessary housekeeping services to properly maintain the Concession
Area and all facilities, equipment and furnishings thereto. There shall be no living quarters,
Page 913 of 2246
Attachment A
nor shall anyone be permitted to live, within the Concession Area, the Concession Area
Structures and/or any other facilities thereon, provided, that, if Concessionaire becomes
aware of any such living quarters or that someone is living in the Beachfront Area, its only
obligation with regard thereto is to notify the Miami Beach Police Department promptly.
Concessionaire shall make available all of its facilities, equipment and furnishings for
inspection during hours of operation by the City Manager or his/her authorized
representative.
10.7 Environmental Matters.
10.7.1 Concessionaire shall not (and shall ensure any Subconcessionaires do not)
knowingly incorporate into, use, or otherwise place or dispose of at the Concession Area
(or allow others to incorporate into, use, or otherwise place or dispose of at the Concession
Area) any Hazardous Materials, as hereinafter defined, unless (i) such Hazardous
Materials are for use in the ordinary course of business (i.e., as with office or kitchen
cleaning supplies or in the case of the Restaurant Operations, the use of cooking products,
propane gas and similar products typical to the industry), (ii) notice of and a copy of the
current material safety data sheet is provided to City for each such Hazardous Material
(except for Hazardous Materials used by Concessionaire and Subconcessionaires in the
ordinary course of business as set forth in (i), above), and (iii) such materials are handled
and disposed of in accordance with all applicable governmental laws, rules, and
regulations. If City or Concessionaire ever has actual knowledge of the presence at the
Concession Area of Hazardous Materials which affect the Concession Area, such party
shall notify the other thereof in writing promptly after obtaining such knowledge. For
purposes of this Agreement, "Hazardous Materials" shall mean: (a) petroleum and its
constituents; (b) radon gas, asbestos in any form which is or could become friable, urea
formaldehyde foam insulation, transformers or other equipment which contain dielectric
fluid containing levels of polychlorinated biphenyls in excess of federal, state or local
safety guidelines, whichever are more stringent; (c) any substance, gas, material or
chemical which is or may hereafter be defined as or included in the definition of "hazardous
substances," "hazardous materials, "hazardous wastes," "pollutants or contaminants,"
"solid wastes," or words of similar import under any applicable governmental laws, rules,
and regulations including, but not limited to, the Comprehensive Environmental Response,
Compensation and Liability Act, as amended, 42 U.S.C. § 9061 et seq.; the Hazardous
Materials Transportation Act, as amended, 49 U.S.C. § 1801, et seq.; the Resource
Conservation and Recovery Act, as amended, 42 U.S.C. § 6901, et seq.; the Federal
Water Pollution Control Act, as amended, 33 U.S.C. § 1251, et seq.; and Florida Statutes,
Chapters 376 and 403; and (d) any other chemical, material, gas, or substance, the
exposure to which is regulated by any governmental or quasi -governmental entity having
jurisdiction over the Concession Area or the operations thereon.
10.7.2 If Concessionaire or its employees, agents, contractors, Subconcessionaires or
assigns shall ever violate the provisions of Subsection 10.7.1, above, then
Concessionaire shall clean-up, remove, and dispose of the Hazardous Material causing
the violation, in compliance with all applicable governmental standards, laws, rules, and
regulations and repair any damage to the Concession Area within such period of time as
may be reasonable under the circumstances after written notice by City, provided that
such work shall commence not later than thirty (30) days from such notice and be diligently
and continuously carried to completion by Concessionaire or Concessionaire's designated
contractors. Concessionaire shall notify City of its method, time, and procedure for any
clean-up or removal of Hazardous Materials under this provision; and City shall have the
Page 914 of 2240
Attachment A
right to require reasonable changes in such method, time, or procedure or to require the
same to be done after normal business hours or when the Concession Area is otherwise
closed (i.e., holidays) if reasonably required for the protection of Concessionaire's patrons.
10.7.3 Concessionaire agrees to defend, indemnify and hold harmless City against any
and all claims, costs, expenses, damages, liability, and the like, which City may hereafter
be liable for, suffer, incur, or pay arising under any applicable environmental laws, rules,
and regulations and resulting from or arising out of any breach of the covenants contained
in this Section 10.7, or out of any act, activity, -or violation of any applicable environmental
laws, rules, and regulations on the part of Concessionaire, its employees, agents,
contractors, Subconcessionaires or assigns. Concessionaire's liability under this Section
10.7.3 shall survive the expiration or any termination of this Agreement.
10.7.4 Concessionaire shall have no responsibility to pay for, assist with, contribute to, or
remediate any environmental issues affecting the Concession Area (including, for the
avoidance of doubt, the Public Parking Area) that existed prior to the Occupancy Date.
10.8 Security.
Concessionaire shall be solely responsible for providing such security measures as
Concessionaire, in its professional experience and judgment, may deem necessary to
protect any of its facilities, equipment, and furnishings within the Concession Area and
patrons of the Concession Operations. Under no circumstances shall the City be
responsible (i) for any stolen or damaged facilities, equipment, or furnishings; nor shall
the City be responsible for (ii) any stolen or damaged personal property of
Concessionaire's patrons, guests, invitees, employees, contractors, and/or any other third
parties; provided that, as to clause (ii), the foregoing is not intended to impose any
affirmative duty on Concessionaire for any such theft or damage.
10.9 Vehicles on the Beach.
All vehicles used by Concessionaire, or its employees, agents or contractors, in the
Beachfront Area shall comply with the rules and regulations of the City of Miami Beach as
same may be amended from time to time, including, but not limited to, as to type of vehicle,
use of vehicle and hours of use of vehicle. For purposes hereof, vehicles shall include (i)
any "on -road" vehicles and/or trailers licensed in accordance with applicable County, State
and Federal law, to operate on public streets and roadways; and (ii) any "off -road" vehicles
such as golf carts and all -terrain vehicles ("ATV's"); and (iii) any other vehicles, trailers or
carts permitted for use in the Beachfront Area. The current rules and regulations governing
vehicles in the Beachfront Area are attached hereto as Exhibit 10.9.
10.10 Inspection.
The Concessionaire agrees that the Concession Area, and all facilities, equipment,
furnishings, and operations thereon, may be inspected at any time during hours of
operation by the City Manager or his/her authorized designee(s), or by any other
municipal, County, State agency or official having responsibilities 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 (which
interference, if by the City, must be reasonable) with the concession operation by the City,
Page 915 of 2240
Attachment A
or any public agency or official, in enforcing their duties or any laws or ordinances. Any
such interference shall not relieve the Concessionaire from any obligation to perform
hereunder.
SECTION 11. DAMAGE AND DESTRUCTION
11.1 Damage to Concession Area.
If the Concession Area Structures or other improvements on the Concession Area (collectively,
"Improvements") are partially or totally destroyed due to fire or other casualty, the Concessionaire,
except as hereafter provided in this Subsection 11.1, shall, at its sole cost and expense within
the earlier of: (i) thirty (30) days after receiving insurance proceeds with respect to any such
casualty or (ii) one hundred eighty (180) days from the date of such casualty, commence the work
of repair, reconstruction, restoration, or replacement and shall prosecute the work with all
reasonable dispatch, so as to fully complete such work as expeditiously as reasonably possible
consistent with the nature and extent of the casualty, with such Improvements to be repaired,
reconstructed, or restored as nearly as practicable to the same condition as prior to such casualty.
MG and PG shall abate proportionately to the portion of the Concession Area, if any, rendered
unusable from the date of destruction or damage until the repairs have been, substantially
completed. Upon being notified that the repairs have been substantially completed,
Concessionaire shall diligently perform all other work required to fully restore the Concession
Area for use in Concessionaire's business, in every case at Concessionaire's cost and without
any contribution to such cost by City. Concessionaire agrees that during any period of
reconstruction or repair of the Concession Area, it will continue the operation of its business within
the Concession Area to the extent practicable. If the damage or destruction is a result of the
negligence or willful misconduct of Concessionaire or Concessionaire's employees, contractors
or agents, the charges payable under this Agreement shall not abate.
11.2 Termination for Damage. Notwithstanding Section 11.1, if damage or destruction which has
occurred to the Concession Area is of a material nature and such that, in the reasonable opinion
of City or Concessionaire, such reconstruction or repair cannot be completed within three hundred
and sixty five (365) days of the happening of the damage or destruction, City or Concessionaire
may, at its sole option, terminate this Agreement on notice given within sixty (60) days after such
damage or destruction.
SECTION 12. PARKING.
12.1 Concessionaire shall stage construction of the Work in a manner that minimizes the extent
and duration of displacement of the existing public parking spaces in the Concession Area during
construction. In furtherance of and without limiting the foregoing, as an Occupancy Condition,
Concessionaire shall submit a parking mitigation plan in form and substance acceptable to the
City in its sole discretion that either (a) phases construction of the parking areas within the
Concession Area so that there will be seventy-two (72) municipal parking spaces within the
Concession Area at all times or (b) addresses both loss of parking by providing for alternate
parking within proximity of the existing public parking spaces (not greater than one-half mile) and
loss of revenue to the City. The City shall consider in good faith leasing the seventy-two (72)
municipal parking spaces in the Concession Area to Concessionaire for the period commencing
on the Occupancy Date through completion of construction in the Public Parking Area at a monthly
rate to be determined by reference to the average revenue to the City from the existing parking
lot in the Concession Area during the applicable month during the three (3) years prior to the
Occupancy Date. Concessionaire shall use commercially reasonable efforts to complete
Page 916 of 2240
Attachment A
construction of the Public Parking Area by or before December 31, 2026.
12.2 The City shall manage and operate the Public Parking Area, provided, Concessionaire
shall be responsible for maintaining the Public Parking Area at its sole cost and expense. Upon
Substantial Completion of the Work, the Concession Area may be subdivided by Declaration or
otherwise in a manner reasonably satisfactory to the City to specifically exclude the Public Parking
Area. For the avoidance of doubt, the City shall be entitled to receive and retain all gross revenues
from the operation of the Public Parking Area.
SECTION 13. SIGNAGE-AND NAMING RIGHTS.
13.1 Concessionaire, at Concessionaire's expense, and the Subconcessionaires, at their
respective expense, shall have the right to erect and maintain signage upon the Concession Area,
including, in Concessionaires discretion, signage which identifies the overall facility and individual
Concession Areas. The design and specification of such signage shall be subject to City's sign
criteria as adopted from time to time and such design and specification (including camera-ready
artwork) shall be submitted for City's prior approval. City's current signage criteria is attached
hereto and made a part hereof as Exhibit 13.1. All such signage shall be in accordance with all
applicable Requirements. Any new or altered signage posted by Concessionaire (or any
Subconcessionaire) on its facilities and equipment shall be subject to the prior approval of the
City Manager or his or her designee as to size, shape and placement of same.
13.2 The name for the new beach establishment shall require the approval of the City Manager,
which approval shall not be unreasonably withheld, conditioned or delayed, or if City Commission
approval is required, then in City Commission's sole discretion. The foregoing is not intended to
limit signage rights for Subconcessionaires, whose signage may be on the exterior of their spaces
within the Concession Area, subject to compliance with applicable Requirements.
SECTION 14. INSURANCE.
14.1 Concessionaire shall maintain during the Term, at its sole cost and expense, insurance
coverage meeting the criteria established by the City as set forth on Exhibit 14 attached hereto
and made a part hereof.
14.2 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 percent (10%) of the amount of premiums paid to compensate City for its
administrative costs. If Concessionaire fails to repay City's expenditures within fifteen (15) days
of demand, the total sum owed shall accrue interest at the rate of twelve percent (12%) per annum
until paid, and such failure shall be deemed an Event of Default hereunder.
14.3 The terms of insurance policies referred to in this Section 14 shall preclude subrogation
claims against Concessionaire, the City, and their respective officers, employees, contractors and
agents.
Page 917 of 2240
Attachment A
SECTION 15 WAIVER OF SUBROGATION.
15.1 Without limiting Concessionaire's indemnity obligations, City and Concessionaire each
hereby waives on behalf of itself and its insurers (none of which shall ever be assigned any such
claim or be'entitled thereto due to subrogation or otherwise) any and all rights of recovery, claim,
action, or cause of action, against the other, its agents, officers, or employees, for any loss or
damage that may occur to the Concession Area, the Concession Area Structures or any other
Improvements, or any further improvements or renovation during the Term to any of the foregoing,
or any personal property of such party therein, by reason of fire, the elements, or any other causes
which are, or could or should be insured against under the terms of the standard fire and extended
coverage insurance policies referred to in this Agreement, regardless of whether such insurance
is actually maintained and regardless of the cause or origin of the damage involved, including
negligence of the other party hereto, its agents, officers, or employees. Concessionaire shall
obtain from its insurers, under all policies of fire, theft, public liability, worker's compensation, and
other insurance maintained by it at any time during the Term hereof insuring or covering the
Concession Area or any portion thereof or operations therein, a waiver of all rights of subrogation
which the insurer of Concessionaire have against the City, and Concessionaire shall indemnify,
defend, and hold harmless City against any loss or expense, including reasonable attorney's fees
and costs at all tribunal levels.
SECTION 16. LOSS OR DAMAGE.
16.1 Except to the extent otherwise expressly set forth herein, Concessionaire acknowledges
that the City will not be performing any maintenance and repairs to the Concession Area or the
Public Parking Area. City shall not be liable for any death or injury arising from or out of any
occurrence in, upon, at, or relating to the Concession Area or the Public Parking Area, or damage
to property of Concessionaire or of others located in the Concession Area or the Public Parking
Area, nor shall it be responsible for any loss of or damage to any property of Concessionaire or
others from any cause, unless such death, injury, loss, or damage results from the gross
negligence or willful misconduct of City. Without limiting the generality of the foregoing, City shall
not be liable for any injury or damage to persons or property resulting from fire, explosion, falling
plaster, falling ceiling tile, falling fixtures, steam, gas, electricity, water, rain, flood, or leaks from
any part of the Concession Area or the Public Parking Area or from the pipes, sprinklers,
appliances, plumbing works, roof, windows, or subsurface of any floor or ceiling of any
improvements on the Concession Area or the Public Parking Area, or from the street or any other
place or by dampness, or by any other cause whatsoever, unless resulting from the gross
negligence or willful misconduct of City. Concessionaire agrees to indemnify City and hold it
harmless from and against any and all loss, claims, actions, damages, liability, and expense of
any kind whatsoever (including attorneys' fees and costs at all tribunal levels), unless caused by
the gross negligence or willful misconduct of City, arising from any occurrence in, upon, or at the
Concession Area or the Public Parking Area, or the occupancy, use, or improvement by
Concessionaire or its agents or invitees of the Concession Area or the Public Parking Area, or
occasioned wholly or in part by any act or omission of Concessionaire its agents, employees, and
invitees or by anyone permitted to be in the Concession Area by Concessionaire.
SECTION 17. INDEMNITY.
17.1 In consideration of a separate and specific consideration of $10.00 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 officers, officials,
employees, contractors, and agents, from and against any claim, demand or cause of
Page 918 of 2240
Attachment A
action of whatsoever kind or nature arising out of (a) the negligent act or willful misconduct
of Concessionaire, its officers, directors, members, managers, employees, contractors
(including, without limitation, any Subconcessionaires), or agents, in the performance of
services under this Agreement, excluding, however, any such liability that arises as a
result of the willful misconduct or gross negligence of the City, its officers, officials,
employees, contractors, or agents (b) Concessionaire's breach of the terms of this
Agreement or its representations and warranties in Section 30; and/or (c) any lawsuit,
action or proceeding challenging the validity, execution or effectiveness of the Concession
Agreement, any tort or other claim related to any of the foregoing, or any such challenge
relating to any approval required under the County Charter, City Code and/or the City
Charter ("Lawsuit") but excluding the lawsuit styled Penrod Brothers Inc v. City of Miami
Beach (Case Number 1:23-cv-23362-JEM) or any subsequent lawsuit or proceeding
instituted by Penrod Brothers, Inc.. Concessionaire shall pay all such claims and losses
and shall pay all such costs and judgments which may issue from any lawsuit arising from
such claims and losses, and shall pay all costs and attorneys' fees expended by the City
in the defense of such claims and losses, including appeals (the "Liabilities").
17.2 In addition, and 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 officers, employees, contractors, agents or servants from and against any claim,
demand or cause of action of whatever kind or nature arising out of any misconduct of
Concessionaire, its officers, employees, contractors, Subconcessionaire(s), agents or
servants not included in Subsection 17.1 herein and for which the City, its officers,
employees, contractors, subconcessionaire(s), agents or servants are alleged to be liable
excluding, however, any such liability that arises as a result of the willful misconduct or
gross negligence of the City, its officers, officials, employees, contractors, or agents.
Concessionaire shall pay all such claims and losses and shall pay all such costs and
judgments which may issue from any lawsuit arising from such claims and losses, and
shall pay all costs and attorneys' fees expended by the City in the defense of such claims
and losses, including appeals (the "Misconduct Liabilities").
17.3 In the event any Person not a party to this Agreement shall make any demand or claim or
file or threaten to file or continue any lawsuit, which demand, claim or lawsuit may result
in Liabilities and/or Misconduct Liabilities to the City, the City shall give written notice to
such effect to the Concessionaire promptly upon becoming aware thereof, including with
such notice all correspondence and documents in the possession of the City relating
thereto (collectively, the "Notice"). In such event, within ten (10) days after Notice of such
demand, claim or lawsuit (provided, however, that the failure to give such Notice shall not
relieve the Concessionaire of its obligations hereunder unless, and only to the extent that,
such failure caused the damages for which the Concessionaire is liable to be greater than
they would otherwise have been had the City given prompt notice hereunder), or if no such
notice is given, within ten (10) days of becoming aware thereof, Concessionaire shall
have the right, at its sole cost and expense, to retain counsel (which counsel shall be
reasonably satisfactory to the City), to defend any such demand, claim or lawsuit.
Thereafter, the City shall be permitted, but not required, to participate in such defense at
its own expense. Notwithstanding the foregoing, if (a) the Concessionaire fails to retain
counsel reasonably satisfactory to the City within such ten (10) day period or (b) if the
named parties to any such proceeding (including any impleaded parties) include both the
Concessionaire and the City or if the Concessionaire proposes that the same counsel
represent both the Concessionaire and the City and representation of both parties by the
Page 919 of 2240
Attachment A
same counsel would be inappropriate due to actual or potential differing interests between
them, then the City shall have the right to retain its own counsel at the cost and expense
of the Concessionaire.
17.4 Notwithstanding anything to the contrary contained in Subsection 17.1 or 17.2, it is
acknowledged and agreed that Concessionaire's employees and agents that will be
responsible for the Beachfront Operations are not lifeguards nor water safety instructors
and shall have no responsibility or liability whatsoever with regard to conditions or events
in the Beachfront Area which are out of Concessionaire's control including, without
limitation, (a) the surf, sand, weather, water or wind conditions or other naturally occurring
conditions or elements such as sand bars, flora and fauna; (b) the safety or health of any
persons in the Beachfront Area or elsewhere, where the threat to their safety or health
was not directly caused by Concessionaire's negligent act or omission during business
hours; or (c) the competency, fitness, physical limitations, or abilities of any persons using
the concession services offered in the Beachfront Area. Moreover, it is further
acknowledged and agreed that Concessionaire and its employees and agents shall have
no responsibility or liability for incidents occurring in the Beachfront Area outside of normal
business hours, where the incident was not directly caused by Concessionaire's negligent
act or omission. It is further acknowledged and agreed that Concessionaire provides
beach services and does not control the swimming area in the Atlantic Ocean adjacent to
the Beachfront Area. For the avoidance of doubt, the foregoing provisions are intended to
apply expressly to the Beachfront Area and Concessionaire shall be solely responsible for
taking such steps as Concessionaire deems reasonably necessary to ensure the safety
and wellbeing of patrons in the Pool Area, provided, it is acknowledged and agreed that
nothing in this Section 17.5 or elsewhere in this Agreement is intended to impose any
obligation on Concessionaire to employ lifeguards for any part of the Concession Area.
Similarly, it is acknowledged and agreed that although the City has a lifeguard presence
within or near the Beachfront Area, the City has no obligation to employ lifeguards at the
Pool Area, as the Pool Area will be under the exclusive control of the Concessionaire.
17.5 Concessionaire shall be permitted to set forth signage throughout the Beachfront Area
and the Pool Area in the form of Exhibit 17.5.
17.6 The provisions of this Section 17 shall survive the expiration or termination of this
Agreement.
SECTION 18. FORCE MAJEURE.
18.1. Force Maieure Generally.
The performance of any act by the City or Concessionaire hereunder may be delayed or
suspended at any time while, but only so long as, such party is hindered in or prevented from
performance of its obligations under this Agreement by a Force Majeure Event, provided,
however, if such condition persists for more than one hundred eighty (180) consecutive days, the
City and Concessionaire may in their sole discretion renegotiate the terms of this Agreement. If
the performance of the contractual obligations is prevented or delayed by an event believed by a
party to be a Force Majeure Event, such party shall immediately upon learning of the occurrence
of the event or of the commencement of any such delay, but in no case later than thirty (30) days
from the occurrence of the event, provide notice of (i) of the occurrence of the event believed to
be a Force Majeure Event, (ii) of the nature of the event and the cause thereof, (iii) of the
Page 920 of 2240
Attachment A
anticipated impact on the Agreement, (iv) of the anticipated period of the delay, and (v) of what
course of action such party plans to take in order to mitigate the detrimental effects of the event.
The timely delivery of the notice of the occurrence of a Force Majeure Event is a condition
precedent to allowance of any relief pursuant to this section; however, receipt of such notice shall
not constitute acceptance that the event claimed to be a Force Majeure Event is in fact a Force
Majeure Event, and the burden of proof of the occurrence of a Force Majeure Event shall be on
the requesting party.
18.2 Labor Dispute.
In the event of a labor dispute which results in a strike, picket, or boycott affecting the Concession
Areas described in this Agreement (a "Labor Dispute"), Concessionaire shall not thereby be
deemed to be in default or to have breached any part of this Agreement, unless such dispute shall
have been caused by illegal labor practices or violations by Concessionaire of applicable
collective bargaining agreements and there has been a final determination of such fact which is
not cured by Concessionaire within thirty (30) days following such determination or, if compliance
with such final determination is not reasonably susceptible to being cured within such period, then
Concessionaire 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 such cure.
18.3 Waiver of Loss from Hazards.
The Concessionaire hereby expressly waives all claims against the City or its officers, officials,
employees, contractors or agents, for loss or damage sustained by the Concessionaire resulting
from any Force Majeure Event or Labor Dispute, and the Concessionaire hereby expressly waives
all rights, claims, and demands against the City or its officers, officials, employees, contractors,
or agents, and forever releases and discharges the City and its officers, officials, employees,
contractors, or agents, from all demands, claims, actions and causes of action arising from any
of the aforesaid causes.
SECTION 19. DEFAULT, TERMINATION AND PENALTIES
Each of the events or occurrences described in Subsections 19.1 through 19.3 shall
constitute an Event of Default under this Agreement. An Event of Default by Concessionaire shall
entitle City to exercise any and all remedies available at law or in equity as well as those expressly
provided for in this Section 19. An Event of Default by City shall entitle Concessionaire to exercise
any and all remedies available at law or in equity as well as those expressly provided for in this
Section 19.
19.1 Bankruptcy.
If either the City or Concessionaire shall be (a) adjudged bankrupt or insolvent, or (b) 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 in any such case shall not be discharged within ninety (90) days after appointment,
or (c) if either party shall make an assignment of its property for the benefit of creditors, or
(d) 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 (e) if such petitions
shall be filed against either party and shall not be dismissed within ninety (90) days after
such filing, then the other party may immediately, or at any time thereafter, and without
Page 921 of 2240
Attachment A
further demand or notice, terminate this Agreement without being prejudiced as to any
remedies which may be available to it for breach of contract.
19.2 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 $50.00 per day for such late payment, in addition to
interest at the highest rate allowable by law (currently 18% per annum). If any payment
and accumulated penalties are not received within fifteen (15) days after the payment due
date, and such failure continues three (3) days after written notice thereof, then the City
may, without further demand or notice, terminate this Agreement, without being prejudiced
as to any additional remedies which may be available to it for breach of contract.
19.3 Non -Monetary Default.
In the event that Concessionaire or the City fails to perform or observe any of the
covenants, terms or provisions under this Agreement (other than default in payment under
Section 19.2 above), 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 additional remedies which may be available to it for breach of
contract. Notwithstanding the foregoing, 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 except to the extent of a delay beyond such ninety (90) day
period caused by a Force Majeure Event. In the event Concessionaire cures any default
pursuant to this subsection, it shall promptly provide City with written notice of same.
19.4 City's Remedies for Concessionaire's Default.
If an Event of Default by Concessionaire as set forth in this Section shall occur, the City
may, after notice (if required) and the expiration of applicable 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, but in no
event shall the City specify a surrender da4that is less than ten (10) days from the date
the notice is delivered to Concessionaire. On the date so specified, Concessionaire shall
then quit and surrender the Concession Area to City pursuant to the provisions of
Subsection 19.7. Upon the termination of this Agreement, all rights and interest of
Concessionaire in and to the Concession Area and to this Agreement, and every part
thereof, shall cease and terminate (other than those provisions which by their terms
survive such termination) 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. In addition to the
rights set forth above, City shall have the rights to pursue any and all of the following:
a. the right to injunction or other similar relief available to it under Florida law against
Page 922 of 2240
Attachment A
Concessionaire; and
b. the right to maintain any and all actions .at law or suits in equity or other proper
proceedings to obtain damages for breach of contract resulting from
Concessionaire's default.
19.5 Concessionaire's Remedies for Citv's Default.
If an Event of Default, as set forth in this Section, by the City shall occur, the
Concessionaire may, after notice (if required) and the expiration of the applicable cure
periods, as provided above, at its sole option and discretion, terminate this Agreement
upon written notice to the City and/or sue for damages. Said ' termination shall become
effective upon receipt of a written notice of termination by the City, but in no event shall
Concessionaire specify a termination date that is less than sixty (60) days from the date
of the written termination notice. On the date specified in the notice, Concessionaire shall
quit and surrender the Concession Area to City pursuant to the provisions of Subsection
19.6.
19.6 Surrender of Concession Areas.
At the expiration of this Agreement, or earlier termination in accordance with the terms of
this Agreement, Concessionaire shall surrender the Concession Areas in as good
condition and repair as Concessionaire is required to maintain the Concession Area
throughout the Term, , reasonable wear and tear excepted (including any beach erosion
not directly caused by Concessionaire and/or its operation). Concessionaire shall remove
all its facilities, equipment, fixtures, personal property, etc. upon seventy-two (72) hours
of receipt of written notice from the City Manager or his designee unless a longer time
period is agreed to by the City. Concessionaire's obligation to observe or perform this
covenant shall survive the expiration or other termination of this Agreement. Continued
occupancy of the Concession Area(s) after termination of this Agreement and expiration
of such 48-hour period shall constitute trespass by the Concessionaire and may be
prosecuted as such. In addition, the Concessionaire shall pay to the City two times the
daily ,rate calculated by dividing the MG in effect at the time into three hundred sixty-five
(365) as liquidated damages for such trespass and holding over.
SECTION 20. ASSIGNMENT.
Except as otherwise provided in Section 3 and in this Section 20, Concessionaire shall not
assign, grant any concession or license, or otherwise transfer all or any portion of this Agreement
and/or of the Concession Area(s) (all of the foregoing are herein after referred to collectively as
"transfers"), without the prior written consent of the City Manager or his/her designee.
If there is a change in control of Concessionaire, then any such change in control shall constitute
a "transfer" for purposes of this Agreement and shall be approved by the Manager or his or her
designee prior to consummation of such change in control. "Change in control", for purposes
hereof, shall mean a change of the ownership, directly or indirectly, of greater than thirty-three
and four tenths percent (33.4%) of the voting or ownership interest or right to profits in such
Concessionaire to any non -Affiliate, by means of one or more transfers, sales, mergers,
consolidations, dissolutions or otherwise; provided, that, the foregoing shall not be deemed to
include (i) a pledge or collateral assignment of the profits of Concessionaire in connection with
Page 923 of 2240
Attachment A
any financing, provided such pledge or collateral assignment is subordinate to the rights of the
City to the fees payable to the City pursuant to Section 4 hereof; (ii) any transfer to other owners
of Concessionaire or to trusts the beneficiaries of which are any owner(s) of Concessionaire or
member(s) of their immediate family; (iii) a change in the ownership of Concessionaire through a
registered public offering of shares in Concessionaire; or (iv) the' merger or consolidation by
Concessionaire or the sale of all or substantial all of the assets of Concessionaire with another
party provided that the managers of Concessionaire remain in control of any such successor
entity (clauses (i), (ii), (iii) and (iv) above collectively are referred to herein as the "Permitted
Transfers"). Notwithstanding the City Manager's delegated authority to approve any matter as
specified herein, the City Manager may elect to have the City Commission determine any matter
or approval contemplated under this Agreement (within the timeframe therefor as if the approval
was being determined by the City Manager).
Concessionaire shall notify the City of any proposed ,transfer that is not a Permitted Transfer prior
to consummation of same for the approval of the City or the City Manager or his/her designee, as
applicable, and the City or the City Manager or his/her designee, as applicable, shall respond
within thirty (30) days. In the event that any such transfer is approved, the transferee shall agree
to be bound by all the covenants of this Agreement required of the transferor hereunder. Any
transfer made without complying with this Section shall be null, void, and of no effect and shall
constitute an Event of Default under this Agreement. Notwithstanding any such consent, or any
permitted transfer under any provision of this Section, each approved transferee shall
automatically become liable for all obligations of the transferor hereunder with respect to that
portion of the Agreement so transferred, and the City shall be permitted to enforce the provisions
of this Agreement directly against any transferee of the Concessionaire without proceeding in any
way against any other person. In addition, if Concessionaire makes a series of transfers which
cumulatively equals thirty-three and four tenths percent (33.4%), then it shall be required to follow
the procedures outlined in this paragraph as to the transfer which results in a cumulative transfer
of thirty-three and four tenths percent (33.4%).
SECTION 21. SPECIAL EVENTS / SPONSORSHIPS.
21.1 With the exception of the Team Building Events as permitted by Section 3.1.9,
Concessionaire's proposed uses of the Beach Area, as set forth in Section 3 herein, do
not contemplate the production, promotion or sponsorship by the Concessionaire of
special events in any of the Concession Areas. In the event Concessionaire does produce,
promote, or sponsor a special event upon the Beach Area (other than Team Building
Events), it shall comply with by the City's Special Events Permit Requirements and
Guidelines, as same may be amended from time to time, including the payment of all
required fees. City acknowledges that the Restaurant Operations shall be entitled to run
specialty events from time to time without approval of the City Manager or his/her designee
including cooking demonstrations, visits by celebrity chefs, special dining experiences and
the like.
21.2 The City Manager or his/her designee shall evaluate requests for special events permits
on a case by case basis in accordance with the City's Special Events Permit and Film and
Print Permit Requirements and Guidelines, as may be amended from time to time (the
"Guidelines"). In the event that a special event and/or film permit is requested by an entity
other than the Concessionaire, and the proposed special event and/or film production is
scheduled to occur within the Beachfront Area, as such Concession Area is delineated in
the Site Plan, and would cause the operations within the Beachfront Area to cease wholly
or partly, and provided that the Concessionaire is not in .default under the Agreement at
Page 924 of 2240
Attachment A
the time of the request, the Concessionaire agrees to cooperate with the City and the
special event or film permitee to allow use of such Concession Area during the period of
the special event or film production, including set-up and break -down time. City agrees to
provide no less a special event and/or film permit than thirty (30) days prior written notice
to Concessionaire of any such proposed special event and/or film permit.
21.2.1 Should the Concessionaire be displaced from all or any portion of the
Beachfront Area due to a special event or film production, then the Concessionaire
shall be entitled to a "Displacement Fee" (as hereinafter defined). For purposes of
this subsection only, "displacement" shall mean that the Concessionaire cannot
provide the food and beverage services, conduct sales of Beach -Related Sundries,
or rent Beach and Pool Equipment in the Beachfront Area as a result of a special
event or film production under a permit requested by a person other than the
Concessionaire.
The Displacement Fee for the Beachfront Area, when applicable, will be calculated
by the City Manager or his/her designee and Concessionaire at the start of each
Agreement year. The Displacement Fee shall be based upon the average of daily
revenues generated by the Concessionaire in the Beachfront Area, and shall be
based upon the highest revenues generated during the Agreement years over the
last three (3) full years of revenues for that section of the Concession Area
(provided, that if a Force Majeure Event affected the generated revenue during
such three (3) year period, then the generated revenue shall be equitably
increased for any diminution in revenue on account of the Force Majeure Event),
multiplied by the number of days that Concessionaire is displaced, provided, that,
for any displacement prior to the third anniversary of the Commencement Date,
the Displacement Fee will be mutually agreed upon by Concessionaire and the
City Manager or his or her designee. The City shall cause the Displacement Fee
to be paid directly to the Concessionaire by the special event permittee or film
production (as the case may be), and Concessionaire shall pay to the City the City
Displacement Fee with respect thereto. The Concessionaire may waive in writing
all or a portion of the Displacement Fee, at its sole option, in exchange for other
consideration(s) of equal value from the special event permittee or film production,
as may be negotiated directly between the Concessionaire and the special event
permittee or film production ("Alternative Consideration"), but shall nonetheless,
pay the City the City Displacement Fee based upon the full amount of the
Displacement Fee.
21.2.2 Notwithstanding anything to the contrary, if a special event or film production
occurs in the Beachfront Area, Concessionaire shall not be liable for any damage
to the Beachfront Area or areas on the public beach outside of the Beachfront Area
as defined in Subsection 10.1 caused by such event or production, any acts or
omissions of the special event permittee or film production crews, charges, fees or
other expenses, governmental or otherwise, in connection with such special event
or film production, nor for waste clean-up, removal, or other obligations under this
Agreement with respect to the waste generated by the special event permittee or
film production during the permitted time, it being understood that any rights under
this Agreement against the Concessionaire on account thereof are hereby
expressly waived.
Page 925 of 2240
Attachment A
21.3 City Special Events.
Notwithstanding Subsections 21.1 and 21.2 above, and in the event that the City, at its
sole discretion, deems that it would be in the best interest of the City, the City reserves
the right to displace the Concessionaire for City -produced special events and/or City -
produced productions. In such cases, the City may require that Concessionaire cease and
desist operations during the term of, and in the area of, the City -produced special event
and/or production. No Displacement Fee shall be paid by the City to the Concessionaire
for a City -produced special event/production occurring in the Beachfront Area. If the
Concessionaire is not required to close or chooses to remain open without interference to
the City -produced special event and/or production, Concessionaire agrees to cooperate
with the City. If the Concessionaire is allowed to remain open during City -produced special
events and/or productions, the Concessionaire may be allowed to have in operation its
normal daily complement of equipment and staff. "Normal" shall be defined as equipment
and staff, approved by the City, that the Concessionaire has available for the public on a
normal day, 365 days, per year. Such equipment or staff shall not be' increased or altered
during City -produced special events and/or productions without the prior written consent
of the City Manager or his/her designee.
21.5 Sponsorships; Co -Branding.
21.5.1 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 (hereinafter referred to in this
subsection as a "City Mark" or the "City Marks"). Any and all benefits derived from an
endorsement and/or sponsorship agreement based on the marketing value of a City Mark,
including any monetary contributions, shall belong solely and exclusively to the City. The
foregoing is not intended to limit the right of Concessionaire or any Subconcessionaire to
enter into endorsement and/or sponsorship agreements provided same do not interfere
with the rights of the City hereunder.
21.5.2 Concessionaire shall be specifically prohibited from entering into, or otherwise
creating, endorsements or sponsorship agreements with third parties which are based
solely or in any part on the marketing value of a City Mark. This shall include, for example
purposes only, any agreement between the Concessionaire and a food and beverage
and/or skin care product company for the designation of a product(s) as the official
product(s) of Miami Beach, South Beach, etc.
21.5.3 The prohibition on Concessionaire entering into endorsements or sponsorship
agreements, pursuant to this Subsection 21.5, shall not be deemed to include nor prohibit
the Concessionaire's right (a) to sell advertising for display in locations not plainly visible
to the general public (but, for example, visible to beachgoers), such as the underside of
umbrellas, menu display boards contained within a kiosk or hut) and, subject to the
approval of the City Manager or his or her designee and the City Commission, such other
advertising; or (b) to offer the exclusive sale, rental or use of any particular brand or
product that would otherwise be permitted for use or sale pursuant to this Agreement,
subject to the Concessionaire's disclosure of same, as required pursuant to this
paragraph, and subject to the City's rights in the following paragraphs. Moreover, the City
will not limit Concessionaire's ability to negotiate a reduced rate for purchase from any
vendor whose product(s) Concessionaire uses or offers for sale or rent pursuant to this
Agreement, provided that the value of such reduced rates shall be treated as "Gross
Page 926 of 2240
Attachment A
Receipts" as calculated under this Agreement. Prior to entering into any such agreements
or arrangements, Concessionaire shall provide the City for the prior written approval by
the City Manager or his or her designee with an itemized list describing such agreements
or arrangements which may be imminently entered into or made, which list shall be
updated by Concessionaire within thirty (30) days of a particular brand or product being
added or deleted, as the case may be. Any gross receipts derived by Concessionaire
under this paragraph are intended to be included as part of Gross Receipts as calculated
under this Agreement. Notwithstanding the preceding, any agreements or arrangements
which have been entered into or made, or which may be imminently entered to or made,
pursuant to a written contractual agreement or verbal agreement, that Concessionaire has
made, or intends to imminently make, regarding the exclusive sale, rental, or use of any
brand or product are subject to the approval of the City Manager's or his or her designee,
at the City Manager's or designee's discretion.
21.5.4 Notwithstanding the above (including the rights given to Concessionaire in the
preceding paragraph) but subject to the next succeeding paragraph, should the City enter
into any exclusive endorsement and/or sponsorship agreement for products sold, rented,
distributed, or otherwise used by the Concessionaire, then Concessionaire shall be
required to sell, rent, distribute, or use ONLY the products under the City's exclusive
endorsement and/or sponsorship agreement, and may not sell, rent, distribute, or
otherwise use products produced by the City's exclusive sponsor's competitors in that
product category. Concessionaire acknowledges that as of the date of this Agreement,
the City has entered into an exclusive sponsorship agreements with PepsiCo Beverage
Sales, LLC with respect to non-alcoholic beverage products and with Red Bull with respect
to energy drinks (collectively, "Existing City Sponsorship Agreements") which grant
exclusive pouring rights at City facilities, including the Concession Area, in the following
beverage categories: Pepsi Cola (soda, water, juice, isotonics, protein, kombucha, iced
tea, iced coffee, etc., but excluding hot coffee (dispensed), hot tea and hot cocoa) and
(Red Bull) energy drinks. Accordingly, (i) Concessionaire shall observe (and shall cause
any subconcessionaires and/or subcontractors to observe) such exclusive pouring rights,
(ii) Concessionaire shall not secure sponsorships in the soda, water, juice, isotonics,
protein, kombucha, iced tea, iced coffee, etc., but excluding hot coffee (dispensed), hot
tea and hot cocoa) or energy drink categories and (iii) Concessionaire shall not purchase
any Beach and Pool Equipment or other equipment, products, goods or collateral
materials or enter into any exclusive endorsement and/or sponsorship agreements that
conflict with any Existing City Sponsorship Agreement. Further, Concessionaire may not
secure endorsements/sponsorships involving the following categories: tobacco, vaping,
firearms, intimate apparel, religious or political, gambling, prescription medication, intimate
personal products (including male enhancement or feminine hygiene products) and any
other category that is now or hereafter prohibited by federal law, state law, the Miami -
Dade County Code or the City Code.
21.5.5 Notice of any new exclusive endorsementisponsorship agreement entered into by
the City for any products sold, rented, distributed, or otherwise used by the Concessionaire
within the Concession Area shall be provided by the City to the Concessionaire ("New City
Sponsorship Agreements", and together with the Existing City Sponsorship Agreements,
the "City Sponsorship Agreements") at least sixty (60) days prior to the commencement
of any such exclusive endorsement/sponsorship agreement by the City (the "City Notice").
21.5.6 The City also acknowledges that, prior to receipt of the City Notice by
Concessionaire of any New City Sponsorship Agreements, as provided in this Subsection
Page 927 of 2240
Attachment A
21.5, Concessionaire may have purchased, for example, certain Beach and Pool
Equipment (including, without limitation, as defined herein, beach chairs, lounge chairs,
pads, umbrellas, and sun canopies) or other equipment, products, goods or collateral
materials for use in the Concession Areas and to provide the services contemplated under
this Agreement that reflect logos or other branding that may be deemed to be a
competitive (or otherwise prohibited) product under one of the aforestated proposed
exclusive endorsement and/or sponsorship agreements that the City may seek to enter
into during the Term (for purposes of this Subsection 21.5 only, such branded Beach
and Pool Equipment and other equipment, products, goods or collateral materials required
to be provided by Concessionaire hereunder that has been purchased by Concessionaire
for the Concession Area, and to provide the services contemplated under this Agreement
to be provided in the Concession Area, shall be referred to collectively as "Concessionaire
Branded Equipment and Goods"). The City also recognizes that, prior to receipt of the City
Notice by Concessionaire of any exclusive endorsement and/or sponsorship agreement,
Concessionaire may have entered into exclusive endorsement and/or sponsorship
agreements for certain goods and services offered in the Concession Area (collectively,
"Concessionaire Sponsorship Agreements"). Concessionaire Branded Equipment and
Goods and Concessionaire Sponsorship Agreements shall only be exempt from the
requirements of Subsection 21.5 provided that PRIOR TO the receipt by Concessionaire
of the City Notice of its intent to enter into the particular exclusive endorsement and/or
sponsorship agreement: (i) the particular Concessionaire Branded Equipment and Goods
were already approved by the City Manager or his/her designee, and are referenced in a
corresponding exhibit to this Agreement, as the same may be amended in accordance
with this Agreement; (ii) as to any new Concessionaire Branded Equipment and Goods
which has not been acquired by Concessionaire as of the date of receipt of such City
Notice, the Concessionaire shall have entered into a binding contract with a term not
exceeding three (3) years for the purchase of such Concessionaire Branded Equipment
PRIOR TO the date of receipt by Concessionaire of the City Notice relating to the category
in question, (iii) as to any Concessionaire Sponsorship Agreements, Concessionaire shall
have entered into a binding contract with a term not exceeding three (3) years PRIOR TO
the date of receipt by Concessionaire of the City Notice relating to the category in question
and (iv) following the expiration of the agreements referenced in subclauses (ii) and (iii),
Concessionaire shall not renew any such agreements that conflict with City Sponsorship
Agreements, and upon the expiration of such agreements, Concessionaire shall comply
with all obligations pursuant to all City Sponsorship Agreements. As to clauses (ii) and (iii),
the City Manager or his/her designee may request such documentation as they deem
reasonably necessary including, without limitation, the endorsement and/or sponsorship
agreements in question, sales slips, invoices, receipts, sales contracts, purchase orders,
etc., evidencing proof of Concessionaire's purchase of the particular Concessionaire's
Equipment.
21.5.7 It is further understood that, should the City enter into any exclusive
endorsement/sponsorship agreement that includes the public beachfront concessions that
are the subject of this Agreement, the City shall have the right to place, or allow the
placement of, any signage, equipment, logos or graphics, as same may be approved by
the City's Planning Department, or the City Manager or his/her designee, on any or all of
the following Concessionaire's equipment and facilities: food and beverage dispensing
facilities, carts, kiosks, storage containers, Beach and Pool Equipment, and Vehicles;
provided, however, that the (i) cost and expense to place any such approved signage,
equipment, logos or graphics, and to remove such approved signage, equipment, logos
or graphics, shall not be the responsibility of the Concessionaire; and (ii) the City shall
Page 928 of 2240
Attachment A
use, or cause to be used, reasonable care in the placement and removal of such signage,
equipment, logos or graphics and, in the event that any of the aforestated
Concessionaire's Equipment is/are damaged as a result of the placement or removal of
such approved signage, equipment, logos, or graphics, then the City shall be responsible
for repairing any such damage, to the extent of restoring the equipment or facility(ies) to
the condition it/they existed prior to the placement or removal (as the case may be) of the
approved signage, equipment, logos, or graphics, reasonable wear and tear excepted.
Concessionaire shall endeavor to ensure that any such signage, equipment, logos or
graphics are not unduly obscured or damaged. Notwithstanding the foregoing, it is
acknowledged and agreed that Concessionaire's signage, equipment, logos and/or
graphics shall not be required to be removed and shall not be obscured by the City's
signage, equipment, logos or graphics. For purposes of clarification, this Subsection
21.5.7 is only intended to apply to the Beachfront Area.
21.5.8 The City may desire to promote Miami Beach through, among other things, co -
branding with Concessionaire. Concessionaire agrees to reasonably cooperate with the
City in the co -branding effort and to incorporate the City's name and/or logo on certain
Beach and Pool Equipment, if requested, and in the manner to be determined, by the City
in consultation with Concessionaire, with respect to any new Beach and Pool Equipment
acquired by Concessionaire after the date of the approval of the Beach and Pool
Equipment pursuant to Subsection 3.1.1 by the City Manager or his or her designee. In
conjunction with the co -branding rights granted under this Agreement, the City grants to
Concessionaire a limited, nonassignable, nonexclusive, royalty -free, revocable license
during the Term to use the City's name, trade name, trademarks and/or logo to be provided
by the City (the "City Marks") solely for the purpose of co -branding as set forth herein,
provided, however, that the license granted herein shall not include the right to. use the
City Marks with respect to the sale of any merchandise, novelties, or other products
without the prior written consent of the City Manager or his or her designee. The
Concessionaire acknowledges and agrees that the license granted hereunder transfers
no right, title or interest in and to the City Marks except the limited license hereunder and
that -any use of the City Marks by Concessionaire and the goodwill associated with such
use will inure to the City's benefit. Prior to use of the City Marks, the Concessionaire shall
submit all such material to the City Manager or his or her designee for its prior approval.
The Concessionaire agrees to use the City Marks in identical form to the specimens of the
City Marks to be provided by the City without any alteration therefrom. The City represents
and warrants to the Concessionaire that the City Marks do not and will not infringe any
copyrights, trademarks, rights of privacy or any other rights of others and hereby
indemnifies and holds harmless Concessionaire with respect thereto. No license is
granted hereunder for the use of the Marks for any purpose other than strictly in
accordance with this Agreement. Upon any termination or expiration of this Agreement,
the Concessionaire shall immediately cease all use of the City Marks, provided, that, the
Concessionaire shall have the right to continue to use photographs and other images
containing the City Marks for archival and promotional purposes on its website and social
media platforms.
21.5.9 City acknowledges that Concessionaire and its related entities are the sole and
exclusive owners of the trademarks, service marks, trade names and logos used at or in
connection with the Concessionaire's Services (together, the "Concessionaire's Marks").
City agrees that it will not make any use of the Concessionaire's Marks except with
Concessionaire's prior written consent, which consent will not be unreasonably withheld,
conditioned or delayed and that any use of the Concessionaire's Marks by City and the
Page 929 of 2240
Attachment A
goodwill associated with such use will inure to Concessionaire's benefit. City
acknowledges and agrees that it will not acquire any interest in the Concessionaire's
Marks or the goodwill associated with the Concessionaire's Marks by virtue of this
Agreement or City use of the Concessionaire's Marks. The Concessionaire represents
and warrants to the City that the Concessionaire's Marks do not and will not infringe any
copyrights, trademarks, rights of privacy or any other rights of others and hereby
indemnifies and holds harmless the City with respect thereto. Upon any termination or
expiration of this Agreement, the City shall immediately cease all use of the
Concessionaire's Marks, provided, that, the City shall have the right to continue to use
photographs and other images containing the Concessionaire's Marks for archival and
promotional purposes on its website and social media platforms.
SECTION 22. NO IMPROPER USE.
The Concessionaire will not use the Concession Area, or any facilities, furnishings or equipment
thereon, for any improper, immoral or offensive purpose, or for any purpose in violation of any
Federal, State, County, or municipal ordinance, rule, order or regulation, or of any governmental
rule or regulation now in effect or hereafter enacted or adopted (in any such case, "Improper
Acts"). In addition, in the event that the Concessionaire has actual knowledge of any person
engaged in Improper Acts, it shall notify the Miami Beach Police Department. Without limiting the
Concessionaire's indemnity obligations pursuant to Section 17 and other provisions of this
Agreement, the Concessionaire will protect, indemnify, and forever save and keep harmless the
City, its officers, 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 negligent act or
omission of the Concessionaire, or any officers, directors, employee, contractors (including any
Subconcessionaire) or agents regarding the Concession Area in violation of the first sentence of
this Section 22. In the event of any violation by the Concessionaire or if the City Manager or
his/her authorized representatives shall deem any conduct on the part of the Concessionaire to
be objectionable or improper, the City Manager shall have the right to suspend the Concession
Operations should the Concessionaire fail to correct any such violation, conduct, or practice, to
the reasonable satisfaction of the City Manager, within twenty-four (24) hours after receiving
written notice of the nature and extent of such violation, conduct, or practice, provided, that, if
such violation is not susceptible to be cured within such twenty-four (24) hour period, then
Concessionaire shall not be subject to suspension provided that it commences to cure such
violation within such 24-hour period and completes such cure with all due diligence promptly, but
in no event shall such extended cure period exceed seventy-two (72) hours from the time of
written notice thereof. Subject to the cure period, any such suspension will continue until the
violation is cured. The Concessionaire further agrees not to commence operations during the
suspension until the violation has been corrected to the reasonable satisfaction of the City
Manager or his or her designee. Notwithstanding the foregoing, Concessionaire is not liable for
any acts or omissions of the public except to the extent caused by the negligence or willful
misconduct of Concessionaire.
SECTION 23. NOTICES.
Whenever it is provided herein that notice, demand, request, consent, approval or other
communication shall or may be given to, or served upon, either of the parties by the other, or
whenever either of the parties desires to give or serve upon the other any notice, demand,
request, consent, approval or other communication with respect hereto or to the Concession Area,
each such notice, demand, request, consent, approval or other communication shall be in writing
Page 930 of 2240
Attachment A
(whether or not so indicated elsewhere in this Agreement) and shall be effective for any purpose
only if given or served in person with a signed receipt, by certified or registered U.S. Mail, return
receipt requested, or by a recognized national courier service, postage prepaid in all instances,
addressed as follows:
If to Concessionaire Boucher Brothers Pier Park, LLC
1,451 Ocean Dr Suite 205
Miami Beach, Florida 33139
Aft
Email:
With copy to: Abigail C. Watts-FitzGerald
Watts-FitzGerald Law, PLLC
2800 Ponce de Leon Boulevard, Suite 1400
Coral Gables, Florida 33134
Email:
If to City: City Manager
City of Miami Beach
1700 Convention Center Drive
Miami Beach, FL 33139
With copies to: Asset Manager
City of Miami Beach
555 17 Street
Miami Beach, Florida, 33139
And to:
City Attorney
City of Miami Beach
1700 Convention Center Drive
Miami Beach, FL 33139
The Concessionaire and the City may change the above mailing address at any time upon giving
the other party written notification. All notices under this Concession Agreement must be in
writing.
Page 931 of 2240
Attachment A
SECTION 24. LAWS,
24.1 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.
24.2 Prohibitions Regarding Sale or Use of Expanded Polystyrene Food Service Articles
Single Use Plastic Beverage Straws, and Single- Use Plastic Stirrers.
24.2.1 Concessionaire hereby agrees and acknowledges that, pursuant to Section 82-7
of the City Code, as may be amended from time to time, Concessionaire shall not sell,
use, provide food in, or offer the use of expanded polystyrene food service articles (as
defined in City Code Section 82-7) in the Concession Areas. A violation of this section
shall be deemed a default under the terms of this Agreement, subject to expiration of any
applicable notice and cure period. Notwithstanding the above, this section shall not apply
to expanded polystyrene food service articles used for prepackaged food that have been
filled and sealed prior to receipt by Concessionaire.
24.2.2 Additionally, Concessionaire agrees and acknowledges that, pursuant to Section
82-8 of the City Code, as may be amended from time to time, Concessionaire shall not
sell, use, provide food in, or offer the use of single -use plastic beverage straws or single -
use plastic stirrers (as defined in City Code Section 82-8) in the Concession Areas. A
violation of this section shall be deemed a default under the terms of this Agreement,
subject to expiration of any applicable notice and cure period. Notwithstanding the above,
the requirements of Section 82-8 shall not restrict Concessionaire from providing a
beverage with, or offering the use of, a single -use plastic beverage straw or single -use
plastic stirrer to an individual with a disability or medical condition that impairs the
consumption of beverages without a single -use plastic beverage straw or single -use
plastic stirrer.
24.3 Eaual 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, religion, sex, gender
identity, sexual orientation, disability, marital or familial status or age. Concessionaire will
make good faith efforts to utilize minorities and females in the work force and in correlative
business enterprises.
Concessionaire and any Affiliate of Concessionaire shall abide by the requirements of 41
C.F.R. §§ 60-1.4(a), 60-300.S(a) and 60-741.S(a). These regulations prohibit
discrimination against qualified individuals based on their status as protected veterans or
individuals with disabilities, and prohibit discrimination against all individuals based on
their race, color, religion, sex, sexual orientation, gender identity or national origin.
Moreover, these regulations require that covered prime contractors and subcontractors
take affirmative action to employ and advance in employment individuals without regard
to race, color, religion, sex, sexual orientation, gender identity, national origin, protected
veteran status or disability.
Page 932 of 2240
Attachment A
24.4 No Discrimination.
Concessionaire shall comply with City of Miami Beach Human Rights Ordinance, codified
in Chapter 62 of the City Code, as may be amended from time to time, prohibiting
discrimination in employment, housing, public accommodations, and public services, or
with respect to any use, service, maintenance, or operation within the Concession Area,
on account of actual or perceived race, color, national origin, religion, sex, intersexuality,
gender identity, sexual orientation, disability, marital and familial status, or age, ancestry,
height, weight, domestic partner status, labor organization membership, or political
affiliation. All 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
rules and regulations to provide for the safety, orderly operation and security of the
facilities.
SECTION 25. EARLY TERMINATION RIGHT IN EVENT OF FINANCIAL EMERGENCY
25.1 For purposes of this Section 25, the term "Financial Emergency" shall mean the
occurrence of any of the following conditions:
(a) The City shall become unable to pay its debts as they become due (including operating
expenses, short-term loans, bond debt service or other long-term debt payments);
(b) The City shall fail to pay uncontested claims from creditors within 90 days after the
claim is presented;
(c) The City shall fail to transfer at the appropriate time, due to lack of funds:
i. Taxes withheld on the income of employee; or
ii. Employer and employee contributions for federal social security or any
pension, retirement or benefit plan of any employee; or
(d) Failure for one pay period to pay, due to lack of funds,
i. Wages and salaries owed to employees; or
ii. Retirement benefits owed to former employees
For purposes of this Section 25, the term "Qualified Appraiser" means an individual with verifiable
education and experience in appraising the future income stream of businesses that are the same
as, or substantially similar to, the businesses comprising the Concession Operations, and who
has a designation awarded by a generally recognized professional appraiser organization on the
basis of demonstrated competency.
25.2 If a Financial Emergency occurs and/or is continuing and the City Commission tentatively
approves (i.e., subject to any other required approvals, including a voter referendum) a sale of
the City property that encompasses the Concession Area (the "Concession Area Property"), then
the City shall have the right to terminate this Agreement upon not less than one hundred eight
(180) days' prior written notice to Concessionaire ("Early Termination Notice"), provided the (a)
date specified in such Early Termination Notice shall not be earlier than the first day of the sixth
(61h) Agreement Year and (b) City shall pay Concessionaire the Early Termination Payment,
determined in accordance with the following provisions of this Section 25.
25.3 The Early Termination Payment is intended to compensate Concessionaire for the loss of
anticipated profits that it would derive from the Concession Operations for the time remaining in
the Term from and after the early termination date specified in the Early Termination Notice, less
the fair market value of any FF&E the Concessionaire elects to remove from the Concession Area
("FF&E Value") plus the reasonable costs incurred by Concessionaire in connection with the early
Page 933 of 2240
Attachment A
termination of the Term that would not be payable by Concessionaire at the expiration of the
Term, such as reasonable attorneys' fees and costs and the fees payable to any appraiser
engaged by Concessionaire, that are supported by documentation to be provided to the City
("Early Termination Expenses"). Following the Concessionaire's receipt of the Early Termination
Notice, the City and Concessionaire shall endeavor to reach a mutual agreement as to the Early
Termination Payment. If the parties cannot reach agreement within ten (10) Business Days from
the Concessionaire's receipt of the Early Termination Notice , the Early Termination Payment
shall be determined as follows. The City and Concessionaire each shall appoint one (1) Qualified
Appraiser (as defined below) within ten (10) Business Days after a written request for appointment
of appraisers has been given by either the City or Concessionaire to the other. If either the City
or Concessionaire fails to appoint its appraiser within such ten (10) Business Day period, such
appraiser shall be appointed by the Circuit Court of the Eleventh Judicial Circuit in and for Miami -
Dade County, Florida upon application of the other. Each such Qualified Appraiser shall appraise
the anticipated lost profits that Concessionaire would derive from the Concession Operations for
the time remaining in the Term from and after the early termination date specified in the Early
Termination Notice, less the FF&E Value plus Early Termination Expenses, and submit his or her
written report setting forth the appraised Early Termination Payment within thirty (30) days after
the appointment of both such Qualified Appraisers. If the higher appraised value of such two (2)
appraisals is not more than one hundred ten percent (110%) of the lower appraised value, the fair
market rental value of the premises shall be the average of the two (2) appraised values, but not
more Ten Million Dollars ($10,000,000), adjusted annually during the Term commencing on the
first anniversary of the Commencement Date by an amount equal to the percentage change in
the Consumer Price Index, All Urban Consumers (CPI — U.S. City Average All Items; base year
1982-84 = 100) as published by the United States Department of Labor, Bureau of Labor
Statistics, per Agreement Year then remaining in the term (pro -rated for any partial Agreement
Year) less the FF&E Value plus the Early Termination Expenses (the "Early Termination Payment
Cap"). If the higher appraised value is more than one hundred ten percent (110%) of the lower
appraised value, the City and Concessionaire Tenant shall agree upon and appoint a neutral third
Qualified Appraiser within ten (10) Business Days after both of the first two (2) appraisals have
been submitted to the City and Concessionaire. If the City and Concessionaire do not agree and
fail to appoint such neutral third Qualified Appraiser within such ten (10) Business Day period,
such neutral third Qualified Appraiser shall be appointed by the Circuit Court of the Eleventh
Judicial Circuit in and for Miami -Dade County, Florida upon application of either the City or
Concessionaire. The neutral third Qualified Appraiser shall appraise the anticipated lost profits
that Concessionaire would derive from the Concession Operations for the time remaining in the
Term from and after the early termination date specified in the Early Termination Notice and
submit his or her written report setting forth the appraised Early Termination Payment to the City
and Concessionaire within thirty (30) days after his or her appointment (or as soon thereafter as
practicable). The Early Termination Payment shall be the average of the two (2) appraised values
in such three (3) appraisals that are closest to each other (unless the differences are equal, in
which case the three (3) appraised values shall be averaged), but in any case, not more than the
Early Termination Cap. The Early Termination Payment determined in accordance with this
paragraph, shall be conclusive and binding upon the City and Concessionaire.
25.4 Notwithstanding the date specified as the termination date in the City's Early Termination
Notice, Concessionaire shall not be required to quit and surrender the Concession Area until such
time as the Early Termination Payment amount has been agreed upon or determined through the
appraisal process set forth in the foregoing provisions. Concessionaire shall surrender the
Concession Area in as good condition and repair as the Concession Area was in as of the date
of the Early Termination Notice. For the avoidance of doubt, Concessionaire shall remain liable
for its responsibilities associated with Hazardous Materials pursuant to Section 17.
Page 934 of 2240
Attachment A
25.5 The Early Termination Payment shall be made by the City at the closing of the Concession
Area Property sale transaction.
SECTION 26. MISCELLANEOUS.
26.1 No Partnership.
Nothing contained in this Agreement shall constitute or be construed to be or create a
partnership, joint venture or agency relationship between the City and Concessionaire, it
being acknowledged that each of the parties is acting as an independent contractor
hereunder.
26.2 Modifications.
With the sole exception of incorporation of, or amendments to, the exhibits to this
Agreement in accordance with the terms of this Agreement, 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 or her designee.
26.3 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 the subject matter hereof and Concessionaire's operations, as
contemplated herein.
26.4 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.
26.5 Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and permitted assigns.
26.6 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.
26.7 Severability.
Page 635 of 2240
Attachment A
If any provision of this Agreement or any portion of such provision or the application thereof
to any Person or circumstance is, to any extent, finally determined by a court of competent
jurisdiction 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 be valid and enforceable to the fullest extent permitted by law.
26.8 Right of Entry.
The City, at the direction of the City Manager, shall at all times during hours of operation,
subject to reasonable prior notice, have the right to enter into and upon any and all parts
of the Concession Areas for the purposes of examining the same for any reason relating
to the obligations of the parties to this Agreement.
26.9 Not a Lease.
It is expressly understood and agreed that no part, parcel, building, facility, equipment or
space is leased to the Concessionaire, that Concessionaire is a concessionaire and not a
lessee; and that the Concessionaire's right to operate the Concession Operations shall
continue only so long as this Agreement remains in effect.
26.10 Use of Beach.
The beach is for the use and enjoyment of the public, for recreation and other public
purposes and the public's right to such use shall not be infringed upon by any
activity of the Concessionaire. Upon execution of this Agreement, Concessionaire
acknowledges that all of the beaches are public and, as such, concession
operations must not restrict, or appear to restrict, access to the general public, or
in any way limit the public nature or ambiance of the beachfront. The
Concessionaire will conduct its Beachfront Operations so as to maintain a
reasonably quiet and tranquil environment for the adjacent area and shall make no
public disturbances.
26.11 Conflict of Interest.
Concessionaire shall perform its services under this Agreement and conduct the
Concession Operations contemplated herein in a manner so as to show no preference for
other concession operations/facilities (e.g., particularly concession operations behind
private property along the City's beachfront) owned, operated, managed, or otherwise
controlled by Concessionaire with regard to its responsibilities pursuant to this Concession
Agreement.
26.12 Remedies Cumulative. Each right and remedy of either party provided for in this
Agreement shall be cumulative and shall be in addition to every other right or remedy
provided for in this Agreement, or now or hereafter existing at law or in equity or by statute
or otherwise (except as otherwise expressly limited by the terms of this Agreement), and
the exercise or beginning of the exercise by a party of any one or more of the rights or
remedies provided for in this Agreement, or now or hereafter existing at law or in equity or
by statute or otherwise (except as otherwise expressly limited by the terms of this
Agreement), shall not preclude the simultaneous or later exercise by such party of any or
Page 936 of 2240
Attachment A
all other rights or remedies provided for in this Agreement or now or hereafter existing at
law or in equity or by statute or otherwise (except as otherwise expressly limited by the
terms of this Agreement).
26.13 Procedure for Approvals and/or Consents.
In each instance in which the approval or consent of the City Manager or his/her designee
is allowed or required in this Agreement, it is acknowledged that such authority has been
expressly provided herein to the City Manager or his/her designee by the Mayor and City
Commission of the City. In each instance in which the approval or consent of the City
Manager or his/her designee is allowed or required in this Agreement, Concessionaire
shall send to the City Manager a written request for approval or consent (the "Approval
Request"). The City Manager or his/her designee shall use good faith efforts to respond
to the Approval Request within sixty (60) days from the date of such Request (i.e. to
provide written notice to Concessionaire approving of, consenting to or disapproving of
the Request) unless a different time period is provided in this Agreement as to the specific
request. However, except as otherwise provided in this Agreement, the City Manager or
his/her 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 Subsection shall not apply to approvals required herein
by the Mayor and City Commission. Notwithstanding the foregoing, with respect to the
approvals by the City Manager (or his or her designee) required for the Preliminary Plans
and Specifications pursuant to Subsection 7.1.1 and the Plans and Specifications
pursuant to Subsection 7.1.3, if the City Manager fails to grant or deny its consent within
the twenty (20) Business Day period specified, the Concessionaire may transmit a second
request for approval bearing the following legend at the top of the first page thereof, set
forth in capital letters and in a type size not less than 14 point:
FAILURE TO RESPOND TO THIS SECOND REQUEST FOR
APPROVAL WITHIN TEN (10) BUSINESS DAYS FROM THE DATE OF
THIS NOTICE (WHICH CONSTITUTES THE TIME PERIOD PROVIDED
IN THE CONCESSION AGREEMENT BETWEEN CITY OF MIAMI
BEACH, FLORIDA AND BOUCHER BROTHERS PIER PARK, LLC)
SHALL CONSTITUTE AUTOMATIC APPROVAL OF THE MATTERS
DESCRIBED HEREIN WITH RESPECT TO SECTION U [FILL IN
APPLICABLE SECTION] OF SUCH CONCESSION AGREEMENT.
26.14 No Waiver.
No waiver of any covenant or condition of this Agreement by either party shall be deemed
to imply or constitute a waiver in the future of the same covenant or condition or of any
other covenant or condition of this Agreement. Further, nothing in this Agreement or in
the parties' acts or omissions in connection herewith shall be deemed in any manner to
waive, impair, limit or otherwise affect the authority of the City in the discharge of its police,
regulatory or governmental power.
26.15 No Third Party Beneficiary.
Except as otherwise expressly provided herein, nothing in this Agreement shall confer
Page 937 of 2240
Attachment A
upon any person or entity, including, but not limited to Subconcessionaires, other than the
parties hereto and their respective successors and permitted assigns, any rights or
remedies by reason of this Agreement.
26.16 Concessionaire's Compliance with Florida Public Records Law
26.16.1. Pursuant to Section 119.0701 of the Florida Statutes, if the Concessionaire
meets the definition of "Contractor' as defined in Section 119.0701(1)(a), the
Concessionaire shall:
(1) Keep and maintain public records required by the City to perform the service;
(2) Upon request from the City's custodian of public records, provide the City with a
copy of the requested records or allow the records to be inspected or copied within
a reasonable time at a cost that does not exceed the cost provided in Chapter 119,
Florida Statutes, or as otherwise provided by law;
(3) Ensure that public records that are exempt or confidential and exempt from public
records disclosure requirements are not disclosed, except as authorized by law,
for the duration of the contract term and following completion of the Agreement if
the Concessionaire does not transfer the records to the City;
(4) Upon completion of the Agreement, transfer, at no cost to the City, all public
records in possession of the Concessionaire or keep and maintain public records
required by the City to perform the service. If the Concessionaire transfers all
public records to the City upon completion of the Agreement, the Concessionaire
shall destroy any duplicate public records that are exempt or confidential and
exempt from public records disclosure requirements. If the Concessionaire keeps
and maintains public records upon completion of the Agreement, the
Concessionaire shall meet all applicable requirements for retaining public records.
All records stored electronically must be provided to the City, upon request from
the City's custodian of public records, in a format that is compatible with the
information technology systems of the City.
26.16.2 Request for Records: Noncompliance.
(1) A request to inspect or copy public records relating to the City's contract for
services under this Concession Agreement must be made directly to the City. If
the City does not possess the requested records, the City shall immediately notify
the Concessionaire of the request, and the Concessionaire must provide the
records to the City or allow the records to be inspected or copied within a
reasonable time.
(2) "Concessionaire's failure to comply with the City's request for records shall
constitute a breach of this Agreement, and the City, at its sole discretion, may: (1)
unilaterally terminate this Agreement; (2) avail itself of the remedies set forth under
this Agreement; and/or (3) avail itself of any available remedies at law or in equity.
(3) A Concessionaire who fails to provide the public records to the City within a
reasonable time may be subject to penalties under Section 119.10, Florida
Statutes.
26.16.3 Civil Action.
(1) If a civil action is filed against a Concessionaire to compel production of public
records relating to the City's contract for services under this Concession
Page 938 of 2240
Attachment A
Agreement, the court shall assess and award against the Concessionaire the
reasonable costs of enforcement, including reasonable attorney fees, if:
a. The court determines that the Concessionaire unlawfully refused to comply
with the public records request within a reasonable time; and
b. At least eight (8) business days before filing the action, the plaintiff provided
written notice of the public records request, including a statement that the
Concessionaire has not complied with the request, to the City and to the
Concessionaire.
(2) A notice complies with subparagraph (1)(b) if it is sent to the City's custodian of
public records and to the Concessionaire at the Concessionaire's address listed
on its contract with the City or to the Concessionaire's registered agent. Such
notices must be sent by common carrier delivery service or by registered, Global
Express Guaranteed, or certified mail, with postage or shipping paid by the sender
and with evidence of delivery, which may be in an electronic format.
(3) A Concessionaire who complies with a public records request within eight (8)
business days after the notice is sent is not liable for the reasonable costs of
enforcement.
IF THE CONCESSIONAIRE HAS QUESTIONS REGARDING THE
APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE
CONCESSIONAIRE'S DUTY TO PROVIDE PUBLIC RECORDS
RELATING TO THIS AGREEMENT, CONTACT THE CUSTODIAN
OF PUBLIC RECORDS AT:
CITY OF MIAMI BEACH
ATTENTION: RAFAEL E. GRANADO, CITY CLERK
1700 CONVENTION CENTER DRIVE
MIAMI BEACH, FLORIDA 33139
E-MAIL: RAFAELGRANADOO-MIAMIBEACHFL.GOV
PHONE: 305-673-7411
26.17 City Inspector General.
(a) Pursuant to section 2-256 of the Code of the City of Miami Beach, the City has established
the office of the inspector general which may, on a random basis, perform reviews, audits,
inspections and investigations on all City contracts, throughout the duration of said contracts. This
random audit is separate and distinct from any other audit performed by or on behalf of the City.
(b) The office of the inspector general is authorized to investigate City affairs and empowered to
review past, present and proposed City programs, accounts, records, contracts and transactions.
In addition, the inspector general has the power to subpoena witnesses, administer oaths, require
the production of witnesses and monitor City projects and programs. Monitoring of an existing
City project or program may include a report concerning whether the project is on time, within
budget and in conformance. with the contract documents and applicable law. The inspector
general shall have the power to audit, investigate, monitor, oversee, inspect and review
operations, activities, performance and procurement process including, but not limited to, project
design, bid specifications, (bid/proposal) submittals, activities of the Concessionaire, its officers,
agents and employees, lobbyists, City staff and elected officials to ensure compliance with the
Page 939 of 2240
Attachment A
contract documents and to detect fraud and corruption
(c) Upon ten days' written notice to the Concessionaire, the Concessionaire shall make all
requested records and documents available to the inspector general for inspection and copying.
The inspector general is empowered to retain the services of independent private sector auditors
to audit, investigate, monitor, oversee, inspect and review operations activities, performance and
procurement process including, but not limited to, project design, bid specifications, (bid/proposal)
submittals, activities of the Concessionaire, its officers, agents and employees, lobbyists, City
staff and elected officials to ensure compliance with the contract documents and to detect fraud
and corruption.
(d) The inspector general shall have the right to inspect and copy all documents and records in
the Concessionaire's possession, custody or control which in the inspector general's sole
judgment, pertain to performance of the contract, including, but not limited to, original estimate
files, change order estimate files, worksheets, proposals and agreements from and with
successful subconcessionaires, contractors, subcontractors and suppliers, all project -related
correspondence, memoranda, instructions, financial documents, construction documents,
(bid/proposal) and contract documents, back -change documents, all documents and records
which involve cash, trade or volume discounts, insurance proceeds, rebates, or dividends
received, payroll and personnel records and supporting documentation for the aforesaid
documents and records.
(e) The Concessionaire shall make available at its office at all reasonable times the records,
materials, and other evidence regarding the acquisition (bid preparation) and performance of this
contract, for examination, audit, or reproduction, until three years after final payment under this
contract or for any longer period required by statute or by other clauses of this contract. In addition:
(1) If this contract is completely or partially terminated, the Concessionaire shall make available
records relating to the work terminated until three years after any resulting final termination
settlement; and
(2) The Concessionaire shall make available records relating to appeals or to litigation or the
settlement of claims arising under or relating to this contract until such appeals, litigation, or claims
are finally resolved.
(f) The provisions in this section shall apply to the Concessionaire, its officers, agents, employees,
subconcessionaires, contractors, subcontractors and suppliers. The Concessionaire shall
incorporate the provisions in this section in all subcontracts and all other agreements executed
by the Concessionaire in connection with the performance of this contract.
(g) Nothing in this section shall impair any independent right to the City to conduct audits or
investigative activities. The provisions of this section are neither intended nor shall they be
construed to impose any liability on the City by the Concessionaire or third parties and does not
create rights in any third parties.
26.18 Time is of the Essence.
Time is of the essence with respect to all matters in, and requirements of, this Agreement as to
both the ,City and the Concessionaire including, but not limited to, the times within which the
Concessionaire must commence and complete construction of the Work and commence the
Concession Operations, but subject to Unavoidable Delays.
Page 940 of 2240
Attachment A
SECTION 27. 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 $100,000.00. Concessionaire hereby expresses
its willingness to enter into this Agreement with a $100,000.00 limitation on recovery for any action
for breach of contract. Accordingly, and in consideration of the City's entering into this Agreement,
the City shall not be liable to Concessionaire for damages to Concessionaire in an amount in
excess of $100,000.00, for any action for breach of contract arising out of the performance or
non-performance of any obligations imposed upon the City by this Agreement. Nothing contained
in this paragraph or elsewhere in this Agreement is in any way intended to be a waiver of limitation
placed upon the City's liability as set forth in Florida Statutes, Section 768.28. Notwithstanding
any other provision herein to the contrary, Concessionaire shall not be entitled payment or
compensation of any kind from the City for indirect, incidental, punitive, exemplary or
consequential damages of any kind or nature.
SECTION 28. GOVERNING LAW AND VENUE.
This Agreement shall be deemed to have been made and shall be construed and interpreted in
accordance with the laws of the State of Florida. This Agreement shall be enforceable in Miami -
Dade County, Florida, and if legal action is necessary by either party with respect to the
enforcement of any and all the terms or conditions herein, exclusive venue for the enforcement
of same shall lie in Miami -Dade County, Florida.
SECTION 29. WAIVER OF JURY TRIAL.
CITY AND CONCESSIONAIRE HEREBY KNOWINGLY AND INTENTIONALLY WAIVE THE
RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING THAT CITY AND
CONCESSIONAIRE MAY HEREINAFTER INSTITUTE AGAINST EACH OTHER WITH
RESPECT TO ANY MATTER ARISING OUT OF OR RELATED TO THIS AGREEMENT OR
THE CONCESSION AREA.
SECTION 30. REPRESENTATIONS AND WARRANTIES OF CONCESSIONAIRE.
Concessionaire represents and warrants that Concessionaire is a limited liability company duly
organized and validly existing and in good standing under the laws of the State of Florida and has
full power and authority to execute, deliver and perform this Agreement. This Agreement and all
other instruments and agreements required to be delivered by Concessionaire pursuant to this
Agreement are, or will when executed and delivered, be duly authorized, executed and delivered
by Concessionaire and constitute the legal, valid and binding obligations of Concessionaire
enforceable in accordance with their respective terms. None of the execution, delivery or
performance of this Agreement, or any instrument or agreement required to be delivered by
Concessionaire pursuant hereto, nor the consummation of the transactions contemplated hereby
or thereby, is prohibited by, or requires Concessionaire to obtain additional consents, approvals
or authorizations of, or notices to or filings or registrations with, any further Person(s) having
jurisdiction over Concessionaire, other than those that have been obtained prior to the date
hereof. The execution and delivery by Concessionaire of this Agreement and the performance
by Concessionaire of its obligations hereunder do not and will not conflict with, or result in a breach
of or a default or violation under any provision of any governing document of Concessionaire, any
Page 941 of 2240
Attachment A
material contract or agreement to which Concessionaire is a party or any applicable Requirement
or decree, judgment, regulation, order or rule of any Governmental Authority having jurisdiction
over Concessionaire or to Concessionaire's knowledge, and except as otherwise provided in this
Agreement, the Concession Area.
[SIGNATURES CONTINUED ON NEXT PAGE]
Page 942 of 2240
Attachment A
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.
PASSED AND ADOPTED THIS day of , 2023.
Attest:
CITY CLERK
Witness:
MAYOR
BOUCHER BROTHERS
PIER PARK, LLC
Signature
Name and Title of Signatory
Page 943 of 2240
r
Attachment A
EXHIBIT LIST
Exhibit 1.0 Concession Area
Exhibit 1.1 Form of Confirmation of Commencement Date Certificate
Exhibit 1.3 Form of Assignment of Construction Agreement and Consent
Exhibit 1.4.3 Budget
Exhibit 2.2 Site Plan
Exhibit 3.1.1 Photos and Specifications of Beach and Pool Equipment
Exhibit 3.1.4 Design, Type Material and Color of any and all Beach and Pool Equipment
Exhibit 3.1.5 Beachfront Area Site Plan (to reflect placement and quantity of Beach and Pool
Equipment
Exhibit 3.2.2 Material Terms of Major Food Group, LLC Restaurants Subcontract
Exhibit 3.2.3 Menu and Price Schedule for Restaurants
Exhibit 3.4.3 Health and Wellness Center Offerings and Rate Card
Exhibit 3.5.1 Beach -Related Sundries Offerings and Rate Card
Exhibit 3.6.2 Retail Pavilion Offerings and Fees to be Charged to Subconcessionaires
Exhibit 3.7.2 Plan for Removal and Storage of Beach and Pool Equipment and Dispensing
Facilities
Exhibit 3.9 Hurricane Preparedness Plan
Exhibit 3.12 Value -Add Enhancements/Public Benefits
Exhibit 7.2 Timeline
Exhibit 7.4 Construction Insurance Requirements
Exhibit 7.6 Construction Agreements Required Clauses
Exhibit 10.9 Rules and Regulations for Driving on Beach
Exhibit 13.1 Signage Criteria
Exhibit 14 Insurance Requirements
Exhibit 14.1 Liability Insurance Requirements
Exhibit 14.2 Property Insurance Requirements
Exhibit 14.3 Other Insurance Requirements
Exhibit 17.5 Approved Beachfront Area and Pool Area Signage
Page 944 of 2240
Attachment A
Exhibit 1.0
Concession Area (sketch to be replaced with more accurate sketch and legal)
I
III
Page 945 of 2240
Attachment A
EXHIBIT 1.1
FORM OF CONFIRMATION OF COMMENCEMENT DATE CERTIFICATE
THIS CONFIRMATION OF COMMENCEMENT DATE CERTIFICATE (this "Certificate")
is made as of this day of , 202_ by and between the CITY OF MIAMI
BEACH, FLORIDA, a municipal corporation duly organized and existing under the laws of the
State of Florida (the "City"), and BOUCHER BROTHERS PIER PARK, LLC, a Florida limited
liability company ("Concessionaire" and together with the City, each a "Party" and collectively,
the "Parties").
WHEREAS, the Parties entered into that certain Concession Agreement For Management
And Operation Of A High -End Beach Establishment by and between the City and Concessionaire
dated as of , 2023 (the "Concession Agreement") pursuant to which this
Certificate is delivered.
WHEREAS, the City and Concessionaire desire to confirm the Commencement Date and
the Expiration Date of the Concession Agreement as set forth below.
NOW, THEREFORE in consideration of the foregoing, and of the mutual covenants
contained herein, the Parties hereby agree as follows:
1. Recitals and Capitalized Terms. The recitals set forth above are true and correct and
are incorporated herein by this reference. Capitalized terms used but not defined in this Certificate
have the meanings set forth in the Concession Agreement.
2. Confirmation of Dates.
(a) The Commencement Date is
202_
(b) The Expiration Date is the date that is nine (9) years and three hundred sixty-
four days from the Commencement Date or , 202_.
3. Except for the certifications contained in this Certificate, all terms of the Concession
Agreement shall remain unchanged and are hereby ratified and confirmed in all respects.
IN WITNESS WHEREOF, the City and Concessionaire have duly executed this Certificate
as of the date and year first written above.
THE CITY: CONCESSIONAIRE:
CITY OF MIAMI BEACH, BOUCHER BROTHERS PIER PARK, LLC,
FLORIDA, a municipal corporation a Florida limited liability company
of the State of Florida
By: By:
Name: Name:
Title: Title:
Page 946 of 2240
Attachment A
Exhibit 1.3
FORM OF ASSIGNMENT OF CONSTRUCTION AGREEMENTS AND CONSENT
ASSIGNMENT OF CONSTRUCTION AGREEMENTS
FOR VALUE RECEIVED, the undersigned BOUCHER BROTHERS PIER PARK, LLC, a Florida
limited liability company ("Concessionaire"), as of this day of , 202_ (the
"Effective Date") assigns to THE CITY OF MIAMI BEACH, FLORIDA, a municipal corporation
duly organized and existing under the laws of the State of Florida (the "City"), pursuant to that
certain Concession Agreement by and between the City and Concessionaire dated as of
, 2023 (the "Concession Agreement"), all of Concessionaire's right, title and
interest under all existing and future general contractor's agreements, architect's agreements,
plans and specifications, engineers' agreements, and any other agreements for the provision of
labor, materials, services or supplies, as amended, between Concessionaire and any other
person or entity (collectively, the "Construction Agreements") relating to the construction of the
Work, as defined and described in the Concession Agreement. The Construction Agreements
include, but are not limited to, that certain [Construction Contract] between Concessionaire and
, a ("Contractor") dated , 202_, that certain
[Architect Agreement] between Concessionaire and , a
("Architect"), dated , 202_ and that certain [Engineering Agreement] between
Concessionaire and a ("Engineer") dated ,
202.
THIS ASSIGNMENT OF CONSTRUCTION AGREEMENTS ("Assignment") constitutes a present
and absolute assignment to the City as of the Effective Date; provided, however, that for so long
as no Event of Default (as defined in the Concession Agreement) has occurred or is continuing
under the Concession Agreement, as applicable, and until the earlier of (i) termination of the
Concession Agreement, (ii) City's exercise of its remedy for an Event of Default as provided in
the Concession Agreement, or (iii) completion of the Work in accordance with the Concession
Agreement ("Final Completion"), the City grants Concessionaire a license to use all Construction
Agreements for completion of the Work in accordance with the Concession Agreement. Upon
the occurrence of (a) an Event of Default under the Concession Agreement, which continues
beyond any applicable notice and cure period or (b) the termination of the Concession Agreement,
or (c) Final Completion, the City may, in the City's sole discretion, give notice to any of Contractor,
Architect, Engineer and/or any other party to a Construction Agreement of the City's intent to
enforce the rights of Concessionaire under the applicable Construction Agreement and may
initiate or participate in any legal proceedings respecting the enforcement of said rights.
Concessionaire acknowledges that solely by accepting this Assignment, the City does not assume
any of Concessionaire's obligations under the Construction Agreements.
Concessionaire represents and warrants to the City, as of the Effective Date, that (a) all
Construction Agreements entered into by Concessionaire are in full force and effect and are
enforceable in all material respects in accordance with their terms and to Concessionaire's
knowledge, no default, or event which would constitute a default after notice or the passage of
time; or both, exists with respect to any of the Construction Agreements, (b) Concessionaire has
delivered copies of all Construction Agreements to the City and such copies are true, complete
and correct in all material respects as of the date of this Assignment, and (c) Concessionaire has
not assigned any of Concessionaire's rights under the Construction Agreements to any person or
entity. Concessionaire shall deliver to the City true, complete and correct copies of all
Construction Agreements entered into after the date hereof, promptly upon execution thereof.
Page 947 of 2240
Attachment A
Concessionaire agrees (a) to pay and perform all obligations of Concessionaire under the
Construction Agreements, (b) to enforce in Concessionaire's reasonable business judgement the
full and prompt performance of all obligations of any other person or entity under the Construction
Agreements, (c) [intentionally omitted], and (d) not to further assign, for security or any other
purposes, Concessionaire's rights under the Construction Agreements without the City's prior
written consent.
Unless otherwise defined herein, capitalized terms used in this Assignment shall have the
meanings attributed to such terms in the Concession Agreement. This Assignment shall be
governed by, and construed and enforced in accordance with the laws of the State of Florida,
without regard to conflicts of laws. Except as otherwise expressly provided under the terms and
conditions herein, the terms of this Assignment shall bind and inure to the benefit of the heirs,
executors, administrators, nominees, successors and assigns of the parties hereto. All exhibits,
schedules, riders and other items attached hereto are incorporated into this Assignment by such
attachment for all purposes.
To facilitate execution, this Assignment may be executed in as many counterparts as may be
convenient or required. It shall not be necessary that the signature and acknowledgment of, or
on behalf of, each party, or that the signature and acknowledgment of all parties required to bind
any party, appear on each counterpart. All counterparts shall collectively constitute a single
instrument. This. Assignment may be transmitted and/or signed by facsimile or e-mail
transmission (e.g., "pdf' or "tif"). The effectiveness of any such documents and signatures shall
have the same force and effect as manually -signed originals and shall be binding on all parties to
this Assignment.
[Remainder of Page Intentionally Left Blank]
Page 948 of 2240
Attachment A
IN WITNESS WHEREOF, Concessionaire intending to be legally bound has executed this
Assignment as of the date first written above.
CONCESSIONAIRE:
BOUCHER BROTHERS PIER PARK, LLC,
a Florida limited liability company
By:
Name:
Title:
Page 949 of 2240
Attachment A
CONSENT
THIS CONSENT ("Consent") is made by , a
("Contractor"), this day of , 202_, to and for the benefit of THE CITY OF
MIAMI BEACH, FLORIDA, a municipal corporation duly organized and existing under the laws of
the State of Florida (the "City"), with agreement by BOUCHER BROTHERS PIER PARK, LLC, a
Florida limited liability ("Concessionaire").
Contractor and Concessionaire have entered into that certain dated
202_ (the "Construction Agreement"), providing for [construction] [design]
[engineering] of the Work in the Concession Area, as such terms are defined in that certain
Concession Agreement by and between the City and Concessionaire dated as of
, 202_ (the "Concession Agreement").
Concessionaire has assigned the Construction Agreement to the City pursuant to the Assignment
of Construction Agreements (the "Assignment") to which this Consent is attached.
The City has required, as a condition of occupancy of the Concession Area and execution of the
Work, that Contractor execute this Consent.
NOW THEREFORE, Contractor agrees as follows:
1. Contractor represents and warrants to the City, that the Construction Agreement
is in full force and effect and is enforceable in all material respects in accordance with its terms
and to Contractor's knowledge, no default, or event which would constitute a default after notice
or the passage of time, or both, exists with respect to the Construction Agreement.
2. Contractor agrees that if, at any time, the City elects to undertake or cause the
completion of construction of the Project in accordance with the Construction Agreement and
gives Contractor written notice of such election (an "Election Notice"), then, so long as the City
assumes and performs the payment obligations of Concessionaire under the Construction
Agreement accruing from and after the date of the Election Notice, then Contractor shall continue
to perform its obligations under the Construction Agreement in accordance with the terms thereof
for the benefit and account of the City in the same manner as if performed for the benefit of
account of Concessionaire in the absence of the Assignment. Unless and until the City expressly
assumes the obligations of Concessionaire under the Construction Agreement (and then only to
the extent the same arise from and after such assumption), the City shall not be a party to the
Construction Agreement and will in no way be responsible to any party for any claims of any
nature whatsoever arising or which may arise in connection with the Construction Agreement.
3. Contractor further agrees that, in the event of a breach by Concessionaire of the
Construction Agreement, Contractor will give written notice to the City at the address shown below
its signature of such breach. Unless and until the City expressly assumes the obligations of
Concessionaire under the Construction Agreement (and then only to the extent the same arise
from and after such assumption), the City shall not be a parry to the Construction Agreement and
will in no way be responsible to any party for any claims of any nature whatsoever arising or which
may arise in connection with the Construction Agreement.
4.
a. Contractor agrees, notwithstanding anything to the contrary contained herein, that
upon an Event of Default (as defined in the Concession Agreement) by Concessionaire resulting
Page 950 of 2240
Attachment A
in a termination of the Concession Agreement, or City's exercise of its remedy for an Event of
Default as provided in the Concession Agreement, until and unless the City gives Contractor an
Election Notice, the City, at its election, may terminate the Construction Agreement for any or no
reason and,the City shall not be responsible to any party for any claims of any nature whatsoever
arising or which may arise in connection with the Construction Agreement.
b. [Additionally, if requested by the City in writing, Contractor will continue as the
general contractor for construction of the Project for up to thirty (30) days after such termination
or City's exercise of its remedy for -an Event of Default under the Concession Agreement (the
"Transition Period") on the same terms and conditions as set forth in the Construction Agreement,
provided that Contractor is paid by the City in accordance the Construction Agreement for all
work, labor and materials rendered pursuant to the Construction Agreement performed during the
Transition Period.] [APPLICABLE TO CONSTRUCTION CONTRACT]
C. [Subject to Contractor's receipt of the payments prescribed by Section 4.b. above,
Contractor will engage in reasonable, good faith efforts to cooperate with any other general
contractor selected by the City in order to assure a smooth transition, including, without limitation,
delivering to the City or its designee copies of all project records in Contractor's possession or
control that Concessionaire is entitled to obtain under the terms of the Construction Agreement.]
[APPLICABLE TO CONSTRUCTION CONTRACT]
5. Nothing in this Consent shall supersede or modify any provisions of the
Construction Agreement as between Concessionaire and Contractor. By its joinder in the
execution of this Consent, Concessionaire agrees that any action by Contractor in accordance
with the terms hereof shall not constitute a violation by Contractor of any term of the Construction
Agreement or of any obligation Contractor has or may have to Concessionaire. For instance, in
the event the City terminates the Construction Agreement as provided in Section 4 hereof,
Concessionaire shall remain liable for all amounts due Contractor in accordance with the
applicable termination provisions of the Construction Agreement.
6. This Consent shall be governed by, and construed and enforced in accordance
with, the laws of the State of Florida.
7. EACH OF THE UNDERSIGNED PARTIES HEREBY. KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY, AFTER OPPORTUNITY FOR CONSULTATION WITH
INDEPENDENT COUNSEL, WAIVES ITS RIGHT TO TRIAL BY JURY IN ANY ACTION OR
PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS OR OBLIGATIONS UNDER OR
ARISING IN CONNECTION WITH THIS CONSENT.
8. Contractor warrants and represents that it has no knowledge of any prior
assignment(s) of any interest in the Construction Agreement that remains in effect.
9. To facilitate execution, this Consent may be executed in as many counterparts as
may be convenient or required. It shall not be necessary that the signature and acknowledgment
of, or on behalf of, each party, or that the signature and acknowledgment of all parties required to
bind any party, appear on each counterpart. All counterparts shall collectively constitute a single
instrument. This Consent may be transmitted and/or signed by facsimile or e-mail transmission
(e.g., "pdr or "tif"). The effectiveness of any such documents and signatures shall have the same
force and effect as manually -signed originals and shall be binding on all parties to this Consent.
Page 951 of 2240
Attachment A
IN WITNESS WHEREOF, Contractor intending to be legally bound has executed this,
Consent as of the date first written above.
CONTRACTOR:
a
By:
Name:
Title:
Contractor's Address:
f 1
f 1
f 1
CONCESSIONAIRE:
BOUCHER BROTHERS PIER PARK, LLC
a Florida limited liability company
By:
Name:
Title:
Concessionaire's Address:
f 1
[ 1
f 1
Page 952 of 2240
Attachment A
Exhibit 1.4.3
Budget
Description $ Total % Total
Hard Costs
Kitchen Equipment
Furniture, Fixtures &
Equipment
Soft Costs
Total Construction Budget
14,932,386 56.9%
2,727,482 10.4%
6,730,000 25.7%
1,837,052 7.0%
26,226,920 100.0%
Page 953 of 2240
Attachment A
Exhibit 2.2
Site Plan
S79"i 4'49"E . a
d r,` F
. �.: ^•.c 4�� i..yp
RIGHT OF �.. V
STING RIGHT V!".S�I�7 i L-. u ` t y:. 1
_ � '- � 379°1di�E-' A 1
ilk
'--S19°14'47'E 99.96'
619V037
t t R t_96.67'
o r.
I I 1 1 RB=N78'5731"W irr 'or 1
I _ 1
1 1 _26°55'27' �. 1
� t i 1 1 R4,63.08 1 Z`
1 .�y i 1 V_-123.62 1 1
•... - iIt 1 1 1 1
1 1 1
k,---------J
ayl 81.33 1 1 1 1
N - 1479°06
Irv. 11
a '
�b231"jL
i 1
�#
Page 954 of 2240
Attachment A
Exhibit 3.1.1
Photos and Specifications for Beach and Pool Equipment
(to be submitted for City's approval by April 1, 2024)
Page 955 of 2240
Attachment A
Exhibit 3.1.4
Design, Type, Material and Color of Beach and Pool Equipment
(to be submitted for City's approval by April 1, 2024)
Page 956 of 2240
Attachment A
Exhibit 3.1.5
Beachfront Area Site Plan (to reflect placement and quantity of Beach and Pool Equipment)
(to be submitted for City's approval by April 1, 2024)
Page 957 of 2240
Attachment A
Exhibit 3.2.2
Material Terms of Major Food Group, LLC Restaurants Subcontract
(to be submitted for City's approval by April 1, 2025)
Page 958 of 2240
Attachment A
Exhibit 3.2.3
Menu and Price Schedule for Restaurants
(to be submitted for City's approval by April 1, 2026)
Page 959 of 2240
Attachment A
Exhibit 3.4.3
Health and Wellness Center Offerings and Rate Card
(to be submitted for City's approval by April 1, 2026)
Page 960 of 2240
Attachment A
Exhibit 3.5.1
Beach -Related Sundries Offerings and Rate Card
(to be submitted for City's approval by April 1, 2026)
Page 961 of 2240
Attachment A
Exhibit 3.6.2
Retail Pavilion Offerings and Fees to be Charged to Subconcessionaires
(to be submitted for City's approval by April 1, 2026)
Page 962 of 2240
Attachment A
Exhibit 3.7.2
Plan for Removal and Storage of Beach and Pool Equipment and Dispensing Facilities
Beach Equipment
• Pending weather, demand, and Concessionaire shall begin closing periodically
prior to sunset.
• All cushions will be removed from lounges (w/o touching the ground) and placed
into storage container.
• All chairs will be retrieved and dispersed equally into stacks abutting Concession
Facilities. (The height of stacks shall not exceed 8ft.)
• Cabanas will )be removed and stored against the stacks of chairs.
• Each stack will be secured by a steel cable and locked.
• Concessionaire will first close and then remove all umbrellas and place into
storage facilities.
• Concessionaire shall immediately dispose of all trash and debris within a 100ft
radius of Concessionaire Area and do a final sweep to ensure that
Concessionaire inventory and storage facilities are fully locked and secured.
Dispensing Facilities
• Dispense Facilities and Concession Huts will remain on the beach overnight and
securely locked.
• If Food Truck and Trailers are permitted, these units will be removed daily with a
City approved vehicle (unless otherwise approved by the City to remain out
overnight).
Page 963 of 2240
Attachment A
Exhibit 3.9
Hurricane Preparedness Plan
(to be submitted for City's approval by April 1, 2024)
Page 964 of 2240
Attachment A
Exhibit 3.12
Value -Added Enhancements/Public Benefit Requirements
The following public benefits are to be provided by Concessionaire:
1. From the date the Beachfront Operations commence and throughout the Term, the
Concessionaire shall have three (3) manual and one (1) motorized beach accessible
wheelchairs, in good condition, available for use by patrons at the Beachfront Area.
2. From and after the Commencement Date, the Concessionaire shall:
a. Make a payment on or before the Commencement Date and on or before each
anniversary thereof in the amount of $250,000 in the first Agreement Year,
increased by 5% each subsequent Agreement Year throughout the Term to
provide funding for the salary and supplies for two (2) Police Officers and one (1)
Park Ranger.
b. Provide the City with an indoor air-conditioned space of not less than 250 square
feet to be located in the Restaurant Building or the Pavilion Building for City use
including but not limited to a police sub -station throughout the Term. If the City
elects to not utilize the space as a police substation but for another City use, the
Concessionaire will also make a one-time payment of $20,000 to the City to be
used to defray costs of City -funded police supplies and equipment. Payment will
be due no later than 60 days from the City's written notice or the Commencement
Date, whichever is later.
c. Develop an All -Access App (the "App") for City of Miami Beach residents that will
be launched by or before the Commencement Date. Adult City of Miami Beach
residents will have the opportunity to register to verify residency on the App (and
shall be required to re -verify residency annually)(City of Miami Beach residents
who are registered and verified are referred to as "Registered CMB Residents").
d. During the Term, Registered CMB Residents will be entitled to "priority access"
and certain discounts at the Concession Area and other beach concessions
operated within the City of Miami Beach by Affiliates of Concessionaire pursuant
to agreements with the City (as opposed to concessions operated pursuant to
agreements with private parties) ("Affiliated Public Concession Areas") as follows:
i. Registered CMB Residents will get priority access to reserve tables, lounge
chairs, and/or other Beach and Pool Equipment at the Restaurants, the
Pool Area, and the Beachfront Area. Priority access means that
Concessionaire shall hold not less than thirty percent (30%) of its available
seating at restaurants and/or Beach and Pool Equipment inventory at the
Pool Area and Beachfront Area for Registered CMB Residents. The
Restaurant seating and Beach and Pool Equipment set -asides that have
not been reserved by Registered CMB Residents may be released for use
by the general public five (5) days before the date in question. Priority
access does not guarantee a reservation. Subject to the thirty percent
(30%) hold, reservations will be based on availability.
ii. Each Registered CMB Resident plus one guest will receive a 15% discount
on the use of Pool and Beach Equipment (including but not limited to beach
chairs, lounge chairs, day beds, cabanas, and umbrella rentals) at the Pool
Area, the Beachfront Area and at Affiliated Public Concession Areas
Page 965 of 2240
Attachment A
iii. Each Registered CMB Resident plus one guest will receive a 15% discount
to managed water activities at Affiliated Public Concession Areas and, if
offered in the future with the City's prior approval, at the Beachfront Area.
iv. Each Registered CMB Resident plus one guest will receive a 10% discount
for food and beverage charges for all dining outlets at the Concession Area
as well as any food and beverage offerings at any Affiliated Public
Concession Areas.
e. Make a payment on or before the Commencement Date and on or before each
anniversary thereof of $36,000 annually to defray costs of City -funded food
services including but not limited to the Mobile Food Pantry Program.
f. Develop a partnership with Miami Beach Senior High School Culinary Arts
Program (which may include interactive Zoom/Teams meetings with students,
student site visits to the Restaurants and such other activities as the
Concessionaire and the Miami Beach Senior High School administration shall
agree upon).
g. Make a payment on or before the Commencement Date and on or before each
anniversary thereof of $30,000 annually to enable the City to make donations in
equal amounts annually to all public schools located within the City of Miami Beach
for the purchase of supplemental supplies, equipment, etc. in coordination with
each school's principal.
h. Develop a calendar for twelve (12) special events per contract year for residents
at the Concession Area. Events to be provided to City for review and approval.
i. Mechanically sift sand fifty-two (52) times per Agreement Year from Government
Cut to 51h street.
j. Implement a daily (i.e., once per day) litter cleanup program along the beach from
Government Cut to the north side of Douglas Park from the eastside of the dunes
to the highwater mark and the beachwalk area directly behind Pier Park. Program
to be provided to and approved by the City.
k. Make a payment on or before the Commencement Date and on or before each
anniversary thereof of $30,000 annually to defray costs of City -funded dune
maintenance and/or restoration.
I. Organize twelve (12) litter cleanup events per year targeting areas such as
waterways, islands, causeways, and streets. Events to be coordinated with and
approved by the City.
m. Provide the City with a payment of $25,000 to provide funding towards
improvements at the Washington Avenue Bark Park including drinking stations and
additional trees.
n. Pay directly for the design, permitting, equipment purchase, and installation of sail
shades to cover the Public Children's Playground on 130' and Ocean Drive in
Lummus Park. City to approve the contractor.
o. Make a payment on or before the Commencement Date and on or before each
anniversary thereof with a payment of $2,000 annually to provide funding towards
the Victory Garden located at 226 Collins Avenue.
p. Make a payment on or before the Commencement Date and on or before each
anniversary thereof of $20,000 annually to defray costs of City -funded senior
programs.
Page 966 of 2240
Attachment A
T/0y1Yaw
Pmw Ole l.C4 arms
3ckOlw CaA U. REOM
I..�fwu6 � Cary a.r
o� Da�ae • Nepouatn
14 C..=Deq�
flu Q aw Denw
IW%D wD.—W- e
m of wti near H--
cor+nvl�VnlaFum
emrw.n A/nn.Fww F.I.e I
CaAwml AanMw Fu1e:
•FAc PUO�.p •�sa�
teAav�eaaly wny • r..�.a
1.o`rn
ne.cn Da�es.oi Ooena 0!
.FAF N01.19 •Pori
Pap O�IF D!
.FAE • Lft p t n.0-8
R-O ar D..e1ge t U—
L 82.00A t h" • TWft
OXPW&wro
ooa111D Oat F.9., e 1 ic4ft 3hw.
Oaaft Dare Reu 2 lmO tape • Mamma l
Con" Oak 1wn Wd0ft tell—ft • APWJM
Exhibit 7.2
Timeline
"01 ma Iw•zm:1 Iw++ mu Iw+z±au I1a.l m:s IwF:.= IKWI.= Jwwz= J1W..ma IMw:,a
J F 0 A 0 J J A 1 O■ 0 J F 0 A N J J A F 0 a 0 J F 0 A 6 J J A A O R 0 J F 0 A r J J A 9 0 11 D J F N A 0 J J A 4■ n l
Nt
7 1IIDR
1 2%,
. www f1joil,
I won 3
! wDlw =
—
2Wma
!won.
.I.Y1S
el.
t! wau
t nlon
t wan
i nw�
1 Aaww
2r4
WO
• nals
• ltMa
m�
1011er�
so
4 woro
l won
7IU
7111
7114
Page 967 of 2240
Attachment A
Exhibit 7.4
Construction Insurance Requirements
The insurance required by Section 7.4 shall consist at least of the following:
(a) Builder's Risk Insurance (standard "All Risk" or equivalent coverage) in an amount not
less than 100% of the insurable value of the Concession Area's completed structure(s),
covering perils on an "All Risk" basis, including flood, earthquake, and windstorm, written
on a completed value basis or a reporting basis, for property damage protecting
Concessionaire, the City, and the general contractor performing such Construction Work
(the "Work"), with a deductible payable at the sole responsibility of Concessionaire of not
more than Fifty Thousand Dollars ($50,000), subject to adjustment for inflation (except
as to flood and windstorm, with regard to which the deductible shall be a commercially
reasonable amount), to include rental payment coverage from the date of projected
completion and extending for at least twelve (12) months following such date of
projected completion. Policy(s) must clearly indicate that underground structures (if
applicable) and materials being installed are covered.
(b) Automobile liability insurance covering any automobile or other motor vehicle used in
connection with work being performed on or for the Concession Area in an amount not
less than Five Million Dollars ($5,000,000), subject to adjustment for inflation, per
occurrence, with a deductible determined by Concessionaire of not more than Ten
Thousand Dollars ($10,000), subject to adjustment for inflation.
(c) Commercial General liability insurance protecting against liability for bodily injury, death,
property damage and personal injury. Such insurance shall (within the limits of the
insurance required by Section 14 (Exhibit 14):
i. contain blanket contractual liability insurance covering written and oral
contractual liability;
ii. contain contractual liability insurance specifically covering
Concessionaire's indemnification obligations under Section 17, to the
extent such indemnification obligation is for an insurable risk;
iii. contain independent contractors coverage;
iv. contain a notice of occurrence clause;
v. contain a knowledge of occurrence clause;
vi. contain an unintentional errors and omissions clause;
vii. contain coverage for suits arising from the use of reasonable force to
protect persons and property;
viii. contain an endorsement providing that excavation and foundation work
are covered and the "XCU" exclusions have been deleted;
ix. contain a waiver of completion and occupancy condition;
Page 968 of 2240
Attachment A
x. contain no exclusions unless specifically approved in each instance by
Owner, other than the industry standard exclusions for projects of similar
size and location;
xi. contain Products Liability/Completed Operations coverage; and
xii. provide for a deductible determined by Concessionaire, but not more than
One Hundred Thousand Dollars ($100,000) per loss, subject to
adjustment for inflation.
Page 969 of 2240
Attachment A
Exhibit 7.6
Construction Agreements Required Clauses
1. An agreement by the Contractor to provide, prior to the commencement of its portion of the Work,
and maintain during the performance thereof, the insurance set forth in Section 7.4 of the Concession
Agreement. Such Contractor shall procure an appropriate clause in, or endorsement on, any policy of
insurance carried by it pursuant to which the insurance company waives subrogation or consents to a
waiver of right of recovery consistent with the release, discharge, exoneration and covenants not to sue
contained herein. Original Certificates of Insurance, in quadruplicate (all of which shall be original signed
counterparts) and including the City of Miami Beach, Florida (and any successor owner), as additional
insureds (the "Certificate of Insurance"), shall be furnished to Concessionaire by Contractor prior to
commencement of work, denoting all insurance required of Contractor pursuant to the terms of the
Construction Agreement. The Contractor shall secure an original Certificate of Insurance from each of its
sub -contractors and/or suppliers with limits of liability equal to those carried by the Contractor;
2. , "Contractor hereby waives all rights of recovery, claims, actions or causes of action against the City
of Miami Beach, Florida (and any successor owner), and their respective elected and appointed officials
(including, without limitation, the City's Mayor and City Commissioners), directors, officials, officers,
shareholders, members, employees, successors, assigns, agents, contractors, subcontractors, experts,
licensees, lessees, mortgagees, trustees, partners, principals, invitees and affiliates, for any loss or damage
to property of Contractor which may occur at any time in connection with the [Work].";
3. "To the fullest extent permitted by law, except if cause by the gross negligence or willful misconduct
of the City, Contractor shall and does hereby indemnify and hold harmless the City of Miami Beach, Florida
(and any successor Owner), and their respective elected and appointed officials (including the City's Mayor
and City Commissioners), directors, officials, officers, shareholders, members, employees, successors,
assigns, agents, contractors, subcontractors, experts, licensees, lessees, mortgagees, trustees, partners,
principals, invitees and affiliates, from and against any and all liability, claims, demands, damages, losses,
fines, penalties, expenses and costs of every kind and nature, including, without limitation, costs of suit and
attorneys' fees and disbursements (collectively, "Expenses"), resulting from or in any manner arising out
of, in connection with or on account of: (1) any act, omission, fault or neglect of Contractor, or anyone
employed by it in connection with the [Work], or any of its agents, contractors, subcontractors, employees,
invitees or licensees in connection with the [Work], or anyone for whose acts any of them may be liable, (2)
claims of injury (including physical, emotional, economic or otherwise) to or disease, sickness or death of
persons or damage to property (including, without limitation, loss of use resulting therefrom) occurring or
resulting directly or indirectly from the work or any portion thereof or the activities of Contractor or anyone
employed by it in connection with the Work, or any portion thereof, or any of its respective agents,
contractors, subcontractors, employees, invitees or licensees in connection with the Work, or anyone for
whose acts any of them may be liable, or (3) mechanics' or materialmen's or other liens or claims (and all
costs or expenses associated therewith) asserted, filed or arising out of the [Work] or any phase thereof.
In no event shall Contractor be able to seek or be entitled to consequential damages (including, without
limitation, loss of profits or loss of business opportunity) for claims arising under this contract. This
indemnification obligation shall not be limited in any way by: (x) any limitation on the amount or type of
damages, compensation or benefits payable to Contractor under worker's compensation acts, disability
benefit acts or other employee benefit acts or other insurance provided for by this contract; or (y) the fact
that the expenses were caused in part by a party indemnified hereunder. The Contractor further agrees
that this indemnification shall be made a part of all contracts and purchase orders with sub -contractors or
material suppliers. The indemnification agreement included in this contract is to be assumed by all sub-
contractors. The indemnification obligations set forth in this Section shall survive the expiration or
termination of the Construction Agreement";
4. (1) the right of Concessionaire to assign to the City the contract and Concessionaire's rights
thereunder, at the City's request, without the consent of the Contractor, (2) that without the necessity of
such assignment and without thereby assuming any of the obligations of Concessionaire under the contract
occurring prior to such assignment and/or purchase order, except for Concessionaire's payment
Page 970 of 2240
Attachment A
obligations, the City shall have the right to enforce the full and prompt performance by the Contractor of
such Contractor's obligations under the contract and (3) City is a third party beneficiary of the Construction
Agreement;
5. "Contractor agrees to comply with all laws and requirements applicable to Contractor and the
Project, including, without limitation, the City of Miami Beach Prevailing Wage Ordinance, Miami Beach City
Code, Section 31-27, as amended.";
6. "Upon an Event of Default by Concessionaire resulting in a termination of that certain Concession
Agreement between Concessionaire and the City, dated as of , 20_, pursuant to which
the City has granted Concessionaire the right to construct improvements within the Concession Area (as
defined therein), Contractor shall, at the option of the City of Miami Beach, Florida, be terminated or
Contractor will honor this agreement as if this agreement had been originally entered into with the City of
Miami Beach, Florida.';
7. "Nothing contained in this contract is in any way intended to be a waiver of the prohibition on
Contractor's ability to file liens against property of the City of Miami Beach, Florida, or of any other
constitutional, statutory, common law or other protections afforded to public bodies or governments.";
8. "Upon an Event of Default by Concessionaire resulting in a termination of that certain Concession
Agreement between Concessionaire and the City, dated as of , 20_, pursuant to which
the City has granted Concessionaire the right to construct improvements within the Concession Area (as
defined therein), all covenants, representations, guarantees and warranties of Contractor hereunder shall
be deemed to be made for the benefit of the City of Miami Beach, Florida, (and the City of Miami Beach,
Florida, shall be deemed to be a third -party beneficiary hereof) and shall be enforceable by the City of
Miami Beach, Florida.'
9. "Unless and until the City of Miami Beach, Florida, expressly assumes the obligations of
Concessionaire under this contract (and then only to the extent the same arise from and after such
assumption), the City of Miami Beach, Florida, shall not be a party to this contract and will in no way be
responsible to any party for any claims of any nature whatsoever arising or which may arise in connection
with such contract.';
10. "Contractor hereby agrees that notwithstanding that Contractor performed work at the Concession
Area or any part thereof, the City of Miami Beach, Florida shall not be liable in any manner for payment or
otherwise to Contractor in connection with the work performed at the Concession Area, except to the extent
the City of Miami Beach, Florida, expressly assumes the obligations of Concessionaire hereunder (and
then only to the extent such obligations arise from and after such assumption).'; and
11. "Contractor warrants that all materials and equipment included in the Work will be new except
where indicated otherwise in the Plans and Specifications or the Construction Agreement (collectively, the
"Contract Documents"), and that such Work will be of good quality, free from improper workmanship and
defective materials and in conformance with the Contract Documents, and that such Work will provide
proper and continuous service under all conditions of service required by, specified in, or which may be
reasonably inferred from the Contract Documents. With respect to the same Work, Contractor further
agrees to correct all Work found by Concessionaire or the City of Miami Beach, Florida to be defective in
material and workmanship or not in conformance with the Contract Documents for a period of one year
from Substantial Completion of the Work or for such longer periods of time as may be set forth with respect
to specific warranties contained in the trade sections of the Contract Documents, as well as any damage
to the Work resulting from defective design, materials, equipment, or workmanship which develop during
construction or during the applicable warranty period. Contractor shall collect and deliver to Concessionaire
and the City of Miami Beach, Florida any specific written warranties given by subcontractors or others as
required by the Contract Documents (and such warranties shall be in addition to, and not substitutes for,
those warranties mandated to be obtained pursuant to the Contract Documents). All such warranties shall
commence upon Substantial Completion or such other dates as provided for in the Contract Documents,
Page 971 of 2240
Attachment A
or unless the warranted Work is not completed or has been rejected, in which case the warranty for the
Work shall commence on the completion or acceptance of the Work."
Page 972 of 2240
Attachment A
Exhibit 10.9
.Current City Rules and Regulations for Driving on Beach
(to be provided by City to Concessionaire by or before Occupancy Date)
Page 973 of 2240
Attachment A
Exhibit 13.1
Signage Criteria
(to be provided by City to Concessionaire by or before Occupancy Date)
Page 974 of 2240
Attachment A
Exhibit 14
Insurance Requirements
Commercial General Liability Insurance. From and after the Occupancy Date, Concessionaire, at its
sole cost and expense, shall carry or cause to be carried commercial general liability insurance on a
comprehensive basis, including contractual liability, to cover the Premises and the Concessionaire's
operations and indemnity obligations to the extent the same is available related thereto, whether conducted
on or off the Concession Area, in an amount of not less than Ten Million Dollars ($10,000,000) per
occurrence for bodily injury and property damage, subject to adjustment for inflation, such limits can be
obtained through a combination of primary and umbrella/excess policies, and designating Concessionaire
as a named insured and the City as an additional insured. Such insurance shall meet all of the standards,
limits, minimums and requirements described in Exhibit 14.1.
Property Insurance. From and after the Occupancy Date, Concessionaire, at its sole cost and expense,
shall carry or cause to be carried "All Risk" (or its equivalent) property damage insurance protecting
Concessionaire and the City as their interests may appear against loss to the Concession Area and
Concession Area Structures and meeting all of the standards, limits, minimums and requirements described
in Exhibit 14.2.
Other Insurance. From and after the Occupancy Date, Concessionaire shall procure and carry insurance
meeting all of the standards, limits, minimums, and requirements described in Exhibit 14.3.
Construction Insurance. Prior to the commencement of any Work, and only if the Property and Liability
coverage above does not otherwise apply, Concessionaire shall procure or cause to be procured, and after
such dates shall carry or cause to be carried the insurance required by Exhibit 7.4, until final completion
of the Work, in addition to and not in lieu of the above -described coverages.
Additional Coverage. Concessionaire shall maintain such other insurance, in such amounts as from
time to time reasonably may be required by the City, against such other insurable hazards as at the time
are commonly insured against in the case of facilities in South Florida of a size, nature and character
similar to the size, nature and character of the Concession Area and the Concession Operations.
City Cooperation. To the extent necessary, the City will cooperate with Concessionaire to provide any
information or consents needed by insurance carriers to issue the policies required under the Concession
Agreement and this Exhibit to cover the Concessionaire and the City, as applicable.
General Provisions Applicable to All Policies
Insurance Companies. All of the insurance policies required by this Article shall be procured
from companies licensed or authorized to do business in the State of Florida that have a rating in
the latest edition of "Best's Key Rating Guide of "A:VII" or better or another comparable rating
reasonably acceptable to the City, considering market conditions.
Required Forms. All references to forms and coverages in this Exhibit 14 shall be those used
by the insurance Services Organization (ISO) or equivalent forms reasonably satisfactory to The
City in all material respects.
Required Certificates. Certificates of insurance evidencing the issuance of all insurance
required by this Exhibit 14 to the extent then required, describing the coverage and providing for
thirty (30) days prior notice to the City by the insurance company of cancellation or non -renewal
(except as otherwise set forth in the section titled "Required Insurance Policy Clauses," below),
shall have been delivered to the City by the Occupancy Date, and a renewal policy replacing any
Page 975 of 2240
Attachment A
policies expiring during the Term, or a certificate thereof, together with evidence that the full
premiums have been paid, shall be delivered to the City prior to the date of expiration of any
insurance policy. The certificates of insurance shall be issued by or on behalf of the insurance
company and shall bear the original signature of an officer or duly authorized agent having the
authority to issue the certificate. The insurance company issuing the insurance, or its duly
authorized agent, shall also deliver to the City proof reasonably satisfactory to the City that the
premiums for at least the first year of the term of each policy (or installment payments to the
insurance carrier then required to have been paid on account of such premiums) have been paid.
During the performance of any construction work, Concessionaire shall deliver to the City an
entire duplicate original or a copy (certified by Concessionaire to be true, complete and correct)
of each policy. At all other times, Concessionaire shall deliver to the City an entire duplicate
original or a copy (certified by Concessionaire to be true, complete and correct) of each policy
(which may be redacted with respect to premium amounts or, if the policy covers other properties
owned by Concessionaire's Affiliates, redacted with respect to information relating to such other
properties) within a reasonable period of time after the City's request therefor. Concessionaire
shall notify the City of any material changes in the coverage provided under any policy promptly
after requesting an insurance company to make such change or receiving any notice from an
insurance company advising Concessionaire of any such change; provided, however, that no
such change may reduce or otherwise modify the insurance coverage required under this
Concession Agreement.
CERTIFICATE HOLDER MUST READ:
City of Miami Beach
c/o Exigis Insurance Compliance Services
P.O. Box 947 Murrieta, CA 92564
All certificates of insurance, endorsements, and exemption letters must be submitted to the City's
servicing agent, currently, EXIGIS, at:
Certificates-miamibeach@riskworks.com
Compliance with Policy Requirements. Concessionaire shall not violate or permit to be
violated any of the conditions, provisions or requirements of any insurance policy required by this
Agreement, and Concessionaire shall perform, satisfy and comply with, or cause to be performed,
satisfied and complied with, all conditions, provisions and requirements of all insurance policies.
Required Insurance Policy Clauses. Each policy of insurance required to be carried pursuant
to the provisions of this Article and each certificate issued by or on behalf of the insurer shall
contain (i) a provision stating substantially that no act or omission of Concessionaire (or any other
Person) or any use or occupation of the Concession Area for purposes more hazardous than are
permitted by the policy shall invalidate the policy as to the City or affect or limit the obligation of
the insurance company to pay to the City the amount of any loss sustained and that no act or
omission of the City shall invalidate the policy as to Concessionaire or affect or limit the obligation
of the insurance company to pay to Concessionaire the amount of any loss; (ii) a written waiver
of the right of subrogation against all of the named insureds and additional insureds, including the
City in its capacity as the owner of the Concession Area, with respect to losses payable under
such policy; (iii) a clause designating the City, as its interests may appear, as loss payee or
additional insured for losses in excess of Five Hundred Thousand Dollars ($500,000) per
occurrence, adjusted for inflation; and (iv) an agreement by the insurer that such policy shall not
be canceled, materially modified (except with respect to premium amounts), or denied renewal
without at least thirty (30) days prior written notice to the City and the City's Risk Management
Page 976 of 2240
Attachment A
Division, specifically covering, without limitation, cancellation or non -renewal, except that ten (10)
days' notice or statutory notice, whichever is greater, shall be given with respect to cancellation
or non -renewal for any non-payment of premium.
Separate Insurance. Concessionaire shall not carry separate liability or property insurance
concurrent in form or contributing in the event of loss with that required by this Concession
Agreement to be furnished by Concessionaire, unless the City is included therein as an additional
insured with respect to liability or loss payee with respect to property, as their interests may
appear, with loss payable as in this Concession Agreement provided. Concessionaire shall
immediately notify The City of the carrying of any such separate insurance and shall cause the
same to be delivered as in this Concession Agreement hereinbefore required.
Duration of Policies. Concessionaire shall procure policies for all insurance required by any
provision of this Concession Agreement for periods of not less than one (1) year or the remainder
of the policy term if insured under an existing blanket policy and shall procure renewals thereof
from time to time to ensure continuous coverage, except that Builders' Risk Insurance shall only
be renewed for the term of any construction period.
Blanket or Umbrella Policies. The insurance required to be carried by Concessionaire pursuant
to the provisions of this Concession Agreement may, at Concessionaire's election, be effected by
blanket, wrap-up and/or umbrella policies issued to Concessionaire covering the Concession
Area, Concession Area Structures and other properties owned or leased by Concessionaire or its
Affiliates, provided such policies otherwise comply with the provisions of this Concession
Agreement and allocate to the Concession Area and Concession Area Structures the specified
coverage, including, without limitation, the specified coverage for all insureds required to be
named as insureds or additional insureds hereunder, without possibility of reduction or
coinsurance by reason of, or because of damage to, any other properties named therein. If the
insurance required by this Concession Agreement shall be effected by any such blanket or
umbrella policies, Concessionaire shall furnish to the City, upon the City's request, certificates of
insurance and copies (certified by Concessionaire to be true, complete and correct, which may
also be redacted with respect to premium amounts or, if the policy covers other properties owned
by Concessionaire's Affiliates, redacted with respect to information relating to such other
properties) of such policies as provided in the paragraph titled "Separate Insurance," above,
together with schedules annexed thereto setting forth the amount of insurance applicable to the
Concession Area and Concession Area Structures.
Page 977 of 2240
Attachment A
Exhibit 14.1
Liability Insurance Requirements
The commercial general liability insurance required by Exhibit 14 shall consist of
commercial general liability insurance protecting against liability for bodily injury, death, property
damage and personal injury. Such insurance shall (within the limits of the insurance required by
Exhibit 14:
contain blanket contractual liability insurance covering written and oral contractual
liability;
ii. contain contractual liability insurance specifically covering Concessionaire's
indemnification obligations under Section 17, to the extent such indemnification
obligation is for an insurable risk;
iii. contain independent contractors coverage;
iv. contain a notice of occurrence clause;
V. contain a knowledge of occurrence clause;
vi. contain an unintentional errors and omissions clause;
vii. contain coverage for suits arising from the use of reasonable force to protect
persons and property;
viii. contain an endorsement providing that excavation and foundation work are
covered and the "XCU" exclusions have been deleted;
ix. contain a waiver of completion and occupancy condition;
X. contain no exclusions unless specifically approved in each instance by the City,
other than the industry standard exclusions for projects of similar size and location;
A. contain Products Liability/Completed Operations coverage; and
xii. provide for a deductible determined by Concessionaire, but not more than One
Hundred Thousand Dollars ($100,000) per loss, subject to adjustment for inflation.
Page 978 of 2240
Attachment A'
Exhibit 14.2
Property Insurance Requirements
The property insurance required by Exhibit 14 shall consist at least of property damage insurance
under an "All Risk" policy or its equivalent covering the Concession Area and all Improvements
(including without limitation the Concession Area Structures) with replacement cost valuation and
an "agreed amount endorsement' to be effective not later than promptly following the date the
Concessionaire receives a Certificate of Occupancy for any portion of the Concession Area (the
"CO Date") in an amount not less than the full Replacement Value (as defined below),negating
any coinsurance clauses and including the following coverages or clauses:
(a) coverage for physical loss or damage to the Improvements;
(b) a replacement cost valuation without depreciation or obsolescence clause;
(c) debris removal coverage;
(d) provision for a deductible determined by Tenant, but not more than Two Hundred
Fifty Thousand Dollars ($250,000) per loss (for other than flood or windstorm, with regard to which
the deductible shall be a commercially reasonable amount), subject to adjustment for inflation;
(e) contingent liability from operation of building laws;
(f) demolition cost for undamaged portion coverage;
(g) increased cost of construction coverage;
(h) flood coverage (to the extent available at commercially reasonable rates, limits and
deductibles);
(i) windstorm coverage (to the extent available at commercially reasonable rates,
limits and deductibles);
Q) coverage for explosion caused by steam pressure -fired vessels (which coverage
may be provided under a separate policy reasonably approved by the City);
(k) business interruption coverage in accordance with Exhibit 14.3;
(1) a clause designating the City -as additional insureds, as its interests may appear;
and
(m) contain no exclusions unless approved in writing by the City, other than the
industry standard exclusions for facilities of similar size and location.
Concessionaire shall be named insured, and the City shall be additional insureds, as its interests
may appear. The City shall be designated loss payee, as its interests may appear, on such "All
Risk" policy for the benefit of the City and the Concessionaire. If not included within the "All Risk"
coverage above, Concessionaire shall also carry or cause to be carried coverage against damage
due to (i) water and sprinkler leakage and collapse, which shall be written with limits of coverage
of not less than the full Replacement Value per occurrence, with a deductible of not more than
Two Hundred Fifty Thousand Dollars ($250,000), subject to adjustment for inflation and (ii) flood,
to the extent available at commercially reasonable rates, limits and deductibles.
If Concessionaire elects to insure its personal property used in connection with the Concession
Operations, the replacement value of such personal property shall be added to the amount of
insurance required by this Exhibit 14.2. For the purposes of this Exhibit 14.2, any rate, limit or
deductible shall be "commercially reasonable" if such rate, limit or deductible is comparable to the
rates, limits or deductibles in the insurance carried by similar facilities in South Florida of a size,
nature and character similar to the size, nature and character of the Concession Area and the
Concession Operations.
Page 979 of 2240
Attachment A
For purposes of this Exhibit 14.2, "Replacement Value" means the full cost of replacing the
Improvements according to Requirements in effect at that time, including, without limitation, all
hard costs of construction as well as the costs of post -casualty debris removal, and soft costs,
including without limitation, architects', engineers', surveyors', assessors' and other professional
fees and development fees.
Page 980 of 2240
Attachment A
Exhibit 14.3
Other Insurance Requirements
The "Other Insurance" required by Exhibit 14 shall consist at least of the following:
(a) Business Interruption Insurance effective no later than the Commencement Date to
include so-called "Rent Insurance" on an "All Risk" basis in an amount determined by
Concessionaire but not less than the Minimum Guaranteed Annual Concession Fee and
Impositions. The insurance specified in this
subsection shall:
(i) provide coverage against all reasonably insurable risks of physical loss or damage
to the Improvements;
(ii) Extra Expense coverage, with a limit of at least One Million Dollars ($1,000,000),
adjusted for inflation, to cover overtime and other extra costs incurred to expedite
repairing or rebuilding the damaged portion of the Premises;
(iii) provide for coverage through the attainment of pre-existing business levels;
(iv) contain flood and windstorm coverage to the extent available at commercially
reasonable rates, limits and deductibles;
(v) contain explosion caused by steam pressure fired vessels coverage (which
coverage may be provided under a separate policy reasonably approved by the
City);
(vi) provide for a deductible determined by Concessionaire, but for not more than Two
Hundred Fifty Thousand Dollars ($250,000), and thirty (30) days wait period for
Builders risk policy per loss (other than for flood or windstorm, with regard to which
the deductible shall be a commercially reasonable amount), subject to adjustment
for inflation;
(vii) designate the City and Concessionaire as loss payee but shall be payable only to
Concessionaire with respect to Business Interruption proceeds not exceeding One
Hundred Thousand Dollars ($100,000), subject to adjustment for inflation, per
occurrence; and
(viii) contain no exclusions, unless approved by the City, other than industry standard
exclusions for facilities of similar size and location.
Notwithstanding the foregoing, Concessionaire may elect to exclude the Beachfront Area from its
business interruption coverage, but the coverage shall in any case be in an amount not less than
ninety-five percent (95%) of the Minimum Guaranteed Annual Concession Fee plus one hundred
percent (100%) of the Impositions.
(b) Statutory Workers' Compensation with limits sufficient to respond to Chapter 440, Florida
Statutes and any other insurance required by law covering all employees of Concessionaire or
any entity performing work on or for the Concession Area and/or the Improvements (unless and
to the extent provided by such other parties), including Employers Liability coverage, all in
amounts not less than the statutory minimum, except that Employers Liability coverage shall be
in an amount not less than (i) One Million Dollars ($1,000,000) Bodily Injury by Accident, (ii) One
Million Dollars ($1,000,000) Bodily Injury by Disease and (iii) One Million Dollars ($1,000,000)
Bodily Injury by Disease, each employee, all subject to adjustment for inflation.
(c) After CO Date, Boiler and Machinery Insurance, covering the entire heating, ventilating
and air-conditioning systems, in all its applicable forms, including Broad Form, boiler explosion,
Page 981 of 2240
Attachment A
extra expense and loss of use in an amount not less than the replacement cost of such heating,
ventilating and air conditioning systems, located on any, portion of the Concession Area and other
machinery located on any portion of the Concession Area, which shall designate the
Concessionaire as named insured and loss payee and designate the City as an additional insured.
(d) Automobile liability insurance covering any owned, non -owned and hired automobile or
other motor vehicle used in connection with the Concession Operations in an amount not less
than One Million Dollars ($1,000,000), subject to adjustment for inflation, per occurrence, with a
deductible determined by Tenant of not more than Ten Thousand Dollars ($10,000) per loss,
subject to adjustment for inflation.
(e) Concessionaire shall cause any architects or engineers to maintain architects and
engineers errors and omissions liability insurance specific to the activities or scope of work such
consultants will perform. If coverage is provided on a "claims made" basis, the policy shall provide
for the reporting of claims for a period of five (5) years following the completion of all construction
activities. The minimum limits acceptable shall be One Million Dollars ($1,000,000) per
occurrence and Three Million Dollars ($3,000,000) in the annual aggregate.
Page 982 of 2240
Attachment A
Exhibit 17.5
Approved Beachfront Area and Pool Area Signage
BEACH SAFETY RULES
FOR YOUR OWN SAFETY IT IS REQUIRED
THAT YOU UNDERSTAND AND TAKE HEED OF THE FOLLOWING:
DUE TO THE INHERENT DANGER OF CONSTANTLY CHANGING OCEAN, SURF
CONDITIONS AND WEATHER, PLEASE BE ADVISED THAT, WHEN ENTERING THE
OCEAN, THERE ARE NATURALLY OCCURRING, UNCONTROLLABLE CONDITIONS AS
WELL AS INHERENT RISKS WHICH COULD PHYSICALLY HARM YOU (AND POSSIBLY
CAUSE DEATH), SUCH AS WIND, WEATHER, WAVE, SURF AND WATER CONDITIONS AS
WELL AS, AMONG OTHER THINGS, SANDBARS, SEA LIFE, RED TIDE, GLASS AND
SUBMERGED ARTICLES, NONE OF WHICH CAN BE CONTROLLED.
YOU ASSUME THE RISK OF ALL OF THESE CONDITIONS BY ENTERING THE OCEAN
AND SWIMMING.
POOL SAFETY RULES
FOR YOUR OWN SAFETY IT IS REQUIRED
THAT YOU UNDERSTAND AND TAKE HEED OF THE FOLLOWING:
PLEASE BE ADVISED THAT THERE ARE NO LIFEGUARDS NOR WATER SAFETY
INSTRUCTORS AND, ACCORDINGLY, [INSERT NAME OF FACILITY] SHALL HAVE NO
RESPONSIBILITY OR LIABILITY WHATSOEVER WITH REGARD TO CONDITIONS OR
EVENTS IN THE POOL AREA INCLUDING, WITHOUT LIMITATION, (A) WEATHER, WATER
OR WIND CONDITIONS; (B) THE SAFETY OR HEALTH OF ANY PERSONS IN THE POOL
AREA, OR (C) THE COMPETENCY, FITNESS, PHYSICAL LIMITATIONS, OR ABILITIES OF
ANY PERSONS USING THE POOL AREA. MOREOVER, IT IS FURTHER ACKNOWLEDGED
AND AGREED THAT [INSERT NAME OF FACILITY) AND ITS EMPLOYEES AND AGENTS
SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR INCIDENTS OCCURRING IN THE
POOL AREA OUTSIDE OF NORMAL BUSINESS HOURS.
YOU ASSUME THE RISK OF ALL OF THESE CONDITIONS BY ENTERING TH,E POOL AND
SWIMMING.
Page 983 of 2240
MIAMI BEACH
COMMISSION MEMORANDUM
TO: Honorable Mayor and Members of the City Commission
FROM: Alina T. Hudak, City Manager
DATE: September 27, 2023
SUBJECT: A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA,
ACCEPTING THE RECOMMENDATION OF THE CITY MANAGER, PURSUANT TO REQUEST FOR
PROPOSALS (RFP) NO. 2023-479-KB FOR THE MANAGEMENT AND OPERATION OF A HIGH -END BEACH
ESTABLISHMENT.
RECOMMENDATION
On May 17, 2023, the City Commission directed the Administration to prepare and issue a Request for Proposals (RFP) for the
management or operation of a high -end beach establishment and ancillary uses at One Ocean Drive and adjacent concession area,
with the new agreement(s) taking effect after the expiration of the existing lease and concession agreements on May 6, 2026. The
RFP allowed bidders to submit proposals for up to two independent proposal alternates that are independent of each other - Option 1
for an agreement having a term of less than 10 years and Option 2 for an agreement having a term of up to 30 years.
After concluding a thorough review of the facts of this procurement, the results of the evaluation committee process, the financial
analysis of the 10-year option versus the 30-year option, and the best interests of the City with regard to the property, it is
recommended that the Mayor and City Commission select Option 1 and. authorize the Administration to negotiate with Boucher
Brothers, the unanimous top -ranked bidder for Option 1. The final agreement shall be subject to prior City Commission approval.
This solicitation remains under the cone of silence until the RFP is awarded by the City Commission.
BACKGROUNWHISTORY
On October 2, 1985, the Mayor and City Commission adopted Resolution No. 85-18223, approving a Lease between the City and
Penrod Brothers, Inc. ("Penrod"), dated November 7, 1985 (the "Penrod Lease"), as amended by Amendments No. 1-3 thereof, for
the development, construction, management and operation of a restaurant facility at One Ocean Drive (the "Beach Club"). The
Penrod Lease had an initial term of 20 years, with two (2)10-year renewal terms, and is currently set to expire on May 6, 2026.
On October 2, 1985, the Mayor and City Commission also adopted Resolution No. 85-18222, approving a Concession Agreement,
dated November 7, 1985, between the City and Penrod for the rental of beach equipment, water recreation equipment, and food and
beverage service at various locations in the vicinity of the leased property (the "Concession Area", and together with the Beach Club,
the "Property"), which said Agreement was amended several times until its expiration in 2003. On February 25, 2004, the Mayor and
City Commission executed a new Concession Agreement by and between the City and Penrod Brothers, Inc., for the management
and operation of a concession in the portion of Pier Park seaward of the footprint of the Penrod's Restaurant, located at One Ocean
Drive, Miami Beach, Florida (the "Penrod Concession Agreement"). The Penrod Concession Agreement is similarly set to expire on
May 6, 2026.
On May 17, 2023, pursuant to Resolution 2023-32612, the City Commission directed the Administration to prepare and issue a
Request for Proposals (RFP) for the management and operation of a'high-end beach establishment and ancillary uses on the
Property and adjacent concession area, with the new agreements taking effect after the expiration of the existing Penrod Lease and
Penrod Concession Agreements on May 6, 2026. Accordingly, a Request for Proposals (RFP) was developed to seek proposals
from firms interested in being considered to negotiate an agreement with the City for the management and operation of a high -end
beach establishment and ancillary uses on the Property and adjacent concession area, the details and requirements of which were
delineated in the RFP.
Resolution No. 2023-32612 specifically directed the Administration to allow proposers to submit up to two (2) independent proposal
alternates. In order to provide guidance to proposers, and to allow for the evaluation and review of comparable proposals, the RFP
specified that each Bidder had the option to submit one (1) proposal for Option 1 (Agreement having a term of less than 10 years)
and one (1) proposal in for Option 2 (Agreement having a term equal to or greater than 10 years but not more than 30 years, including
options, in accordance with Resolution No. 2023-32612). To encourage creativity, the RFP contemplated that Bidders could offer
alternative concepts or approaches for the use of the Property in respect of Option 1 and Option 2, as well as alternative financial and
other terms for a lease, concession agreement, or management agreement in respect of the Property and the Concession Area. In
all cases, any proposed agreement between the City and a Bidder that includes the beachfront to the rear of the existing Beach Club
must be in the form of a concession agreement.
Page 984 of 2240
On June 13, 2023, RFP 2023479-KB for the management and operation of a high -end beach establishment was issued. A
mandatory pre -proposal conference to provide information to proposers submitting a response was held on June 28, 2023, and July
12, 2023. A site visit was held on July 12, 2023. Eight (8) addenda were issued, and 83 prospective bidders accessed the advertised
solicitation. On July 31, 2023, and August 15, 2023, the City received two (2) protests challenging the specifications included in the
RFP. Both protests were responded to on August 4, 2023, and August 18, 2023, respectively, and as a result, the RFP due date was
extended by 16 days. RFP responses were due and received on August 31 2023. The City received proposals from the following
firms for Options 1 and 21:
Option 1:
• Boucher Brothers Management, Inc.
• Tao Group Hospitality/One Ocean Hospitality LLC
• The Group US Management LLC
Option 2:
• Boucher Brothers Management, Inc.
• RH
• Tao Group Hospitality/One Ocean Hospitality LLC
• The Group US Management LLC
All the proposals received satisfied the qualifications requirements established in the RFP, with each Bidder team demonstrating at
least five (5) years of experience (within the last 10 yegrs) in managing or operating a beach establishment, beach concession, or a
similar operation.
On July 13, 2023, the Evaluation Committee was appointed via LTC # 316-2023. The Evaluation Committee convened on
September 11, 2023, to consider the proposal received. The Committee was comprised of Heman Cardeno, Director, Code
Compliance Department; Jose Del Risco, Assistant Director, Parks and Recreation Department; Jason Greene, Chief Financial
Officer, Finance Department; Keith Marks, President, South of Fifth Neighborhood Association (SOFNA); Elizabeth Miro, Interim
Director, Facilities and Fleet Management Department.
The Committee was provided an overview of the project, information relative to the City's Cone of Silence Ordinance, and the Florida
Sunshine Law. The Committee was also provided with general information on the scope of services and a copy of each proposal.
The Committee was instructed to score and rank each proposal pursuant to the evaluation criteria established in the RFP. The results
of the evaluation process are included in Attachment A and summarized below.
The proposal submitted by Boucher Brothers for Option 1 was the unanimously top -ranked proposal by the Evaluation Committee. In
fact, the Evaluation Committee unanimously ranked all proposals for Option 1, with The Group US Management LLC and Tao Group
Hospitality unanimously ranked as the second and third -ranked proposals, respectively. Attachment B provides a high-level
comparison of the three (3) proposals.
In scoring proposals, the Evaluation Committee emphasized Boucher Brothers' qualifications, public benefits, and financial proposal.
Boucher Brothers has over 20 years of experience in Miami Beach and Ft. Lauderdale managing and operating beach
establishments or concessions. For food and beverage operations, Boucher Brothers has teamed with Major Food Group LLC,
which has experience with high -end food establishments. The Boucher Brothers' proposal also includes a childcare center operated
by Itavi, where parents can drop off their children for supervised activities. Itavi provides childcare services to various hotels and
properties, including Fontainebleau Miami Beach, Eden Roc, W South Beach, One Hotel, Acqualina Resorts, Saint Regis Bal
Harbour, and the Biltmore Hotel. The team also includes architecture and landscape designs by Kobi Karp and Raymond Jungles.
The proposed public benefits include a police sub -station, resident discounts, and other benefits highlighted in Attachment B.
Boucher Brothers has proposed a rent of 10% of gross operating revenue with a minimum annual guarantee of $4 million that
escalates annually at 3% beginning in year 2. It is estimated that the minimum rent yield to the City would be approximately $41 million
over the 10-year term for Option 1.2 Additionally, Boucher Brother proposes an estimated cost of improvements to the Property, which
includes major renovations, in the amount of $26,226,920. The proposal submitted by Boucher Brothers for Option 1 is included as
Attachment C.
OPTION 2
The Evaluation Committee process resulted in a be between the proposals submitted by Boucher Brothers and The Group US
Management, with Tao Hospitality and RH, being unanimously ranked as third and fourth, respectively. A high-level comparison of
certain aspects of the proposals submitted by Boucher and The Group US Management for Option 2 is attached as Attachment D.
As was the case in Option 1, the Evaluation Committee emphasized Boucher Brothers' qualifications, public benefits, and financial
proposal for Option 2, including the experience of the team, the public benefits of enhanced security and resident discounts, as well
as the proposed revenue to the City. The programming and design portions of the proposal submitted by Boucher Brothers for
Option 2 is the same as its Option 1 proposal with the difference being in the financial proposal. See Attachments D and E. As
revenue to the City, Boucher Brothers is again proposing 10% of gross operating revenue with a minimum annual guarantee of $4
million that escalates annually at 3% beginning in year 2. It is estimated that the minimum rent yield would be approxmately $190
million over the 30-year term for Option 2.3 Additionally, Boucher Brother proposes improvements to the Property that are estimated to
cost $26,226,920.
Page 985 of 2240
For the proposal submitted by The Group US Management, the Evaluation Committee emphasized the programming options and
design proposed, which includes a new. building that incorporates a 120-seat performance venue for live performances and
community events, a lagoon area, and arts and exhibitions spaces. The Group US Management's major food and beverage partner is
Casa Reia.
The Group has proposed a rent of $3 million annually (after an initial period of rent abatement) with a 10% escalation every five (5)
years with no percentage of rent as revenue to the City. It is estimated that the minimum rent yield to the City would be $115 million
over the 30-year term for Option 2.4 Additionally, The Group US Management proposes an estimated cost of improvements to the
Property, which includes a new building, in the amount of $36,000,000. The proposal submitted by The Group US Management for Option 2
is attached hereto as Attachment F.
ANALYSIS OF OPTION 1 VERSUS OPTION 2
The top -ranked proposal for Option 1, proposed by Boucher Brothers, Inc., and the tied top -ranked proposals for Option 2, proposed
by Boucher Brothers, Inc. and The Group US Management would all replace the current facility with multi -amenity beach clubs that
offer various restaurant choices, retail, lounge areas and beach concession amenities. While there are some differences in the
programming proposed by Boucher Brothers, Inc. and The Group US Management, the main differences between the proposal for
Option 1 and the proposals for Option 2 are the length of time of the agreement and the financial consideration of the proposals. In
addition to the qualifications, proposed programs, and public benefits, the following factors have contributed to the recommendation
for the award recommendation included herein.
• Boucher Brothers has committed to making an investment of approximately $26 million to transform the current facility for both
options. For Option 2, The Group US Management has committed $36 million to demolish the current facility and construct a
new facility. While Boucher Brothers is proposing an initial lower investment, a $26 million investment of the current facility
should yield a like -new facility for the near 10-year term of Option 1.
• Boucher Brothers is proposing 10 percent (%) of gross revenue to the City as rent with a $41 million minimum annual guarantee
for Option 1 and $190 million minimum guarantee for Option 2. For Option 2, The Group US Management is proposing $115
million for Option 2. When the net present value (applying a 5% discount rate) is considered, the net present value of Boucher
Brother's Option 1 is $30 million, whereas the net present value of The Group US Management proposal for Option 2 is only
$45 million. The additional value proposed by The Group US Management for Option 2 does not warrant tying up the property
for 30 years as one would expect a more significant difference between the net present value of Option 1 and Option 2.
• A significant portion of both proposals include specific brands for proposed food and beverage outlets. Considering that most
restaurants have relatively short fife spans as trends change, it may not be prudent to be up the facility with a 30-year agreement
for a specific brand. Further, should the public's taste change or a future city commission determine a better use for the
Property, a 10-year option would provide flexibility for other uses of the Property.
FORM OF AGREEMENT
The Property is currently operated pursuant to a lease agreement governing a portion of the Property and a concession agreement
governing the remainder of the Property. Ultimately, whether to pursue a lease or a concession agreement (or both) is for each
Proposer to negotiate with the City. It is important to note that the purpose of this item is to seek authorization to negotiate with the
selected proposer, either for Option 1 or Option 2. Final agreement details, such as the form of agreement (i.e., lease versus
concession agreement), final programming, investments, etc., will be finalized through negotiations. After negotiations have concluded
and further due diligence has been conducted, the final agreement will require approval by the City Commission.
As previously noted, the form of agreement to be entered into with the successful proposer will be determined during the negotiations
authorized by the City Commission. In determining the form of agreement and length of the term, the following considerations are
important:
i
• A management or concession agreement having a term of less than ten (10) years will require approval of a 417th vote of the City
Commission.
• A management or concession agreement having a term of ten (10) years or longer (including option periods) will require
approval by a 417t'vote of the Planning Board and a 617t'vote of the City Commission (Section 1.03(f) of the City Charter).
• A lease of the Property for a term of less than ten (10) years will require (a) transmission by the City Manager to the Finance and
Economic Resiliency Committee for its review (Section 82-37(bx1) of the City Code); (b) one reading of the title by the City
Commission accompanied by a public hearing (Section 82-37(bx2) of the City Code); and (c) approval by a majority of the
residents residing in voting precincts any part of which is within 1 mile of the boundaries of the Property (Section 7-02 of the
MiamaDade County Charter).
• A lease of the Property for a term of ten (10) years or longer will require (a) transmission by the City Manager to the Finance and
Economic Resiliency Committee for its review (Section 82-37(aXl) of the City Code); (b) two readings of the title by the City
Commission, with the second reading to be accompanied by a public hearing (Section 82-37(aX2) of the City Code); (c)
approval by a majority vote of the voters in a city-wide referendum (Section 1.03(bXl) of the City Charter); and (d) approval by a
majority of the residents residing in voting precincts any part of which is within 1 mile of the boundaries of the Property (Section
7-02 of the Miami -Dade County Charter) .
Page 986 of 2240
SUPPORTING SURVEY DATA
Not applicable.
FINANCIAL INFORMATION
Financial information for each of the recommended proposals for Option 1 and Option 2 is included in the Analysis section above.
CONCLUSION
Based on the foregoing, it is recommended that the Mayor and City Commission of the City of Miami Beach, Florida, approve the
Resolution accepting the recommendation of the City Manager, pursuant to RFP No. 2023-479-KB, for the management and
operation of a high -end beach establishment at the Property, to award Option 1 to Boucher Brothers, the unanimous top -ranked
proposer for this option, and authori2ing the Administration to negotiate an agreement with Boucher Brothers, I nc. The final agreement
shall be subject to prior City Commission approval.
Endnotes:
1Penrod Brothers, Inc. ("P-enrod") submitted a proposal that failed to comply with the RFP's express requirements for submission. This
submission was made after the 3:00:00 p.m. deadline on August 31, 2023 and was received in hard copy and via email file -share — not
through Periscope, as required by the RFP. Penrod subsequently submitted a bid protest contending that it did timely submit its proposal or,
alternatively, that it should have been granted an extension because one of its lawyers was based in Tallahassee and was affected by
Hurricane Idalia. Notably, however, Persicope reflects Penrod's representative's activities uploading documents as early as 7:59 a.m. on
August 315t, as well as activity continuing up to and including 2:59:44 p.m. The bid protest alternatively requested that the City waive the
RFP's fixed 3:00:00 p.m. submittal deadline as a "minor and non -material timing issue." The City denied this bid protest based, among other
things, on the plain and unambiguous terms of RFP Section 0100, Paragraph 6 ("Deadline for Proposal Submittal"). Penrod has challenged
the City's denial of the protest in the action styled Penrod Brothers. Inc. v. The City of Miami Beach, Florida, Case No. 1:23-CV 23362-JEM
(S.D. Fla).
2For Option 1, applying a 5% discount rate, the net present value of this income stream from Boucher Brothers is approximately $30 million.
3Applying a 50/6 discount rate, the net present value of this income stream from Boucher Brothers (Option 2) is approximately $72.5 million.
4Applying a 5% discount rate, the net present value of this income stream from The Group (Option 2) is approximately $45 million.
ARWicable Area
South Beach
Is this a "Residents Right Does this item utilize G.O.
to Know" item, pursuant to Bond Funds?
CU Code Section 2-14?
Yes No
Legislative Tracking
Facilities and Fleet Management/Procurement
ATTACHMENTS:
Description
o Attachment A
o Attachment B
o Attachment D
o Link to Attachments C, E, and F
i
Page 987 of 2240
Attachment C
Value -Added Enhancements/Public Benefit Requirements
The following public benefits are to be provided by Concessionaire:
1. From the date the Beachfront Operations commence and throughout the Term, the
Concessionaire shall have three (3) manual and one (1) motorized beach accessible
wheelchairs, in good condition, available for use by patrons at the Beachfront Area.
2. From and after the Commencement Date, the Concessionaire shall:
a. Make a payment on or before the Commencement Date and on or before each
anniversary thereof in the amount of $250,000 in the first Agreement Year,
increased by 5% each subsequent Agreement Year throughout the Term to
provide funding for the salary and supplies for two (2) Police Officers and one (1)
Park Ranger.
b. Provide the City with an indoor air-conditioned space of not less than 250 square
feet to be located in the Restaurant Building or the Pavilion Building for City use
including but not limited to a police sub -station throughout the Term. If the City
elects to not utilize the space as a police substation but for another City use, the
Concessionaire will also make a one-time payment of $20,000 to the City to be
used to defray costs of City -funded police supplies and equipment. 'Payment will
be due no later than 60 days from the City's written notice or the Commencement
Date, whichever is later.
c. Develop an All -Access App (the "App") for City of Miami Beach residents that will
be launched by or before the Commencement Date. Adult City of Miami Beach
residents will have the opportunity to register to verify residency on the App (and
shall be required to re -verify residency annually)(City of Miami Beach residents
who are registered and verified are referred to as "Registered CMB Residents").
d. During the Term, Registered CMB Residents will be entitled to "priority access"
and certain discounts at the Concession Area and other beach concessions
operated within the City of Miami Beach by Affiliates of Concessionaire pursuant
to agreements with the City (as opposed to concessions operated pursuant to
agreements with private parties) ("Affiliated Public Concession Areas") as follows:
i. • Registered CMB Residents will get priority access to reserve tables, lounge
chairs, and/or other Beach and Pool Equipment at the Restaurants, the
Pool Area, and the Beachfront Area. Priority access means that
Concessionaire shall hold not less than thirty percent (30%) of its available
seating at restaurants and/or Beach and Pool Equipment inventory at the
Pool Area and Beachfront Area for Registered CMB Residents. The
Restaurant seating and Beach and Pool Equipment set -asides that have
not been reserved by Registered CMB Residents may be released for use
by the general public five (5) days before the date in question. Priority
access does not guarantee a reservation. Subject to the thirty percent
(30%) hold, reservations will be based on availability.
ii. Each Registered CMB Resident plus one guest will receive a 15% discount
on the use of Pool and Beach Equipment (including but not limited to beach
chairs, lounge chairs, day beds, cabanas, and umbrella rentals) at the Pool
Area, the Beachfront Area and at Affiliated Public Concession Areas
Page 988 of 2240
Attachment C
iii. Each Registered CMB Resident plus one guest will receive a 15% discount
to managed water activities at Affiliated Public Concession Areas and, if
offered in the future with the City's prior approval, at the Beachfront Area.
iv. Each Registered CMB Resident plus one guest will receive a 10% discount
for food and beverage charges for all dining outlets at the Concession Area
as well as any food and beverage offerings at any Affiliated Public
Concession Areas.
e. Make a payment on or before the Commencement Date and on or before each
anniversary thereof of $36,000 annually to defray costs of City -funded food
services including but not limited to the Mobile Food Pantry Program.
f. Develop a partnership with Miami Beach Senior High School Culinary Arts
Program (which may include interactive Zoom/Teams meetings with students,
student site visits to the Restaurants and such other activities as the
Concessionaire and the Miami Beach Senior High School administration shall
agree upon).
g. Make a payment on or before the Commencement Date and on or before each
anniversary thereof of $30,000 annually to enable the City to make donations in
equal amounts annually to all public schools located within the City of Miami Beach
for the purchase of supplemental supplies, equipment, etc. in coordination with
each school's principal.
h. Develop a calendar for twelve (12) special events per contract year for residents
at the Concession Area. Events to be provided to City for review and approval.
i. Mechanically sift sand fifty-two (52) times per Agreement Year from Government
Cut to 5th street.
j. Implement a daily (i.e., once per day) litter cleanup program along the beach from
Government Cut to the north side of Douglas Park from the eastside of the dunes
to the highwater mark and the beachwalk area directly behind Pier Park. Program
to be provided to and approved by the City.
k. Make a payment on or before the Commencement Date and on or before each
anniversary thereof of $30,000 annually to defray costs ,of City -funded dune
maintenance and/or restoration.
I. Organize twelve (12) litter cleanup events per year targeting areas such as
waterways, islands, causeways, and streets. Events to be coordinated with and
approved by the City.
m. Provide the City with a payment of $25,000 to provide funding towards
improvements at the Washington Avenue Bark Park including drinking stations and
additional trees.
n. Pay directly for the design, permitting, equipment purchase, and installation of sail
shades to cover the Public Children's Playground on 13th and Ocean Drive in
Lummus Park. City to approve the contractor.
o. Make a payment on or before the Commencement Date and on or before each
anniversary thereof with a payment of $2,000 annually to provide funding towards
the Victory Garden located at 226 Collins Avenue.
p. Make a payment on or before the Commencement Date and on or before each
anniversary thereof of $20,000 annually to defray costs of City -funded senior
programs.
Page 989 of 2240
THIS PAGE INTENTIONALLY LEFT BLANK