20161214 SM2c7D
MIAMI BEACH
Commission Meeting
SUPPLEM ENTAL MATERTAL 2.(12t 12t201 6l
Gity Hall, Commission Chambers, 3'o Floor, 1700 Convention Genter Drive
December 14,2016
Mayor Philip Levine
Com missioner John Elizabeth AlemSn
Commissioner Ricky Arriola
Commissioner Michael Grieco
Commissioner Joy Malakoff
Com m issioner Kristen Rosen Gonzalez
Com missioner Micky Steinberg
City Manager Jimmy L. Morales
City Attorney Raul J. Aguila
City Clerk Rafael E. Granado
Vlsft us at www.miamibeachfl.gov for agendas and video "streaming" of City Commission Meetings.
ATTENTION ALL LOBBYISTS
Chapter 2, Article Vll, Division 3 of the City Code of Miami Beach entitled "Lobbyists" requires the
registration of all lobbyists with the Gity Glerk priorto engaging in any lobbying activitywith the City
Commission, any City Board or Committee, or any personnel as defined in the subject Code
sections. Copies of the City Code sections on lobbyists laws are available in the City Clerk's office.
Questions regarding the provisions of the Ordinance should be directed to the Office of the City
Attorney.
SUPPLEMENTAL AGENDA
G7 - Resolutions
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH,
FLORIDA, ACCEPTING THE WRITTEN RECOMMENDATION OF THE CITY MANAGER (AS SET
FORTH lN THE CITYCOMMTSSTON MEMORANDUM ACCOMPANYTNG THtS RESOLUTTON)AND
WAIVING, BY 5/7THS VOTE, THE COMPETITIVE BIDDING REQUIREMENT, FINDING SUCH
WAIVER TO BE IN THE BEST INTEREST OF THE CITY; AND APPROVING, IN SUBSTANTIAL
FORM, THE CONCESSION AGREEMENT ATTACHED TO THIS RESOLUTION, BETWEEN THE
CITYAND DUCK TOURS SOUTH BEACH LLC. (CONCESSTONATRE) FOR THE OPERAT|ON OF
AMPHIBIOUS TOURS FROM THE BARRY KUTUN BOAT RAMP, AT MAURICE GIBB MEMORIAL
PARK, LOCATED AT 1700 PURDY AVENUE, FOR A TERM OF ONE (1) YEAR, W|TH TWO (2)
ONE-YEAR RENEWAL OPTIONS, AT THE CITY'S SOLE DISCRETION; SAID AGREEMENT
BEING SUBJECT TO FINAL NEGOTIATION BETWEEN THE ADMINISTRATION AND
CONCESSIONAIRE AND SUBJECT TO REVIEW AND FORM APPROVAL BY THE CITY
ATTORNEY,S OFFICE; AND FURTHER AUTHORIZING THE MAYOR AND CITY CLERK TO
EXECUTE THE FINAL NEGOTIATED AGREEMENT.
Parks and Recreation
Supplemental updated on 1211212016
(Resolution & Draft Agreement)
1
Supplemental 2, December 14,2016
C7 E A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH,
FLORIDA, ACCEPTING THE WRITTEN RECOMMENDATION OF THE CITY MANAGER (AS SET
FORTH lN THE CITY COMM TSS|ON MEMORANDUM ACCOMPANY|NG TH tS RESOLUTTON ) AN D
WAIVING, BY 5/7TH VOTE, THE COMPETITIVE BIDDING REQUIREMENT, FINDING SUCH
WAIVER TO BE IN THE BEST INTEREST OF THE CITY; AND APPROVING, IN SUBSTANTIAL
FORM, THE CONCESSION AGREEMENT ATTACHED TO THIS RESOLUTION, BETWEEN THE
clTY AND MIAMI LAND AND SEA PTRATE ADVENTURE tNC. (CONCESSTONATRE) FOR THE
OPERATION OF AMPHIBIOUS TOURS FROM THE BARRY KUTUN BOAT RAMP, AT MAURICE
GIBB MEMORIAL PARK, LOCATED AT 1700 pURDy AVENUE, FOR A TERM OF ONE (1) YEAR,
WITH TWO (2) ONE-YEAR RENEWAL OPTIONS, AT THE CITY'S SOLE DISCRETION; SAID
AGREEMENT BEING SUBJECT TO FINAL NEGOTIATION BETWEEN THE ADMINISTRATION
AND CONCESSIONAIRE AND SUBJECT TO REVIEW AND FORM APPROVAL BY THE CITY
ATTORNEY'S OFFICE; AND FURTHER AUTHORIZING THE MAYOR AND CITY CLERK TO
EXECUTE THE FINAL NEGOTIATED AGREEMENT.
Parks and Recreation
Supplemental updated on 121 1212016
(Resolution & Draft Agreement)
C7 F A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH,
FLORIDA, ACCEPTING THE WRITTEN RECOMMENDATION OF THE CITY MANAGER (AS SET
FORTH lN THE CITY COMMTSSTON MEMORANDUM ACCOMpANytNG THtS RESOLUTTON) AND
WAIVING, BY 5I7TH VOTE, THE COMPETITIVE BIDDING REQUIREMENT, FINDING SUCH
WAIVER TO BE IN THE BEST INTEREST OF THE CITY; AND APPROVING, IN SUBSTANTIAL
FORM, THE CONCESSION AGREEMENT ATTACHED TO THIS RESOLUTION BETWEEN THE
CITYAND SOUTH BEACH KAYAK, tNC. (CONCESSTONATRE) FOR USE OF THE BARRY KUTUN
BOAT RAMP AT MAURICE GIBB MEMORIAL PARK, LOCATED AT 17OO PURDY AVENUE, IN
CONNECTION WITH PROVIDING KAYAK AND PADDLE BOARD RENTAL SERVICES, FOR THE
TERM OF ONE (1) YEAR, WITH TWO (2) ONE-YEAR RENEWAL OPTTONS, AT THE CtTyS SOLE
DISCRETION; SAID AGREEMENT BEING SUBJECT TO FINAL NEGOTIATION BETWEEN THE
ADMINISTRATION AND CONCESSIONAIRE AND SUBJECT TO REVIEW AND FORM APPROVAL
BY THE CITY ATTORNEYS OFFICE; AND FURTHER AUTHORIZING THE MAYOR AND CITY
CLERK TO EXECUTE THE FINAL NEGOTIATED AGREEMENT.
Parks and Recreation
Supplemental updated on 1211212016
(Resolution & Draft Agreement)
C7 H A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH,
FLORIDA, ACCEPTING THE WRITTEN RECOMMENDATION OF THE CITY MANAGER (AS SET
FORTH I N THE CITY COMM tSS tON MEMORANDUM ACCOMpANyt NG TH tS RESOLUTTON ) AND
WAIVING, BY 5/7TH VOTE, THE COMPETITIVE BIDDING REQUIREMENT, FINDING SUCH
WAIVER TO BE IN THE BEST INTEREST OF THE CITY; AND APPROVING, IN SUBSTANTIAL
FORM, THE CONCESSION AGREEMENT ATTACHED TO THIS RESOLUTION, BETWEEN THE
CITYAND MTAMTJETSKT EXOTTCS RENTAL rNC. (CONCESSTONATRE) FOR THE OPERATTON
OF GUIDED JETSKI TOURS FROM BARRY KUTUN BOAT RAMP, LOCATED AT MAURICE GIBB
MEMORTAL PARK, FOR A TERM OF ONE (1) YEAR, W|TH TWO (2) ONE-YEAR RENEWAL
OPTIONS, AT THE CITY'S SOLE DISCRETION; SAID AGREEMENT BEING SUBJECT TO FINAL
NEGOTIATION BETWEEN THE CITY AND CONCESSIONAIRE AND SUBJECT TO REVIEW AND
FORM APPROVAL BY THE CITY ATTORNEY,S OFFICE; AND FURTHER AUTHORIZING THE
MAYOR AND CITY CLERK TO EXECUTE THE FINAL NEGOTIATED AGREEMENT.
Parks and Recreation
Supplemental updated on 121 1212016
(Resolution & Draft Agreement)
2
Supplemental 2, December 14,2016
R5 - Ordinances
R5 C AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH,
FLORIDA, AMENDING CHAPTER 1O2OF THE CODE OF THE CITYOF MIAMI BEACH, ENTITLED
"TAXATION," BY AMENDING ARTICLE V, ENTITLED "LOCAL BUSINESS TAX," BY AMENDING
SECTION 102-377 THEREOF ENTITLED "PENALTIES, ENFORCEMENT; COLLECTION OF
DELINQUENT FEES AND TAXES, AND CRIMINAL PENALTIES," BY ESTABLISHING A MODIFIED
PENALTY AND ENFORCEMENT PROVISION WHICH DELINEATES MONETARY FINES AND
CRIMINAL PENALTIES; BY CREATING SECTION 102-386 THEREOF TO BE ENTITLED
"PROPERTY OWNER'S RESPONSIBILITIES REGARDING LEGALLY PERMISSIBLE TRANSIENT
RENTAL AND OCCUpANCy (SHORT TERM) OF RESTDENTTAL PROPERTY," BY PROHIBITING
PROPERTY OWNERS FROM ADVERTISING THE TRANSIENT RENTAL OR OCCUPANCYOFA
RESIDENTIAL PROPERTY WITHOUT THE SUBMISSION OF AN AFFIDAVIT TO THE CITY, BY
REQUIRING THE AFFIDAVIT TO CONFIRM THAT THE LAND DEVELOPMENT REGULATIONS
AUTHORIZE TRANSIENT RENTAL AND OCCUPANCY; AND ENSURING THAT THE PROPERTY
OWNER OBTAINS COMPLIANCE WITH THOSE PROVISIONS SET FORTH WITHIN CHAPTER
102, THE AMERICAN DISABILITIES ACT, THE FLORIDA FIRE PREVENTION CODE AND THE
FLORIDA BUILDING CODE;AND BY FURTHER REQUIRING WRITTEN AUTHORIZATION FROM
THE CONDOMINIUM ASSOCIATION FOR THE TRANSIENT RENTAL OR OCCUPANCY OF THE
RESIDENTIAL PROPERTY OR UNIT; AND REQUIRING NOTIFICATION TO PROSPECTIVE
GUESTS BY PROPERTY OWNERS THAT OPERATE INDEPENDENTLY OF THE PRIMARY
HOTEL OPERATOR; AND ESTABLISHING A PENALTY PROVISION FOR VIOLATIONS OF THIS
SECTION; PROVIDING FOR REPEALER, SEVERABILITY, CODIFICATION, AND AN EFFECTIVE
DATE.
10:10 a.m. Second Reading Public Hearing
Continued from November 9, 2016 - R5 G
John Elizabeth Aleman & Co-Sponsored by Comm. Michael Grieco
Supplemental updated on 121 1212016
(Revised Ordinance)
R7 - Resolutions
R7L A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH,
FLORIDA, ACCEPTING THE WRITTEN RECOMMENDATION OF THE CITY MANAGER (AS SET
FORTH tN THE CtTy COMMTSSTON MEMORANDUM ACCOMPANYTNG THtS RESOLUTION) AND
WAIVING, BY 5/7TH VOTE, THE COMPETITIVE BIDDING REQUIREMENT, FINDING SUCH
WAIVER TO BE IN THE BEST INTEREST OF THE CITY; AND APPROVING, IN SUBSTANTIAL
FORM, THE CONCESSION AGREEMENT ATTACHED TO THIS RESOLUTION BETWEEN THE
ctTy AND HECTOR'S WATER SPORTS rNC. (CONCESSTONATRE) FOR THE USE OF THE
BARRY KUTUN BOAT RAMP AT MAURICE GIBB MEMORIAL PARK, LOCATED AT 17OO PURDY
AVENUE, IN CONNECTION WITH THE OPERATION OF GUIDED JETSKI TOURS, FOR A TERM
oF oNE (1) YEAR, W|TH TWO (2) ONE-YEAR RENEWAL OPTIONS, AT THE CITY'S SOLE
DISCRETION; SAID AGREEMENT BEING SUBJECT TO FINAL NEGOTIATION BETWEEN THE
ADMINISTRATION AND CONCESSIONAIRE AND SUBJECT TO REVIEW AND FORM APPROVAL
BY THE CITY ATTORNEY'S OFFICE; AND FURTHER AUTHORIZING THE MAYOR AND CITY
CLERK TO EXECUTE THE FINAL NEGOTIATED AGREEMENT.
Parks and Recreation
Supplemental updated on 121 1212016
(Resolution & Draft Agreement)
Office of the City Attorney
Vice-Mayor Joy Malakoff & Commissioner
3
Supplemental 2, December 14,2016
R7 M A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH,
FLORIDA, ACCEPTING THE WRITTEN RECOMMENDATION OF THE CITY MANAGER (AS SET
FORTH rN THE CTTYCOMMtSStON MEMORANDUM ACCOMPANYTNG THtS RESOLUTTON)AND
WAIVING, BY 5/7TH VOTE, THE COMPETITIVE BIDDING REQUIREMENT, FINDING SUCH
WAIVER TO BE IN THE BEST INTEREST OF THE CITY; AND APPROVING, IN SUBSTANTIAL
FORM, THE CONCESSION AGREEMENT ATTACHED TO THIS RESOLUTION BETWEEN THE
CITY AND MIAMI WATERSPORTS LLC DIBIA MIAMI BEACH PADDLEBOARD
(coNcESStoNAtRE) FOR USE OF THE BARRY KUTUN BOAT RAMP AT MAURTCE G|BB
MEMORIAL PARK, LOCATED AT 17OO PURDY AVENUE, IN CONNECTION WITH PROVIDING
KAYAK AND PADDLE BOARD RENTAL SERVICES, FOR A TERM OF ONE (1) YEAR, WITH TWO
(2) ONE-YEAR RENEWAL OPTIONS, AT THE CITY'S SOLE DISCRETION; SAID AGREEMENT
BEING SUBJECT TO FINAL NEGOTIATION BETWEEN THE ADMINISTRATION AND
CONCESSIONAIRE AND SUBJECT TO REVIEW AND FORM APPROVAL BY THE CITY
ATTORNEY'S OFFICE; AND FURTHER AUTHORIZING THE MAYOR AND CITY CLERK TO
EXECUTE THE FINAL NEGOTIATED AGREEMENT.
Parks and Recreation
Supplemental updated on 121 1 21201 6
(Resolution & Draft Agreement)
R7 R A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH,
FLORIDA, URGING THE FLORIDA LEGISLATURE TO ESTABLISH A RESTAURANT GRADING
SYSTEM TO BE IMPLEMENTED BY THE DIVISION OF HOTELS AND RESTAURANTS OF THE
FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION.
Office of the City Attorney
Commissioner Ricky Arriola
Supplemental updated on 1211212016
(Memorandum & Resolution)
4
Agenda ltem
Date
RESOLUTION NO.
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITYOF MIAMI BEACH, FLORIDA, ACCEPTING THE WRITTEN
RECOMMENDATTON OF THE CITY MANAGER (AS SET FORTH lN THE
clTY coMMlssloN MEMoRANDUM ACCOMPANYING THIS RESOLUTTON)
AND WAIVING, BY 5/7THS VOTE, THE COMPETTTIVE BIDDTNG
REQUIREMENT, FINDING SUCH WAIVER TO BE IN THE BEST INTEREST
OF THE CITY; AND APPROVING, IN SUBSTANTIAL FORM, THE
CONCESSION AGREEMENT ATTACHED TO THIS RESOLUTION
BETWEEN THE CITY AND DUCK TOURS SOUTH BEACH LLC.
(coNcESStoNAtRE) FOR THE USE OF THE BARRY KUTUN BOAT RAMP
AT MAURICE GIBB MEMORIAL PARK, LOCATED AT 17OO PURDY
AVENUE, IN CONNECTION WITH THE OPERATION OF AMPHIBIOUS
TOURS, FOR A TERM OF ONE (1) YEAR, WITH TWO (2) ONE-YEAR
RENEWAL OPTIONS, AT THE CITY'S SOLE DTSCRETTON; SAID
AGREEMENT BEING SUBJECT TO FTNAL NEGOTIATION BETWEEN THE
ADMINISTRATION AND CONCESSIONAIRE AND SUBJECT TO REVIEW
AND FORM APPROVAL BY THE CITY ATTORNEY,S OFFTCE; AND
FURTHER AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE
THE FINAL NEGOTIATED AGREEMENT.
WHEREAS, at the October 31,2014 Neighborhoods and Community Affairs Committee (NCAC)
meeting, the Committee directed Administration to research and assess options for regulating the use of
the boat ramp; and
WHEREAS, on January 30,2015, Parks and Recreation Director, John Rebar, provided the
Neighborhoods/Community Affairs Committee (NCAC) with a presentation and discussion on the
potential options to manage and improve marine activities at the Barry Kutun Boat Ramp (the Boat Ramp)
at Maurice Gibb Memorial Park, located at 1700 Purdy Avenue (the Park); and
WHEREAS, following the discussion, the NCAC recommended that the Mayor and City
Commission direct the Administration to proceed with construction of a floating dock for non-motorized
marine vessels at the Park, from which non-motorized vessels including, without limitation, kayaks,
canoes, and paddleboards, may be launched, and to develop and implement a plan to control access to
the Barry Kutun Boat Ramp Park and to limit its use to City of Miami Beach residents for non-commercial
uses only; and
WHEREAS, on March 30, 2015, the City Commission accepted the recommendation from NCAC
and adopted Resolution No. 2015-28957, which authorizes the Administration to proceed with the
construction of a floating dock for non-motorized marine vessels at the Park, establish a policy for
commercial use of the Boat Ramp, and in consultation with the City Attorney's Office, to develop and
implement a plan to limit access to the boat ramp; and
WHEREAS, on May 11,2016, the City Commission approved, on first reading, Ordinance No.
2016-4022, amending Section 82-1 of the City Code, and prohibiting commercial transactions, activities
or operations on streets, parks or other public property, including the Boat Ramp, unless otherwise
approved by the City Manager (if commercial outdoor fee based activity with minimal impact) or
authorized by the City Commission pursuant to an approved concession agreement; and
WHEREAS, at the May 11,2016 meeting, the City Commission expressed their interest in
permitting commercial operations at the Boat Ramp for water taxi service, amphibious tours and kayak
rentals; and
WHEREAS, on July 13,2016, the City Commission adopted, on second reading, Ordinance No.
c1D
5
2016-4022', and
WHEREAS, Duck Tours South Beach LLC. provides public amphibious tours; and
WHEREAS, the Administration has negotiated with Duck Tours South Beach LLC. a non-exclusive
concession agreement (the Agreement) for the use of the Boat Ramp at the Park for entry and exit to and
from Biscayne Bay for the term of one (1) year with two (2) one-year renewal options; and
WHEREAS, pursuant to the proposed Agreement, the Concessionaire shall pay the City on an
annual basis, a total of $2,760 ($1,200 for the motorized vessel annual fee and $1,560 for the launch
fees); and
WHEREAS, the Administration recommends that the City Commission approve, in substantial
form, the Concession Agreement attached as Exhibit "l" hereto, subject to final negotiation between the
Administration and Concessionaire, and subject to review and form approval by the City Attorney's Office.
NOW THEREFORE, BE !T DULY RESOLVED BY THE MAYOR AND GITY COMMTSSION OF
THE CITY OF MIAMI BEAGH, FLORIDA, that the Mayor and City Commission hereby accept the written
recommendation of the City Manager (as set forth in the City Commission Memorandum accompanying
this Resolution) and waive, by 5/7ths vote, the competitive bidding requirement, finding such waiver to be
in the best interest of the City; and approve, in substantial form, the concession agreement attached to
this Resolution between the City and Duck Tours South Beach LLC. For the use of the Barry Kutun Boat
Ramp at Maurice Gibb Memorial Park, located at 1700 Purdy Avenue, in connection with the operation of
amphibious tours, for a term of one (1) year, with two (2) one-year renewal options, at the City's sole
discretion; said Agreement being subject to final negotiation between the Administration and
Concessionaire, and subject to review and form approval by the City Attorney's Office; and further
authorize the Mayor and City Clerk to execute the final negotiated Agreement.
PASSED and ADOPTED this 14th day of December,2016.
ATTEST:
PHILIP LEVINE, MAYOR
RAFAEL E. GRANADO, CITY CLERK
APPROVED AS TO
FORM & LANGUAGE
6
AND
-;-
= "''"'4..ll'i =+'
DUCK.,, BURS SOUTH BEACH LLC. \'
- \1"
' qj. ,rr r ::-:.!:.:i ' fi.:..,--. --.L \: fu. '\:)r,-P= "**1{€,-.,-.i=.-
',,.
TO UTILIZE THE BARRY KUTUN BOAT..*AMP F=e=*.=TNTRY AND EXIT OF BISCAYNE BAY
FO R TH E-.PU RPOSE O F P ROVIDI NG.:F=UB LIC AM P H I B I O U S TO U RS
CONCESSION AGREEMENT
BETWEEN
CITY OF MIAMI
EXHIBIT
I
7
INDEX
SECTION TITLE
1.
2.
2.1
3.
3.1
3.1"1
3.1.1.1
3"1.1.2
3.1.2
3.1.3
3.2
3.3
4.
4.1
4.2
4.3
4.4
5.
6.
6.2
6.3
7.
7.1
7.2
8.
8.1
8.2
8.3
8.4
8.5
8.6
9"
10.
10.4
11.
11.2
11.3
12.
12.1
12.2
12"3
12.4
12.6
12.7
12.8
PAGE
TNSURANCE .............. ...................11tNDEMNtry.....,......... ....................14
Release of Liability for Program Participants ........ 15
FORCE MAJEURE .......15Labor,Dispute............ ......... 15
Waiver of Loss from Ha2ards............. .................. 16
DEFAULT AND TERMINATION ...".................16Bankruptcy ........ 16
Default in Payment................ ..............16
Non-Monetary Default ........17
City's Remedies for Concessionaire's Default ......17
Surrender of Concession Areas/ Removal by Concessionaire of
EquipmenVlmprovements ............ .......18
Substitute Performance ......18
Termination for Convenience ..............18
No
8
12.9
13.
14.
15.
16.
17.
17.1
17.2
17.3
17.4
18.
18.1
18.2
18.3
18.4
18.5
18.6
18.7
18.8
18.9
18.10
18.11
18.12
18.1 3
18.14
19.
20.
21.
EXHIBITS '::;-.-.,= "--::::i
Exhibit-F Site Plan with Highlight of Ramp/Access .............29
,\:::i:=
Exhibit 2 ''Completed Application for Commercial Concession Operations
at Public Boat Ramps............... ...........30
E*h.ibit,3 - Release Form. ..........31
9
CONCESSION AGREEMENT
BETWEEN
CITY OF MIAMI BEACH, FLORIDA
AND
DUCK TOURS SOUTH BEACH LLC.
'*Siv=TO UTILIZE THE BARRY KUTUN BOAT RAMP FOR EN.T.RY.ilND EXIT OF BISCAYNE BAY
FoR THE puRposE oF pRovrDrNG puBltc AMpHrerous rouRs
THIS CONCESSION AGREEMENT (the "Agreement") made 2016
("Effective Date"), between the CITY OF MIAMI BEACH, a municipal"of the State of
Florida, having its principal address at 1700 Convention Center Drive; Mlami Beach, Florida,
33139 (hereinafter called the "City"), and DUCK TOURS SOUTH BEACH l1l-p* whose address
is 1661 James Avenue, Miami Bq,flffi,,"ftorida, 33139. reinafter called "(
. .WITNESSETH'nii;r:r'ru,' {si,,,,,
WHEREAS, the Mayor and:,:City Comnfffi$jgn redCI$ilize,.,.the impgrtance of the City's public
property to the residents ahfvi5ttors of the City of Miami B€-Ae_h; ahd
wHEREAS, the city'prohibits jiir"r.,, ,""'!!kfurr"nr, ,",,r,,,"s or operations at the city's
parks, boat ramp(s), 'beach structures, building or other property or place, maintained or
operated bJ ti19.--Ni.q,lly-, unless expreSSry authorizr
ornur:,.=ffi
$itdrdiB.i....i'!.9Ynagreementthati,s,4
WHEREAS. illeoal and -thauthorized commer(
the City Manager upon its public property,
by the City Commission; and
to ensure the health, safety and welfare of its residents
and visitors who utitiZbjts pu,ti-1.[i#facilities, and illegal commercial transactions, activities and
WHEREAS, accordingty, tffSCity Commission at the July 13th 2016 City Commission Meeting
directed staff to work with existing amphibious tour companies to continue their tours in the City
of Miami Beach and continue to utilize the Barry Kutun Boat Ramp; and
WHEREAS, Staff has negotiated the following non-exclusive concession agreement (the
"Agreement") for the use of the Barry Kutun Boat Ramp (the "Boat Ramp") at Maurice Gibb
Memorial Park (the "Park"), located at 1700 Purdy Avenue, for entry and exit to and from
Biscayne Bay for amphibious tours (the "Program").
WHEREffi, illegal andthauthorizedrommercidl transactions, activities and operations upon
City propffi,preales a da'ffius anO ha'zard situation, which is a direct threat to the residents
and visiiord'Uffiprcitv for pffil unscrupulous conduct; and
WHEREAS, the City.is legally
and visitors who utili2e its ou
10
NOW THEREFORE, in consideration of the premises and the mutual covenants
and conditions herein contained and other good and valuable consideration, the receipt
and adequacy of which are hereby conclusively acknowledged, it is agreed by the parties hereto
as follows:
The City hereby grants to the Concessionaire, and the Concessionaire hereby accepts
from the City, the non-exclusive right to operate the Program (as further described herein) within
the Concession Areas (as defined herein), in conformance with the purposes and for the period
stated herein and subject to all the terms and conditions herein contained and set forth.
The above recitals are true and correct and are incorporated herein by reference as part of thisAgreement. .
sEcrloN 1' TERM
"zlllllllir'1.1 The term ("Term") of this Agreement sha[F-be'tr one (1) year, commencing on January
1, 2017 ("Commencement Date"), with two (2) one-year renewal options to be exercised
at the City Manager's sole option an@scretion, by providing Concessionaire with
written notice of same no less than thirty (30) days prior to the expiration of the then
current Term. Notwithstanding the foregdrE+-"., ncessionaire may not commence
operations until such time as the following conditions have been met: (1) Concessionaire
has provided the City with evidence of the requisite governmental approvals to operate
the Program including, without limitation, all licenses required in subsection 6.3; and (2)
the City has approved Concessionaire's insurance covqmges as required in Section 9,
which shall incl i U,qce coverage for all Program Vffibls used by Concessionaire
to operate the Program.
1.2 For purposes 6f..*his Agre@-ent, a "Contract Year" shall be defined as that certain 365
:48 \ E.
day period
"orrnUWW
q
,Gommencement Date.
.=*i!
.AND CONCESSION SERVICE ZONE.
The City hereby grants to theConces
Agreement, to operate the ProQram, as
the non-exclusive right, during the Term of this
bed herein, upon the Concession Area defined in
to this Agreement (hereinafter, the "Concessionsubsection 2.1 and identified'in=:Exhibit 1
Area"):
2.1 Concession Aiea.
The ConceSSion Area shall be the vehicle access path to the Boat Ramp and the
Boat Ramp, as more particularly depicted in Exhibit t hereto, and does not
include any adjacent or surrounding areas (the "Concession Area"). Additionally,
no improvements to the Concession Area ("Concession Area lmprovements")
shall be permitted, and no equipment may be maintained, on the Concession
Area without the prior written approval of the City Manager, which approval, if
provided at all, shall be at the City Manager's sole and absolute discretion, and
Exhibit 1 shall be amended to incorporate the approved Concession Area
lmprovements and/or permitted equipment.
11
Concessionaire shall not install or operate any Program sites, nor identify
additional or alternate locations for same (other than as identified in Exhibit 1),
without the prior written approval of the City Manager, which approval, if provided
at all, shall be at the City Manager's sole and absolute discretion.
SECTION 3. USE(S).
The Concessionaire is hereby authorized to conduct the following kind(s) of businesses and
provide the following kind{s) of services related to the operation of the Program within
the Concession Area, all at its sole cost and expense:
3.1 Amphibious Tours. :'
3.1 .1 . Approved Use of Concession AEi.' ' '
The Concession Area shall begis..ffiby a Concessionaire on a nonexclusive
basis and solely and exclusivffildUring short intervals;.foL the entry and exit of
Biscayne Bay by the Program V-{ffigls (as defined in subsection 3.1.2) during the
approved hours of operation for the Progl{n. ln the event the Concessionaire
uses the Concession,.Area tor anyl}.iJr-ug1$,F*$6(s) and/or us6(s) not expressly
permitted in this subsection 3.1.1., such u$ffshall be considered a default under
this Agreement, and the City shall 6ffilitled to all remedies, including
termination of this Agreement, as set forth\[n subsection 12.4. ln addition,
any other terms of'this Agreenf$.glt1",the City shall be entitled to
i.-+ ef, whetherat law or equity, to ibStrain such improper use(s).seek i
.1.1 No'"F fkinq PriVileqes. No parkinQ privileges shall be provided to
, Cohcessionaire employees, or passengers of the
Pro$ lq )r'-#H;.p........,t,lltfldditionally, Concessionaire agrees to ensure that the
Wfp.pJrtt or the Boat Ramp are not obstructed.
the public's right to use the Park, including
Dock, for non-commercial purposes is primary to the
privileges City has granted Concessionaire under this
Agreem€, the privilege to operate the Program pursuant to
the Agre nt shall not be construed as limiting, in any way, the public's
fjght to uffi of the Park, including the Boat Ramp, for non-commercial
standing any other terms of this Agreement, the privileges
under this Agreement are non-exclusive; therefore, the City shall not be
prevented and/or prohibited, in any respect, from contracting for and/or
operating additional commercial activities/uses at the Park and/or at the
Boat Ramp, even if said activities/uses are in direct competition with the
services provided by Concessionaire under the Program.
3.1.2 Proqram Vessels.
The City hereby approves of Concessionaire's plan as to the type of vessel which
will be used in connection with the Program, as described in the Application for
::;=iriil
-.,.:.ll.j
12
Commercial Concession Operations at Public Boat Ramps, attached as
composite Exhibit 2 hereto (the "Program Vessel(s)"). Any amendments to
Exhibit 2, without limitation, as to type of Program Vessel, must be approved, in
writing, by the City Manager prior to such changes being implemented within the
Concession Area, and Exhibit 2 shall be amended accordingly.
Notwithstanding the above, the City and Concessionaire hereby acknowledge
and agree that the City's approval in subsection 3.1.2 above, as to the type of
Program Vessel is given by the City solely in its proprietary, and not in its
regulatory capacity. Notwithstanding such .?difflloval, in the City's proprietary
capacity, Concessionaire agrees to secu.,,f.g-;-?. ts sole cost and expense, all
required approvals from all governmental duthorities having jurisdiction over the
Program, in connection with the operation of the Program.
3.1.3 Hours of Operation ,, **,
,A. The hours of operation are as descri6'6
with respect to'the hours of operation'
approval of the City Manager, prior to
Exhibit 2. Any change
!" require the written
inq the new
3.2
,1il|ilfu.= -,'t:;:?
Oversioht. Concessionaire,-.w_hife utilizing the Boat Ramp will provide on-site monitoring
of the Concession Area and tfiE'areas surrounding the Concession Area.
3.3 Ownership of Prooram Yessels ,K Pro$tilffi Vessels shall be the sole and exclusive
.=.,,ff ::::ff;$:'J"::::: "'',n ;;1*"*1;#r*
en'f
4.1 Use Fee: Ouring the Term"'.Concessionai,Gshall pay the City, in advance, on an annual
bas.i .to{owing use , as mqy. be modified by the City from time to time ("Use
Fee(s)'):
=',,
.:::::::::=. :r..t:::::=
-===
ill!.o*$gJi=eA Vessdffifl,uat fO - $t,200.00
LaUffih"Fees (per Exhltit 2) - $1,560.00rotal=-"iNii j ., $2'760'00
"i i rrr #jaill\iri{:The initial US$ itFeer,$tifill be due within thirty (30) days from the Effective Date.
Thereafter, the Use Fee Shall be due on or before January lst of any approved renewal
Term. $
4.2 lnterest for Late Pavment.
Any payment which Concessionaire is required to make to City which is not paid on or
before the respective date provided for in this Agreement shall be subject to interest at
the rate of eighteen percent (18%) per annum, or the maximum interest allowable
pursuant to Florida law, whichever is less, from the due date of payment until such time
as payment is actually received by the City.
13
4.3
4.4
6.2
Sales and Use Tax.
Any required Florida State Sales and Use Tax shall be paid by Concessionaire directly
or added to payments, at the designee's sole discretion, and fonrvarded to the City
as part of said payments. lt 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.
Marketinq and Advertisino.
As of the Effective Date, the City Code does not allow advertising to be placed on the
Program Vessels or anywhere on the Concession Area. Advertising on the Program
Vessels or Corrcession Area shall be prohibited.
SECTION 5. INSPECTION AND AUDIT.
Concessionaire shall maintain its financial ining to its operations herein throughout
or, if moved to another location, all such records ah i1. be relocated, at Concessionaire's
expense, to a location in Miami Beach, within ten (10) days'potice (written or verbal) from the
City. These audits are in addition to periodic audits by the Ci:ty, of Resort Tax collections and
payments, which are per:f.O.r.ry,.# separately. Nothing contained within this Section shall preclude
the City's audit rights for Resorttrax collection purposes.
the Term of this Agreement and for a three (3) years after the expiration or other
termination of this Agreement, and such shall be open and available to the City
Manager or his designee, as deemed necessffi,lt,$y"
such records at its principal office, currently located at
Concessionaire agiees and shqfi pay before delinquency all taxes (including but not
limited"tu"Resort Taie,EfunO a$3 $$X6nts of any kind levied or assessed upon a
Concession Area and/or-@.,,..lQoncessiUnaiie by reason of this Agreement, or by reasonof Concessionaire's business and/or operations within a Concession Area.
Concessionaire will have the right, at its own expense, to contest the amount or validity,
in wholelr in part, of any tax by,..:6bpropriate proceedings diligently conducted in good
faith. Concessionaire may refrain from paying a tax to the extent it is contesting the
imposition of=ame in a manner that is in accordance with law. However, if, as a result
of such contest, additional delinquency charges become due, Concessionaire shall be
responsible for such delinquency charges, in addition to payment of the contested tax, if
Procedure lf Ad Valorem Taxes Assessed. lf ad valorem taxes are assessed against the
Concession Area (or any portion thereof) by reason of Concessionaire's business and/or
operations thereon, Concessionaire shall be solely responsible for prompt and timely
payment of same.
Licenses. Concessionaire shall also be solely responsible (at its sole cost and expense)
for obtaining and maintaining current any applicable licenses or permits, as required for
the operations contemplated in this Agreement including, without limitation, any
occupational licenses required by law for the proposed uses contemplated in Section 3;
6.1
€oncessionaire shall maintain all
6.3
14
the U.S. Coast Guard licenses for captains and the Certificates of lnspection for the
vessels; the State of Florida license; and any appllcable City licenses.
SEGTION 7. EMPLOYEES AND INDEPENDENT CONTRACTORS.
7.1 Concessionaire's Employees.
7.1.1 Concessionaire shall select, train and employ such number of employees or
contractors as is necessary or appropriate for Concessionaire to satisfy its
responsibilities hereunder. Concessionaire shall be the sole authority to hire,
terminate and discipline any and all personnel employed by Concessionaire.
7.1.2 Concessionaire shall designate a competent full-time employee to oversee the
dayto-day operations, and who shall act as the contract administrator for the
Program and serve as ConcessionairelS primary point-person with the City. This
individual shall have the requisite amount of experience in operating, managing,
and maintaining the Program plated heu . The employee shall be
accessible to the City his designee at=d times during normal
business hours to discuss t, operation=2d maintenance of the
Program, and during non-busine
failure by the employee to be
principal(s), and if not rectified,employeb.' =ffi:
-W ?"
Citv Manaqer's desionee. Except for those resporiSl6itiU"es expressly set forth in this
Agreement for, respectively, the City Commission and'fu the City Manager, the City
Manager's designee$r, this Agreement shall serve.as the City's day to day
representative and point person for Concessionaire with respect to the Agreement. The
City Manager's designee shall be tfrc City's Department of Parks and Recreation
Director or Assistant Director.
lmprovements.
Concessionaire may not make any improvements to the Concession Area without City
Manager's Approval, which approval, if provided at all, shall be at the City Manager's
sole and absolute discretion.
Maintenance/Repair.
The Concessionaire shall maintain, at its sole cost and expense any equipment (as
required to operate the Program), as well as the Program Vessels. The City shall
maintain the Boat Ramp to address normal wear and tear of the dock; however,
Concessionaire shall be responsible for reimbursing the City for any maintenance and
urs in lpruevent of emergency. Consistent
ii.9#.-S"{fut[i$ereportedtoConcessionaire's
l6$:..1,$dllx'"greunds for replacement of the
7.2
The Coh'6S,s,ionaire "..3$t*i,*tn"' " of any and all Concession Areas provided in
this Agreemdru.t'=-,.,415 IS," "WHER.F lS," and "WITH ALL FAULTS," existing as of the Effective
8.1
8.2
15
8.3
any repairs as a result of the operation of the Program at the Boat Ramp, including any
damage which may be caused by the Concessionaire, its employees, contractors,
agents or invitees. Any such maintenance and repairs shall be performed by the City, as
deemed necessary, at the City Manager's sole discretion, and Concessionaire shall
reimburse the City within 10 (ten) days from receipt of the invoice.
Concessionaire shall be solely responsible for the day to day operation and shall
maintain any equipment the Program Vessels and any equipment thereon in good
working order and condition. Concessionaire shall keep Program Vessels free of
graffiti. No repairs to the Program Vessels may be made on-site. Any Program Vessel
needing maintenance shall be removed from circulation and serviced
at Concessionaire's repair center. No Program VesSffir equipment may be stored at
the Park. nE ''F'
W,MIt shall be Concessionaire's sole obligatffi to effia that any repairs and/or
improvements made by Concessionaire' to the Program i complies with all
applicable life safety codes of governmental authorities having j
Concessionaire agrees, also at its sole coSt and expense, to pay garbage disposal
Area.generated by its operations. Garbage may not be disposed of at the
Orderlv Operation.
7',-.'z
The Concessionaire shall hav6*,",orderly-peration at all times and shall be_ . .)rli
solely responsible for the neces$aLry ing Services to properly maintain its
Operations. Concessioneire warraqti. and*that Concessionaires operation
does not require use oflhe parking"6i-,,'.do_c breaSiz at the Park. Entry and exit
8.4
allow the safe launch and retrieval of others utilizing the Boat Ramp. All applicable
|,, | 9i=
==4.f ;d
i n a n ce wil r b e a d h ere d
,try
co n ce s s i o n a i re .
ssionaire ffi]h..u,,."r not$ use or permit the storage and/or use of gasoline, fuel
l, illuminatiffi ,oils, oil lamps, combustible powered electricity producing
The
oils,
generato'iE; rpentine,liilb€nzene, naphtha, propane, natural gas, or other similar
substances;=-$tnbustible materials, or explosives of any kind, or any substance or thing
prohibited in th ndard policies of fire insurance companies in the State of Florida, on
or within any of the$bession Areas, or on any City property and/or right of way.
Concessionaire shall indemnify and hold City harmless from any loss, damage, cost, or
expense of the City, including, without limitation, reasonable attorney's fees, incurred as
a result of, arising from, or connected with the placement by Concessionaire of any
"hazardous substance" or "petroleum products" on, under, in or upon the Concession
Areas as those terms are defined by applicable Federal and State Statute, or any
environmental rules and environmental regulations promulgated thereunder; provided,
however, Concessionaire shall have no liability in the event of the willful misconduct or
gross negligence of the City, its agents, servants or employees. The provisions of this
Subsection 9.4 shall survive the termination or earlier expiration of this Agreement.
16
8.5 Security.
The Concessionaire shall use the Concession Area at its own risk. The City shall not be
obligated to employ or provirJe any security measures to protect the Concession Area.
Under no circumstances shall the City be responsible for any stolen or damaged
equipment, nor shall City be responsible for any stolen or damaged personal property
of Concessionaire's employees, contractors, agents, patrons, guests, invitees, andior
other third parties.
8.6 lnspection. -=
The Concessionaire agrees that the Concession Area may be inspected at any time by
the City Manager or his designee, or by any$ther municipal, County, State officer, or
officers of any other agency(ies) having responsibility and/or jurisdiction for inspections
of such operations. The Concessionaire::EEby waives all claims against the City for
compensation for loss or damage sustained by reason of any interference with the
concession operation as a result of infuction by any public agency(ies) or officials,
(including, without limitation, by reason ny such pr*blic agency or official in enforcing
any laws, ordinances, or regulations as a res$ftFt1l,.g,I€$f). Any such interference shall not
relieve the Concessionaire fpy obligation nW*,
SECTION 9. INSURANCE.
9.1 Without limitlrgr,;its li-'EiX@under this Agreement, Concessionaire shall, at all times
during the Tet!:!]rof this &reement, procure and maihtain, at its sole expense (and
Concessionaire shall require its Concesiionaire, subcontractors, laborers, materialmen
and suppliers to'pipvide, aS aplphcable), insurance of the types and in the minimum
amounts stated bel<t'tli,l|$#ffifbfid€acertifi. te with applicable endorsements on a form
that is'acdeptable to thB,p[!y's DiViSt6' ,f lh6urance and Risk Management evidencing
the following required coildffies to the eifu (including coverage of all Program Vessels
which shall be used by Concessionaire to operate the Program):.i.
Schedule "r.. Limits
Worker's' Compensation/Employers Liabi I ity
Worker's Cornpensation
Employer's Liability
Florida Statutory Coverage
$1,000,000 Each Accident
=, $1,000,000 Disease Policy Limit
$1,000,000 Each Employee/Disease
This insurance shall cover the Concessionaire (and to the extent its subcontractors and
sub-contractors are not othenrise insured, its subcontractors and sub-contractors) for
those sources of liability which would be covered by the latest edition of the standard
Workers' Compensation policy, as filed for use in the State of Florida by the National
Council on Compensation lnsurance (NCCI), without any restrictive endorsements other
than the Florida Employers Liability Coverage Endorsement (NCCI Form WC 09 03),
those which are required by the State of Florida, or any restrictive NCCI endorsements
which, under an NCCI filing, must be attached to the policy (i.e., mandatory
endorsements). ln addition to coverage for the Florida Workers' Compensation Act,
11
17
where appropriate, coverage is to be included for the Federal Employers' Liability Act,
USL&H and Jones Act, to extent coverage is not provided by the Protection and
lndemnity policy and any other applicable federal or state law.
Hull Coveraqe: Coverage for direct damage to vessels written on American lnstitute Hull
clauses form, specifically including "Running Down clauses," "Agreed Valuation
clauses," and Amount of insurance based on value of vessels. The policy shall cover
collision liability on a primary basis.
Protection and lndemnity Coveraoe: Form "SP 23" Cov:eJage for water taxi operations
of the watercraft, as included in "SP23" for dama$Cft any harbor, graving, piers,
bumpers, etc.; including, but not limited to, Crew to the extent coverage is not provided
by the Worker's Compensation policy, Passenger and Coverage for property and liability
from land while loading and unloading
navigation along with Cargo Legal Liabili
Ferry or Water Taxi and on-board during
Liability, Excess Collision over insured
hull limit.
(Coverage shall include Premises,
Personal Effects, Medical Payments,
Exclusion Buyback Endorsement A,
W re-.c{<=-=Re m o va l, a nd Po l l u ti o n B u y b a c k ).
llllllHllNirrrru*,,^ ;M coverase,"o;=;
Vesset Pottution Liabitity locc. 'ffi)"",i1@r;, *4$rr',-
rh\
N
E{
"l9;6lMih0=WaterQuality
lnsrrance Syndieatglidr similar form Per Statutory coverage and
''H#'
CoVdrige for third p'aity liability for land based operations to the public and connection
with the,€mohibious tdUH,taxi-ooeration. specificallv includino Occurrence form, Bodilvwith the"ilwith the;,'ffiphibious tdUdlntaxi-operation, specifically including Occurrence form, Bodily
lnjury, Pr,ftrcrty Dama$Q; Products & Completed Operations, Medical Payments,
Liability, Ship Repair Liability.
Such insurancei no more restrictive than that provided by the most recent
version of the Commercial General Liability Form (lSO Form CG 00 01) as
filed for use in the State of Florida without any restrictive endorsements other than those
approved by the City's Office of lnsurance and Risk Management.
$2,000,000 GeneralAggregate
$1,000,000 EachOccurrence
$ 50,000 Fire Damage
$ 5,000 Medical Expenses
L2
18
Bumpershoot Liability $1,000,000 Per Occurrence and Aggregate
(The Bumpershoot Liability policy shall be in excess of the Employer's Liability,
Commercial General Liability, Automobile Liability, Personal & lndemnity and Pollution
Liability limits without any gap. The Bumpershoot coverage will follow form the
underlying coverages and provide on an Occurrence basis all coverages listed
above.)
A. Waiver of Subroqation. All insurance shall be endorsed to provide for a waiver of
undenruriter's rights of subrogation in favor of the City-of Miami Beach and the City's
members, officials, officers and employees.
=,,iffi1
'
.:::lr::::.i7 I lIIi',.B. Additional lnsured: All lnsurance, except Wa*ef,[$ip0ompensation and Professional
Liability, shall be endorsed to name the Gitfrcf Mid,ihi-Beach and City's members,
officials, officers, and employees. Additional Liabilit$lls5all be in a form no more
restrictive than CG2010 and Autornobile Liability CA2S48: endorsements will be
provided to, reviewed and approved by the City's Divisioa of lnsurance and Risk
ihe insurance pidiio"o by theC.
Concessionaire for shall',appli on a primary basis to, and shall not require
contribution from, any oth6i insurance or self-insurance maintained by the City or
City member, official, officer and emp $.,$e, '':
D. Deductible or self-ihsured retenlliih.,:::EXoept a5;ifiE}lhorized in this Agreement, the
iireshall},Dprvonafirstdollarbasiswithout
application of a self-insurance, d6drctible, or self-insured retention. Except as
qgtll.e,r1zed specifically in this Agreement, no self-insurance, deductible, or self-] u d,retention for any required insurande, the Concessionaire shall be responsible
fur paying,,'r,on behalf of the City (and any other person or organization
'. Concessiona'ire', has, in this Agreement, agreed to include as an insured for the
',r,,flquired insurafiie) any self-insurance, deductible, or self-insured retention allowed
UA{"p-t this paragiapn. fne City will not be responsible for any self-insurance,
OeaR,l;f],es or self-iil$fured retentions under this Agreement.
E.
requirements
:e Additional Remedv. Compliance with the insurance
ment shall not limit the liability of the Concessionaire or its
Subcontractor{''''ff1'Sub- subcontractors, employees or agent to the City or others.
Any remedy provided to City or City's members, officials or employees shall be in
addition to and not in lieu of any other remedy available under this Agreement or
othenruise.
F. No Waiver by the Citv Aoproval/Disaoproval. Neither approval by the City nor failureto disapprove the insurance furnished by Concessionaire shall relieve
Concessionaire of Concessionaire's full responsibility to provide insurance as
required under this Agreement.
13
19
G. Each policy shall be written by an insurer holding a current certificate of authority
pursuant to chapter 624, Florida Statues or accompany that is declared as an
approved Surplus Lines carrier under Chapter 626 Florida Statutes. Such insurance
shall be endorsed to provide for a waiver of underuvriter's rights of subrogation in
favor of the City. Such lnsurance shall be written by an insurer with an A.M. Best
Rating of A-Vll or better. Prior to commencing any Services, Certificates of lnsurance
approved by the City's Division of lnsurance & Risk Management demonstrating the
maintenance of said insurance shall be furnished to City. The Concessionaire shall
provide an endorsement issued by the insurer to provide the City thirty (30) days
prior written notice of any change in the above insurance coverage limits or
cancellation, including expiration or non-renewal. ln.the event the Concessionaire is
unable to obtain such endorsement, the Concessionaire agrees to provide the City
the notice directly. Until such time as the in5urance is no longer required to be
maintained by the Concessionaire, Con,cessionaire shall provide the City with
renewal or replacement evidence of insqr*ahce with the above minimum requirements
no less than 30 days before the expiratidh or termination of the insurance for which
previous evidence of insurance has been provided.
H. Notwithstanding the prior submid'sion of a Certificate oi Insurance, copies of
endorsements, or other evidence initiE accep,t ble to City's Division of lnsurance
and Risk Management, if..requested to do so by the City, the Concessionaire shall,
within thirty (30) days after receipt of a written request from the City, provide the City
with a certified, complete copy of the policies oJ insurance providing the coverage
required herein. ,'""S.
.TS"\ 4s"
J. Depending ,p,o.l .tl.g. natiq..q1f any aspect of any project and its accompanying
exposures and liabilities, thd€ity may, at its sole option require additional insurance
covereges in amountS responSive to those liabilities, which may or may not require
that the City also be named as an additional insured.
K. Concessionaire's failure to provide evidence of insurance coverage set forth in this
Section 9, within fwo (2) days from receipt of a written request from the City shall
constitute a material default under this Agreement and shall entitle the City to pursue
its default remedies, as set forth in subsection 12"4, without affording Concessionaire
an opportunity to cure the default.
SECTION 10. INDEMNIffiRELEASE.
10.1 ln 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
t4
20
officials, directors, employees, contractors, agents, and servants from and against any
and all actions (whether at law or inequity), claims, liabilities, losses, and expenses,
including, but not limited to, attorneys'fees and costs, for personal, economic or bodily
injury, wrongful death, loss of or damage to property, which may arise or be alleged to
have arisen from: (1) wholly or in part from the negligent acts, errors, omissions or other
misconduct of Concessionaire, its officers, director, members, employees, agents,
contractors, subcontractors, or any other person or entity acting under Concessionaire's
control or supervision; (2) Concessionaire's breach of the terms of this Agreement or its
representations and warranties herein; or (3) the operation of the Program. To that
extent, 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.
10.2 ln addition, in consideration of a separate and'specific consideration of Ten ($1O.OO1
Dollars and other good and valuable consldeiation the reCeipt and sufficiency of which
are hereby acknowledged, Concessionaire shall indemnify, hold harmless and defend
the City, its officials, directors, employees, contractors, agents, and servants from and
against any claim, demand or cause of action of wtratever kind or nature arising out of
any misconduct of Concessionaire, its offiCials, directors, employees, contractors,
agents, and servants not inilu.{ the para$@h in the subsection above and for
which the City, its officials, directorsi-employees, Contractors, agents, and servants are
alleged to be liable. ." : ,,i&{tu
10.3 Subsections 10.1 and 10 2 shall survive the termination or expiration of this Agreement.
Subsections 10.1 and 10"2 shall noi::Fa-pl . evei; to any such liability that arises as a
result of the willful misconduct or gross negiigence of the City.
10.4 Concessionaire shall ensure that Program
with their participation in the Program,
shall include the City --:65 an additional releasee thereunder.
CtihcessionaireShall provide the City with a copy of the release form for approval by the
Citir'sfisk Manager'ffifich appioved release form shall be attached as Exhibit 3 hereto.
, .- 'i..,
to perform hereunder and neither party shall be deemed
to be in default if prevented by:
a. Any act or chain of related acts resulting in destruction, vandalism or theft of
water stations which render at least fifty (50%) percent of the Concessionaire
Areas unusable at any one point in time and which is not caused by negligence
of Conc,essionaire;
b. earthquake; hurricane; flood; act of God; direct act of terrorism; or civil
commotion occurring which renders at least fifty (50%) percent of the Concession
Areas unusable.
m
11"1 Neither party snall Og
15
21
c. any law, ordinance, rule, regulation or order of any public or military authority
stemming from the existence of economic or energy controls, hostilities, or war
which renders at least fifty (50%) percent of the Concession Areas unusable.
11.2 Labor Dispute.
ln the event of a labor dispute which results in a strike, picket or boycott affecting at least
fifty (50%) percent of the Concession Areas, 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 the.re- has been a final determination
of such fact which is not cured by Concessionairewi(flffiirtV (30) days).
11.3 waiverof Lossfrom Hazards. Niiiir t;:.,
The Concessionaire hereby expressly waive 'ill claffi74,,,9ainst the City for loss or
damage sustained by the Concession@ resulting'':,--.f..€m any Force Majeure
contemplated in Subsection 11.1 and Labor Dispute in Subdestionll.2 above, and the
Concessionaire hereby expressly waives alf rights, claims, and d€-ma.nds against the City
and forever releases and discharges the City of Miami Beach, FloriG.a&m all demands,
claims, actions and causes of :rCion arising from any of the aforesaid-'$uses.
Subsection s 12.1 through 12.3 shall ..'fut" J;,H-.il,U .o-J default under this Agreement. An
event of default by Concessionaire shall '-d-dtitle the City to*exercise any and all remedies
described as City's remedies under this Agreeme-nt, including btit not limited to those set forth in
Subsection 12.4. "':,/
121 ,,1 ,-=
'-=%ff,F'
=
lf either the Gt[y or Cohc=:jonaire shall be adjudged bankrupt or insolvent, or if' 4xy receiver oFSstee of all or any part of the business property of either party
$?i'-.all Oe appointed, or if any receiver of all or any part of the business property
sh-i- appoinieU and shall not be diseharged within sixty (60) days after
appo ffi.e_nt, o,f;i{ ither party shall make an assignment of its property for the
benefit A:f1$;.gr$"ffi, or shall file a voluntary petition in bankruptcy, or insolvency,
or shall app|'f;:fur reorganization or arrangement with its creditors under the
bankruptcy or insolvency laws now in force or hereinafter enacted, Federal,
State, or othenvise, or if such petitions shall be filed against either party and shall
not be dismissed within sixty (60) days after such filing, then the other party may
immediately, or at any time thereafter, and without further demand or notice,
terminate this Agreement without being prejudiced as to any remedies which may
be available to it for breach of contract.
16
22
12.2
12.3
12.4
Default in Payment.
ln the event Concessionaire fails to submit any payment within five (5) days of its
due date, there shall be a late charge of One Hundred and Fifty ($150.00) Dollars
per day for such late payment, in addition to the interest which accrues pursuant
to subsection 4.2. lf any payment and accumulated penalties are not received
within ten (10) days after the payment due date, and such failure continues for
ten (10) days after written notice thereof, then the City may, without further
demand or notice, terminate this Concession Agreement without being
prejudiced as to any remedies which may be av.lifaOte to it for breach of contract.
Non-Monetarv Default. j
Unress othenrvise set rorth in this oslr,";"n:,:j"nt that concessionaire or
the City fails to reasonably perfoim or observe the non-monetary covenants,
terms or provisions under this Agreement, and such failure continues ten (10)
days after written notice thereof from the other party hereto, such non-defaulting
party may immediately or at any"tiffe theregqfiee and without further demand or
notice, terminate this,,Agreement withou-t=.EEl prejudiced as to any remedies
which may be available to it for breach ofuntract. ln 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, wi_ttrin such period, commence with
due diligelee;nd dispatch -to cure such defauftl-,ind thereafter completes with
dispatch:= ffi Oitigence the curing of such defauit, but in no event shall such
extende$:-ure'p$ffo,p exceed$irty (30) days from the date of written notice
thereof#.ff),p the e$ent Concessionaire cures any default pursuant to this
subsecti6ftl2.it.,shalUlpromptly Oro..1r-,,,,,1 the City Manager with written notice of
"rrr', *"*"*r,orl8 .r.urr.
lf.,an! of the events of Oefautt, as set forth in this Section, shall occur, the City
::t t:
may, after expiration of the cure periods, as provided above (unless otherwise
proVided in the Agreement), at its sole option and discretion, institute such
procedings 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. lf such notice is given, the term of this Agreement shall terminate
upon the date specified in such notice from City to Concessionaire. On the date
so specified, Concessionaire shall then quit and surrender the Concession Area
to City pursuant to the provisions of Subsection 12.6. 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
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.
77
23
ln addition to the rights set forth above, the City shall have the right to pursue any
and all of the following:
a. the right to injunction or other similar relief available to it under Florida law
against Concessionaire; and/or
b. the nght to maintain any and all actions at law or suits in equity or other
proper proceedings to obtain damages resulting from Concessionaire's
default.
,,0,i;;jiii,,12.5 lf an event of default by the City shall o^g#Iffl"lhe Concessionaire may, after
expiration of the cure periods, as provide*d aboVe, terminate this Agreement upon
written notice to the City. Said terminafid"(ii$hallibecome 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 thirty (30) days from the date of the
written termination notice. On:.-1,,,.! date specified in the- notice, Concessionaire
shall quit and surrender the= ncession Area(s) tci::pi.1y pursuant to the
12.6 Surrender of Concggitdj=.:lreas / Removal bv Concessionaire of
Eq u ipm e nUI morovementd,...':":r'-::'.=':
Upon expiration, or earlidfl,
surrender the Concession 'fffuas
ffi11tfte TIg_ condition as the Concession
Areas were prior to the Commqt}cemerftltlD#te, reasonable wear and tear
excepted, Concessionaire shHlll l6t its sole expense and at no charge to the
City, ceasejus.ing the,Concession Area, no later than thirty (30) days after the
.= e.6..6==9! ion of .the.=Term, (or from ther$ate of other termination of this Agreement)
...:=..' CIhles6.,]91gei:t[ e period is agreed'iefb, in writing, by the City Manager).
1,,,. Concessionaiqe's obligation to observe or perform this covenant shall survive the't expiration or other teimination of this Agreement. Continued occupancy of any
,e,,,,.o1cession Are-as_after termination of the Agreement shall constitute trespass by
thd{oncessioGiFe, and may be prosecuted as such. ln addition, the
Co@ssionane fiffill pay to the City One Thousand ($1,000.00) Dollars per day
per Coffirgn ry" as liquidated damages for such trespass and holding over"
\LV: rrE!:?'nr12.7 Substitute.Pffidtmance
ln the event that the Concessionaire fails to properly perform its obligations or
cure any default under the Agreement, after receipt of written notice from the
City, then the City shall have the right, but not the obligation, to undertake
Concessionaire's duties and obligations under the Agreement, as the City
Manager deems appropriate, and to charge Concessionaire for all actual costs
thereby incurred by the City. Cone,essionaire shall be responsible for paying all
of said costs.
18
24
12.8
12.9
Termination for Convenience of the Citv
THE CITY MAY ALSO, THROUGH ITS CIry MANAGER, AND FOR ITS
CONVENIENCE AND WITHOUT CAUSE, TERMINATE THE AGREEMENT AT
ANY TIME DURING THE TERM BY GIVING WRITTEN NOTICE TO
CONCESSIONAIRE OF SUCH TERMINATION, WHICH SHALL BECOME
EFFECTTVE WITH|N THrRTY (30) DAYS FOLLOWTNG RECEIPT By THE
CONCESSIONAIRE OF SUCH NOTICE, FOLLOWING WHICH THE CITY
SHALL BE DISCHARGED FROM ANY AND ALL LIABILITIES, DUTIES, AND
TERMS ARISING OUT OF, OR By VTRTUE OFiTHIS AGREEMENT.
City Manaqer Emergency Powers ', '..=
..,::::::::::::,::= .,=,,'
A. Notwithstanding anything to the cod- d c6ntained in this Agreement, and in
addition to any other remedy which the City may have under this Agreement or
pursuant to applicable law, if the performance by Concessionaire under this
Agreement or the Program is creating a public health, welfare or safety concern,
as determined by the City Manager, in the City Manage,r's sole discretion, the
City Manager may immediately suspend the performance'of services under this
Agreement, including.the Program,qtil-sUih time as the C0filition has been
remedied to the satisfaclion of the City Manager.
B. Removal of The City
Manager or his/her deSilinee -djrect Oi'irequire the Concessionaire to
immediately remove, rel ate and/0i=,3tore a-f." equipment located on the
Concession Area and any Proglam.',V€---=EL.==(.lConcessionaire's Property") for
publie'-a ty considerations in eg6-gency situations, including, without limitation,
a threaldned tropical storm or hu*icane. Upon written andior verbal notification
by the City'Manager of a tropical storm/hurricane warning or alert, or other major
i1,ffiather evehtlhat may adversely inip.qct the City, or upon the designation by the
ii:iUhited,'States 'National Weather S6rvice or National Hurricane Center of a
tropical:=torm/huricane waining or alert, whichever occurs first, the
ConcessionQigg shall,:,tuilhin no more than two hours of same, remove and store
ll of ConceS$.it5:.aaire's Pioperty to secure Concessionaire's Property in response
ft tne threaten:*storm oi otl'rer emergency, and shall take all other measures
Wilihh may be n@ssary for the protection of the public with respect thereto. The
notff[
=q]j.9n
by the-City Manager of a hurricane or other major weather event, or
the iS$llgnce A,,\iil# hurricane warning, shall constitute a public emergency
situatioff':dffilm:fiHilU?e of the City to direct the Concessionaire to remove or safety
store Conffi$ibnaire's Property shall not relieve the Concessionaire of its
obligation to remove and store Concessionaire's Property in response to a
threatened storm event as outlined herein.
Should Concessionaire fail to remove Concessionaire's Property within said two
(2) hour period, or in the event the City Manager or his/her designee determines,
at his/her sole discretion, that Concessionaire's removal, storage and other
efforts are otherwise not satisfactory, Concessionaire shall thereafter be
assessed a fee of $50.00 per hour, until such time as all of Concessionaire's
Property have been removed to the City Manager's satisfaction. ln addition, the
City Manager, without any obligation to do so, may immediately proceed to
19
25
rernove, relocate, and/or store the Concessionaire's Property that has othenruise
not been removed by the Concessionaire, at the Concessionaire's sole cost and
expense, with payment to the City for all such costs due within thirty (30) days of
City's inrcice to Concessionaire.
Concessionaire shall be solely responsible for any damage to City property or
other property resulting from Concessionaire's failure to remove and store
Concessionaire's property, or otheruvise implement appropriate measures in
response to a threatened storm or hurricane.
Concessionaire's failure to comply with this Section shall constitute a material default
under this Agreement and shall entitle the City to pursue its default remedies, as
set forth in subsection 12.4, without affording Concessionaire an opportunity to
cure the default. The remedies identified herein for Concessionaire's failure to comply
with this Section are cumulative, and in ?ddition to, all remedies that may be available to
INTENTI
SECTION 14. ASSIGNMENT.
Concessionaire shall no-t=..assign all or any portioh of its coj
City Commission, the asdi$ffiep"r.s= grgg to be bound by all the covenants of this Agreement
req u ired of ConcesSionaire.
Concessionaire shall no..t===assign all or any portioh of its WSIS or obligations under this
Agreement without the"prior written consent of the City Commission, which consent shall be at
the sole and absolutei''disiretion of"the City ComrnisSion. Concessionaire shall notify the City
Manager of any proposed assignment, in writing, at least sixt, (60) days prior to the proposed
effective date of such assignment.'+ln the event that any such assignment is approved by the
.r,,:r: ,,: ._,:::,::::r::,,.il\
SECTION 15. NO IMPROPER USEA
The Concessionaire will not', use, noi suffer or permit any person to use in any
manner whatsoever, the Concession Area or Program Vessel, for any illegal, improper, immoral
or offensive purpose, or for any other purpose in violation of any Federal, State, County, or
municipal ordinance, tUle, order or regulation, or of any governmental rule or regulation now in
effect or hereafter enaCted or adopted. The Concessionaire will protect, indemnify, and forever
save and keep harmless the City, its officials, employees, contractors, and agents from and
against damage, penalty, fine, judgment, expense or charge suffered, imposed, assessed or
incurred for any violation, or breach of any law, ordinance, rule, order or regulation occasioned
by any act, neglect or omission of the Concessionaire, or any official, director, agent, contractor,
or servant regarding the concession. ln the event of any violation by the Concessionaire, or if
the City or its authorized representative shall deem any conduct on the part of the
Concessionaire to be objectionable or improper, the City shall have the right to suspend
concession operation should the Concessionaire fail to correct any such violation, conduct, or
practice to the satisfaction of the City Manager or his designee within twenty-four (24)
hours following written notice of the nature and extent of such violation, conduct, or
the City at law and in equity.
20
26
practice. Such suspension to continue until the violation is cured to the satisfaction from the
City Manager or his designee.
SECTION 16. NOTICES.
All notices from the City to the Concessionaire shall be deemed duly served upon receipt, if
mailed by registered or certified mail return receipt to the address to the Concessionaire at the
following address:
With copies to:
All notices from the Concessionaire to the City shall be deemed served upon
Miami Beach at the following addresses: ',,,,
With copy to:
.ir::.::i:rsii.'..
,ffi'
'1700 Convenfu Center Drive
Miami Bead(f lFL 33139
Atth: Ci$ Manager
? :;,
TheiGorrcessionaire'tef-rd the City may change the
upon'$'i 4 the otheF. party written notification.
Agreem6filarst be in W g.
above mailing address at any time
All notices under this Concession
._.j:i!?.,1:t::=
SECTION 17. LAWS. 3
17.1 compliance.
.:t'%^Ml'
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.
17.2 Governinq Law.
Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of Florida.
2L
27
17.3 Equal EmploymentOpportunitv.
Neither Concessionaire nor any affiliate of Concessionaire performing services
hereunder, or pursuant hereto, will discriminate against any employee or applicant for
employment because of race, creed, sex, color, national origin, sexual orientation, and
disability (as defined in Title I of ADA). Concessionaire will take affirmative steps to
utilize minorities and females in the work force and in correlative business enterprises.
17.4 NoDiscrimination.
All operations and services offered in the Concession Area shall be made available to
the public, subject to the right of the Concessionaire*end the City to establish and
enforce reasonable rules and regulations to providgrf6*lXtH'6 safety, orderly operation, and
di/i,l$iil''"%Concessionaire hereby agrees to comply witH'City mi Beach Human Rights
Ordinance as codified in Chapter 62 of the City Code, ad be amended from time to
time, prohibiting discrimination in employment, housing,accommodations, or
public services, on the basis of actual orrperceived race, color,origin, religion,
sex, intersexuality, sexual orientation, $ender identity, familial rital status, og€,
ancestry, height, weight, domestic partner status, labor orga membership,
familial situation, political r, or disability.
SECTION 18. MISCELLANEOUS.
18.1 No Partnership. '=,.,,=,
::::::: :: I V-Bt ..:i$t
Nothing contained in thiS Agreementshailtbnstitutb 6r be construed to be orcreate a
partnership or joint venture between the.=itv and Concessionaire.
'.:l:::::::::...
18.2 =:
This Agreement cannot be changed or modified except by Agreement in writing
executed by all parties:hereto- Ooncessionaire acknowledges that no modification to this
Agreement may be agreed to'by the City unless approved by the Mayor and City
Commission except where such authority has been expressly provided herein to the City
Manager or his designee.
18.3 Comptete AordeEent.
i, tt,
This Agreement, togdther with all exhibits incorporated hereto, constitutes all the
understandings and Agreements of whatsoever nature or kind existing between the
parties with respect to Concessionaire's operations, as contemplated herein.
18.4 Headinqs.
The section, subsection and paragraph headings contained herein are for convenience
of reference only and are not intended to define, limit, or describe the scope or intent of
any provision of this Agreement.
22
28
18.5 Bindinq Effect.
This Agreement shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and permitted assigns.
18.6 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 wer:egot contained herein unless the
elimination of such provision detrimentally reduces the eonsideration that either party is
to receive under this Agreement or materially aflects the continuing operation of
this Agreement.
18.7 Severability.
fir
lf any provision of this Agreement or tl'EV.., rtion o,,I,,+uch provision or the application
thereof to any person or circumstance shElEl..ql h=e.ld$ be invalid or unenforceable, or
shall become a violation of any local, State, gr..Federal laws, then the same as so
applied shall no longer be a part of this AgreemeEt:,fut the remainder of the Agreement,
such provisions and the application thereof to othei persons or circumstances, shall not
be affected thereby and this Agreemenf as so modified'$all.
?i4
,fu
a ;:i
The City, at the diiffiOtign ,q).f=,- .=e..$y Manager, shall at all times during hours of operation,
have thEight to entei'into and upon any and all parts of the Concession Area(s) for the
purpos€S of examinin$=thresame for,.Q.fiy,,,,. ason relating to the obligations of parties to
\.\:: :18.9 Not a Lease. ::
It is expressJy understood and agreed that no part, parcel, building, facility, equipment or
space is leaS€d to the Concessionaire, that it is a concessionaire and not a lessee; that
the Concessionaire's right to operate the concession shall continue only so long as this
Agreement remainS in effect.
18.10 Siqnaqe.
Concessionaire shall not be permitted to install any signage at the Concession Area.
23
29
18.11 Procedure for Approvals and/or Consents.
ln each instance in which the approval or consent of the City Manager or his designee is
allowed or required in this Agreement, it is acknowledged that such authority has been
expressly provided herein to the City Manager or his des(7nee by the Mayor and City
Commission of the City. ln each instance in which the approval or consent of the City
Manager or his designee is allowed or required in this Agreement, Concessionaire shall
send to the City Manager a written request for approval or consent (the "Approval
Request")'
iff###r.
The City Manager or his designee shall use reas$iffiHefforts to provide written notice
to Concessionaire approving of consent to, or dffi$r,,oving of the request, within thirty
(30) days from the date of Approval Request (oi Withinl$nch other time period as may be
expressly set forth for a particular approval or Consent ff{ffiOr this Agreement). However,
the City Manager or his designee's faifure to consider such request within this time
provided shall not be deemed a walVer, nor shall ConceS5ionaire assume that the
request is automatically approved and consented to. The t$.1$= Manager or his
designee shall not unreasonably withhotd such approval -i@=== consent. This
Subsection shall not apply,,ll4til."p. approvals requipd herein by -he Mayor and
City Commission. .,r , .
1g.12 Nowaiver. "",li,,,rrr, t@@*. =
J
tt is mutually covenanted and "gr;"dly r=n1-q t{p,g,;1.the parties hereto that the failure
of the City to insist upon the strict.Blerfo nce 6f ayV of the conditions, covenants,
terms or provisions of this Agreement, <5-F$exercise any option herein conferred, will not
be considered oi'construed as a waiver.oJ relinquishment for the future of any such
co1;r$ifip",,,,11$flipovenarts, terms, provisions o1[ options but the same shall continue and
^Wi#.,#.iri'""in'ft11,:.:f,e,rce and effect A waiver Wtttany term expressed herein shall not be
plied by any. ct of ,the City to d6dlare a forfeiture on account of the violation of
Suc.h-,term if such@ffition by continued or repeated subsequently and any express
wai$$fl5gflall not affecf;fi term other than the one specified in such waiver and that one
ontV tOffime and iri,ffi, -., manner specifically stated.
The receipt"df"4.glly sum.$Hid by Concessionaire to the City after breach of any condition,
covenant, terrii:'o'r-==pr. ision herein contained shall not be deemed a waiver of such
breach, but shall=', taken, considered and construed as payment for use and
occupation, and not as rent, unless such breach be expressly waived in writing by the
City.
18.13 No Third Partv Beneficiary.
Nothing in this Agreement shall confer upon any person or entity, including, but not
limited to sub concessionaires, other than the parties hereto and their respective
successors and permitted assigns, any rights or remedies by reason of this Agreement.
24
30
18.14 No Lien
ln the event any notice or claim of lien shall be asserted against the interest of the City
on account of or arising from any work done by or for Concessionaire, or any person
claiming by, through or under Concessionaire, or for improvements or work, the cost of
which is the responsibility of Concessionaire, Concessionaire agrees to have such notice
or claim of lien cancelled and discharged within fifteen (15) days after notice to
Concessionaire by City. ln the event Concessionaire fails to do so, City may terminate
this Agreement for cause without liability to City.
SECTION 19. LIMITATION OF LIABILITY.
performance or on-performance of anl.
This Agreement=hall be
r:\:.:il llilrir;lt j-fiil h6vc=b.e.en
The City desires to enter into this Agreement placig=-f,,..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 Five Thoi.rsand ($5,000.00) Dollars.
Concessionaire hereby expresses its willingness to enter into this Agreement Five
Thousand ($5,000.00) Dollars limitation on recovery for any action for breach of contract.
Accordingly, and in consideration of the separate consideration of Five Thfii6and ($5,000.00)
Dollars, the receipt of which is hereby acknowledged, tne City shall not be liable to
Concessionaire for damages to ftt&,qgssionaire in 'an amount in excess of Five
Thousand ($5,000.00) Dollars, for any':action for breach of contract arising out of the
of
iand shall be construed and interpreted in
Agreement shall be enforceable in Miami-accordance with the laws of th€
Dade County, Florida, and if by either party with respect to the
enforcement of any and all the ternf#ffi,,ponditions herein, exclusive venue for the enforcement
of same shall liein Miami-Dade CountV, Florida.
CITY AND CONCESSIONAIRE HEREBY KNOWINGLY AND INTENTIONALLY WAIVE THE
RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING THAT CITY
AND GONCESSIONAIRE MAY HEREIN AFTER INSTITUTE AGAINST EACH OTHER
WITH RESPECT TO ''ANY MATTER ARISING OUT OF OR RELATED TO THIS
AGREEMENT OR THE CONCESSTON AREA(S).
SECTION 21. CONCESSIONAIRE'S COMPLIANCE WITH FLORIDA PUBLIC RECORDS
LAW.
21.1 Contractor shall comply with Florida Public Records law under Chapter 119, Florida
Statutes, as may be amended from time to time. Records made or received in
connection with this Agreement are public records under Florida law, as defined in
Section 1 19.01 1(12), Florida Statutes.
25
31
21.2 Pursuant to Section 119.0701 of the Florida Statutes, if the Contractor meets the
definition of Contractor as defined in Section 1 19.0701(1Xa), the Contractor shall:
(A) Keep and maintain public records required by the City to perform the service;
(B) 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 othenruise provided by law;
(C) Ensure that public records that are exempt or confidential and exempt from public
records disclosure requirements are not disclosed, eicept as authorized by law, for
the duration of the contract term and following completion of the Agreement if the
Contractor does not transfer the records to the City;
(D) Upon completion of the Agreement, t,g1,ffifpi, at no cost to the City, all public records
in possession of the Contractor or,,kee.fland maintain public records required by the
City to perform the service. lf thdd ractor transfers all public records to the City
upon completion of the Agreementltiib Contractor shall destroy any duplicate public
records that are exempt or confidentHfiL,Bnd e].F.-E from public records disclosure
requirements. lf the Contractor keeps and.i,tt1(tifitdiiib public records upon completion
of the Agreement, the Contraclor shall meet,aii applicable requirements for retaining
public records. All records stored electronicdiiy, must be provided to the City, upon
request from the City's custodian of public recordsjn a format that is compatible with
the information technology systems of the City. ' -;.
21.3 Request for Records;
must be maffiiifti19c=tEto,,fhe City..lf the City does not possess the requested
records, the Cit| dheff immediatgly notify the Contractor of the request, and therecords, the Cit| Slt r efi,htely notify the Contractor of the request, and the
Contractor must pro*T*e the redUfl{ffithe City or allow the records to be inspected
or copied within a reasonable time.''q' l'or copied within a reaSd.dable time.*'t".1'
(B) Contractor's failure to coiTply with the City's request for records shall constitute a
breach of this Agreement;"=d.d.the City, at its sole discretion, may: (1) unilaterally
terminate the Alreer"ni; (Z;''avait iiself of the remedies set-forth under the
AOree@ and/or (3) avail itself of any available remedies at law or in equity.
(C) A Contractor ho failS to provide the public records to the City within a reasonable
time may be Subject to penalties under s. 1 19.10.
-21.4 CivilAction.
(A) lf a civil action is filed against a Contractor to compel production of public records
relating to the City's contract for services, the court shall assess and award against
the Contractor the reasonable costs of enforcement, including reasonable attorney
fees, if:
'1.:::::::t::t::.:i(A) A request td:fupect public records relating to the City's contract for services
must be madB
1. The court determines that the Contractor unlawfully refused to comply with the
public records request within a reasonable time; and
26
32
2. At least 8 business days before filing the action, the plaintiff provided written
notice of the public records request, including a statement that the Contractor
has not complied with the request, to the City and to the Contractor.
(B)A notice complies with subparagraph (1Xb) if it is sent to the City's custodian of
public records and to the Contractor at the Contracto/s address listed on its contract
with the City or to the Contractor's registered agent. Such notices must be sent by
comrnon 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 forma
,r,rrnlt,r,u
(C) A Contractor who complies with a public record*q,,re-qti'6st within 8 business days after
the notice is sent is not liable for the reasonr=-ryr of enforcement.
21.5 IF THE CONTRACTOR HAS QUESTIONS':-.. GARPING THE APPLICATION OF
GHAPTER 119, FLORTDA STATUTES, TO THE CONTRACTqB'S DUTY TO PROVTDE
PUBLTC RECORDS RELATTNG TO THIS AGREEMENT, CONTACT THE CUSTODTAN OF
PUBLIC RECORDS AT: ffiEffifr\
"CITY OF MIAM! BEACH "';"":.ro.
ATTENTION: RAFAEL E. GRANA.P_P-pITY CLERK
1700 CONVENTION CENTER DRIVE '..'
,w,,
,,
27
33
IN WITNESS WHEREOF, the parties hereto have caused their names to be signed and their
seals to be affixed, all as of the day and year first above written, indicating their Agreement.
Attest:CITY OF MIAM! BEACH, FLORIDA
Rafael E. Granado, City Clerk
Attest:
Print Name and Ti
P h i I i p Leu,,.ffiiiffi {rer.
w
DUCK TOURS SOUTH BEACH LLC.
Print Name and Title
28
34
Exhibit 1
Barry Kutun Boat Ramp at Maurice Gibb Memorial Park
Commercial Concessron Srfe Ptan
n crossed morked section is concession oreo
29
35
Exhibit 2
Application for Commercial Concession Operations
at Public Boat Ramps
'%,
.::'i
Uiiiir
30
36
Exhibit 3
Re/ease Form
31
37
38
Aqenda t@^ c1E
Date tJ-ltt-lb
RESOLUTION NO.
A RESOLUTION OF THE MAYOR AND GITY COMMISSION OF THE CITYOF MIAMI BEACH, FLORIDA, ACCEPTING THE WRTTTEN
RECOMMENDATTON OF THE CtTy MANAGER (AS SET FORTH tN THE
clTY coMMlssloN MEMoRANDUM ACCOMPANYTNG TH|S RESOLUTION)
AND WAIVING, BY 5/7THS VOTE, THE COMPETITTVE BIDDING
REQUIREMENT, FINDING SUCH WAIVER TO BE !N THE BEST INTEREST
OF THE GITY; AND APPROVING, IN SUBSTANTIAL FORM, THE
GONCESSION AGREEMENT ATTACHED TO THIS RESOLUTION
BETWEEN THE CITY AND MIAMI LAND AND SEA PIRATE ADVENTURE
rNc (coNcEsstoNAtRE) FoR THE USE OF THE BARRY KUTUN BOAT
RAMP AT MAURICE GIBB MEMORIAL PARK, LOCATED AT 17OO PURDY
AVENUE, IN CONNECTION WITH THE OPERATION OF AMPHIBIOUS
TOURS, FOR A TERM OF ONE (1) YEAR, WITH TWO (2) ONE-YEAR
RENEWAL OPTIONS, AT THE CITY'S SOLE DISCRETTON; SA|D
AGREEMENT BEING SUBJECT TO FINAL NEGOTIATION BETWEEN THE
ADMINISTRATION AND CONCESSIONAIRE AND SUBJECT TO REVIEW
AND FORM APPROVAL BY THE CITY ATTORNEY,S OFFICE; AND
FURTHER AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE
THE FINAL NEGOTIATED AGREEMENT.
WHEREAS, at the October 31,2014 Neighborhoods and Community Affairs Committee (NCAC)
meeting, the Committee directed Administration to research and assess options for regulating the use of
the boat ramp; and
WHEREAS, on January 30,2015, Parks and Recreation Director, John Rebar, provided the
Neighborhoods/Community Affairs Committee (NCAC) with a presentation and discussion on the
potential options to manage and improve marine activities at the Barry Kutun Boat Ramp (the Boat Ramp)
at Maurice Gibb Memorial Park, located at 1700 Purdy Avenue (the Park); and
WHEREAS, following the discussion, the NCAC recommended that the Mayor and City
Commission direct the Administration to proceed with construction of a floating dock for non-motorized
marine vessels at the Park, from which non-motorized vessels including, without limitation, kayaks,
canoes, and paddleboards, may be launched, and to develop and implement a plan to control access to
the Barry Kutun Boat Ramp Park and to limit its use to City of Miami Beach residents for non-commercial
uses only; and
WHEREAS, on March 30, 2015, the City Commission accepted the recommendation from NCAC
and adopted Resolution No. 2015-28957, which authorizes the Administration to proceed with the
construction of a floating dock for non-motorized marine vessels at the Park, establish a policy for
commercial use of the Boat Ramp, and in consultation with the City Attorney's Office, to develop and
implement a plan to limit access to the boat ramp; and
WHEREAS, on May 11,2016, the City Commission approved, on first reading, Ordinance No.
2016-4022, amending Section 82-1 of the City Code, and prohibiting commercial transactions, activities
or operations on streets, parks or other public property, including the Boat Ramp, unless otherwise
approved by the City Manager (if commercial outdoor fee based activity with minimal impact) or
authorized by the City Commission pursuant to an approved concession agreement; and
WHEREAS, at the May 11,2016 meeting, the City Commission expressed their interest in
permitting commercial operations at the Boat Ramp for water taxi service, amphibious tours and kayak
rentals; and
WHEREAS, on July 13, 2016, the City Commission adopted, on second reading, Ordinance No.
39
2016-4022; and
WHEREAS, Miami Land and Sea Pirate Adventure lnc. provides public amphibious tours; and
WHEREAS, the Administration has negotiated with Miami Land and Sea Pirate Adventure lnc. a
non-exclusive concession agreement (the Agreement) for the use of the Boat Ramp at the Park for entry
and exit to and from Biscayne Bay for the term of one (1) year with two (2) one-year renewal options; and
WHEREAS, pursuant to the proposed Agreement, the Concessionaire shall pay the City on an
annual basis, a total of $2,760 ($1,200 for the motorized vesset annual fee and $1,560 for the launch
fees); and
WHEREAS, the Administration recommends that the City Commission approve, in substantial
form, the Concession Agreement attached as Exhibit "l" hereto, subject to final negotiation between the
Administration and Concessionaire, and subject to review and form approval by the City Attorney's Office.
NOW THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND GITY COMMISSION OF
THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City Commission hereby accept the written
recommendation of the City Manager (as set forth in the City Commission Memorandum accompanying
this Resolution) and waive, by 5/7ths vote, the competitive bidding requirement, finding such waiver to be
in the best interest of the City; and approve, in substantial form, the concession agreement attached to
this Resolution between the City and Miami Land and Sea Pirate Adventure, lnc. for the use of the Barry
Kutun Boat Ramp at Maurice Gibb Memorial Park, located at 1700 Purdy Avenue, in connection with the
operation of amphibious tours, for a term of one (1) year, with two (2) one-year renewal options, at the
City's sole discretion; said Agreement being subject to final negotiation between the Administration and
Concessionaire, and subject to review and form approval by the City Attorney's Otfice; and further
authorize the Mayor and City Clerk to execute the final negotiated Agreement.
PASSED and ADOPTED this 14rh day of December,2016.
ATTEST:
PHILIP LEVINE, MAYOR
RAFAEL E. GRANADO, CITY CLERK
APPROVED AS TO
pdNM & LANGUAGE
xEpuTloN
L;\- (L-\'1L
dilyiri?FvGn- TEie-
40
CONCESSION AGREEMENT
BETWEEN -=.
,'. ,,
'==tt-
CITY OF MIAMI BEACH,..FLORIDA
' ,!-r"r':"&*=, . ..
'wffi,
TO UTILTZE THE BARR.V=-ITUTUN BOAT RAMP FOi'ENTRY NND EXIT OF BISCAYNE BAY
FOR THE PROV]DING PUBLIC AMPHIBIOUS TOURS
:=is
EXHIBIT
I
41
SECTION
1.
2.
2.1
3.
3.1
3.1.1
3.1.1.1
3.1.1.2
3.1.2
3.1.3
3.2
3.3
4.
4"1
4.2
4.3
4.4
5.
6.
6.2
6.3
7.
7.1
7.2
8.
8' 1
i,!:':8"2 ,, iiii,i8.3 lii,liii
8.4 ''i"
8.5
8.6
9.
10.
10.4
11.
11.2
11.3
12.
12.1
12.2
12.3
12.4
12.6
12.7
12.8
INDEX
TITLE PAGE
Waiverof Lossfrom Ha2ards........."."... ................16
DEFAULT AND TERMINATION .....................16Bankruptcy ........ 16
Default in Payment................ ..............16
Non-Monetary Default ........17
City's Remedies for Concessionaire's Default ......17
Surrender of Concession Areas/ Removal by Concessionaire of
EquipmenUlmprovements ........... ........18
Substitute Performance ......18
Termination for Convenience .............. 18
FORCE
42
12"9
13.
14.
15.
16.
17.
17.1
17.2
17.3
17.4
18.
18.1
18"2
18.3
18.4
18.5
18.6
18"7
18.8
18.9
18.10
18.11
18.12
18.13
18.14
19.
20.
21.
EXHIBITS
Exhibii 1 - Site'Ffuwith Highlight of Ramp/Access .............29
Exhibit 2 - Completed Application for Commercial Concession Operations
at Public Boat Ramps............... ...........30
E*hibit3-Release Form. .........31
43
CONCESSION AGREEMENT
BETWEEN
CITY OF MIAMI BEACH, FLORIDA
AND
MIAMI LAND AND SEA PIRATE ADVENTURE INC
=TO UTILIZE THE BARRY KUTUN BOAT RAMP FOR ENTRYAND EXIT OF BISCAYNE BAY
FOR THE PURPOSE OF PROVIDING PUBLIC AMPHIBIOUS TOURS
2016
": "tu
THIS CONGESSION AGREEMENT (the "Agr,eeEeht") made on
("Effective Date"), between the CITY OF MlAnilBEACH, a municipat ration of the State of
Florida, having its principaladdress at 1700 Convention Center Drive, Miami Beach, Florida,
33139 (hereinafter called the "City"), and MIAMI't*.,,,N.,D AN$1FEA PIRATE ADVENTURE lNC,
whose address is 1665 Washington At/enue, Uiami',,B Jr, Florida, 33139 (hereinafter called
,,.
l
WITNESSETH
:r ,WHEREAS, the MEy*6,fi iefid''=eilyjommission recognize the importance of the City's public
property to the resiffipand visit4Eof the City of Miami Beach; and
WHEREAS, the City pi' f.|*$s car*iinercial transactions, activities or operations at the City's
parks, boat ramp(s), beaEft s, building or other property or place, maintained or
operated by the City, unlessQp,ressly authorizei b'y tne City Manager upon its public property,
or pursuant to a concession agiE*prrt tnatig'effi,F,oved by the City Commission; and
WHEREAS, illegal and unauthor'r' mercial transactions, activities and operations upon
City property, Cre-ates a dangerous and hazard situation, which is a direct threat to the residents
and visitors of the City for potential unscrupulous conduct; and
WHEREAS, the City iS legally obligated to ensure the health, safety and welfare of its residents
and visitors who utilize its public facilities, and illegal commercial transactions, activities and
operations unnecessarily exposes the City to unwarranted potential liability; and
WHEREAS, accordingly, the City Commission at the July 13th 2016 City Commission Meeting
directed staff to work with existing amphibious tour companies to continue their tours in the City
of Miami Beach and continue to utilize the Barry Kutun Boat Ramp; and
WHEREAS, Staff has negotiated the following non-exclusive concession agreement (the
"Agreement") for the use of the Barry Kutun Boat Ramp (the "Boat Ramp") at Maurice Gibb
Memorial Park (the "Park"), located at 1700 Purdy Avenue, for entry and exit to and from
Biscayne Bay for amphibious tours (the "Program").
44
NOW THEREFORE, in consideration of the premises and the mutual covenants
and conditions herein contained and other good and valuable consideration, the receipt
and adequacy of which are hereby conclusively acknowledged, it is agreed by the parties hereto
as follows:
The City hereby grants to the Concessionaire, and the Concessionaire hereby accepts
from the City, the non-exclusive right to operate the Program (as further described herein) within
the Concession Areas (as defined herein), in conformance with the purposes and for the period
stated herein and subject to all the terms and conditions herein contained and set forth.
The above recitals are true and correct and are incorporated he-fein by reference as part of thisAsreement
@
-
SECTION 1. TERM
.::::::::::: '=fu
1.1 The term ("Term") of this Agreement shall be for one (1) year, commencing on January
1, 2017 ("Commencement Date"), with two (2) one-year renewaloptions to be exercised
1.2
at the City Manager's sole option and discretion, by proviOing Concessionaire with
written notice of same no less than thirty (30) days prior to the expiption of the then
current Term. Notwithstanding the foregoing, Concessionaire may^not commence
operations until such time as thefollowing conditiohs have been met: (1)toncessionaire
has provided the City with evidence;of the requisite governmental approvals to operate
the Program including, without limitatioh, all"licenses iequired in subsection 6.3; and (2)
the City has approved Concessiori'aire's ins-$iance coveiages as required in Section 9,
which shall include in$rance covei for g[[i*.fr,p.$.-r.,-g Vessels used by Concessionaire
to operate the Program. ,,i
!
For purposes of this Agreement, a "Contiact Year" shall be defined as that certain 365
*tffi;i,ffimmendns$e comrnen nt Date.
The
loN,AR
Area shall be the vehicle access path to the Boat Ramp and the
Boat Ramp, as more particularly depicted in Exhibit t hereto, and does not
include any adjacent or surrounding areas (the "Concession Area"). Additionally,
no improvements to the Concession Area ("Concession Area lmprovements")
shall be permitted, and no equipment may be maintained, on the Concession
Area without the prior written approval of the City Manager, which approval, if
provided at all, shall be at the City Manager's sole and absolute discretion, and
Exhibit 1 shall be amended to incorporate the approved Concession Area
lmprovements and/or permitted equipment.
45
Concessionaire shall not install or operate any Program sites, nor identify
additional or alternate locations for same (other than as identified in Exhibit 1),
without the prior written approval of the City Manager, which approval, if provided
at all, shall be at the City Manager's sole and absolute discretion.
SECTION 3. USE(S}.
The Concessionaire is hereby authorized to conduct the following kind(s) of businesses and
provide the following kind(s) of services related to the operation of the Program within
the Concession Area, all at its sole cost and expense:
3.1 Amphibious Tours.
3.1.1. Approved Use of Concession Areq
The Concession Area shall be ,used by , Con.;&onaire on a nonexclusive
basis and solely and exclusively,liduring short intervals, for the entry and exit of
Biscayne Bay by the Program Vessels (as defined in subsection 3.1.2) during the
approved hours of operation for the Program. ln the event the Concessionaire
uses the Concession Area for any purpose(s) and/or use(s) not expressly
permitted in this subsection 3.1.1., such use shall be considered a default under
this Agreement, and the City shall be entitled to all remedies, including
termination of this Agreenrent, esr:,rrs€t forth in subsection 12.4. ln addition,
notwithstanding,any othei,rierms of rthis Agreement, the City shall be entitled to
seek irlpediab,'ielief, whether at law or equity, to restrain such improper use(s).
3.1.1.1 No Pgr,kino Privil,-e.ggs. No parking privileges shall be provided to
tlTe Concessionaire, Concessionaire employees, or passengers of the
..:,,,,, ProEram V el. Additionally, Concessionaire agrees to ensure that the:':,',' ingress and egress to the Park or the Boat Ramp are not obstructed.
3.1.:,,1,,,2Suboi:dination oi'Use. the public's right to use the Park, including
the'flurdy Avenue Dock, for non-commercial purposes is primary to the
privileges which the City has granted Concessionaire under this
Agreement; therefore, the privilege to operate the Program pursuant to
the Agreement shall not be construed as limiting, in any way, the public's
''r',,r,,,,nght to use of the Park, including the Boat Ramp, for non-commercial
purposes.
Finally,,,'6elwithstanding any other terms of this Agreement, the privileges
under this Agreement are non-exclusive; therefore, the City shall not be
prevented and/or prohibited, in any respect, from contracting for and/or
operating additional commercial activities/uses at the Park and/or at the
Boat Ramp, even if said activities/uses are in direct competition with the
services provided by Concessionaire under the Program.
46
3.1.2 Proqram Vessels.
The City hereby approves of Concessionaire's plan as to the type of vessel which
will be used in connection with the Program, as described in the Application for
Commercial Concession Operations at Public Boat Ramps, attached as
composite Exhibit 2 hereto (the "Program Vessel(s)"). Any amendments to
Exhibit 2, without limitation, as to type of Program Vessel, must be approved, in
writing, by the City Manager prior to such changes being implemented within the
Concession Area, and Exhibit 2 shall be amended accordingly.
'=
Notwithstanding the above, the City and ConCeSsionaire hereby acknowledge
and agree that the City's approval in subsection 3.1 .2 above, as to the type of
Program Vessel is given by the City,solely in its proprietary, and not in its
regulatory capacity. NotwithstandigO such apprw3l, in the City's proprietary
capacity, Concessionaire agrees-16 becure, at itS le cost and expense, all
required approvals from all govemmental authorities having jurisdiction over the
Program, in connection with the operation of the Program.
3.1.3 Hours of Operation
3.2
3.3
A. The hoCIrs of operation are as described in Exhibit 2. Any change
with respecl to the hours.=:df peration shall require the written
approval of the City Mana@fi",,prior to implementing the new
hours, and f$ibit 2 shall be amdrlded accordingly.
Oversiqht. Co.=a.@$gfr$ire, while utilizing the Boat Ramp' ll provide on-site monitoring
of the Concession Area and the areas surrounding the Concession Area.
. The Program Vessels shall be the sole and exclusive
W,},,.!:,Term of th is Ag reem e nt'
''|.Wtr/l.|s\. T{1;tj;:;= "tltJlNtllJt
During tFiBbtrerm,z lpessionaire shall pay the City, in advance, on an annual
",,ttt{illitlli,il
fees,"iES may be modified by the City from time to time ("Use
$1,200.00
$1,560.00
$2,760.00
The initial Use Fee shall be due within thirty (30) days from the Effective Date.
Thereafter, the Use Fee shall be due on or before January lst of any approved renewal
Term.
4.2 lnterest for Late Pavment.
Any payment which Concessionaire is required to make to City which is not paid on or
before the respective date provided for in this Agreement shall be subject to interest at
the rate of eighteen percent (18o/o) per annum, or the maximum interest allowable
47
pursuant to Florida law, whichever is less, from the due date of payment until such time
as payment is actually reoeived by the City.
4.3 Sales and Use Tax.
Any required Florida State Sales and Use Tax shall be paid by Concessionaire directly
or added to payments, at the designee's sole discretion, and fonrarded to the City
as part of said payments. lt is the City's intent that it is to receive all payments due from
Concessionaire as net of such Florida State Sales and Use Tax.
4.4 Marketinq and Advertisino.
.di#i[\As of the Effective Date, the City Code does not gllow advertising to be placed on the
Program Vessels or anywhere on the Concesgid.f ea. Advertising on the Program
Vessels or Concession Area shall be prohibite ,E,,,,.
,,
,\.
SECTION 5. INSPECTION AND AUDIT. ::
,.
Concessionaire shall maintain its financial records pertaining to its opeEt-ide€ herein throughout
the Term of this Agreement and for a period df three (3) years after the expiration or other
termination of this Agreement, and such records shall be open and available to the City
Manager or his designee, as deemed nglessary by them. Concessionaire shall maintain all
City. These audits are in::'addition to peridie audi.tS4y':thejity of Resort Tax collections and
payments, which are performed separately. Nothing Contained within this Section shall preclude
the City's audit rights for Resort TaX,collection::@ ses.
l
Cdhcessionaire id$pes and shall pay bbfore delinquency atl taxes (including but not
li$;irted to Resort\%xes) and-assessments of any kind levied or assessed upon a
Coiic*.ssion Area and/rlr on Cohcessionaire by reason of this Agreement, or by reasonof Cq;lpssionaire's business and/or operations within a Concession Area.
ConcesSidfigrire will haw the right, at its own expense, to contest the amount or validity,
6.1
such records at its principal office,
or, if moved to another location, all,rr
expense, to a location in Miami Beach,
6.2
at,
shall bre relocated, at Concessionaire's
),days' not'rce (written or verbal) from the
in whole oi:iF+art, of any-tax by appropriate proceedings diligently conducted in good
faith.ire. may refrain from paying a tax to the extent it is contesting the
inia,rnanner that is in accordance with law. However, if, as a resultimposition of
of such contest,al delinquency charges become due, Concessionaire shall be
responsible for such delinquency charges, in addition to payment of the contested tax, if
so ordered.
Procedure lf Ad Valorem Taxes Assessed. lf ad valorem taxes are assessed against the
Concession Area (or any portion thereof) by reason of Concessionaire's business and/or
operations thereon, Concessionaire shall be solely responsible for prompt and timely
payment of same.
Licenses. Concessionaire shall also be solely responsible (at its sole cost and expense)
for obtaining and maintaining current any applicable licenses or permits, as required for
6.3
48
the operations contemplated in this Agreement including, without limitation, any
occupational licenses required by law for the proposed uses contemplated in Section 3;
the U.S. Coast Guard licenses for captains and the Certificates of lnspection for the
vessels; the State of Florida llcense; and any applicable City licenses.
SECTION 7. EMPLOYEES AND INDEPENDENT CONTRACTORS.
7 "1 Concessionaire's Emolovees.
7.1.1 Concessionaire shall select, train and employ such number of employees or
contractors as is necessary or appropriate for Concessionaire to satisfy its
responsibilities hereunder. Concessionaire shall be the sole authority to hire,
terminate and discipline any and allpersonnel employed by Concessionaire.
:
7.1.2 Concessionaire shall designate a competent futl-time employee to oversee the
day{o-day operations, and who shall act as the qontract administrator for the
Program and serve as Concessigngird's primary pdi:nt-person with the City. This
individual shall have the requi,-s,iie amount of experlence in operating, managing,
and maintaining the Program as contemplated herein. The employee shall be
accessible to the City Managei or his desSree at all times during normal
business hours to discuss the mafi?lghfngffii#-Fbration and maintenance of the
Program, and during hon-business hours inthe event of emergency. Consistent
failure by the employee to be accessibie dhall be reported to Concessionaire's
principal(s), and if not rectified, shall bie !6ounds for replacement of the
employee.
7.2
,
Except for those responsibiliti€S expressly set forth in this
)e for\ ffiis Agreement shall setue as the City's day to day
point p*l$on for Concessionaire with respect to the Agreement. The
Agreement
Manager's
specti ,,, the City Commission ahd/or the City Manager, the City
representative
City.Manager's de$tgn=.e..€.=$.Ei l1e the City's Department of Parks and Recreation
-=Drecto6r
Assistant,
%
SECTION 8. IMPROVEMENTS MAINTENANGE REPAIR and OPERATION
The Concessionaire accepts the use of any and all Concession Areas provided in
this Agreement "AS lS,' "WHERE IS," and "WITH ALL FAULTS," existing as of the Effective
Date.
lmprovements.
Concessionaire may not make any improvements to the Concession Area without City
Manager's Approval, which approval, if provided at all, shall be at the City Manager's
sole and absolute discretion.
Maintenance/Repair.
The Concessionaire shall maintain, at its sole cost and expense any equipment (as
required to operate the Program), as well as the Program Vessels. The City shall
8.1
8.2
employee.
49
maintain the Boat Ramp to address normal wear and tear of the dock; however,
Concessionaire shall be responsible for reimbursing the City for any maintenance and
any repairs as a result of the operation of the Program at the Boat Ramp, including any
damage which may be caused by the Concessionaire, its employees, contractors,
agents or invitees. Any such maintenance and repairs shall be performed by the City, as
deemed necessary, at the City Manager's sole discretion, and Concessionaire shall
reimburse the City within 1O (ten) days from receipt of the invoice.
Concessionaire shall be solely responsible for the day to day operation and shall
maintain any equipment the Program Vessels and any equipment thereon in good
working order and condition. Concessionaire shall keep Program Vessels free of
gratfiti. No repairs to the Program Vessels may be made on-site. Any Program Vessel
needing maintenance shall be removed= from circulation and serviced
at Concessionaire's repair center. No Program Vessel or equipment may be stored at
the Park.
8.3
It shall be Concessionaire's solerl qbiigation to ensure that any repairs and/or
improvements made by Concessiondire to the Pro-gram Vessels complies with all
applicable life safety codes of governm*,fU\i1tr4,1riri:, aving jurisdictron
Concessionaire agrees, also at,,its.sole cost affi ffffihse, to pay for all $-rbage disposal
generated by its operations. Garbage may not be *Wrr.ij of at the Concession Area.
orderlv Operation.
=
., u,lLl,n
,,,
The Concessi ire iiigll nrr" a neat and orderly.opeiation at all times and shall be
solely responSible for the necessary housekeeping services to properly maintain its
Operations. COncessionaire warrants and represents that Concessionaires operation
does not require use of the arking or dock areas located at the Park. Entry and exit
sn!}.;P,6,6r,p,$"ycted at extreme low- speeds. Standing and stopping will only occur to
ailCIl;,1ffi #3ffff;. nch and retrieval of others utilizing the Boat Ramp. All applicable
ii$tlffiS,Lawt ".U%e*f be adhered to by concessionaire.
No Da us MateriaiF=
:::::::::::::
The Con@ffiionaire agrees not to use or permit the storage and/or use of gasoline, fuel
oils, dieselTlttlluminating oils, oil lamps, combustible powered electricity producing
generators, t0@tine, benzene, naphtha, propane, natural gas, or other similar
substances, combilF,$ 16 materials, or explosives of any kind, or any substance or thing
prohibited in the stafi'tard policies of fire insurance companies in the State of Florida, on
or within any of the Concession Areas, or on any City property and/or right of way.
Concessionaire shall indemnify and hold City harmless from any loss, damage, cost, or
expense of the City, including, without limitation, reasonable attorney's fees, incurred as
a result of, arising from, or connected with the placement by Concessionaire of any
"hazardous substance" or "petfoleum products" on, under, in or upon the Concession
Areas as those terms are defined by applicable Federal and State Statute, or any
environmental rules and environmental regulations promulgated thereunder; provided,
however, Concessionaire shall have no liability in the event of the willful misconduct or
8.4
10
50
gross negligence of the City, its agents, servants or employees. The provisions of this
Subsection 9.4 shall survive the termination or earlier expiration of this Agreement.
8.5 Securitv.
The Concessionaire shall use the Concession Area at its own risk. The City shall not be
obligated to employ or provide any security measures to protect the Concession Area.
Under no circumstances shall the City be responsible for any stolen or damaged
equipment, nor shall City be responsible for any stolen or damaged personal property
of Concessionaire's employees, contractors, agents, patrons, guests, invitees, and/or
other third parties. .**Su,
lnspection.8.6
The Concessionaire agrees that the Concession nr", ,[ U" inspected at any time by
the City Manager or his designee, or,by any other municipal, County, State officer, or
officers of any other agency(ies) havi@esponsibility and/or jurisdiction for inspections
of such operations. The Concessionaiie hereby waives all claims against the City for
compensation for loss or damage sustained by reason of any interference with the
concession operation as a;igrsult of inspection by iny public agenc(ies) or officials,
(including, without limitation, son of any sudtr public agency or official in enforcing
any laws, ordinances, or regulations as a result theieofl. Any such interference shall not
relieve the Concessionaire from qpy obligatihn hereunder.
ai.
SECTION 9. INSURANCE.
9.1 Without limiting G lirOitity,,Urder this {Sreement, Concessionaire shall, at all times
during the,Jgm of this Agreement, procure and maintain, at its sole expense (and
ConcessioritiiF6irshall require its Concessionaire, subcontractors, laborers, materialmenu:: :::uu
=.== suppliers to provide, a.s_ applicable), insurance of the types and in the minimum
-$"ggnts stated b'610ffi and-$i6vide a certificate with applicable endorsements on a form
thd'tffizacceptable tdthe City's Division of lnsurance and Risk Management evidencing
the fdll,Flvjng required coverages to the City (including coverage of all Program Vessels
which sh e used by Concessionaire to operate the Program):
Sched$,16= "ffi|$ Limits
Worker's Compensatioii/Employers Liabi I ity
Worker's CompenS . Florida Statutory Coverage
Employer's Liability $1,000,000 Each Accident
$1,000,000 Disease Policy Limit
$1,000,000 Each Employee/Disease
This insurance shall cover the Concessionaire (and to the extent its subcontractors and
sub-contractors are not otherwise insured, its subcontractors and sub-contractors) for
those sources of liability which would be covered by the latest edition of the standard
Workers' Compensation policy, as filed for use in the State of Florida by the National
Council on Compensation lnsurance (NCCI), without any restrictive endorsements other
than the Florida Employers Liability Coverage Endorsement (NCCI Form WC 09 03),
11
51
those which are required by the State of Florida, or any restrictive NCCI endorsements
which, under an NCCI filing, must be attached to the policy (i.e., mandatory
endorsements). ln addition to coverage for the Florida Workers' Compensation Act,
where appropriate, coverage is to be included for the Federal Employers' Liability Act,
USL&H and Jones Act, to extent coverage is not provided by the Protection and
lndemnity policy and any other applicable federal or state law.
Hull Coveraqe: Coverage for direct damage to vessels written on American lnstitute Hull
clauses form, specifically including "Running Down clauses," "Agreed Valuation
clauses," and Amount of insurance based on value of vessels. The policy shall cover
collision liability on a primary basis.
j:::.::::=
Protection and lndemnitv Coveraoe: Form "SP 23" Coverage for water taxi
operations of the watercraft, as included in "SP23" for damage to any harbor, graving,
piers, bumpers, etc.; including, but not limit-ed$, Crew{ the extent coverage is not
provided by the Worker's Compensation policy, Passeng€i and Coverage for property
and liability from land while loading and bding the Ferry or Water Taxi and on-board
during navigation along with Cargo Le Liability, Dock Liability, Excess Collision over
insured hull limit.
(Coverage shall include Premises, Pollliffi,,,ffiiion Buyback Endorsement A,
Personal Effects, MedicalPayments, Voluntary''tflffi Removal, and Pollution Buyback).
Vessel eolluti^H-E ry. Foffil
lncluding cle'B'E cost E
lncluding Water Quality lnsDffice Syndicate or similar form Per Statutory coverage andlimitsP "'$jli
Covera$e*r third party liability for land based operations to the public and connection
with the amphibious tour taxi-operation, specifically including Occurrence form, Bodily
lnjury, Property Damage, Products & Completed Operations, Medical Payments,
Personal lnjury, Contractual Liability, Ship Repair Liability.
Such insurance shall be no more restrictive than that provided by the most recent
version of the standard Commercial General Liability Form (lSO Form CG 00 01) as
filed for use in the State of Florida without any restrictive endorsements other than those
approved by the City's Office of lnsurance and Risk Management.
$2,000,000 GeneralAggregate
$1,000,000 EachOccurrence
$ 50,000 Fire Damage
$ 5,000 Medical Expenses
L2
":l
==.
$1 00,000 nnyo--*heduled Vessel, any
One incident for IOA 90, CERCLA, Spill
Management, Firefighting and Salvage and
DefenseCost including damage to Property
ry,,,,N*fi'=
52
Bumpershoot Liability $1,000,000 Per Occurrence and Aggregate
(The Bumpershoot Liability policy shall be in excess of the Employer's Liability,
Commercial General Liability, Automobile Liability, Personal & lndemnity and Pollution
Liability limits without any gap. The Bumpershoot coverage will follow form the
underlying coverages and provide on an Occurrence basis all coverages listed
above.)
A. Waiver of Subroqation. All insurance shall be en.dq..15ed to provide for a waiver of
undenruriter's rights of subrogation in favor of the Citl of Miami Beach and the City's
members, officials, officers and employees.
B. Additional lnsured: All lnsurance, excepl Worker's Compensation and Professional
Liability, shall be endorsed to name-!.[-g City of Miami Beach and City's members,Liability, shall be endorsed to name_$fiffir0ity of Miami Beach and City's members,
officials, officers, and employees.sffiltlonal Liability shall be in a form no more
restrictive than CG2010 and Automobile Liabilitv CA2048: endorsements will be
D. Deductible or self-insured retentioh,iEicept as aEthorized in this Agreement, the
insurance maintained by the Concesiionaire shall apply on a first dollar basis without
_a=p=p=l1g?t-ign of a self=, urance, deduc,tible, or self-insured retention. Except as
, ." {i$ifl $il:,slcecifically in this Agreement, no self-insurance, deductible, or self-
,, sured r'e{eq.,}.g for ahy required insurance, the Concessionaire shall be responsibler r paying -ffibehalf'=f the City (and any other person or organization',i7ib1rcessionaire=='hag in Agreement, agreed to include as an insured for the
idQ-tlired insurance)ay self-insurance, deductible, or self-insured retention allowed
undei$is paragraph. The City will not be responsible for any self-insurance,
dedudt*bies or self-ir1$ ed retentions under this Agreement.
C. The Concessionaire's Prima insurance provided by the
is to, and shall not require
maintained by the City or
City member, official, officer and employeej
. Compliance with the insurance
requirements ofitffiS Agreement shall not limit the liability of the Concessionaire or its
Subcontractors or Sub- subcontractors, employees or agent to the City or others.
Any remedy provided to City or City's members, officials or employees shall be in
addition to and not in lieu of any other remedy available under this Agreement or
othenvise.
F. No Waiver bv the Citv Approval/Disaporoval. Neither approval by the City nor failureto disapprove the insurance furnished by Concessionaire shall relieve
Concessionaire of Concessionaire's full responsibility to provide insurance as
required under this Agreement.
Concessionaire for shall 'ajlplV ,il$ftll A primaiE
contri bution from, any otheiiffi s urarlb,#lrbr" se lf-i
_,;,F,r4./il
1,E. Concessiondildtsl
13
53
G. Each policy shall be written by an insurer holding a current certificate of authority
pursuant to chapter 624, Florida Statues or accompany that is declared as an
approved Surplus Lines carrier under Chapter 626 Florida Statutes. Such insurance
shall be endorsed to provide for a waiver of undenruriter's rights of subrogation in
favor of the City. Such lnsurance shall be written by an insurer with an A.M. Best
Rating of A-Vll or better. Prior to commencing any Services, Certificates of lnsurance
approved by the City's Division of lnsurance & Risk Management demonstrating the
maintenance of said insurance shall be furnished to City. The Concessionaire shall
provide an endorsement issued by the insurer to.;govide the City thirty (30) days
prior written notice of any change in the aboSEi"Pinsurance coverage limits or
cancellation, including expiration or non-renewal; he event the Concessionaire is
unable to obtain such endorsement, the C-e.E s$ionaire agrees to provide the City
the notice directly. Until such time as the, inSurance is no longer required to be
maintained by the Concessionaire, Concessionaiie shall provide the City with
renewal or replacement evidence of insurance with the above minimum requirements
no less than 30 days before the eXplration or termination o_f the insurance for which
previous evidence of insurance has been provided. ' ,,{r,
-t
H. Notwithstanding the prior submission' of a'Cimficate of tn3iii-k€ce, copies of
endorsements, or other.. ce initially acceptable to City's DiviSi6n of lnsurance
and Risk Management, if requested to do so by the City, the Concessionaire shall,
within thirty (30) days after iecelpllpf;;gyritten request from the City, provide the City
with a certified, complete c#.$,,of {ljffilicies of insurance providing the coverage
required here n
l. Anything Utne contrary notwithshdfu, tne liabiliiies of the Concessionaire under
this Agreemdnl shall survive and not b.e terminated, reduced or othenrvise limited by
.aJ"11y-,,=e,,4pi1ation or termination of insurance coverage. Neither approval of, nor failure
"..#H':.d.i pp.rove, insurance fumished bi the Concessionaire shall relieve the
./'.i;,,, iCancessionaiire or its sub-contractors oi sub-subcontractors from responsibility to'= nr:, Oe insura r@O by the Agreement.
upon thelature of any aspect of any project and its accompanying
K. Concessionaire's failure to provide evidence of insurance coverage set forth in this
Section 9, within two (2) days from receipt of a written request from the City shall
constitute a material default under this Agreement and shall entitle the City to pursue
its default remedies, as set forth in subsection 12.4, without affording Concessionaire
an opportunity to cure the default.
1.4
54
SECTION 10. INDEMNIry/RELEASE.
10.1 ln consideration of a separate and specific consideration of Ten ($10.00) Dollars and
other good and valuable consideration the receipt and sufficiency of which are hereby
acknowledged, Concessionaire shall indemnify, hold harmless and defend the City, its
officials, directors, employees, contractors, agents, and servants from and against any
and all actions (whether at law or inequity), claims, liabilities, losses, and expenses,
including, but not limited to, attorneys'fees and costs, for personal, economic or bodily
injury, wrongful death, loss of or damage to property, which may arise or be alleged to
have arisen from: (1) wholly or in part from the negligent acts, errors, omissions or other
misconduct of Concessionaire, its officers, director, members, employees, agents,
contractors, subcontractors, or any other person or enttty acting under Concessionaire's
control or supervision; (2) Concessionaire's breach of the terms of this Agreement or its
representations and warranties herein; or (3)': op€, ion of the Program. To that
extent, Concessionaire shall pay all such clf,ims and losses and shall pay all such costs
and judgments which may issue from a suit arising from such claims and losses,
and shall pay all costs and attorneysL=f,@expended by the City in the defense of such
10.2 ln addition, in consideration oI a separat€"'.*! specific consideratioh of Ten ($10.00)
Dollars and other good and valuable consideiatiOn the receipt and sufficiency of which
are hereby acknowledged, fth'Cessionaire shall indemnify, hold harmless and defend
the City, its officials, directors, employees, contractors, agents, and servants from and
against any claim, demand or cause of action of whatev-er- kind or nature arising out of
any misconogrg#.:iffifl*Q,p.Wessionaire, its officials, direCtors, employees, contractors,
agents, and*servants nqf;,in6luded in the paragraph in the subsection above and for
which the Ciff{n6,fi^,officialW#.,A;rectors, employees, contractors, agents, and servants are
alleged to be lid'l*L H ,,,,,,,,,,= "r'"'
10.3 Subsections l0.l anA tO.Z shiiBrvive the termination or expiration of this Agreement.
Subsections',10.1 and 1€ hall not apply,"however, to any such liability that arises as a
result of the willful miscondGjor gross negligence of the City.
:::t:10.4 Release of Liabilitv for,Proorahjqrticipants. Concessionaire shall ensure that Program
participants execute a release in connection with their participation in the Program,
which ielease shall Inctude the City as an additional releasee thereunder.
Concessionaire shall provide the City with a copy of the release form for approval by the
City's Risk Manager, which approved release form shall be attached as Exhibit 3 hereto.
:=,,,.-=-
SECTION 11. FORCE MAJEURE.
11.1 Neither party shall be obligated to perform hereunder and neither party shall be deemed
to be in default if performance is prevented by:
a. Any act or chain of related acts resulting in destruction, vandalism or theft of
water stations which render at least fifty (50%) percent of the Concessionaire
Areas unusable at any one point in time and which is not caused by negligence
of Concessionaire;
15
55
b. earthquake; hurricane; flood; act of God; direct act of terrorism; or civil
commotion occurring which renders at least fifty {50%) percent of the Concession
Areas unusable.
c. any law, ordinance, rule, regulation or order of any public or military authority
stemming from the existence of economic or energy controls, hostilities, or war
which renders at least fifty (50%) percent of the Concession Areas unusable.
11.2 Labor Dispute.
ln the event of a labor dispute which results in a strike, picket or boycott affecting at least
fifty (50%) percent of the Concession Areas, Concessionaire shall not thereby be
deemed to be in default or to have breached any paE of this Agreement, unless such
dispute shall have been caused by illegal labor piactlces or violations by Concessionaire
of applicable collective bargaining Agreements (ano there has been a final determination
of such fact which is not cured by Concessionaire within thirty (30) days).
The Concessionaire hereby expressly waives all claims against the City for loss or
damage sustained by the Concessionaire reS'ulting from any Force Majeure
contemplated in Subsection,'.11J and Labor Dispute in Subsection 11.2 above, and the
Concessionaire hereby expressly waiv-.es all rights, claims, and demands against the City
and forever releases and discha,yges the City of Miami Beach, Florida, from all demands,
claims, actions and causes of affin arising,,J.Lgln any of the aforesaid causes.
SECTION 12. DEFAULT AND TERMINA
Subsections 12.1 through:.12.3 shall constitute events of default under this Agreement. An
12.1
+. '":= ': , ::
=ft$ie!w.
flili:
lf eithe-$e Citydr Concessionaire shall be adjudged bankrupt or insolvent, or if
any reC-$,1tg,of,l]t Stee of all or any part of the business property of either party
shall be eF$jmted, or if any receiver of all or any part of the business property
shall be apffinted and shall not be discharged within sixty (60) days after
appointment, or if either party shall make an assignment of its property for the
benefit of creditors, or shall file a voluntary petition in bankruptcy, or insolvency,
or shall apply for reorganization or arrangement with its creditors under the
bankruptcy or insolvency laws now in force or hereinafter enacted, Federal,
State, or othenvise, or if such petitions shall be filed against either party and shall
not be dismissed within sixty (60) days after such filing, then the other party may
immediately, or at any time thereafter, and without further demand or notice,
terminate this Agreement without being prejudiced as to any remedies which may
be available to it for breach of contract.
1.6
56
12.2 Default in Pavment.
ln the event Concessionaire fails to submit any payment within five (5) days of its
due date, there shall be a late charge of One Hundred and Fifty ($150.00) Dollars
per day for such late payment, in addition to the interest which accrues pursuant
to subsection 4.2. lf any payment and accumulated penalties are not received
within ten (10) days after the payment due date, and such failure continues for
ten (10) days after written notice thereof, then the City may, without further
demand or notice, terminate this Concession Agreement without being
prejudiced as to any remedies which may be available to it for breach of contract.
12.3
12.4
Non-Monetarv Default. ,,r$rffilw6
Unless otherwise set forth in this AgreeffiBnt, i{ffivent that Concessionaire or
the City fails to reasonably perf@ or observe the non-monetary covenants,
terms or provisions under this Agreement, and such failqre continues ten (10)
days after written notice thereof from the other party heieto, such non-defaulting
party may immediately or at any time thereaTter, anO withd r her demand or
notice, terminate this..,Agreement without b'6ing prejudiced a'S,"''itb. any remedies
which may be availabi for breach of contract. ln the event that a default is
not reasonably suscep${
shall not be consideredrT
[ng cured within such period, the defaulting party
due diligence and di
;fffiffi1,fi1fi,,jj s h a I l, fu th i n s u ch pe ri od, co m me n ce wi th
to cUle $.u-sh default and thereafter completes with
dispatch and due diligence-:thb curin ilgh" defaUtt, but in no event shall such
extended cure period exceed thirty (30) d"ffiffs from the date of written notice
thereof. fn the 6vent Conc€*-iOnaire cureS any default pursuant to this
subsection, it shall promptly piQ*de the City Manager with written notice of
t!fr+
i,
proce'*i-ngs a.s$ its opinion are necessary to cure such defaults and to
compen* -$.ii'ftr damages resulting from such defaults, including but not
limited to the iight to give to Concessionaire a notice of termination of this
Agreement. lf such notice is given, the term of this Agreement shall terminate
upon the date specified in such notice from City to Concessionaire. On the date
so specified, Concessionaire shall then quit and surrender the Concession Area
to City pursuant to the provisions of Subsection 12.6. Upon the termination of this
Agreement, all rights and interest of Concessionaire in and to the Concession
Area and to this Agreement, and every part thereof, shall cease and terminate
and City may, in addition to any other rights and remedies it may have, retain all
sums paid to it by Concessionaire under this Agreement.
77
57
ln addition to the rights set forth above, the City shall have the right to pursue any
and all of the following:
a. the right to injunction or other similar relief available to it under Florida law
against Concessionaire; and/or
b. the right to maintain any and all actions at law or suits in equity or other
proper proceedings to obtain damages resulting from Concessionaire's
default.
1,,.,..
12.5 lf an event of default by the City shall occu-i,'the Concessionaire may, after
expiration of the cure periods, as provided above, terminate this Agreement upon
written notice to the City. Said termination shall become effective upon receipt of
a written notice of termination by thh Citr, but in no event shall Concessionaire
specify a termination date that is than thirty (30) days from the date of the
written termination notice. On._the date specified in the notice, Concessionaire
shall quit and surrender the Concession Area(s) to City pursuant to the
provisions of Subsection 12.6.
12.6
Upon expir-atiog or earliei'terminatid of this A$ieement, Concessionaire shall
surren.de-E 'Gorrcession Areas in the same condition as the Concession
AreaC-lW prioi"to the CommenCement Date, reasonable wear and tear
except-d= ConceSd'hnaire shall, at its sole eipense and at no charge to the
City, ceaSffising
conclusion dfiittlefll ii'{,'e-*om the date of other termination of this Agreement)
ion Area, no later than thirty (30) days after the
unleSC a longeiffi;eriodt,€-Iu.S,s_9 to, in writing, by the City Manager).
Concessionaire's
."r::.+\\,N,
tion to obS'brve or perform this covenant shall survive the'' expiration oi-dtner teii#lhation of this Agreement. Continued occupancy of any
&ncession Areas after terrmination of the Agreement shall constitute trespass by
the Concessionaire, and may be prosecuted as such. ln addition, the
Concessionaire shall pay to the City One Thousand ($1,000.00) Dollars per day
per ConCession Area as liquidated damages for such trespass and holding over.
12.7 Substitute'Performance
ln the event that the Concessionaire fails to properly perform its obligations or
cure any default under the Agreement, after receipt of written notice from the
City, then the City shall have the right, but not the obligation, to undertake
Concessionaire's duties and obligations under the Agreement, as the City
Manager deems appropriate, and to charge Concessionaire for all actual costs
thereby incurred by the City. Concessionaire shall be responsible for paying all
of said costs.
Eq u ipmenUl mprovements.
18
58
12.8
12.9
Termination for Convenience of the Citv
THE CITY MAY ALSO, THROUGH lTS CITY MANAGER, AND FOR ITS
CONVENIENCE AND WITHOUT CAUSE, TERMINATE THE AGREEMENT AT
ANY TIME DURING THE TERM BY GIVING WRITTEN NOTICE TO
CONCESSIONAIRE OF SUCH TERMINATION, WHICH SHALL BECOME
EFFECTTVE WTTHTN THTRTY (30) DAYS FOLLOWTNG RECETPT By THE
CONCESSIONAIRE OF SUCH NOTICE, FOLLOWING WHICH THE CITY
SHALL BE DISCHARGED FROM ANY AND ALL LIABILITIES, DUTIES, AND
TERMS ARISING OUT OF, OR BY VIRTUEOFi..'THIS AGREEMENT.
city Manaqer Emersencv powers a*rffiA. Notwithstanding anything to the coffffiff d8'tiiffiheO in this Agreement, and in
addition to any other remedy which the'"City maffhave under this Agreement or
pursuant to applicable law, if the performance 6y, Concessionaire under this
Agreement or the Program is creating a public health, qgfgr" or safety concern,
as determined by the City Manager, in the City Mana$Eti5*sole discretion, the
City Manager may immediately suspend the performance offiqrvices under this
Agreement, including tlre Program, until such time as the Condition has been
remedied to the sa of the City Mahager.
B.li6".s:?rooertv duri The City
irect or require the Concessionaire to
any equipment located on the
I'Concessionaire's Property") for
ns, including, without limitation,
a threatene-d tropiC-l storm or'H$,
Tlrryee,thpr event that nray adversely irtpact the City, or upon the designation by the
7;UHlttffiStates Nationit Weatner Se-rvice or National Hurricane Center of a
warning. or alert, whichever occurs first, the
shall" within no more than two hours of same, remove and storej=-all of
ta the threa
ire's Property to secure Concessionaire's Property in response
storm or other emergency, and shall take all other measures
wti'ich may be n for the protection of the public with respect thereto. The
noiificalion by Manager of a hurricane or other major weather event, ore hurricane warning, shall constitute a public emergency
situatiori;*e,f.ail e of the City to direct the Concessionaire to remove or safety
store Cones&naire's Property shall not relieve the Concessionaire of its
obligation to remove and store Concessionaire's Property in response to a
threatened storm event as outlined herein.
Should Concessionaire fail to remove Concessionaire's Property within said two
(2) hour period, or in the event the City Manager or his/her designee determines,
at his/her sole discretion, that Concessionaire's removal, storage and other
efforts are otherurise not satisfactory, Concessionaire shall thereafter be
assessed a fee of $50.00 per hour, until such time as all of Concessionaire's
Property have been removed to the City Manager's satisfaction. ln addition, the
City Manager, without any obligation to do so, may immediately proceed to
19
59
remove, relocate, and/or store the Concessionaire's Property that has othenuise
not been removed by the Concessionaire, at the Concessionaire's sole cost and
expense, with payment to the City for all such costs due within thirty (30) days of
City's invoice to Concessionaire.
Concessionaire shall be solely responsible for any damage to City property or
other property resulting from Concessionaire's failure to remove and store
Concessionaire's property, or othenruise implement appropriate measures in
response to a threatened storm or hurricane.
Concessionaire's failure to comply with this Sectio.c=hall constitute a material default
under this Agreement and shall entitle the Ci rsue its default remedies, as
set forth in subsection 12.4, without ionaire an opportunity to
cure the default. The remedies identified Concessionaire's failure to comply
edies that may be available towith this Section are cumulative, and in addEffi to;
the City at law and in equity.
',
sEcTtoN 13. PERFORMANCE BOND OR ALTERNATE SECURTTY=,.
INTENTIONALLY OMITTED 'i;'
,,:'t 1,,. i ;;'t ""t1.
sEcnoN 14. ASSTGNMENT. \#fu**ffi .::j',t"ri,
Concessionaire shall not assign allW;,a! aiiy portion of its costs or obligations under this
Agreement without the prior written coftsent of the City Commission, which consent shall be at
the sole and absolute dLscretion of the Gi.tjr.Comrfii$iiibn,. Conoessionaire shall notify the City
Manager of any proposed assignment, in writing, gt lgast si4p (60) days prior to the proposed
effective date of such assignmenL ln the eVent th'at any Such assignment is approved by the
City Commission, the assignee shall agree to be bound by all the covenants of this Agreement
req uired of Concessionaire.
:::: :u::: tt uuul
'e wili:ahot use, nor suffer or permit any person to use in anyThe Conessionair
manner *"F$ifur"r, the Concession Area or Program Vessel, for any illegal, improper, immoral
or offensive'p ose, or for d'ny otner purpose in violation of any Federal, State, County, or
municipal ordinah'ce, rule, ordei Or regulation, or of any governmental rule or regulation now in
effect or hereafter enacted or adopted. The Concessionaire will protect, indemnify, and forever
save and keep harmt6$,,1h,S y, its officials, employees, contractors, and agents from and
against damage, penaltfil'fiEe;'judgment, expense or charge suffered, imposed, assessed or
incurred for any violation, orbreach of any law, ordinance, rule, order or regulation occasioned
by any act, neglect or omission of the Concessionaire, or any official, director, agent, contractor,
or servant regarding the concession. ln the event of any violation by the Concessionaire, or if
the City or its authorized representative shall deem any conduct on the part of the
Concessionaire to be objectionable or irnproper, the City shall have the right to suspend
concession operation should the Concessionaire fail to correct any such violation, conduct, or
practice to the satisfaction of the City Manager or his designee within twenty-four (24)
hours following written notice of the nature and extent of such violation, conduct, or
20
60
practice. Such suspension to continue until the violation is cured to the satisfaction from the
City Manager or his designee.
SECTION 16. NOTICES.
All notices from the City to the Concessionaire shall be deemed duly served upon receipt, if
mailed by registered or certified mail return receipt to the address to the Concessionaire at the
following address:
With copies to:
:!::a::.r
=#fu;:
All notices from the Concessiohaire to the Cit ha.1,,! deemed duly seFed upon
receipt, if mailed by registered or certified mail retum leceipt requested to the City of
Miami Beach at the following addresses: ,, 'u:twr,,p,*,,
,::rl,i.iN rrr" City of Miami Beach =,., ,,n
illl,, 1 700 Convention CenterDrrve
Miami Beach, FL 33139
Afin: Parks ahd Recreation Director
.'iii ,ifu,,. -'-.
City,rffiami Beach
":'- 0 ConvffiTlon Center Drive
With copy to:
The Condessionaire 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.
.a=
SECTION 17. LAWS.
17.1 Compliance.
Concessionaire shall comply with all applicable City, County, State, and Federal
ordinances, statutes, rules and regulations, including but not limited to all applicable
21
61
environmental City, County, State,
regulations.
17.2 Governinq Law.
Governing Law. This Agreement shall
with the laws of the State of Florida.
17.3 Equal EmoloymentOoportunitv.
Neither Concessionaire nor any affiliate
and Federal ordinances, statutes, rules and
be governed by and construed in accordance
ire performing services
enterprises.
All operations and services bffi,f inlhe ConcesSion Area shall be made available to
the public, subject to the right th€..=G.,olcessiohEfu and the City to establish and
enforce reasonable rules and re$ulation5':t@p,twide foi':the safety, orderly operation, and
security of the Concessqgn Area ,*$llimnr",r#ents and equipment thereon.
Concessionaire hereby agrees to cfr$ffiith City of Miami Beach Human Rights
Ordinance as i6dified in Chapter 62 offih6 City Code, as may be amended from time to
time, prohibiting dscrimination in emplop4ent, housing, public accommodations, or
public services, on the basis of actual or perCeived race, color, national origin, religion,
sex, lntersexuality, sexual orientatioE gendeP identity, familial and marital status, age,
ancestry, height, ;w_eight, domestic partner status, labor organization membership,*ii stry, nei$htl1t1fty.eight,',,domestic partner status, labor organization membership,
T,il,,,il:ation'
ru:tirration'
or disabiritv
''/=:::. ,\.l.ll |fr.18.1 No Partnership+*
Nothing contained"'i*$is Agreement shall constitute or be construed to be or create a
partnership or joint venture between the City and Concessionaire.
18.2 Modifications.
This Agreement cannot be changed or modified except by Agreement in writing
executed by all parties hereto. Concessionaire acknowledges that no modification to this
Agreement may be agreed to by the City unless approved by the Mayor and City
22
62
Commission except where such authority has been expressly provided herein to the City
Manager or his designee.
18.3 CompleteAqreement.
This Agreement, together with all exhibits incorporated hereto, constitutes all the
understandings and Agreements of whatsoever nature or kind existing between the
parties with respect to Concessionaire's operations, as contemplated herein.
18'4 Headinqs'
*,,.
-,:n
The section, subsection and paragraph headings ..ffii|.[.t,$""d herein are for convenience
of reference only and are not intended to defffilfift, or describe the scope or intent of
any provision of this Agreement. l*' ', \
18.5 Bindinq Effect. '-' , ;;
This Agreement shall Oe Oindifu4rpon and inure to the benefit of the p.rti". hereto and
their respective successors "H. ---- d assigns. ..
18.6 Clauses.
The illegality.oi invalidity. 6f,any
validity of the remainder of tne
and effect as if such illegalil.invalid hr clause were not contained herein unless the
elimination of such provisidn detrimentally i.,educes the consideration that either party is
to receive under this Agreement or materially affects the continuing operation of
is Agreement;,
,, , ,..._ ,=
,
lf any pdti'tion of this Agreement or any portion of such provision or the application
thereof to eni person oi'Circumstance shall be held to be invalid or unenforceable, or
shall become a violatiOn of any local, State, or Federal laws, then the same as so
applied shall no longei 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.
18.8 Riqht of Entrv.
The City, at the direction of the City Manager, shall at all times during hours of operation,
have the right to enter into and upon any and all parts of the Concession Area(s) for the
purposes of examining the same for any reason relating to the obligations of parties to
this Agreement.
23
63
18.9 Not a Lease.
It is expressly understood and agreed that no part, parcel, building, facility, equipment or
space is leased to the Concessionaire, that it is a concessionaire and not a lessee; that
the Concessionaire's right to operate the concession shall continue only so long as this
Agreement remains in effect.
18.10 Sionaqe.
Concessionaire shall not be permitted to install any s€nage at the Concession Area.
*.*.,.,, 'i =-
'"::'iii$t\iS' '
ln each instance in which the approval onnmnsent of the City Manager or his designee is
allowed or required in this Agreement, it is acknowledged that such authority has been
expressly provided herein to the Cit/ Manager or his designee by the Mayor and City
Commission of the City. ln each instande in which-.tfi..-g=approval or corrsent of the City
Manager or his designee is allowed or reqriffi."S$*$y {i}E:iAgreement, Concessionaire shall
send to the City Manager a written request f{il.approval or consent (the "Approval
Request"). ,
,
The City Manager-or,,fis designdE,shall Use reasonable efforts to provide written notice
to Concessionaire apbroyng of consent to, or disapproving of the request, within thirty
(30) days from the date offipproval Request (or withih such other time period as may be
expressly setfttt.l-!...for a pH'iticular approval or consent under this Agreement). However,
the City Managef or his designee's failure to consider such request within this time
provided shall not be defmedil1,ffiy,,_U-'taiver, nor shall Concessionaire assume that the
requq is automaticallijpprovbd and consented to. The City Manager or his
designee shall not
Subsection shall not
Citf Gommission. ::
18.12 No WaiVer.
y ''=w.-i-tlihold such approval or consent. This
approvals required herein by the Mayor and
It is mutually covenanted and agreed by and between the parties hereto that the failure
of the City to insist upon the strict performance of any of the conditions, covenants,
terms or provisions of this Agreement, or to exercise any option herein conferred, will not
be considered or construed as a waiver or relinquishment for the future of any such
conditions, covenants, terms, provisions or options but the same shall continue and
remain in full force and effect. A waiver of any term expressed herein shall not be
implied by any neglect of the City to declare a forfeiture on account of the violation of
such term if such violation by continued or repeated subsequently and any express
waiver shall not affect any term other than the one specified in such waiver and that one
only for the time and in the manner specifically stated.
24
64
The receipt of any sum paid by Concessionaire to the City after breach of any condition,
covenant, term or provision herein contained shall not be deemed a waiver of such
breach, but shall be taken, considered and construed as payment for use and
occupation, and not as rent, unless such breach be expressly waived in writing by the
City.
18.13 No Third Party Beneficiarv.
Nothing in this Agreement shall confer upon any person or entity, including, but not
limited to sub concessionaires, other than the parties hereto and their respective
successors and permitted assigns, any rights or remedies by reason of this Agreement.
18.14 No Lien i;.=
ln the event any notice or claim of lien shall b61 the interest of the City
on account of or arising from any work done by or for , or any person
claiming .by, through or under Concessionaire, or for or work, the cost of
to have such noticewhich is the responsibility of Concessionaire, Concessionaire
or claim of lien cancelled and dischaigbd within fifteen (15)after notice to
".may terminateConcessionaire by City. ln the event Concessionaire fails to do so,
this Agreement for cause to Cit/,
The City desires to enter into this AgfEement
the Concession Area(s) i'n the h'ands of a private
can place a limit on its liability fo'r any caus6'd
,.:::::::::i:.i4.
Concessionaire hereby -expresses its willih@ess to enter into this Agreement Five
Thousand,[$.F,,€lOrOO) Dollars limitation on recovery for any action for breach of contract.
000.00) Dollars, for any,€ction for breach of contract arising out of the
performance dti,, performanE<f any o'bligations imposed upon the City by this Agreement.
Nothing contained# this paragiaph or elsewhere in this Agreement is in any way intended to be
a waiver of limita
768.28.
the City's liability as set forth in Florida Statutes, Section
SECTION
This Agreement shall be deemed to have been made and shall be construed and interpreted in
accordance with the laws of the State of Florida. This Agreement shall be enforceable in Miami-
Dade County, Florida, and if legal action is necessary by either party with respect to the
enforcement of any and all the terms or conditions herein, exclusive venue for the enforcement
of same shall lie in Miami-Dade County, Florida"
CITY AND CONCESSIONAIRE HEREBY KNOWINGLY AND INTENTIONALLY WAIVE THE
RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING THAT CIry
AND CONCESSIONAIRE MAY HEREIN AFTER INSTITUTE AGAINST EACH OTHER
25
65
WITH RESPECT TO ANY MATTER ARISING OUT OF OR RELATED TO THIS
AGREEMENT OR THE CONCESSTON AREA(S).
SECTION 21. GONCESSIONAIRE'S COMPLIANCE WITH FLORIDA PUBLIC RECORDS
LAW.
21.1 Contractor shall comply with Florida Public Records law under Chapter 119, Florida
Statutes, as may be amended from time to time. Records made or received in
connection with this Agreement are public records under Florida law, as defined in
Section 1 19.01 1(12), Florida Statutes.
21.2 Pursuant to Section 119.0701 of the Florida Statutes, if the Contractor meets the
definition of Contractor as defined in Section 1 19.r,,, (a), the Contractor shall:
(A) Keep and maintain public records requii y'=tha City to perform the service;
, :IES*"
(B) Upon request from the City's custodian'6ipublic recordi, 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 piovided in Chapter 119,
Florida Statutes or as othenrrrise provided by law;
(C) Ensure that public r""otjjfl-66ut are exempt or confidential
"nO "*empt
from public
records disclosure requirertients are not disclosed, except as authorized by law, for
the duration of the contraCt teim and following completion of the Agreement if the
Contractor does nof transfei\:the reddrdsitg,the City;
:,,
, t Contractor shall destroy any duplicate public
#-e. dentfaknd exempt from public records disclosure
k€ep.s ahd maintains public records upon completion
tractor'sha}l.:: eet al| applicable requirements for retaining
tored eleetronically must be provided to the City, upon
of public records, in a format that is compatible with
of the City.
(D) Upon compt8fiF* '' :: ngreemU*1 tr"n*i"i,iet no cost to the City, all public records
in possessiOh of the Contractor oi" [<--eep and maintain public records required by the
City to perfoiim tne sefuice. lf the hniiactor transfers all public records to the Citytr,.i :al
upon completio ,pf
rqpords that ar8
r€quirements. lf
of the Agreement,
public records. All
request from theCity's cuEt6
the information technology si
21.3 Request for Reiords; Noncompliance.
r. r-
(A) A request to,,' pect or copy public records relating to the City's contract for services
must be made directly to the City. lf the City does not possess the requested
records, the City shall immediately notify the Contractor of the request, and the
Contractor must provide the records to the City or allow the records to be inspected
or copied within a reasonable time.
(B) Contractor's failure to comply with the City's request for records shall constitute a
breach of this Agreement, aM the City, at its sole discretion, may: (1) unilaterally
terminate the Agreement; (2) avail itself of the remedies set forth under the
Agreement; and/or (3) avail itself of any available remedies at law or in equity.
(C) A Contractor who fails to provide the public records to the City within a reasonable
time may be subject to penalties under s. 1 19.10.
26
66
21.4 Civil Action.
(A) lf a civil action is filed against a Contractor to compel production of public records
relating to the City's contract for services, the court shall assess and award against
the Contractor the reasonable costs of enforcement, including reasonable attorney
fees, if:
1. The court determines that the Contractor unlaMully refused to comply with the
public records request within a reasonable time;and
.:l:.::..2. At least 8 business days before filing the adffi, the plaintiff provided written
notice of the public records request, including a statement that the Contractor
has not complied with the request, to.,lne City and to the Contractor.
(B) A notice complies with subpa ragraph,i11ifi;b) if it is ient. to the City's custodian of
public records and to the Contractor dt the Contractor's address listed on its contract
with the City or to the Contractofs il#pistered agent. Such notices must be sent by
common carrier delivery service oilffi1f-,,,,-.registere_{, Global Express Guaranteed, or
certified mail, with postage or shippift$lflrpaid b.S,iithe sender and with evidence of
delivery, which may be in an electronic foim
(C) A Contractor who complies with a public records r?guest within 8 business days after
the notice is sent is not liable for the reasonable EEts of enforcement.
21,5 IF THE CONTRAE.TO-R= HAS OUESIOI.IS REGAdiNG THE APPLTCATION OF
CHAPTER 119, FLORffiG
PUBLIG RECoRDS ATtt%
%;lti
CITY OF MIAMI BEACH .'l{N
ATTENTION: RAFAEL E. GR)
17OO CONVENTION CENTER
MIAMI BEACH, FLORIDA 33139
E-MAI L : RAFAE LG RANADOMIAM I B'EACH F LG OV
PHONE: 305-673-7411
THE REMAINDER OF THIS PAGE !S INTENTIONALLY LEFT BLANK.
27
67
!N WITNESS WHEREOF, the parties hereto have caused their names to be signed and their
seals to be affixed, all as of the day and year first above written, indicating their Agreement.
Attest:CITY OF MIAMI BEACH, FLORIDA
Rafael E. Granado, City Clerk
Attest:
,,,
Miami L.-q1d an=d Sea Pirate A{r,,,pgture lnc.
l:.."r.t t
Print Name and Title
, l: l:,
t.;=
=F.=fi=q.t= drfffiili,}lp
':.:.:::-:::=,, *.Nt*
28
68
Exhibit 1
Barry Kutun Boat Ramp at Maurice Gibb Memorial Park
CommercialConces sion @ Ptan
* crossed morked section is concession oreo
29
69
Exhibit 2
Application for Commercial Concessron Operations
at Public Boat Ramps
.@
-1:a.a:::::a::t:
'..:aa:a::;aa;a:.=
...:a:a;;a::::!:.
",,ri/,.ijLr:,,..
30
70
Exhibit 3
Re/ease Form
31
71
72
Asenda trc^ C7 F.
Date /2-/?-/C
RESOLUTION NO.
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITYOF MIAMI BEACH, FLORIDA, ACCEPTING THE WRITTEN
RECOMMENDATTON OF THE CtTy MANAGER (AS SET FORTH tN THE
clTY coMMlssloN MEMoRANDUM ACCOMPANYING THIS RESOLUTTON)
AND WAIVING, BY 5/7THS VOTE, THE COMPETITIVE BIDDING
REQUIREMENT, FINDING SUGH WAIVER TO BE IN THE BEST INTEREST
OF THE CITY; AND APPROVING, lN SUBSTANTTAL FORM, THE
GONCESSION AGREEMENT ATTACHED TO THIS RESOLUTION
BETWEEN THE CITY AND SOUTH BEACH KAYAK, INC.
(coNcESStoNAtRE) FOR USE OF THE BARRY KUTUN BOAT RAMP AT
MAURICE GIBB MEMORIAL PARK, LOCATED AT 17OO PURDY AVENUE,
IN CONNEGTION WITH PROVIDING KAYAK AND PADDLE BOARD
RENTAL SERVICES, FOR THE TERM OF ONE (1) YEAR, WITH TWO (2)
ONE.YEAR RENEWAL OPTIONS, AT THE CITY'S SOLE DISCRETION;
SAID AGREEMENT BEING SUBJEGT TO FINAL NEGOTIATION BETWEEN
THE ADMINISTRATION AND CONCESSIONAIRE AND SUBJEGT TO
REVIEW AND FORM APPROVAL BY THE CITY ATTORNEY'S OFFICE;
AND FURTHER AUTHORIZING THE MAYOR AND CITY CLERK TO
EXECUTE THE FINAL NEGOTIATED AGREEMENT.
WHEREAS, at the October 31,2014 Neighborhoods and Community Affairs Committee (NCAC)
meeting, the Committee directed Administration to research and assess options for regulating the use of
the boat ramp; and
WHEREAS, on January 30,2015, Parks and Recreation Director, John Rebar, provided the
Neighborhoods/Community Affairs Committee (NCAC) with a presentation and discussion on the
potential options to manage and improve marine activities at the Barry Kutun Boat Ramp (the Boat Ramp)
at Maurice Gibb Memorial Park, located at 1700 Purdy Avenue (the Park); and
WHEREAS, following the discussion, the NCAC recommended that the Mayor and City
Commission direct the Administration to proceed with construction of a floating dock for non-motorized
marine vessels at the Park, from which non-motorized vessels including, without limitation, kayaks,
canoes, and paddleboards, may be launched, and to develop and implement a plan to control access to
the Barry Kutun Boat Ramp Park and to limit its use to City of Miami Beach residents for non-commercial
uses only; and
WHEREAS, on March 30, 2015, the City Commission accepted the recommendation from NCAC
and adopted Resolution No. 2015-28957, which authorizes the Administration to proceed with the
construction of a floating dock for non-motorized marine vessels at the Park, establish a policy for
commercial use of the Boat Ramp, and in consultation with the City Attorney's Office, to develop and
implement a plan to limit access to the boat ramp; and
WHEREAS, on May 11,2016, the City Commission approved, on first reading, Ordinance No.
2016-4022, amending Section 82-1 of the City Code, and prohibiting commercial transactions, activities
or operations on streets, parks or other public property, including the Boat Ramp, unless otherwise
approved by the City Manager (if commercial outdoor fee based activity with minimal impact) or
authorized by the City Commission pursuant to an approved concession agreement; and
WHEREAS, at the May 11,2016 meeting, the City Commission expressed their interest in
permitting commercial operations at the Boat Ramp for water taxi service, amphibious tours and kayak
rentals; and
73
WHEREAS, on July 13, 2016, the City Commission adopted, on second reading, Ordinance No.
2016-4022; and
WHEREAS, South Beach Kayak, lnc. provides kayak and paddle board rentals for the public; and
WHEREAS, the Administration has negotiated with South Beach Kayak, lnc. a non-exclusive
concession agreement (the Agreement) for the use of the Boat Ramp for entry and exit to and from
Biscayne Bay, for the term of one (1) year with two (2) one-year renewal options; and
WHEREAS, pursuant to the proposed Agreement, the Concessionaire shall pay the City on an
annual basis, a total of $1,645 ($tZO for non-motorized vessel operators annual fee and $1,525
for launch fees); and
WHEREAS, the Administration recommends that the City Commission approve, in substantial
form, the Concession Agreement attached as Exhibit "l" hereto, subject to final negotiation between the
Administration and Concessionaire, and subject to review and form approval by the City Attorney's Otfice.
NOW THEREFORE, BE !T DULY RESOLVED BY THE MAYOR AND CITY GOMMISSION OF
THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City Commission hereby accept the written
recommendation of the City Manager (as set forth in the City Commission Memorandum accompanying
this Resolution) and waive, by 5/7ths vote, the competitive bidding requirement, finding such waiver to be
in the best interest of the City; and approve, in substantial form, the concession agreement attached to
this Resolution between the City and South Beach Kayak, lnc. for the use of the Barry Kutun Boat Ramp
at Maurice Gibb Memorial Park, located at 1700 Purdy Avenue, in connection with providing kayak and
paddle board rental services, for the term of one (1) year, with two (2) one-year renewal options, at the
City's sole discretion; said Agreement being subject to final negotiation between the Administration and
Concessionaire, and subject to review and form approval by the City Attorney's Office; and further
authorize the Mayor and City Clerk to execute the final negotiated Agreement.
PASSED and ADOPTED this 14th day of December,2016.
ATTEST:
PHILIP LEVINE, MAYOR
RAFAEL E. GRANADO, CITY CLERK
APPROVED AS TO
FORM & LANGUAGE
74
CONCESSION AGREEMENT
BETWEEN
- .;,.rl
r,ll ;f il'll rr
CITY OF MIAM! BEACH,,FLORISA
:i ::'l'
AND
ir,,.1r::,.;,r,,
,
SOUTH BEACH KAYAK, !NC.
To UTtLtzE THE BARRV,,KUTUN BoAT RAMP FOR,,ENTRY AND ExtT oF BISCAYNE BAy
..;:,,,,., ,:,F-OR,. rrr,r.'r'.' ' ,
THE PURPOSE.OF PROUDifiG KAYAK.ANO PADDLE BoARD RENTAL SERvIcES
':rr::,: i ::::: i. ':'
75
INDEX
SECTION TITLE
1.
2.
2.1
3.
3.1
3.1.1
3.1.1.1
3.1.1.2
3.1.2
3.1.3
3.2
3.3
4.
4.1
4.2
4.3
4.4
5.
6.
6.2
6.3
7.
7.1
7.2
8.
8.1
8.2
8.3
8.4
8.5
8.6
9.
10.
10.4
11.
11.2
1 1.3
12.
12.1
12.2
12.3
12.4
12.6
12.7
12.8
PAGE
TERM ....."."...5
coNCESStON AREA(S) AND CONCESSTON SERVTCE ZONE ."...."5
Concession Area ........ .........5usE(s) .........6
Amphibious Tours ................6
Approved use of Concession Area......*n5$g* ....."......6
Subordination of lnterest ...,'........".....6
Program Vessels....
Ownership of Program Vessels
Sales and Use Tax ................ ..,......=;;:::.....
........,.....".....7
.....,..,..,...,,,'.7
.......,'''..""..... 7
....'.',..".. "..... "7
.................... 7
..,..........,.. ".,,7
76
12.9
13.
14.
15.
16.
17.
17.1
17.2
17.3
17.4
18.
18.1
18.2
18.3
18.4
18.5
18.6
18.7
18.8
18.9
18.10
18.1 1
18.12
18.13
18.14
19.
RightofEntry...............:w,.''......'...1...:.
Sig nage....... : : iir.. r....... ...........Y[,:........................,=.... ... " "..........23
Procedure foi Approvals and/or ,,,,...,,,,,...24
20.
21.
Exhibit 2' Comple'6d Application for Commercial Concession Operations
at Public Bp-at Ramps............... ...........30
Exhibit3-Release Form. ....".......31
77
CONCESSION AGREEMENT
BETWEEN
CITY OF MIAM! BEACH, FLORIDA
AND
SOUTH BEACH KAYAK, INC.
TO UTILIZE THE BARRY KUTUN BOAT RAMP FOR ENTRY AND EXIT OF BISCAYNE BAY
FOR
THE PURPOSE OF PROVIDING KAYAK AND PA E BOARD RENTAL SERVTCES
2016THIS CONCESSION AGREEMENT (the "Agreement") made on
("Effective Date"), between the CITY OF MlAlll BEACH, a municipal corporation of the State of
Florida, having its principal address at 1700 Convention Center Drive, Miami Beach, Florida,
33139 (hereinafter called the "City"), and SOUTH BEACH KAYAK, !NC., whose address is
1771 Purdy Avenue, Miami Beach, Florida, 33139 (hereinafter called "Concessionaire").
WITNESSETH
WHEREAS, the Mayor: e-nd'City Comilission recognize the impgrtance of the City's public
property to the residents and visitors of the CitV
3f,Mimi;rBeach;
and
WHEREAS, the City prohibits commercial transactions, activities or operations at the City's
parks, boat ramp(s), beach strudures, building or other property or place, maintained or
operated by the City, unless,texplegely authorized by the City Manager upon its public property,
or pursuant,t$i concession agreement that is approved by the City Commission; and
WHEREAS, illegal and unquthorized commercial transactions, activities and operations upon
City propefir,.,.creates a dan$er:ous and hazard situation, which is a direct threat to the residents
and visitors of the City for potential unscrupulous conduct; and
WHEREAS, the'City is legally obligated to ensure the health, safety and welfare of its residents
and visitors who utilize its public facilities, and illegal commercial transactions, activities and
operations unnecessarily,,expq$eS the City to unwarranted potential liability; and
WHEREAS, accordingly, the City Commission at the July 13th 2016 City Commission Meeting
directed staff to work with existing amphibious tour companies to continue their tours in the City
of Miami Beach and continue to utilize the Barry Kutun Boat Ramp; and
WHEREAS, Staff has negotiated the following non-exclusive concession agreement (the
"Agreement") for the use of the Barry Kutun Boat Ramp (the "Boat Ramp") at Maurice Gibb
Memorial Park (the "Park"), located at 1700 Purdy Avenue, for entry and exit to and from
Biscayne Bay for the purpose of providing kayak and paddle board rental services (the
"Program").
78
NOW THEREFORE, in consideration of the premises and the mutual covenants
and conditions herein contained and other good and valuable consideration, the receipt
and adequacy of which are hereby conclusively acknowledged, it is agreed by the parties hereto
as follows:
The City hereby grants to the Concessionaire, and the Concessionaire hereby accepts
from the City, the non-exclusive right to operate the Program (as further described herein) within
the Concession Areas (as defined herein), in conformance with the purposes and for the period
stated herein and subject to all the terms and conditions herein contained and set forth.
The above recitals are true and correct and are incorporated lpu:ein by reference as part of thisAsreement
_ 1tW
.a;..:?.4:
SECTION 1. TERM . =.:.F .--..
*^. '-\]-:, :1.1 The term ("Term") of this Agreement shall be for one (t ) fed=5 ommencing on January
1, 2017 ("Commencement Date"), with two (2) one-year renewal options to be exercised
at the City Manager's sole option and discretion, by providi oncessionaire with
written notice of same no less than thirty (30) days prior to the e4gigtion of the then
current Term. Notwithstan,__.9ing tne foregoil4g, Concessionaire mH!'- not commence
operations until such time aS the following conditions have been met: (1) Concessionaire
has provided the City with evidence of the requisite governmental approvals to operate
the Program including, withouf trnitdiio$!, fl,,licenseS iequired in subsection 6.3; and (2)
the City has approved ConcessGlilAire's in$urance coverages as required in Section 9,
which shall include insurance coverage for all Program Vessels used by Concessionaire
to operate the Program . i i
1.2
.tl,Xl.tt_ t
*L,
For purposes of this Agre€ment, a "Cdiitract Year" shall be defined as that certain 365
d'Y,-R.:... mmencing on$e Date.
ARE AND CONCESSION
The City heffihy Orants to tti"€iffioncessionaire the non-exclusive right, during the Term of this
Agreement,to*tti$,Dr,erate the Pro$ram, as described herein, upon the Concession Area defined in
subsection 2.1 EQ+ldentified "'{$l,Exhibit 1 to this Agreement (hereinafter, the "Concession
Area"): --d;a :', ,Area ): *{* "'r
,*+2"1 Concession Area.'
The ConcesSidh Area shall be the vehicle access path to the Boat Ramp and the
Boat Ramp, as more particularly depicted in Exhibit t hereto, and does not
include any adjacent or surrounding areas (the "Concession Area"). Additionally,
no improvements to the Concession Area ("Concession Area lmprovements")
shall be permitted, and no equipment may be maintained, on the Concession
Area without the prior written approval of the City Manager, which approval, if
provided at all, shall be at the City Manager's sole and absolute discretion, and
Exhibit 1 shall be amended to incorporate the approved Concession Area
lmprovements and/or permitted equipment.
79
Concessionaire shall not install or operate any Program sites, nor identify
additional or alternate locations for same (other than as identified in Exhibit 1),
without the prior written approval of the City Manager, which approval, if provided
at all, shall be at the City Manager's sole and absolute discretion.
SECTION 3. USE(S).
The Concessionaire is hereby authorized to conduct the following kind(s) of businesses and
provide the following kind(s) of services related to the operation of the Program within
the Concession Area, all at its sole cost and expense'
*od*,3'1 Amphibious Tours'
i^----_:_- ^ ^dw3.1.1. AporoVed [Js€ of Coflc -,,..,:,,..---=
The Concession Area shall be u$&ll ti a aire on a nonexclusive
basis and solely and exclusively during short intervalsl-lgr the entry and exit of
Biscayne Bay by the Program==Vg5 els (as defined in subsection 3.1.2) during the
approved hours of operation for the Program. ln the event.the Concessionaire
uses the Concession Area for'8'$,puiffijs) and/orui*il not expressly
permitted in this subsection 3.1.1., s,Thffitf.ffihall be considerY6{b default under
this Agreement, and=the City shall be"{;gatitled to all remedies, including
termination of this Agreement, as set foTtRV/, subsection 12.4. ln addition,
notwithstanding any other termS of this Agreement, the City shall be entitled to
seek imm,ed,iate ief, whether at law QuitV, toi rain such improper use(s).
=..:,:3.fl1.1 NO?arkinq Privi[eqes. No parking privileges shall be provided to
[g Conce*-ibnaire, Concessionaire employees, or passengers of the
. Additionally, Concessionaire agrees to ensure that the
tng S...to the Park or the Boat Ramp are not obstructed.
3.1.1.2 . the public's right to use the Park, including
the Boat ,. for non-Co mercial purposes is primary to the privileges
which he ifmas granted Concessionaire under this Agreement;..= theref6re, the privif#g,p to operate the Program pursuant to the Agreementr.' shall not,,be constrU6d as limiting, in any way, the public's right to use of= the Park,.including the Boat Ramp, for non-commercial purposes.
Fipally,.notwithstanding any other terms of this Agreement, the privilegesu r,this Agreement are non-exclusive; therefore, the City shall not be
prevented and/or prohibited, in any respect, from contracting for and/or
operating additional commercial activities/uses at the Park and/or at the
Boat Ramp, even if sah activities/uses are in direct competition with the
services provided by Concessionaire under the Program.
3.1"2 Proqram Vessels.
The City hereby approves of Concessionaire's plan as to the type of vessel which
will be used in connection with the Program, as described in the Application for
80
3.2
Commercial Concession Operations at Public Boat Ramps, attached as
composite Exhibit 2 hereto (the "Program Vessel(s)"). Any amendments to
Exhibit 2, without limitation, as to type of Program Vessel, must be approved, in
writing, by the City Manager prior to such changes being irnplemented within the
Concession Area, and Exhibit 2 shall be amended accordingly.
Notwithstanding the above, the City and Concessionaire hereby acknowledge
and agree that the City's approval in subsection 3.1.2 above, as to the type of
Program Vessel is given by the City solely in its proprietary, and not in its
regulatory capacity. Notwithstanding such approval, in the City's proprietary
capacity, Concessionaire agrees to secure,rat'1ts sole cost and expense, all
required approvals from all governmental authorities having jurisdiction over the
Program, in connection with the operatiqn of the Program.
Oversiqht. Concessionaire, wiile utilizing the iRamp will provide on-site monitoring
of the Concession Area and th&reas surroundinSilh$ Concession Area.
property of during the Term of thi reeni"6ht.
:t:
re shall pay the City, in advance, on an annual
basis, the following use fees,
t. tu*
$fffi, 6,ffiF. modified by the City from time to time ("Use
Fee(s)"):
, .rii-,
The Progr:bm Vesseii"fhall be the sole and exclusive
4.2
Mfurizea vesset ennuai' & - $tio.oo
La0hch Fees (per Exhjtit 2l:, ,,,:, $1,525.00
Total - ,,- = "I{' $1,645.00
The initial Use=Eee ftll be due within thirty (30) days from the Effective Date.
Thereafter, the USd Fee shall be due on or before January lst of any approved renewal
Term.
lnterest for Late Pavment.
Any payment which Concessionaire is required to make to City which is not paid on or
before the respective date provided for in this Agreement shall be subject to interest at
the rate of eighteen percent (18Yo) per annum, or the maximum interest allowable
pursuant to Florida law, whichever is less, from the due date of payment until such time
as payment is actually received by the City.
81
4.3 Sales and Use Tax.
Any required Florida State Sales and Use Tax shall be paid by Concessionaire directly
or added to payments, at the designee's sole discretion, and fonuarded to the City
as part of said payments. !t is the City's intent that it is to receive all payments due from
Concessionaire as net of such Florida State Sales and Use Tax.
4.4 Marketinq and Advertisinq.
As of the Effective Date, the City Code does not allow advertising to be placed on the
Program Vessels or anyrrhere on the Concession Area. Advertising on the Program
Vessels or Concession Area shall be prohibited.
"dill@M"ffisEcTloN 5. INSPECTION AND AUDIT. ffitt,'fu
Concessionaire shall maintain its financial records pert6ining toTiWbperations herein throughout
the Term of this Agreement and for a period of three (3) years after the expiration or other
termination of this Agreement, and such records shall be open and available to the City
Manager or his designee, as deemed necessary by them. ConcessioEa,ii,.e shall maintain all
such records at its principal office, currently located at 1771 Purdv Avenue*,il!/liami Beach. FL
3:1!-:!.9, or, if moved to another location, all such recoids shall be relocated, at"Concessionaire's
expense, to a location in Miami Beae-$.\ffi"!,,,1gten (10) days'notice (written orverbal) from the
City. These audits are in addition toffiiodiffidits by the.City of Resort Tax collections and
payments, which are performed separatpJlfi NdtHit$hcpntained within this Section shall preclude
6.1 ConceEgionaire a$i-es andshall pay ffio-re delinquency all taxes (including but not
lq.i.tffio.,ft,Ep,g..t T-1es) Ehd ''ass ssme.frts. of any kind levied or assessed upon a
.#wB'65i
71,8fif0!" Con
T-xes) Ehd ''as ssmeil'f$il of any kind levied or assessed upon a
and/or on Concessionaire by reason of this Agreement, or by reason
6.2
buSiness and/oi= operations within a Concession Area.
eoEcessionaire the:'iight, at its own expense, to contest the amount or validity,
in Wh or in part, 6Eny tax by appropriate proceedings diligently conducted in good
faith. @,... essionaire @ay refrain*om paying a tax to the extent it is contesting the
impositioh:o{.same in aliiibnner that is in accordance with law. However, if, as a result
of such coht$$_,d. additiq.gif,delinquency charges become due, Concessionaire shall be
responsible tdi+.ftg9,,!'r uency charges, in addition to payment of the contested tax, if
so ordered ",,t4, ry
Procedure lf Ad Valorem Taxes Assessed. lf ad valorem taxes are assessed against the
Concession Area (or any portion thereof) by reason of Concessionaire's business and/or
operations thereon, Concessionaire shall be solely responsible for prompt and timely
payment of same.
Licenses. Concessionaire shall also be solely responsible (at its sole cost and expense)
for obtaining and maintaining current any applicable licenses or permits, as required for
the operations oontemplated in this Agreement including, without limitation, any
occupational licenses required by law for the proposed uses contemplated in Section 3;
the U.S. Coast Guard licenses for captains and the Certificates of lnspection for the
the City's audit rights for,.ResortTax colle ion purpos.$i,,
r l AAFAATaFii+A r rAF-E:-:i*:-4. :-' q.r
6.3
82
vessels; the State of Florida license; and any applicable City licenses.
SECTION 7. EMPLOYEES AND !NDEPENDENT CONTRACTORS.
7.1 Concessionaire's Employees.
7.1.1 Concessionaire shall select, train and employ such number of employees or
contractors as is necessary or appropriate for Concessionaire to satisfy its
responsibilities hereunder. Concessionaire shall be the sole authority to hire,
terminate and discipline any and all personnel employed by Concessionaire.
,.t',' :::,,=7.1.2 Concessionaire shall designate a competent full.tirne employee to oversee the
dayto-day operations, and who shall act as the contract administrator for the
Program and serve as Concessionaire's primary point-person with the City. This
individual shall have the requisite ampunt of experience in operating, managing,
and maintaining the Program ated herein. The employee shall be
accessible to the City his designee at all times during normal
business hours to discuss the\i t, operation and maintenance of the
Program, and during non-bu
failure by the employee to be
pgurs in ffi,9vent of emergency. Consistent
Wjble striiffif, 7lbe reported to Concessionai re's
s'hAlf':- rounds for replacement of theprincipal(s), and if notlectified,
employee.
7.2 City Manaqer's desionee. Except for those expressly set forth in this
Agreement for, respectively, the ;City Commission the City Manager, the City
Manager's de-sig, €g. this A$reement shall serve= as the City's day to day
representativ.d'.dpolfiF*rson for Concessionaire w[[!1=respect to the Agreement. The
City Manager's= signee shall be the. City's Departrnent of Parks and Recreation
Director or Assistaht Director.
SEGTION 8..I
Date.
The Concessionaire 'accepts t =3se of-'anf and all Concession Areas provided in
this Agreement "AS lS," "WHERE=1ffi.=nd 'WITH ALL FAULTS," existing as of the Effective
8.1
8.2
try
Concessionaire may not make any improvements to the Concession Area without City
Manager's Appioval, which approval, if provided at all, shall be at the City Manager's
sole and absolute diseretion.
Maintenance/Repair.
The Concessionaire shall maintain, at its sole cost and expense any equipment (as
required to operate the Program), as well as the Program Vessels. The City shall
maintain the Boat Ramp to address normal wear and tear of the dock; however,
Concessionaire shall be responsible for reimbursing the City for any maintenance and
any repairs as a result of the operation of the Program at the Boat Ramp, including any
damage which may be caused by the Concessionaire, its employees, contractors,
agents or invitees. Any such maintenanoe and repairs shall be performed by the City, as
83
deemed necessary, at the City Manager's sole discretion, and Concessionaire shall
reimburse the City within 10 (ten) days from receipt of the invoice.
Concessionaire shall be solely responsible for the day to day operation and shall
maintain any equipment the Program Vessels and any equipment thereon in good
working order and condition. Concessionaire shall keep Program Vessels free of
graffiti. M repairs to the Program Vessels may be made on-site. Any Program Vessel
needing maintenance shall be removed from circulation and serviced
at Concessionaire's repair center. No Program Vessel or equipment may be stored at
the Park.
t''=t 'It shall be Concessionaire's sole obligation ,,,tQ ,ensure that any repairs and/or
improvements made by Concessionaire to the-:Program Vessels complies with all
applicable life safety codes of governmental authorities having jurisdiction.
:l
Concessionaire agrees, also at its sole cq$$ffid expense, to pay for all garbage disposal
generated by its operations. Garbage may not Oe disposed of at the Concession Area.
8.3 Orderlv Operation.
The Concessionaire shall have a neat
solely responsible for the necessary
tion at all times and shall be
services to properly maintain its
shall be conducted.a! extreme low speeds. Sandin$"ti.$ stopping will only occur to
allow the safe lffih aad retrieval of othersltilizing th€ Boat Ramp. All applicable
rules, laws and oidinanc jll be adhered to by concessionaire.
8.4
\::::::::: 'r i,
ifiq:!l.E!,.qting
turpdftffie,
combusti$f€i,ffi6,,1i1gq"., comoutti#,{e ,atdfl lsror explosives of any kind, or any substance or thing
prohibiffiin the stand{pd policieSLlbf fire insurance companies in the State of Florida, on
or withiffif6fi;On" Confi,ffiSsion Areas, or on any City property and/or right of way.
,,
Concessionair.F,= all in-demnify and hold City harmless from any loss, damage, cost, or
expense of the'C.&:,,, Uding, without limitation, reasonable attorney's fees, incurred as
a result of, arisin$:::f.i6m, or connected with the placement by Concessionaire of any
"hazardous substance" or "petroleum products" on, under, in or upon the Concession
Areas as those terms are defined by applicable Federal and State Statute, or any
environmental rules and environmental regulations promulgated thereunder; provided,
however, Concessionaire shall have no liability in the event of the willful misconduct or
gross negligence of the City, its agents, servants or employees. The provisions of this
Subsection 9.4 shall survive the termination or earlier expiration of this Agreement.
10
84
8.5 Securitv.
The Concessionaire shall use the Concession Area at its own risk. The City shall not be
obligated to employ or provide any security measures to protect the Concession Area.
Under no circumstances shall the City be responsible for any stolen or damaged
equipment, nor shall City be responsible for any stolen or damaged personal property
of Concessionaire's employees, contractors, agents, patrons, guests, invitees, and/or
other third parties.
lnspection.8.6
-'@,The Concessionaire agrees that the Concession Mffi,=a{fiay be inspected at any time by
the City Manager or his designee, or by any o.l_ffiihunicipal, County, State officer, or
officers of any other agency(ies) having resp6-B ity== <l/or jurisdiction for inspections
of such operations. The Concessionaire hereby waive$:Qll claims against the City for
compensation for loss or damage sustaineO by reason interference with the
concession operation as a result of inspection by any ies) or officials,
(including, without limitation, by reasoR of any such public official in enforcing
any laws, ordinances, or regulations as a i€Sult thereof). Any such shall not
relieve the Concessionaire f[,ffi,,?:, obligatiOn hereunder. '=
-1q[,]-,,sEc,oN e. TNSURAN'E.
H.::"r"!,*==r*,," ,,i
9.1 Without limiting its llability undffilrtfiis Agji*fhent, Concessionaire shall, at all times
during the Term of this,4greemefit;.procur;67nfl maintain, at its sole expense (and
Concessionaire shall req*ire its Concessjqnaire, Subcontractors, laborers, materialmen
and suppliers to provide, as applicablelf ihsurance of the types and in the minimum
amounts stated below, andlrovide a c6'*ifjcate with applicable endorsements on a form
that is=cce,ptable to.the City-s Division of,i=fuurance and Risk Management evidencing
t-fq f quired coveiageSt the Ciffiincluding coverage of all Program Vessels
;= ibh shall be used by Concessionaire to erate the Program):
:::::::::::
Limits':i" *Schedule &.
Woiltffi;p- Com pensd$lg/E m ployers Liab i l ity
Worke"P-{i$ompensatio:fi7,f4. Florida Statutory Coverage
Em1loYei'#kuability -1"i $1,000,000 Each Accident.'?i*, N 31:333:333P:=.T:;",i.ji?"',#:,."
This insurance shalieover the Concessionaire (and to the extent its subcontractors and
sub-contractors are not othenrise insured, its subcontractors and sub-contractors) for
those sources of liability which would be covered by the latest edition of the standard
Workers' Compensation policy, as filed for use in the State of Florida by the National
Council on Compensation lnsurance (NCCI), without any restrictive endorsements other
than the Florida Employers Liability Coverage Endorsement (NCCI Form WC 09 03),
those which are required by the State of Florida, or any restrictive NCCI endorsements
which, under an NCCI filing, must be attached to the policy (i.e., mandatory
endorsements). ln addition to coverage for the Florida Workers' Compensation Act,
where appropriate, coverage is to be included for the Federal Employers' Liability Act,
LL
85
USL&H and Jones Act, to extent coverage is not provided by the Protection and
lndemnity policy and any other applicable federal or state law.
Hull Coveraoe: Coverage for direct damage to vessels written on American lnstitute Hull
clauses form, specifically including "Running Down clauses," "Agreed Valuation
clauses," and Amount of insurance based on value of vessels. The policy shall cover
collision liability on a primary basis.
Protection and lndemnitv Coveraqe: Form "SP 23" Coverage for water taxi operations
of the watercraft, as included in "SP23" for damage to any harbor, graving, piers,
bumpers, etc.; including, but not limited to, Crew to the-xtent coverage is not provided
by the Worker's Compensation policy, Passenger and Coverage for property and liability
from land while loading and unloading the Ferly,or,Water Taxi and on-board during
navigation along with Cargo Legal Liability, Dock Liability, Excess Collision over insured
hull limit.
(Coverage shall include Premises, ,0,Exclusion Buyback Endorsement A,
Personal Effects, Medical Payments, V,,q[gStarV Wreck Removal, Pollution Buyback).
W"ti;' ;#,000,00"S coverage required.
@trrlrx,R..' [3[ix:t"*,,f,J ffi':ffi"fflti;;,*l-, i - : -- - - -\& Ashore.",,;., ,,, '&
lncluding Water a@lity lns=u,=f,,aqee Syndieate or similar form Per Statutory coverage andlimits). Frq,
Coverage for third parly lieffi$v for lahd based operations to the public and connection
with the amphibious tour peration, specifically including Occurrence form, Bodily
lnjury,.,Property Damage, Pioducls & Completed Operations, Medical Payments,
Personal lnjury, Contraqtual Liability, Ship Repair Liability.
Such insurance shall be no more restrictive than that provided by the most recent
version of the standa6Commercial General Liability Form (lSO Form CG 00 01) as
filed for use in the Stat€-of Florida without any restrictive endorsements other than those
approved by the City'sOffice of lnsurance and Risk Management.
Vessel Pollution Liability (Ocq, FOrm)
..:.:,i.:.:a::.,4.:.:.:.:.:
$2,000,000 GeneralAggregate
$1,000,000 EachOccurrence
$ 50,000 Fire Damage
$ 5,000 MedicalExpenses
$1,000,000 Per Occurrence and Aggregate
t2
Bumpershoot Liability
86
(The Bumpershoot Liability policy shall be in excess of the Employer's Liability,
Commercial General Liability, Automobile Liability, Personal & lndemnity and Pollution
Liability limits without any gap. The Bumpershoot coverage will follow form the
underlying coverages and provide on an Occurrence basis all coverages listed
above.)
A. Waiver of Subrooation. AII insurance shall be endorsed to provide for a waiver of
undenvriter's rights of subrogation in favor of the City of Miami Beach and the City's
members, officials, officers and employees.
B. Additional lnsured: All lnsurance, except Worker's Crcmpensation and Professional
Liability, shall be endorsed to name the City of Miami Beach and City's members,
officials, officers, and employees. Additional Liability shall be in a form no more
restrictive than CG2010 and Automobile Liability CA2Q48; endorsements will be
provided to, reviewed and approved by the City's Division of lnsurance and Risk
Management prior to
C.. The insurance,,.. provided by the
Concessionaire for shall apply on'=,E primary basis to, and$all not require
contribution from, any other insurance\L,,ep-lf€#Uiance maintained by the City or
City member, official, officer and employee. . r{"'
:,,,
D. Deductible or self-insured ietqntion. Except as authorized in this Agreement, the
insurance maintained by the Cohcessionaire shall adpJ$i1gn a first dollar basis without
application- of a .S#insurancej deductible, or.self-ih5ured retention. Except as
authorized'specific-fiy in this Agreement, no self-insurance, deductible, or self-
insured retehtion for any required insurance, the Concessionaire shall be responsible
for paying =on behaLf.,.: of the City (and any other person or organization
C..=.o...Elg.,F*FSionaire has, ih'=.this,Agreement, agreed to include as an insured for the
Lifisgrance) any self-insurance, deductible, or self-insured retention allowedl Uhder thl$it$-a,L.,agraph. The City will not be responsible for any self-insurance,
deductibles br self-insured retentions under this Agreement.i *ilr
E. Coh*$ssionaire's fEEgrance Additional Remedv. Compliance with the insurance
requii€. ents of thisffireement shall not limit the liability of the Concessionaire or its
Subcontiiir6tors or S,[-i subcontractors, employees or agent to the City or others.
Any remetly: vided to City or City's members, officials or employees shall be in
addition to ahd t in lieu of any other remedy available under this Agreement or
F. No Waiver bv the City Aporoval/Disaoproval. Neither approval by the City nor failureto disapprove the insurance furnished by Concessionaire shall relieve
Concessionaire of Concessionaire's full responsibility to provide insurance as
required under this Agreement.
G. Each policy shall be written by an insurer holding a current certificate of authority
pursuant to chapter 624, Florida Statues or accompany that is declared as an
13
87
approved Surplus Lines carrier under Chapter 626 Florida Statutes. Such insurance
shall be endorsed to provide for a waiver of undenrriter's rights of subrogation in
favor of the City. Such lnsurance shall be written by an insurer with an A.M. Best
Rating of A-Vll or better. Prior to commencing any Services, Certificates of lnsurance
approved by the City's Division of lnsurance & Risk Management demonstrating the
rnaintenance of said insurance shall be furnished to City. The Concessionaire shall
provide an endorsement issued by the insurer to provide the City thirty (30) days
prior written notice of any change in the above insurance coverage limits or
cancellation, including expiration or non-renewal. ln the event the Concessionaire is
unable to obtain such endorsement, the Concessionaire agrees to provide the City
the notice directly. Until such time as the insurArygg is no longer required to be
maintained by the Concessionaire, ConcessiolilE.,,.,tg shall provide the City with
renewal or replacement evidence of insurance with the above minimum requirements
no less than 30 days before the expiration..€lirrmirntion of the insurance for which
previous evidence of insurance has been provid.d. -*
H. Notwithstanding the prior submiss,An ot a Certitiiii-:.A lnsurance, copies of
endorsements, or other evidence initially acceptable to Citfs Division of lnsurance
and Risk Management, if requested'to do so by the City, th'E;goncessionaire shall,
within thirty (30) days after receipt of a written request from the' .*-provide the City
with a certified,
required herein.
of the policies of insurance providing the coverage
l. Anything to the contrary notqithstanU@+e fi"iiiiti", of the Concessionaire under
this Agreement shalt survive dft'il.not be= tfiioated, reduced or othenrise limited by
any expiration or teimination of ihsuran coV€-i.&,9,9- Neither approval of, nor failure
to disapprove, insurance furnished by the=€ cessionaire shall relieve the
Concessionaire or its sub-contractois or sub-subcontractors from responsibility to
provide insurance as required by the Agreement.'i.
.:
1
*ffiDepending upon .the nalure jl uny aspbct of any project and its accompanying'\\\=€xposures andllfiFbilities,,the City may, at its..sole option require additional insurance
rages in amdttnts responsive to those liabilities, which may or may not require
,.-..ffiffifi,?.-y also
W".
as an additional insured.
K. ConceS-ig.+ilire's fail$Ilb to provide evidence of insurance coverage set forth in this
Section 9,4within.two (2) days from receipt of a written request from the City shall
constitute a ffifitefi{Fefault under this Agreement and shall entitle the City to pursue
its default remediEs, as set forth in subsection 12.4, without affording Concessionaire
an opportunity to cure the default.
SECTION 10. INDEMNIVRELEASE.
10.1 ln consideration of a separate and specific consideration of Ten ($10.00) Dollars and
other good and valuable consideration the receipt and sufficiency of which are hereby
acknowledged, Concessionaire shall indemnify, hold harmless and defend the City, its
officials, directors, employees, contractors, agents, and servants from and against any
and all actions (whether at law or inequity), claims, liabilities, losses, and expenses,
14
88
including, but not limited to, attorneys'fees and costs, for personal, economic or bodily
injury, wrongful death, loss of or damage to property, which may arise or be alleged to
have arisen from: (1) wholly or in part from the negligent acts, errors, omissions or other
misconduct of Concessionaire, its off'rc,ers, director, members, employees, agents,
contractors, subcontractors, or any other person or entity acting under Concessionaire's
control or supervision; (2) Concessionaire's breach of the terms of this Agreement or its
representations and warranties herein; or (3) the operation of the Program. To that
extent, 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 bJ the City in the defense of such
10.2 ln addition, in consideration of a separate and Specific consideration of Ten ($10.00)
Dollars and other good and valuable consideration the receipt and sufficiency of which
are hereby acknowledged, Concessionaire,s-hall indemnify, hold harmless and defend
the City, its oflrcials, directors, employ_ffiHg contractors, agehts, and servants from and
against any claim, demand or cause o-f-'{frttion of whatever kind or nature arising out of
any misconduct of Concessionaire, "itffi-fficials, directors, employees, contractors,
agents, and servants not included in thffiaragrag$,,fiF the subsection above and for
which the City, its officials, directors, emploleBs;=@tiactors, agents,,,and servants are
10.3 Subsections 10.1
Subsections 10.1
result of the willfUl
10.4
._.:aaaaa::;!4.
and 10.2 shall survive the terminiiiop or expiration of this Agreement.
,lgf 0.2 shall not applfftwever, tSH{such liability that arises as a
1.!tiSco.,,,t"d-uct or gross negligence of the etty.
participants e*-iltg a reffiApe in connection with their participation in the Program,
which release slta{ initude.,,...- the City as an additional releasee thereunder.
Concessionaire shail proviCe the City.with a copy of the release form for approval by the
Cityls Risk Manager, whichapproved [$!gase form shall be attached as Exhibit 3 hereto.*4;i
i;"
,".....1,=
E
a=_
11.1 Neither party shall be obligated to perform hereunder and neither party shall be deemed
to be in default if performance is prevented by:
. ConcesSionaire shall ensure that Program
a. Any act or chain of related acts resulting in destruction, vandalism or theft of
water stations which render at least fifty (507o) percent of the Concessionaire
Areas unusable at any one point in time and which is not caused by negligence
of Concessionaire;
b. earthquake; hurricane; flood; act of God; direct act of terrorism; or civil
commotion occurring which renders at least fifty (50%) percent of the Concession
Areas unusable.
c. any law, ordinance, rule, regulation or order of any public or military authority
stemming from the existence of economic or energy controls, hostilities, or war
which renders at least fifty (50%) percent of the Concession Areas unusable.
89
11.2 Labor Disoute.
ln the event of a labor dispute which results in a strike, picket or boycott affecting at least
fifty (50%) percent of the Concession Areas, 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).
11.3 Waiver of Loss from Hazards.
The Concessionaire hereby expressly waives all claims against the City for loss or
damage sustained by the Concessionaire resulting from any Force Majeure
contemplated in Subsection 11.1 and Labor Dispute in Subsection 11.2above, and the
Concessionaire hereby expressly waives all rights, claims, and demands against the City
and forever releases and discharges the.G.= f Miami BeaCh, Florida, from all demands,
claims, actions and causes of action arisi m any of the aforesaid causes.
Subsection s 12.1through tZ.S s6tll"bonstitute everits of default under this Agreement. An
event of default by Concessionaire,.=helf. fe the CiE exercise any and all remedies
described as City's remedies under thiarye€ qff;,jncludiri$.I ot limited to those set forth in
W*\, ffiry
12.1
12.2
,tu,Mi,
Bankruptiv.
,atffi6.l.th9r the City o.f$ncessio na
iliil#H'r**:.i-e.ceiver or tru$ee of all or i
fl1all be adjudged bankrupt or insolvent, or if
of the business property of either party
shall b€-.=:Eprointed3 if any recdircr of all or any part of the business property
shall be Efippinted anO snatt not be discharged within sixty (60) days after
appointmenilWfi if either party shall make an assignment of its property for the
F;nefrt of credit t' , or shal[ file a voluntary petition in bankruptcy, or insolvency,
ef:fli"\frr1tt apply ftfl,\.reorganization or arrangement with its creditors under the
banRt' ptcy or insQlvency laws now in force or hereinafter enacted, Federal,
State,E th"ffif$gj or if such petitions shall be filed against either party and shall
not be di5'#.i1#d within sixty (60) days after such filing, then the other party may
immediatelf';i:: i at any time thereafter, and without further demand or notice,
terminate this Agreement without being prejudiced as to any remedies which may
be available to it for breach of contract.
Default in Payment.
ln the event Concessionaire fails to submit any payment within five (5) days of its
due date, there shall be a late charge of One Hundred and Fifty ($150.00) Dollars
per day for such late payment, in addition to the interest which accrues pursuant
to subsection 4.2. lf any payment and accumulated penalties are not received
within ten (10) days after the payment due date, and such failure continues for
15
90
ten (10) days after written notice thereof, then the City may, without further
demand or notice, terminate this Concession Agreement without being
prejudiced as to any remedies which may be available to it for breach of contract.
12.3 Non-Monetarv Default.
Unless otherwise set forth in this Agreement, in the event that Concessionaire or
the City fails to reasonably perform or observe the non-monetary covenants,
terms or provisions under this Agreement, and,such failure continues ten (10)
days after written notice thereof from the other pArty hereto, such non-defaulting
party may immediately or at any time thereii 'and without further demand or
notice, terminate this Agreement with-q.-€=E.!.r! prejudiced as to any remedies
which may be available to it for breac ontract- ln the event that a default is
not reasonably susceptible to being curd within sqch period, the defaulting party
shall not be considered in default if it shall, within Su-Ch period, commence with
due diligence and dispatch to cure such default and th-t completes with
dispatch and due diligence the buring of such default,went shall such
extended cure period exceed thirty (30) days from the da written notice
thereof. ln the evefil ionaire eures any default
subsection, it shall
same.
provide the City Manager with written
12.4
lf anydthe events of defaulU::ag5et forth in this Section, shall occur, the City
may, aftdr+xpiratiq of the curetffiiods, as provided above (unless otheruvise
=:..:p..f.o,!u,!.,!, in'''the,A$ieement), at it$jfitp. le option and discretion, institute such
ipioe€ings as 'in' its opinion are"ii"ecessary to cure such defaults and to
conpei€4$.6,pity for damages resulting from such defaults, including but not
, limited to -tf#:right'tei.rgive to Concessionaire a notice of termination of this
tli!ft,r.figreement. [f;, ch notice is given, the term of this Agreement shall terminate
"u"ryji.,,,_9.\ the date S ified in such notice from City to Concessionaire. On the date
so specified, Co#ssionaire shall then quit and surrender the Concession Area
to City pursuant_ttfllthe provisions of Subsection 12.6. Upon the termination of this
Agreeni$flt1,,-q||.- tr and interest of Concessionaire in and to the Concession
Area and l#,##;i Agreement, and every part thereof, shall cease and terminate
and City maflf in addition to any other rights and remedies it may have, retain all
sums paid to it by Concessionaire under this Agreement.
ln addition to the rights set forth above, the City shall have the right to pursue any
and all of the following:
a. the right to injunction or other similar relief available to it under Florida law
against Concessionaire; and/or
t to this
notice of
17
91
12.5
12.6
12.7
12.8
b. the right to maintain any and all actions at law or suits in equity or other
proper proceedings to obtain damages resulting from Concessionaire's
default.
lf an event of default by the City shall occur, the Concessionaire may, after
expiration of the cure periods, as provided above, terminate this Agreement upon
written notice to the City. Said termination shall become effective upon receipt of
a written notice of termination by the City, but in no event shall Concessionaire
specify a termination date that is less than thirty13O) days from the date of the
written termination notice. On the date specified'in the notice, Concessionaire
shall quit and surrender the Concession Area(s) to City pursuant to the
provisions of Subsection 12.6.
Eq uipmenUl m provements.
Upon expiration, or earlier term ,'€oncessionaire shall
surrender the Concession Areas in condition as,:.the Concession
Areas were prior to the Date, reasonable wear and tear
nexpense and at no charge to theexcepted. Concessionaire shall, at its
City, cease using the ConcesSion Area, no than thirty (30) days after the
conclusion of-the Term, (or from the date of ination of this Agreement)
unless a [gpe period is agreed to, in writing,'E]the City Manager).
Conc6$sionaire's to observe or perform this covenant shall survive the'r itN\:NL
exp i ratid[!1.,q1 othe r ion of this Agreement. Continued occupancy of any
:: a :ut:
Concession',*reasifter termination of the Agreement shall constitute trespass by
the Concesit6-*a , tlnb, *ry be prosecuted as such. ln addition, theililim,fly be prosecuted as such. ln addition, the
j"'tH#ilii@itv'One Thousand ($1.000.00) Dollars oer davConcessionaire'iEllJ pay to"t$ilff$lgity'one Thousand ($t,ooo.oo) Dollars per day
nar /^ana^a-i^^ A;X't;(Ll^- li^,,i-lA+.x:1}ltiril^*^^^^ f^, ^,,^L l-aa^a-a ^^.1 ]^^l.Ji^^ ^.,^-per Concession Area qgliqui for such trespass and holding over.
S u bsti tu te Perfo rm a n c e:::;..a::.,\.ri;3
ln'.thg event that the Concessionaire fails to properly perform its obligations or
cuid'fu default under the Agreement, after receipt of written notice from the
City, th6nJhe City shall have the right, but not the obligation, to undertake
Concessi ire's duties and obligations under the Agreement, as the City
Manager deems appropriate, and to charge Concessionaire for all actual costs
thereby incurred by the City. Concessionaire shall be responsible for paying all
of said costs.
Termination for Convenience of the Gitv
THE CITY MAY ALSO, THROUGH ITS CIry MANAGER, AND FOR lTS
CONVENIENCE AND WITHOUT CAUSE, TERMINATE THE AGREEMENT AT
ANY TIME DURING THE TERM BY GIVING WRITTEN NOTICE TO
CONCESSIONAIRE OF SUCH TERMINATION, WHICH SHALL BECOME
92
12.9
EFFECTTVE WrrHrN TH|RTY (30) DAYS FOLLOWTNG RECETPT BY THE
CONCESSTONAIRE OF SUCH NOTIGE, FOLLOWING WHICH THE CITY
SHALL BE DISCHARGED FROM ANY AND ALL LIABILITIES, DUTIES, AND
TERMS ARISING OUT OF, OR BY VIRTUE OF, THIS AGREEMENT.
City Manaoer Emeroencv Powers
A. Notwithstanding anything to the contrary contained in this Agreement, and in
addition to any other remedy which the City may have under this Agreement or
pursuant to applicable law, if the performance by Concessionaire under this
Agreement or the Program is creating a public health, welfare or safety concern,
as determined by the City Manager, in the City Manager's sole discretion, the
City Manager may immediately suspend the performance of services under this
Agreement, including the Program, until such time as the condition has been
remedied to the satisfaction of the City Manager., =
B. Removal of Concessionaire's. Propertv durino Emerqencv Situations. The City
Manager or hisiher designee''fuy direct or require the Concessionaire to
immediately remove, relocate "andior store any equipmg.,nt located on the
Concession Area and any Pro$ram VessellllQoncessionaire's Property") for
public safety considerations in emergency situations, including, without limitation,
a threatened tropicalifuor hurricane. Upon written and/or verbal notification
by the City Manager df-Xd-rt -Dical storm/hurricane warning or alert, or other major
weather event that may.:6gydffi-$,...jmpact the GIty, or upon the designation by the
United States National th6i.=,, lyice oi=National Hurricane Center of a
tropical storm/hurricane rningffit;,|lil1a.!ert, whichever occurs first, the
Concessionaireshall, withi iih t$X*o"hours of same, remove and store
re Coffiffihsionaire's Property in responseall of Cohcessionaire's
to the thieatened storm or , and shall take all other measures
which may be necessary for the of the public with respect thereto. The
Li#f.,tifiCation by the City Manager of' urricane or other major weather event, or
rlllffi$iir!53tp''''ce of a hurricah6 arfii , shall constitute a public emergency
situation*-=,Tfu failure of the Citfio direct the Concessionaire to remove or safety
store CohffiBsionaire's Property shall not relieve the Concessionaire of its
t,.pbligation td4Lf .$ove and store Concessionaire's Property in response to a
ffi"n"d
sto@ffivent as outlined herein.
Sho" l ,Concesq{$ffi}Fire fail to remove Concessionaire's Property within said two
(2) hdufuriod,.z$.,t the event the City Manager or his/her designee determines,
at his/he'F: s-o.t .3iscretion, that Concessionaire's removal, storage and other
efforts ar6'==.6-tfi''enruise not satisfactory, Concessionaire shall thereafter be
assessed a f6e of $50.00 per hour, until such time as all of Concessionaire's
Property have been removed to the City Manager's satisfaction. ln addition, the
City Manager, without any obligation to do so, may immediately proceed to
remove, relocate, and/or store the Concessionaire's Property that has othenrvise
not been removed by the Concessionaire, at the Concessionaire's sole cost and
expense, with payment to the City for all such costs due within thirty (30) days of
City's invoice to Concessionaire.
Concessionaire shall be solely responsible for any damage to City property or
other property resulting from Concessionaire's failure to remove and store
19
93
Concessionaire's property, or othenruise implement appropriate measures in
response to a threatened storm or hurricane.
Concessionaire's failure to comply with this Section shall constitute a material default
under this Agreement and shall entitle the City to pursue its default remedies, as
set forth in subsection 12.4, without affording Concessionaire an opportunity to
cure the default. The remedies identified herein for Concessionaire's failure to comply
with this Section are cumulative, and in addition to, all remedies that may be available to
the City at law and in equity.
AL
INTENTIONALLY OM
SECTION 14. ASSIGNMENT.
Concessionaire shall not assign all or any portion of its coSt .= obligations under this
Agreement without the prior written consent oflhe City Commission;.=-w=..hish consent shall be at
the sole and absolute discretion of the City Commission. Concessionaf:'re-shall notify the City
Manager of any proposed assignment, in writing, at least s_ixty (60) days'ptior to the proposed
effective date of such assignment. f n the event that any h assignment.G approved by the
City Commission, the assignee shall ag_ree to be bound by all the covenants of,this Agreement
required of Concessionaire.
Hr,, %,lill,,,ir,,,,,,,,.*n"The Concessionaire will nOt: us€, nor1,;i$ ffe6 fiipr p6ffi[fu any person to use in any
manner whatsoever, the Concession Area or,:?,[di*..tdm Vessdl$fbr any illegal, improper, immoral
or offensive purpose, or for any other purposotin violation of any Federal, State, County, or
municipal ordi.naB,ge, rule, order or regulation, oi of any governmental rule or regulation now in
effect or..!reii.-*6'1,Enac_ted or adopted. The Concdt=-ionaire will protect, indemnify, and forever
save atrj ,l'kdep harmleis the Cityits officials, employees, contractors, and agents from and
againdt+mage, penalty, fine, judgrnent, expense or charge suffered, imposed, assessed or
incurred fof nD,I violation, or breach of any law, ordinance, rule, order or regulation occasioned
by any act, fld6.lg,qt or omission',of the Concessionaire, or any official, director, agent, contractor,
or servant regri'r .i,, g the conceision. ln the event of any violation by the Concessionaire, or if
the City or its EEthorized repiesentative shall deem any conduct on the part of the
Concessionaire to be bbjectic,frable or improper, the City shall have the right to suspend
concession operation shb..l it$e Concessionaire fail to correct any such violation, conduct, or
practice to the satisfaction of the City Manager or his designee within twenty-four (24)
hours following written notice of the nature and extent of such violation, conduct, or
practice. Such suspension to continue until the violation is cured to the satisfaction from the
City Manager or his designee.
SECTION 16. NOTICES.
All notices from the City to the Concessionaire shall be deemed duly served upon receipt, if
mailed by registered or certified mail return receipt to the address to the Concessionaire at the
following address:
20
94
With copies to:
All notices from the Concessionaire to the City shall be ddEmed duly served upon
receipt, if mailed by registered or certified mail retuin receipt requested to the City of
Miami Beach at the following addresses:
"SfttuCity of Miffii Beach
1700 Conv.eEtiOn Center Drive
Miami'.ppach, FL 33139..,;:ln;lia;
Attn: Parks arid
With copy to:
'
-':'Clty of Miami B€ch.
1 700 Conventio n Cenf€{i,fuNe
^,#rlliiilw''":'&
8iltrtu: :
""'J"'u..,
The ConcesBi$ftaire and- City may change the above mailing address at any time
upon giving theffiiffier pffi, written notification. All notices under this Concession
Ag reem e nt m u st bEir*.:,w-g!ffi9?;1; :,
sEcTrqN,17. LAWS. 'qN .,)
,@17.1 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
17.2 Governino Law. 'i'i' ."
Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of Florida.
17.3 Equal EmplovmentOpportunity.
Neither Concessionaire nor any affiliate of Concessionaire performing services
hereunder, or pursuant hereto, will discriminate against any employee or applicant for
employment because of race, creed, sex, color, national origin, sexual orientation, and
27
95
disability (as defined in Title I of ADA). Concessionaire will take affirmative steps to
utilize minorities and females in the work force and in correlative business enterprises.
17.4 NoDiscrimination.
All operations and services offered in the Concession Area shall be made available to
the public, subject to the right of the Concessionaire and the City to establish and
enforce reasonable rules and regulations to provide for the safety, orderly operation, and
security of the Concession Area and improvements and equipment thereon.
-n{Ntt[\rtrI,
Concessionaire hereby agrees to comply with CjE-5 Miami Beach Human Rights
Ordinance as codified in Chapter 62 of the City-God-EJs may be amended from time to
time, prohibiting discrimination in employment, housing, public accommodations, or
public services, on the basis of actual or perceired race, color, national origin, religion,
sex, intersexuality, sexual orientation, gendOr identity, ta@ilig.l and marital status, age,
ancestry, height, weight, domestic partner status, laboi organization membership,
familial situation, political affiliation, oi dtsabllty 'rr;!
SECTION 18. MISCELLANEOUS.
:118.1 No Partnership. ,,, ,,fu'= ,",, ,,,i.%. ",,t: " ,;_
Nothing contained in this AgreerftEhl shall"Uf,fi.,,ptilute oi.,be construed to be or create a
partnership or jointvdnture between lhe City and Co:tpessionaire.
18.3
with all exhibits incorporated hereto, constitutes all the
understandings and Agreements of whatsoever nature or kind existing between the
parties with respect to Concessionaire's operations, as contemplated herein.
18.4 Headinos.
The section, subsection and paragraph headings contained herein are for convenience
of reference only and are not intended to define, limit, or describe the scope or intent of
any provision of this Agreement.
22
96
18.5 Bindino Effect.
This Agreement shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and permitted assigns.
18.6 Clauses.
"Agreement shall not affect the
validity of the remainder of the Agreement, and t shall remain in full force
and effect as if such illegal or invalid term or clause were ined herein unless the
elimination of such provision detrimentally reduces the 1on that either party is
operation ofto receive under this Agreement or'. materially affects the
this Agreement.
18.7 Severability.
lf any provision of this Agreement or any portion of such provision or the application
thereof to any person or circumdffillpe sh6filUbfigld td.'b6 invalid or unenforceable, or
shall become a violation of any lffil, S*t"?te, or Federallaws, then the same as so
applied shall no longer be a part of tft$ A$ieement but the remainder of the Agreement,
such provisions and the aBblication thd]f,ffi to other persons or circumstances, shall not
be affected thereby and this Agreement"t9..,,, modified sha|I.
,RR ,;=y!:*-w :: 3
18.8 ,-Bigllpl_Entqr "Wtiltu,,
=,''t:1.|!:,,:;+ \ltlgii% orrr
Th'e$y, at the dneC\ffi,,fu;t the Ci{ Manager, shall at all times during hours of operation,
have thg+jght to enter'iift"tp and upon any and all parts of the Concession Area(s) for the
purpose6 examining ihe same for any reason relating to the obligations of parties to
18.9 Not a Lease. === i,,;'=.=,
It is expressly understood and agreed that no part, parcel, building, facility, equipment or
space is leased to the Concessionaire, that it is a concessionaire and not a lessee; that
the Concessionaire's right to operate the concession shall continue only so long as this
Agreement remains in effect.
18.10 Sionaqe.
Concessionaire shall not be permitted to install any signage at the Concession Area.
23
97
18.11 Procedure for Approvals and/or Consents.
ln each instance in which the approval or consent of the City Manager or his designee is
allowed or required in this Agreement, it is acknowledged that such authority has been
expressly provided herein to the City Manager or his designee by the Mayor and City
Commission of the City. ln each instance in which the,approval or consent of the City
Manager or his designee is allowed or required in this Agreement, Concessionaire shall
send to the City Manager a written request for approval or consent (the "Approval
Request").
.*tr,=a.
{?ry:F'The City Manager or his designee sh=.alrlfti$ife reasonable efforts to provide written notice
to Concessionaire approving of consenflto, or disapproving of the request, within thirty
(30) days from the date of Approval Reqd€$trlor withi:rF ch other time period as may be
expressly set forth for a particular approval or cons nder this Agreement). However,
the City Manager or his designee's failure to consider such request within this time
provided shall not be deemed a waiver, nor SHa,$$oncessionaire assume that the
request is automatically approved and consented -to. The City Manager or his
designee shall nol-- unreasonably withhold such _qpproval or consent. This
Subsection sha[; not apply to approvals required fierein by the Mayor and
City Commiss$rf
1812 *..,-= *%*,
,,,11'fi@.::.,.,It is mutually covenantq i{hO agi*4fand==between the parties hereto that the failure
.of the City to insist upodil;tpe strict peftg_.mance of any of the conditions, covenants,
terms or provisions of this ent, or to exercise any option herein conferred, will not
be considered or construed f;S b waiver or relinquishment for the future of any such
conditions, covenants, terms, provi.ion. or options but the same shall continue and
remain in full force and effect. A waiver of any term expressed herein shall not be
implied by any neglect of the City to declare a forfeiture on account of the viotation of
such term if such violation by continued or repeated subsequently and any express
waiver shall not affect any term other than the one specified in such waiver and that one
only for the time and in the manner specifically stated.
fhe receipt of any sum paid by Concessionaire to the City after breach of any condition,
covenant, term or provision herein contained shall not be deemed a waiver of such
breach, but shall be taken, considered and construed as payment for use and
occupation, and not as rent, unless such breach be expressly waived in writing by the
City.
18.13 No Third Partv Beneficiarv.
24
98
Nothing in this Agreement shall confer upon any person or entity, including, but not
limited to sub concessionaires, other than the parties hereto and their respective
successors and permitted assigns, any rights or remedies by reason of this Agreement.
18.14 No Lien
ln the event any notice or claim of lien shall be asserted against the interest of the City
on account of or arising from any work done by or for Concessionaire, or any person
claiming by, through or under Concessionaire, or for improvements or work, the cost of
which is the responsibility of Concessionaire, Concess,i aire agrees to have such notice
or claim of lien cancelled and discharged withjmffiUen (15) days after notice to
Concessionaire by City. ln the event Concessionaifffiails to do so, City may terminate
this Agreement for cause without liability to Citf-iN q
.t..,
SECTION 19. LIMITATION OF LIABILITY. '= 't4\,:.=
The City desires to enter into this Agreement placing tne operatfu=nd management of
the Concession Area(s) in the hands of a private management entity only so doing the City
can place a limit on its liability for any cause of action for breach of this A$iEement, so that its
liability for any such breach never. ceeds the sum of Five Thousand ($5,000.00) Dollars.
Concessionaire hereby expresses its willingness to enter into this Agreement Five
Thousand ($5,000.00) Dollars limitation-' ;.e,.qovery for any action for breach of contract.
Accordingly, and in consideration of the'.sepai,,6f$.:consideration of Five Thousand ($5,000.00)
Dollars, the receipt of .,.wh.ich is herebygcknoWledged, the City shall not be liable to
Concessionaire for dama$es to Conffisionaiie in ql. amount in excess of Five
Thousand ($5,000.00) Dollars, for any ai$ln for breactr;fff contract arising out of the
performance or on-performance of any obligdtigJis imposed ripon the City by this Agreement.
Nothing contained in this paragraph or elsewherElrn this Agreement is in any way intended to be
a waiver o.f.=.li...,i,,! ion placed upon the City's liabili$7 as set forth in Florida Statutes, Section
768.28. *{,
. .'.1 .
This Agreeftdilt shall be deemed to have been made and shall be construed and interpreted in
accordance witHfltfre laws of the State of Florida. This Agreement shall be enforceable in Miami-
Dade County, Fforida, and if legal action is necessary by either party with respect to the
enforcement of any?fir-Qs"?ll thffi$fms or conditions herein, exclusive venue for the enforcement
of same shall lie in Mid unty, Florida.
!$ ffi4Riv
CITY AND CONCESSIONAIRE HEREBY KNOWINGLY AND INTENTIONALLY WAIVE THE
RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING THAT CITY
AND CONCESSIONAIRE MAY HEREIN AFTER INSTITUTE AGAINST EACH OTHER
WITH RESPECT TO ANY MATTER ARISING OUT OF OR RELATED TO THIS
AGREEMENT OR THE CONCESSTON AREA(S).
SECTION 21. CONCESSIONAIRE'S COMPLIANCE WITH FLORIDA PUBLIC RECORDS
LAW.
21 .1 Contractor shall comply with Florida Public Records law under Chapter 1 19, Florida
Statutes, as may be amended from time to time. Records made or received in
25
99
connection with this Agreement are public records under Florida law, as defined in
Section 1 19.01 1(12), Florida Statutes.
21.2 Pursuant to Section 119.0701 of the Florida Statutes, if the Contractor meets the
definition of Contractor as defined in Section 1 19.0701(1Xa), the Contractor shall:
(A) Keep and maintain public records required by the City to perform the service;
(B) 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 thfucost provided in Chapter 1 19,
Florida Statutes or as othenruise provided by lawq, ' " -:-'
"il ltrii$i{ i:i.
(C) Ensure that public records that are exemffiflf'g,co*ffidential and exempt from public
records disclosure requirements are not di$losed, except as authorized by law, for
the duration of the contract term and fdlowing complptlgn of the Agreement if the
Contractor does not transfer the records to the City; '' qk.
rl.r.
(D) Upon completion of the Agreement, transfer, at no cost to the C_ity, all public records
in possession of the Contractor or keep and maintain public records required by the
upon completion of the
City to perform the
requirements. lf the Contradigr [-ffiS,and maintains public records upon completion
of the Agreement, the shalf=ffigg|a I I a ppl icab le req u i rem e nts for retai n i ng
public records"..:Atl,records llly.lust'be provided to the City, upon
request from the Circ .,io a format that is compatible with
the information technology s City.
,,,.1f the Contractor ftnsfers all public ffirds to the City
bement, the Contractor shall destroy any'duplicate public
(A) A request to inspect or copy public recoidi relating to the City's contract for services
must be made directly fu the City. lf the City does not possess the requested
records, the Ci(y shall iffimediately notify the Contractor of the request, and the
Contractor must provide the records to the City or allow the records to be inspected
or copied within a reasonable time.
(B) Contractor's failure to comply with the City's request for records shall constitute a
breach of$is Agreement, and the City, at its sole discretion, may: (1) unilaterally
terminate the Agreement; (2) avail itself of the remedies set forth under the
Agreement; @/or (3) avail itself of any available remedies at law or in equity.
:::
(C) A Contractor who fails to provide the public records to the City within a reasonable
time may be subject to penalties under s. 1 19.10.
21.4 CivilAction.
(A) lf a civil action is filed against a Contractor to compel production of public records
relating to the City's contract for services, the court shall assess and award against
the Contractor the reasonable costs of enforcement, including reasonable attorney
fees, if:
26
100
1. The court determines that the Contractor unlawfully refused to comply with the
public records request within a reasonable time; and
2. At least 8 business days before filing the action, the plaintiff provided written
notice of the public records request, including a statement that the Contractor
has not complied with the request, to the City and to the Contractor.
(B)A notice complies with subparagraph (1Xb) if it is sent to the City's custodian of
public records and to the Contractor at the Contractor's address listed on its contract
with the City or to the Contractor's registered agent. Such notices must be sent by
common carrier delivery service or by registered,€obal 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.
(C) A Contractor who complies with a publicrecords request within 8 business days after
the notice is sent is not liable for the ble costs of enforcement.
21.5 !F THE CONTRACTOR HAS NS REGARDING THE APPLICATION OF
CHAPTER 119, FLORIDA STATUTES,
PUBLIC RECORDS RELATING TO THIS
PUBLIC RECORDS AT:
CITY OF MIAMI BEACH
ATTENTION: RAFAEL E. GRANADO,
17OO CONVENTION CENTGR DRIVE
M lAM I B EAC H, F LO RI- -A:€3.1-,.3,
CITY CLERK
CONTRACTOR'S DUTY TO PROVIDE;&iIENTnSffiNTACT THE CUSTODIAN OF
r" TT
E-MA!L: RAFAELG IBEACHFLGOV
PHONE: 305-673-7411
?
THE REMAINDER PAGE=I$. I NTE NTIONALLY LEFT BLAN K.
27
101
!N WITNESS WHEREOF, the parties hereto have caused their names to be signed and their
seals to be affixed, all as of the day and year first above written, indicating their Agreement.
Attest:CITY OF MIAMI BEACH, FLORIDA
*t[&.r:rl::::r: :::::::::'::::'
.rJi.r:::i:.r::::::::::::::'
Rafael E. Granado, City Clerk Philip *r tj-rc
Attest:SOUTH BEACH KAYAK,
Print Name and Title
**
'.1-i!:!i:r!l.i
-ir:i:i:::,;a.,,:i::i=
':17
28
102
Exhibit 1
Barry Kutun Boat Ramp at Maurice Gibb Memorial Park
Commercial Concession Sife Plan
Tt
I
* crossed morked section is concession oreo
29
103
Exhibit 2
Application for Commercial Concess,on Operations
at Public Boat Ramps
30
104
Exhibit 3
Re/ease Form
9,:
:a::aa:a=
i::::::::::::.=
'.:::.:::::::::i.
'.::a:::a::.iL,,
=.,:,,t,@.jM
31
105
106
Agenda ttem CTlf
oate p-lqlb
RESOLUTION NO.
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITYOF MIAMI BEACH, FLORIDA, ACCEPTING THE WRITTEN
RECOMMENDATTON OF THE CtTy MANAGER (AS SET FORTH tN THE
clTY coMMlssloN MEMoRANDUM ACCOMPANYING THIS RESOLUTION)AND WAIVING, BY 5/7THS VOTE, THE COMPETITTVE BIDDING
REQUIREMENT, FINDING SUCH WAIVER TO BE IN THE BEST INTEREST
OF THE C!TY; AND APPROVING, !N SUBSTANTIAL FORM, THE
CONCESSION AGREEMENT ATTACHED TO TH!S RESOLUTION
BETWEEN THE CITY AND MIAMI JETSKI EXOTTCS RENTALS INC.
(coNcESstoNAtRE) FOR THE USE OF THE BARRY KUTUN BOAT RAMPAT MAURICE GIBB MEMORTAL PARK, LOCATED AT 17OO PURDY
AVENUE, IN CONNECTION WITH THE OPERATION OF GUIDED JETSKT
TOURS FOR A TERM OF ONE (1) YEAR, WITH TWO (2) ONE-YEAR
RENEWAL OPTIONS, AT THE CITY'S SOLE DTSGRETTON; SA|D
AGREEMENT BEING SUBJECT TO FINAL NEGOTIATTON BETWEEN THE
ADMINISTRATION AND CONCESSIONAIRE AND SUBJECT TO REVIEW
AND FORM APPROVAL BY THE CITY ATTORNEY,S OFFIGE; AND
FURTHER AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE
THE FINAL NEGOTIATED AGREEIUIENT.
WHEREAS, at the October 31,2014 Neighborhoods and Community Affairs Committee (NCAC)
meeting, the Committee directed Administration to research and assess options for regulating the use of
the boat ramp; and
WHEREAS, on January 30, 2015, Parks and Recreation Director, John Rebar, provided the
Neighborhoods/Community Affairs Committee (NCAC) with a presentation and discussion on the
potential options to manage and improve marine activities at the Barry Kutun Boat Ramp (the Boat Ramp)
at Maurice Gibb Memorial Park, located at 1700 Purdy Avenue (the park); and
WHEREAS, following the discussion, the NCAC recommended that the Mayor and City
Commission direct the Administration to proceed with construction of a floating dock for non-motorized
marine vessels at the Park, from which non-motorized vessels including, without limitation, kayaks,
canoes, and paddleboards, may be launched, and to develop and implement a plan to control access to
the Barry Kutun Boat Ramp Park and to limit its use to City of Miami Beach residents for non-commercial
uses only; and
WHEREAS, on March 30, 2015, the City Commission accepted the recommendation from NCAC
and adopted Resolution No. 2015-28957, which authorizes the Administration to proceed with the
construction of a floating dock for non-motorized marine vessels at the Park, establish a policy for
commercial use of the Boat Ramp, and in consultation with the City Attorney's Office, to develop and
implement a plan to limit access to the boat ramp; and
WHEREAS, on May 11,2016, the City Commission approved, on first reading, Ordinance No.
2016-4022, amending Section 82-1 of the City Code, and prohibiting commercial transactlons, activities
or operations on streets, parks or other public property, including the Boat Ramp, unless otherwise
approved by the City Manager (if commercial outdoor fee based activity with minimal impact) or
authorized by the City Commission pursuant to an approved concession agreement; and
WHEREAS, at the May 11,2016 meeting, the City Commission expressed their interest in
permitting commercial operations at the Boat Ramp for water taxi service, amphibious tours and kayak
rentals; and
WHEREAS, on July 13, 2016, the City Commission adopted, on second reading, Ordinance No.
107
2016-4022; and
WHEREAS, at the October 19,2016 City Commission Meeting, a discussion was held to consider
Miami Jetski Exotics Rentals lnc.'s application for concession operations at the Boat Ramp; and
WHEREAS, the City Commission directed the Administration to negotiate a tour based concession
agreement with Miami Jetski Exotics Rentals lnc., which would be presented to the City Commission for
consideration and approval at the November 9, 2016 city commission meeting; and
WHEREAS, MiamiJetski Exotics Rentals lnc. provides guided jetskitours; and
WHEREAS, the Administration has negotiated with Miami Jetski Exotics Rentals lnc. a non-
exclusive concession agreement (the Agreement) for the use of the Boat Ramp at the Park for entry and
exit to and from Biscayne Bay for the term of one (1) year with two (2) one-year renewal options; and
WHEREAS, pursuant to the proposed Agreement, the Concessionaire shall pay the City on an
annual basis, a total of $7,200 ($1,200 for annual motorized vessel operator fee and $6,000 for annual
launch fees); and
WHEREAS, the Administration recommends that the City Commission approve, in substantial
form, the Concession Agreement attached as Exhibit "l" hereto, subject to final negotiation between the
Administration and Concessionaire, and subject to review and form approval by the City Attorney's Otfice.
NOW THEREFORE, BE !T DULY RESOLVED BY THE MAYOR AND GITY COMMTSSION OF
THE CITY OF MIAM! BEACH, FLORIDA, that the Mayor and City Commission hereby accept the written
recommendation of the City Manager (as set forth in the City Commission Memorandum accompanying
this Resolution) and waive, by 5/7ths vote, the competitive bidding requirement, finding such waiver to be
in the best interest of the City; and approve, in substantial form, the concession agreement attached to
this Resolution between the City and Miami Jetski Exotics Rentals lnc. for the use of the Barry Kutun Boat
Ramp at Maurice Gibb Memorial Park, located at 1700 Purdy Avenue, in connection with the operation of
guided jetski tours, for a term of one (1) year, with two (2) one-year renewal options, at the City's sole
discretion, said Agreement being subject to final negotiation between the Administration and
Concessionaire, and subject to review and form approval by the City Attorney's Office; and further
authorize the Mayor and City Clerk to execute the final negotiated Agreement.
PASSED and ADOPTED this 14th day of December,2016.
ATTEST:
PHILIP LEVINE, MAYOR
RAFAEL E. GRANADO, CITY CLERK
n.4 lv
Y 5;iE-
108
CONCESSION AGREEMENT
BETWEEN . =::: .'
CITY OF MIAMI BEACFI,.FLOR]DA
i*,
4i.,r i;"ilHl"il-Dt"'i,".-.,,
@,.:.- Y;
MIAMI JETSKI EXOTICS'RE.NTALS, INC.
1
EXHIBIT
!r3l
109
SECTION
1.
2.
2.1
3.
3.1
3.1.1
3.1.1.1
3.1.1.2
3.1.2
3.1.3
3.2
3.3
4.
4.1
4.2
4.3
4.4
5.
6.
6"2
6.3
7.
7.1
7.2
8.
8.18.2 ,B;:8.3 "{.{,89.4 =
8.5
8.6
9.
10.
10.4
11.
11.2
11.3
12.
12.1
12.2
12.3
12.4
12.6
12.7
12.8
INDEX
Concessionaire's
No Dffigerous Materials............. .........10
=..,= Securit$;;-! .. .........10
..$W, lnspecti'b!;................. .......11
TN U,RANCE ....-..... ...................11
tNDEI[itNTy .ffi. .....................14
=.8e.,!,.9.e;R lfliability for Program Participants............... ..........15
FORCE Mffifl.gRE ....... 15LabdF,i$ispute............ ......... 15
Waiverof Lossfrom Ha2ards............... ................16
DEFAULT AND T€RMINATION .....................16Bankruptcy ........16
Default in Payment.............".. ..............16
Non-Monetary Default ........17
City's Remediesfor Conc.essionaire's Default ......17
Surrender of Concession Areas/ Removal by Concessionaire of
Equipment/lmprovements ........... ........18
Substitute Performance ......18
Termination for Convenience ..............18
110
12.9
13.
14.
15.
16.
17.
17.1
17.2
17.3
17.4
18.
18.1
18.2
18.3
18.4
18.5
18.6
18.7
18.8
18.9
18.10
18.11
18.12
18.13
18.14
19.
20.
21.WITH FLORIDA PUBLIC
,',.t
EXHTBITS \a
Exhibit 1,.= Site'Pffiwith Highlight of Ramp/Access .............29
'r.., Exhibit FCorpf"Bo Application for Commercial Concession operations
..'.ft Public t nrrps............... ...........30
txhibit 3= Release Form. ...........31
111
CONCESSION AGREEMENT
BETWEEN
CITY OF MIAMI BEACH, FLORIDA
AND
MIAMI JET SKI EXOTICS RENTALS, INC.
rr..
TO UTILIZE THE BARRY KUTUN BOAT RAMP FOR ENTRY AND EXIT OF BISCAYNE BAY
FOR THE OPERATION OF GUIDED JETSKI TOURS
THIS CONCESSION AGREEMENT (the ") made on 2016
("Effective Date"), between the CITY OF , a municipal corporation of the State ot
Florida, having its principaladdress at 1700 Convention Center Drive, Miami Beach, Florida,
33139 (hereinafter called the "City"), and MIAMI JET SKl,a TICS RENTALS, lNC., whose
address is 1416 18th Street, Miami Beach, Florida, SSIaS{hereinafter called "Concessionaire").
i,.
WITNESSETH .,, r"
WHEREAS, the Mayo1iig,l[#*Silv commission recogniz" tn"t'ii#0ortance of the City's pubtic
property to the resideffi$#ffi"S of the City of Miami Beach; and
WHEREAS, the City ifoniOits commercial transactions, activities or operations at the City's
parks, boat ramp(s), bEiaeh strucfures, building or other property or place, maintained or
operated by the City, unless e;pj-$9sly au,thorized by the City Manager upon its public property,
or pursuant to a concession iffiirent that is approved by the City Commission; and
'
-
,ti"il''..-.: ""'"!1::::='t'
WHEREAS, illegal and unauthorized. commeriial transactions, activities and operations upon
City prope-r[y, creates a dangerous dfid,hazard situation, which is a direct threat to the residents
and visitors'of th.e City for pot@al unsOrupulous conduct; and
WHEREAS, the Cily is legally Otligated to ensure the health, safety and welfare of its residents
and visitors who utilize its public facilities, and illegal commercial transactions, activities and
operations unnecessariftxposes the City to unwarranted potential liability; and
WHEREAS, accordingly, the City Commission at the July 13th 2016 City Commission Meeting
directed staff to work with existing amphibious tour companies to continue their tours in the City
of Miami Beach and continue to utilize the Barry Kutun Boat Ramp; and
WHEREAS, Staff has negotiated the following non-exclusive concession agreement (the
"Agreement") for the use of the Barry Kutun Boat Ramp (the "Boat Ramp") at Maurice Gibb
Memorial Park (the "Park"), located at 1700 Purdy Avenue, for entry and exit to and from
Biscayne Bay for the operation of guided jetski tours (the "Program").
.r(,iit^..r\t tilizTl;-
112
NOW THEREFORE, in consideration of the premises and the mutual covenants
and conditions herein contained and other good and valuable consideration, the receipt
and adequacy of which are hereby conclusively acknowledged, it is agreed by the parties hereto
as follows:
The City hereby grants to the Concessionaire, and the Concessionaire hereby accepts
from the City, the non-exclusive right to operate the Program (as further described herein) within
the Concession Areas (as defined herein), in conformance with the purposes and for the period
stated herein and subject to all the terms and conditions herein contained and set forth.
The above recitals are true and correct and are incorporated .hprein by reference as part of this
Agreement.
::t:::: ..
u::: ::\\'b,,.
1.1 The term ("Term") of this Agreement snatt be for one (1) iear,_commencing on January
1, 2017 ("Commencement Date"), with two (2) one-year rendGEl.pptions to be exercised
at the City Manager's sole option and discretion, by providi*g Concessionaire with
written notice of same no less than thirty (30) days prior to the"'exp;q-..ation of the then
current Term. Notwithstanding the foregoing, Concessionaire may not commence
operations until such time as thq;following conditiohs have been met: (1)'Concessionaire
has provided the City with eW$ence of the requisite governrnental approvals to operate
the Program including, without *imitaitiAE=all licenses required in subsection 6.3; and (2)
the City has approved Concessiit aire'5=i''ri'5-tdrarrce coverages as required in Section 9,
which shall include insurance coveiage for all Program Vessels used by Concessionaire
1.2 For purposes oflhis Agreement, a "Contiact Year" shall be defined as that certain 365
day period commEncing on the Commence-ment Date.
%@tffi:--#i!!='''::=';,';l
t.
The City he{#by. grants to th€oncessionaire the non-exclusive right, during the Term of this
E ZONE.
Agreement, tdii{{.g,grate the Prffim, as described herein, upon the Concession Area defined in
subsection 2.1 *e(d"jdentified in Exhibit 1 to this Agreement (hereinafter, the "Concession
',4is,tl lLr, if.i:,=2.1 Concesdid!,lti#.il#F.-
The ConceStlori Area shall be the vehicle access path to the Boat Ramp and the
Boat Ramp, as more particularly depicted in Exhibit t hereto, and does not
include any adjacent or surrounding areas (the "Concession Area"). Additionally,
no improvements to the Concession Area ("Concession Area lmprovements")
shall be permitted, and no equipment may be maintained, on the Concession
Area without the prior written approval of the City Manager, which approval, if
provided at all, shall be at the City Manager's sole and absolute discretion, and
Exhibit 1 shall be amended to incorporate the approved Concession Area
lmprovements and/or permitted equipment.
113
Concessionaire shall not install or operate any Program sites, nor identify
additional or alternate locations for same (other than as identified in Exhibit 1),
without the prior written approval of the City Manager, which approval, if provided
at all, shall be at the City Manager's sole and absolute discretion.
SECTION 3. USE(S).
The Concessionaire is hereby authorized to conduct the following kind(s) of businesses and
provide the following kind(s) of services related to the operation of the Program within
the Concession Area, all at its sole cost and expense:
3.1 Amph'rbious Tours.
3.1.1. Approved Use of Concession Aree .,, . ,ii
The Concession Area shall be us9_! by a Cqncessionaire on a nonexclusive
basis and solely and exclusively dEf;fing short int€rvals, for the entry and exit of
Biscayne Bay by the Program V=eSG (as defined in subsection 3.1.2) during the
approved hours of operation for,-the Program. ln the event the Concessionaire
uses the Concession Area f6F.\@ purpose(s) and/or use(s) not expressly
permitted in this subsection 3.1.1.; Such use'shbll be considered a default under
this Agreement, aM the City shait',r.b'.$Jntitled to all remedies, including
termination of this A$ieement, as set'f . in subsection 12.4. ln addition,
notwithstanding any other terms of this Aliftement, the City shall be entitled to
seek immediate relief, whether at law or equity\ffiL,restrain such improper use(s).
fi;t="7$J@. No parkingl;ivileges shall be provided to, Conddfunaire, Concessionaire employees, or passengers of the
Program Vffiel. Additionally, Concessionaire agrees to ensure that the
in€ie,,3,,;;nd..,,4$,,,.1,9,1s to the Park or the Boat Ramp are not obstructed.
the-Purdy Avenue
,,the public's right to use the Park, including
non-commercial purposes is primary to the
privileges w.f!}ph the CI$f has granted Concessionaire under this
Agrdement; tfiErefOre, the privilege to operate the Program pursuant to
:::: the Agreement ShfiIl.not be construed as limiting, in any way, the public's
= right to ilse of the Park, including the Boat Ramp, for non-commercial= JurPos61,,,
'F.ina1ly, notwithstanding any other terms of this Agreement, the privileges
un i,this Agreement are non-exclusive; therefore, the City shall not be
prev6nted and/or prohibited, in any respect, from contracting for and/or
operating additional commercial activities/uses at the Park and/or at the
Boat Ramp, even if said activitiesiuses are in direct competition with the
services provided by Concessionaire under the Program.
3.1.2 Prooram Vessels.
The City hereby approves of Concessionaire's plan as to the type of vessel which
will be used in connection with the Program, as described in the Application for
Commercial Concession Operations at Public Boat Ramps, attached as
composite Exhibit 2 hereto (the "Program Vessel(s)"). Any amendments to
3.1.1.2
114
Exhibit 2, without limitation, as to type of Program Vessel, must be approved, in
writing, by the City Manager prior to such changes being implemented within the
Concession Area, and Exhibit 2 shall be amended accordingly.
Notwithstanding the above, the City and Concessionaire hereby acknowledge
and agree that the City's approval in subsection 3.1 .2 above, as to the type of
Program Vessel is given by the City solely in its proprietary, and not in its
regulatory capacity" Notwithstanding such approval, in the City's proprietary
capacity, Concessionaire agrees to secure, at its sole cost and expense, all
required approvals from all governmental author!.ties having jurisdiction over the
Program, in connection with the operation of the Program.
3.1.3 Hours of Operation =
:=:
A. The hours of operation aie as described in Exhibit 2. Any change
with respect to the hours of operation shall require the written
approval of th+$iffiManager, prioi to implementing the new
hours, and Exhibit 2 shall be amended accordingly.
Oversiqht. Concessionaire, while utilizin(lt-aoat*Ft!?lR will provide on-site monitoring
of the Concession Area and the areas surroUftfdi oncession Area.
Ownership of Prooram Vessdii.' ihe Program Vessets shall be the sole and exclusive
property ot concffiing the Ter; oJ this Agr.,.q€ment.
3.2
3.3
4.1
4.2
4.3
ES.
;,',Concessionaiie shall pay the City, in advance, on an annual
fEi, as may be modified by the City from time to time ("Use
Use Fee:
basis, the
Fee(s)"):
1r:::::::::::.::::= :
$ ;o..'$ .oo
$7,200.00
The "'Use Fee Shall be
Use Fed*hall be on or before January lst of any approved renewal
Term.
Any payment whicffi].l ncessionaire is required to make to City which is not paid on or
before the respective date provided for in this Agreement shall be subject to interest at
the rate of eighteen percent (18o/o) per annum, or the maximum interest allowable
pursuant to Florida law, whichever is less, from the due date of payment until such time
as payment is actually received by the City.
Sales and Use Tax.
Any required Florida State Sales and Use Tax shall be paid by Concessionaire directly
or added to payments, at the designee's sole discretion, and fonruarded to the City
115
as part of said payments. lt is the City's intent that it is to receive all payments due from
Concessionaire as net of such Florida State Sales and Use Tax.
4.4 Marketino and Advertisinq.
As of the Effective Date, the City Code does not allow advertising to be placed on the
Program Vessels or anywhere on the Concession Area. Advertising on the Program
Vessels or Concession Area shall be prohibited.
SECTION 5. INSPECTION AND AUDIT.
Concessionaire shall maintain its financial records pertaining*lgdjs operations herein throughout
the Term of this Agreement and for a period of three (el fflais after the expiration or other
termination of this Agreement, and such records sh.-q=!! 'bpen and available to the City
Manager or his designee, as deemed necessary by them. Concessionaire shall maintain all
such records at its principal office, currently located ai ia16 fii,t,ig,#eet, Miami Beach, FL 33139,
or, if moved to another location, all such records shall be ieldcated, at Concessionaire's
expense, to a locatlon in Miami Beach, within ted (10) days' notice (*.ritten or verbal) from the
City. These audits are in addition to periodic'aUdits by the City of R€is6$,,Tax collections and
payments, which are performed separately. Nothing contained within this Sffion shall preclude
the City's audit rights for Resort Tax,g,,9)ection purposes. *#iF*
6.1 Concessionaire agrees and .n"li.p"V'bef,ore delinquency all taxes (including but not
limited to Resort ftxes) and asffissmenls oJ At.!y kind levied or assessed upon a
Concession Area ahd/oiin Conce36,iqnaire by reason of this Agreement, or by reasonof Concesdionaire's business anO{p..q+op-erations within a Concession Area.
Concessionaire will have the right, at its own expense, to contest the amount or validity,
in whole or in part, of any&x by approiifiAte proceedings diligently conducted in good
ionaire ay.',refraih'--from pHffing a tax to the extent it is contesting the;irilA\. ..:::1 !::= rin;Yif$lEme in E manner that is in adbordance with law. However, if, as a result
Such contedtJdditionalielinquencyeharges become due, Concessionaire shall be
for sucfi#linqOency charges, in addition to payment of the contested tax, if
6.2 ProcedurHAd ValoreET xes Assessed. lf ad valorem taxes are assessed against the
Concessio#ffirea (or any. portion thereof) by reason of Concessionaire's business and/or
operations th6fQ..g;, Cffi$Essionaire shall be solely responsible for prompt and timely
payment of same. | :
,x,"n
&6.3 Licenses. Concessionaire shall also be solely responsible (at its sole cost and expense)
for obtaining and maintaining current any applicable licenses or permits, as required for
the operations contemplated in this Agreement including, without limitation, any
occupational licenses required by law for the proposed uses contemplated in Section 3;
the U.S. Coast Guard licenses for captains and the Certificates of lnspection for the
vessels; the State of Florida license; and any applicable City licenses.
SECTION 7. EMPLOYEES AND INDEPENDENT CONTRACTORS.
7.1 Concessionaire's Employees.
116
7.2
7 .1.1 Concessionaire shall select, train and employ such number of employees or
contractors as ls necessary or appropriate for Concessionaire to satisfy its
responsibilities hereunder. Concessionaire shall be the sole authority to hire,
terminate and discipline any and all personnel employed by Concessionaire.
7.1.2 Concessionaire shall designate a competent fulltime employee to oversee the
day-to-day operations, and who shall act as the contract administrator for the
Program and serve as Concessionaire's primary point-person with the City. This
individual shall have the requisite amount of experience in operating, managing,
and maintaining the Program as contemplated herein. The employee shall be
accessible to the City Manager or his designee at all times during normal
business hours to discuss the management, operation and maintenance of the
Program, and during non-business hours in the event of emergency. Consistent
failure by the employee to be accessible shall be reported to Concessionaire's
principal(s), and if not rectified, ,shall be grounds for replacement of theemployee. @:
Citv Manaqer's desiqnee. Except for th#e responsibilities expressly set forth in this
Agteement foilespecWely, the City Commission and/or the City M.nrg"r, the City
Manager's designee for this Agreement lghall "seive as the City's day to day
representative and point person for Conces5ionaire with respect to the Agreement. The
City Manager's designee shdtt be the City's Dr of Parks and Recreation
Director or Assistant Director.
TION
The ConCessionaire shall maintain, at its sole cost and expense any equipment (as
required to operate the Program), as well as the Program Vessels. The City shall
maintain the Boat Ramp to address normal wear and tear of the dock; however,
Concessionaire 3hall be'responsible for reimbursing the City for any maintenance and
any repairs as a result of the operation of the Program at the Boat Ramp, including any
damage which may be caused by the Concessionaire, its employees, contractors,
agents or invitees. Any such maintenance and repairs shall be performed by the City, as
deemed necessary, at the City Manager's sole discretion, and Concessionaire shall
reimburse the City within 10 (ten) days from receipt of the invoice.
Concessionaire shall be solely responsible for the day to day operation and shall
maintain any equipment the Program Vessels and any equipment thereon in good
working order and condition. Concessionaire shall keep Program Vessels free of
graffiti. No repairs to the Program Vessels may be made on-site. Any Program Vessel
needing maintenance shall be removed from circulation and serviced
The Concessionaire ,,,a"t!ffi1$e use of any and all C6fi'&ssion Areas provided in
this Agreement "AS lS;'I "WHERE lS,' and "WITH ALL FAULTS," existing as of the Effective
Date.
8.1
8.2
117
at Concessionaire's repair center. No Program Vessel or equipment may be stored at
the Park.
It shall be Concessionaire's sole obligation to ensure that any repairs and/or
improvements made by Concessionaire to the Program Vessels complies with all
applicable life safety codes of governmental authoritbs having jurisdiction.
Concessionaire agrees, also at its sole cost and expense, to pay for all garbage disposal
generated by its operations. Garbage may not be disposed of at the Concession Area.
8.3 Orderly Ooeration.
The Concessionaire shall have a neat and orderly'aperation at all times and shall be
solely responsible for the necessary housekeeping services to properly maintain its
Operations. Concessionaire warrants an{*repiesents that Concessionaires operation
does not require use of the parking or,-g[...€ li?reas located at the Park. Entry and exit
shall be conducted at extreme low spe,eds. Standing and stopping will only occur to
allow the safe launch and retrieval ffiCi..thers utilizing the Boat Ramp. All applicable
rules, laws and ordinance will be adhered to
Ycolqessionaire.
8.4 No Danqerous Materials. '8.
The Concessionaire agrees not to use or permit-tli g|9rage and/or use of gasoline, fuel
oils, diesel, illuminating oils, 'oil lamps, combuSfibl* powered electricity producing
generators, turpentine, benzene, naphtha, propane, natural gas, or other similar
substances, combustible materials, or explosives of any kind, or any substance or thing
prohibited in the standard policies of fire insurance Companies in the State of Florida, on
or within any of the Concession Areas, or on any City property and/or right of way.
Concessionaire shall,.indemnify and hold City harmless from any loss, damage, cost, or
eIp,,qn$e.''
==',!,.,,.tlgCity,'includlhg,
without limitation, reasonable attorney's fees, incurred as
#if$sili of;='afi#fgp from,'or connected with the placement by Concessionaire of any
S2ardous suffin.-Cg" or "petroleum products" on, under, in or upon the Concession
iffifi,, as those tdniis.. are defined by applicable Federal and State Statute, or any
envffimental rules *td. environmental regulations promulgated thereunder; provided,
nowevUffi.l#pncessionaiie shall have no liability in the event of the willful miscondugt ora'gross ne$ti$bnce of the',.Cily, its agents, servants or employees. The provisions of this
rc the termination or earlier expiration of this Agreement.
8.5
Subsection si+ffi|
Securitv. ,
The Concessionaire shall use the Concession Area at its own risk. The City shall not be
obligated to employ or provide any security measures to protect the Concession Area.
Under no circumstances shall the City be responsible for any stolen or damaged
equipment, nor shall City be responsible for any stolen or damaged personal property
of Concessionaire's employees, contractors, agents, patrons, guests, invitees, and/or
other third parties.
10
118
8.6 lnspection.
The Concessionaire agrees that the Concession Area may be inspected at any time by
the City Manager or his designee, or by any other municipal, County, State officer, or
officers of any other agency(ies) having responsibility and/or jurisdiction for inspections
of such operations. The Concessionaire hereby waives all claims against the City for
compensation for loss or damage sustained by reason of any interference with the
concession operation as a result of inspection by any public agency(ies) or officials,
(including, without limitation, by reason of any such public agency or official in enforcing
any laws, ordinances, or regulations as a result thereof). Any such interference shall not
relieve the Concessionaire from any obligation hereundgf.
9.1 Without limiting its liability under this Agreerent;' ncessionaire shall, at all times
during the Term of this Agreement, procurd and mdtffiajn, at its sole expense (and
Concessionaire shall require its Concessionair5, subcofitractors, laborers, materialmen
and suppliers to provide, as applicableFinsurance of the types and in the minimum
amounts stated below, and provide a certificate with applicable endorsements on a form
that is acceptable to the City's Division of lnsurance and Risk M{$agement evidencing
the following required coverages to the City (including,s.r.rrge of{$ilL8rogram Vessels
which shall be used by Concessionaire to operate the Program):
Schedute ''Wir, ' Limitg
Worker's Compensation/Employers Liability
Worker's Cornpensation . Florida Statutory Coverage
Employer's Liability $1,000,000 Each Accident
SECTION 9. INSURANCE."..,.=4illfff:lai.l::::: , :=tS
ffi , 0 j,C8,0"pisease Policy Li m it
i'$1,000,0 +ach Employee/Disease
su]r coHff.etlg,fi:9 are not othenruisd'insure&i\iits subcontractors and sub-contractors) for
th=Ei3 5,5illc6@!.liability:Which would be coVered by the latest edition of the standard
where appropi , co,"iffijiit4ge is to be included for the Federal Employers' Liability Act,
USL&H and JoRffi$ffi," to extent coverage is not provided by the Protection and
This insurance shall ver'the (and to the extent its subcontractors and
wh e re a pp ropri,q!g,,,
USL&H and Joh.ffi$ffi to extent coverage is not provided by the Protection and
lndemnity policy arl'Ql-d'fty other applicable federal or state law.
.W,:Orkers' Comp€hsalion pq-licy, as filed''for use in the State of Florida by the National
@uncil on Compeh$4tion lnsurance (NCCI), without any restrictive endorsements other
thah*e Florida Employers Liability Coverage Endorsement (NCCI Form WC Og 03),
those'wh.ip*h are required by the State of Florida, or any restrictive NCCI endorsements
which, u$FSl. an UCel::fiting, must be attached to the policy (i.e., mandatory
endorsemdfits),,, ln addittb,n to coverage for the Florida Workers' Compensation Act,
Hull Coveraqe: Coverage for direct damage to vessels written on American lnstitute Hull
clauses form, specifically including "Running Down clauses," "Agreed Valuation
clauses," and Amount of insurance based on value of vessels. The policy shall cover
collision liability on a primary basis.
Protection and lndemnity Coveraoe: Form "SP 23" Coverage for water taxi
operations of the watercraft, as included in "SP23" for damage to any harbor, graving,
piers, bum.pers, etc.; including, but not limited to, Crew to the extent coverage is not
provided by the Worker's Compensation policy, Passenger and Coverage for property
77
119
and liability from land while loading and unloading the Ferry or Water Taxi and on-board
during navigation along with Cargo Legal Liability, Dock Liability, Excess Collision over
insured hull limit.
(Coverage shall include Premises, Pollution Exclusion Buyback Endorsement A,
Personal Effects, Medical Payments, Voluntary Wreck Removal, and Pollution Buyback).
$1,000,000 coverage required.
Vessel Pollution Liability (Occ. Form)
lncluding clean-up cost $100,000 Anyone Scheduled Vessel, any
One incident for IOA 90, CERCLA, Spill
Management- Firdfighting and Salvage and
Defense Cost including damage to Property
lncluding Water Quality lnsurance Syndicate or similar form Per Statutory coverage andlimits). ,:,
Coverage for third party liability for land OaseO""gperations to the pubiic and connection
with the amphibious tour tancl-operation, speiificaiti including Occurrence form, Bodily
lnjury, Property Damage, Products & Completed Operations, Medical Payments,
Personal lnjury, Contractual Liability, Ship ReOair LidB;.,
1 :,.:::,i=, rlLlif{$r
Such insuranc$it$Eafiibe no more restrictive tnan thatrftrovided by the most recent
version of tfie.:,$tii:fuard,,i€ommercial Genera[ Liability Forh (lSO Form CG 00 01) as
filed for use in$g State of',F,,lorida with6ut any restrictive endorsements other than those
$2,000,000 General Aggregate
Bumpershoot Liability
r;tt,::::ii:l
$1,000,000 EachOccurrence
A. $ 50,000 Fire Damage
lh$ $ 5,000 Medical Expenses
$1,000,000 Per Occurrence and Aggregate
(The Bumpershoot Liability policy shall be in excess of the Employer's Liability,
Commercial General Liability, Automobile Liability, Personal & lndemnity and Pollution
Liability limits without any gap. The Bumpershoot coverage wi!! follow form the
underlying coverages and provide on an Occurrence basis al! coverages listed
above.)
A. Waiver of Subrooation. All insurance shall be endorsed to provide for a waiver of
underwriter's rights of subrogation in favor of the City of Miami Beach and the City's
members, officials, otficers and employees.
B. Additional lnsured: All lnsurance, except Worker's Compensation and Professional
12
120
c.
Liability, shall be endorsed to name the City of Miami Beach and City's members,
officials, officers, and employees. Additional Liability shall be in a form no rnore
restrictive than CG2010 and Automobile Liability C42048; endorsements will be
provided to, reviewed and approved by the City's Division of lnsurance and Risk
Management prior to commencement of work.
The Concessionaire's lnsurance Primary. The insurance provided by the
Concessionaire for shall apply on a primary basis to, and shall not require
contribution from, any other insurance or self-insurance maintained by the City or
=
Deductible or self-insured retention. Except.ai authorized in this Agreement, the
insurane,e maintained by the Concessionaire shall apply on a first dollar basis without
application of a self-insurance, deduclible, or setf-insured retention. Except as
authorized specifically in this Agreer,nent, no self-insurance, deductible, or self-
insured retention for any required insurance, the Concessionaire shall be responsible
for paying on behalf of the City_" (and any other person or organization
Concessionaire has, in this Agreenient, agreed to include as an insured for the
i,'br self-insurdd,ietention allowed
D.
E.
requiremenbnf this Agreement: all not tiry,( the .liabiiity of the Concessionaire or its
Subcontractors or Sub- subconti.6 Jg#ii;€ffifi1ffi.8!1;p,.or agent to the City or others.
Any remedy provided to City or City's members, iifficiats or employees shall be in
addition to ahd not in liOu of any o*ler remedy available under this Agreement or
Neither approval by the City nor failureby Concessionaire shall relieve
1@.,nG€sSionaire fflt.poncessionaire's full responsibility to provide insurance as
r:6.E},,,...5 under thiJ fuement,',
?.....=,. WiG. Each polio,T_,:; all ffiritten by an insurer holding a current certificate of authority
pursuant tot4ri#flprWF24, Florida Statues or accompany that is declared as an
approved SuffiU"$,,,,]=ihes carrier under Chapter 626 Florida Statutes. Such insurance
shall be endorsed to provide for a waiver of undenryriter's rights of subrogation in
favor of the City. Such lnsurance shall be written by an insurer with an A.M. Best
Rating of A-Vll or better. Prior to commencing any Services, Certificates of lnsurance
approved by the City's Division of lnsurance & Risk Management demonstrating the
maintenance of said insurance shall be furnished to City. The Concessionaire shall
provide an endorsement issued by the insurer to provide the City thirty (30) days
prior written notice of any change in the above insurance coverage limits or
cancellation, including expiration or non-renewal. ln the event the Concessionaire is
unable to obtain such endorsement, the Concessionaire agrees to provide the City
the notice directly. Until such time as the insurance is no longer required to be
t3
121
H.
maintained by the Concessionaire, Concessionaire shall provide the City with
renewal or replacement evidence of insurance with the above minimum requirements
no less than 30 days before the expiration or termination of the insurance for which
previous evidence of insurance has been provided.
Notwithstanding the prior submisslon of a Certificate of lnsurance, copies of
endorsements, or other evidence initially acceptable to City's Division of lnsurance
and Risk Management, if requested to do so by the City, the Concessionaire shall,
within thirty (30) days after receipt of a written request from the City, provide the City
with a certified, complete copy of the policies of insurance providing the coverage
required herein. t,.
=#,rr=St?ry-Anything to the contrary notwithstanding, th#-iiiSllities of the Concessionaire under
this Agreement shall survive and not be teiminated, reduced or otherwise limited by
any expiration or termination of insuraqce coverage. Neither approval of, nor failure
to disapprove, insurance furnished',i by the ConcesSiolaire shall relieve the
Concessionaire or its sub-contractors or sub-subcontractofs from responsibility to
provide insurance as required by the fgreement. t1,,,u,..,,,
t.
J.
.H*'drvn
Depending upon the nqttitg*.of any aspect ofiahy project and
-itffaccompanying
coverages in amounts refffiSfWil-!.o,,those liabilities, which may or may not require
that the City also be named %,rn additiolal insured.
exposures and liabilities;4ffit{y--,$,m-ay, at its sole option require additional insurance
K. Concessionaire's failure to providEevidence of insurance coverage set forth in this
Section 9, within two (2) days frofi ieCeipt of a written request from the City shall
constitute a material default under thtdjAgreement and shall entitle the City to pursue
i|. ^=::::r\ift*,
i :: :. r::::::::::ri::l
its.,.default remedies, as set fortt'r in subs*tion 12.4, without affording Concessionaire
LEASE.
and specific consideration of Ten ($10.00) Dollars and
ation the receipt and sufficiency of which are hereby
re shall indemnify, hold harmless and defend the City, its
officials, direcQis, em- s, contractors, agents, and servants from and against any
and all actions*(Whether at law or inequity), claims, liabilities, losses, and expenses,
including, but not iimiteO to, attorneys'fees and costs, for personal, economic or bodily
injury, wrongful death, loss of or damage to property, which may arise or be alleged to
have arisen from: (1) wholly or in part from the negligent acts, errors, omissions or other
misconduct of Concessionaire, its officers, director, members, employees, agents,
contractors, subcontractors, or any other person or entity acting under Concessionaire's
control or supervision; (2) Concessionaire's breach of the terms of this Agreement or its
representations and warranties herein; or (3) the operation of the Program. To that
extent, Concessionaire shallpay all such claims and losses and shall pay all such costs
and judgrnents which may issue from any lawsuit arising from such claims and losses,
74
122
and shall pay all costs and attorneys'fees expended by the City in the defense of such
claims and losses, including appeals.
10.2 ln addition, in consideration of a separate and specific consideration of Ten ($10.00)
Dollars and other good and valuable consideration the receipt and sufficiency of which
are hereby acknowledged, Concessionaire shall indemnify, hold harmless and defend
the City, its officials, directors, employees, contractors, agents, and servants from and
against any claim, demand or cause of action of whatever kind or nature arising out of
any misconduct of Concessionaire, its officials, directors, employees, contractors,
agents, and servants not included in the paragraph in the subsection above and for
which the City, its officials, directors, employees, contractors, agents, and servants are
alleged to be liable.
10.3 Subsections 10.1 and 10.2 shall survive the ter ation or expiration of this Agreement.
Subsections 10.1 and 10.2 shall not apply, howeVer, to any such liability that arises as a
of the Cfu
Concessionaire shall ensure that Program
participants execute a release in with their participattoLn in the Program,
which release shall include the City ""9;_ aEi#ditional rel6 e thereunder.
Concessionaire shall provide the City with a eddy of;the release form foi approval by the
City's Risk Manager, which approved release fo"im strall be attached as Exhibit 3 hereto.
^SECTION 11. FORCE MAJEURE.
,l . :'- lt11.1 Neither party shE bElUtlffited to perform hereunder and fi'either party shall be deemed
to be in default if perfoimance is prevented by:
a. Any act'6F--' in ,ffi\9t a acts resulting in destruction, vandalism or theft of
,..=water stati6Es=',w-.1f,ffifi'Hgf...at least fifty (50%) percent of the Concessionaire''-=''Area. unusaOie ii r"V
".Lipoi^t in time and which is not caused by negligence
b. earthquake; hurricanei.?ipoa, .act of God; direct act of terrorism; or civil
'c.9...,,,mmotion occurring whTcfil,fenders at least fifty (50%) percent of the Concession
*rea.s unusa.ble'
-.c. any law, ordinance, rule, regulation or order of any public or military authority
stemming from the existence of economic or energy controls, hostilities, or war
which rendeis at least fifty (50%) percent of the Concession Areas unusable.
11.2 Labor Dispute.
ln the event of a labor dispute which results in a strike, picket or boycott affecting at least
fifty (50%) percent of the Conoession Areas, 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).
result of the willful misconduct or gross
15
123
11.3 Waiver of Loss from Hazards.
The Concessionaire hereby expressly waives all claims against the City for loss or
damage sustained by the Concessionaire resulting from any Force Majeure
contemplated in Subsection 11.1 and Labor Dispute in Subsection 11.2 above, and the
Concessionaire hereby expressly waives all rights, claims, and demands against the City
and forever releases and discharges the City of Miami Beach, Florida, from all demands,
claims, actions and causes of action arising from any of the aforesaid causes.
sEcTroN 12. DEFAULT AND TERMINATION.
=Subsections 12.1 through 12.3 shall constitute events of default under this Agreement. An
event of default by Concessionaire shall entitle the City to exercise any and all remedies
described as City's remedies under this Agreement, including but not limited to those set forth in
12.1 Bankruptcv.
lf either the City or Concessionaire shall be adjudged bankiupt or insolvent, or if
any receiver or trustee of all or any part of the business properlv of either party
shall be appointed, .?.M#:nV receiver 6f atl or any part of the business property
shall be appointed"ffi.,,..5!pll not be discharged within sixty (60) days after
appointment, or f eithEdd*f;gtrall make an a-ssignment of its property for the
benefit of creditors, or sha[nfiliiiffioluntary petition in bankruptcy, or insolvency,
or shall apply for reorgdnization b€Hggng"ment with its creditors under the
bankruptcy or l' lvency iaws now'iiii fqe6s or hereinafter enacted, Federal,
Statepr othenrui56-; or if such petitions"shall be filed against either party and shall
not be dismissed wthin sixty (60) days after suCh filing, then the other party may
immediately, or at:any time theieafter, and without further demand or notice,
leg),iliflje thiS Agreement without be..i prejudiced as to any remedies which may
'be%V-,eilable to it for breach'0f. contraGj'
12.2 =
n the event re fails to submit any payment within five (5) days of its
&-Ee date, thereffill be a late charge of One Hundred and Fifty ($150.00) Dollars
p6i=.d4v for suchffife payment, in addition to the interest which accrues pursuant_ - Nr.jto s0b$$c1ion 4.H llf any payment and accumulated penalties are not received
within ten.(1,0}days after the payment due date, and such failure continues for
ten (10) dayFafter written notice thereof, then the City may, without further
demand or notice, terminate this Concession Agreement without being
prejudiced as to any remedies which may be available to it for breach of contract.
12.3 Non-Monetarv Default.
Unless othenrvise set forth in this Agreement, in the event that Concessionaire or
the City fails to reasonably perform or observe the non-monetary covenants,
terms or provisions under this Agreement, and such failure continues ten (10)
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
16
124
notice, terminate this Agreement without being prejudiced as to any remedies
which may be available to it for breach of contract. ln 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 thirty (30) days from the date of written notice
thereof. ln the event Concessionaire cures any default pursuant to this
subsection, it shall promptly provide the City Manager with written notice of
same.
Remedies for Concessionaire's
lf any of the events of default, as set fortti i Section, shall occur, the City
may, after expiration of the cure peritlds, as above (unless othenrvise
12.4
12.5
provided in the Agreement), at its'.sole option'\Eil-d. discretion, institute such
proceedings as in its opinion are necessary to *ctrie such defaults and to
compensate City for damageS resulting from such d6f6' f[9, including but not
limited to the right to give to'Concessionaire a notice bf$*'fermination of this
Agreement. lf such notice is given, the term of this Agreer'iTeht shall terminate
a0aiEl$ Concessionai re; and/or
the right& maintain'.any and all actions at law or suits in equity or other
proper fi$ceeOings to obtain damages resulting from Concessionaire's
upon the date specified in such notice from City to Concessionaire. On the date
so specified, Conces"s.iffdiie$all then quit and surrender the Concession Area
to City pursuant to the provisions,of Subsection 12.6. Upon the termination of this
Agreement, all rights and*nterei6fir:"tif oncessionaire in and to the Concession
Area and-to thi$ greement, and ev,ery._ p;t thereof, shall cease and terminate
and City rnay, in dition to a$V__o-ther rl'!fitffig4!.,,..,remedies it may have, retain all
sumS"paid to it by€oncessiondi er this Agreement.
ln addition to the rights set forth e$$M", the City shall have the right to pursue any
and all of the following: :ij"tb'
a. ""*e=ight to injunction or other Similar relief available to it under Florida law
',,,ltfl1d#,ffifi
tt an evdfl'p. fault by the City shall occur, the Concessionaire may, after
expiration 6f..!li cure periods, as provided above, terminate this Agreement upon
written notice to the City. Said termination shall become effective upon receipt of
a written notice of termination by the City, but in no event shall Concessionaire
specify a termination date that is less than thirty (30) days from the date of the
written termination notice. On the date specified in the notice, Concessionaire
shall quit and surrender the Concession Area(s) to City pursuant to the
provisions of Subsection 12.6.
L7
125
12.6
12.7
Surrender of Concession Areas / Removal by Concessionaire of
EquipmenUl morovements.
Upon expiration, or eadier termination of this Agreement, Concessionaire shall
surrender the Concession Areas in the same condition as the Concession
Areas were prior to the Commencement Date, reasonable wear and tear
excepted. Concessionaire shall, at its sole expense and at no charge to the
City, cease using the Concession Area, no later than thirty (30) days after the
conclusion of the Term, (or from the date of other termination of this Agreement)
unless a longer time period is agreed to, in writing, by the City Manager).
Concessionaire's obligation to observe or perform this covenant shall survive the
expiration or other termination of this Agreement. Continued occupancy of any
Concession Areas after termination of the Agreement shall constitute trespass by
the Concessionaire, and may 9-,fu prosecuted as such. ln addition, the
Concessionaire shall pay to the Giffine Thousahd ($1,000.00) Dollars per day
per Concession Area as liquidated@mages for such tresoass and holding over.
ln the event that the Concessionairffigigffiffpoperly perform its obligations or
cure any default under, the Agreement,t{i5,fiBr receipt of written notice from the
City, then the City shall have the right, bfut not the obligation, to undertake
Concessionaire's duties and obligations ufiidef .the Agreement, as the City
12.8
tHE .CITY MAY ALSO,:tir.,-ltoR.-OUGH trs Ctry MANAGER, AND FOR trs
....i CONVENIENCE. D WITHOUICAUSE, TERMINATE THE AGREEMENT AT: ANY TIME,=='DURIN.$ , THE TERM BY GIVING WRITTEN NOTICE TO
CONCESSIONAIRE OF SUCH TERMINATION, WHICH SHALL BEGOME
EFFECTTVE WtTHtN THTRTY (30) DAYS FOLLOWTNG RECETPT BY THE
CONCESSIONAIRE OF SUCH NOTICE, FOLLOWING WHICH THE CITY
SHALL BE DISCHARGED FROM ANY AND ALL LIABILITIES, DUTIES, AND
TERMS ARI:|,::ry OUT OF, OR BY VIRTUE OF, THIS AGREEMENT.
. r-=12.9 Citv Manaoer Emerqencv Powers
A. Notwithstanding anything to the contrary contained in this Agreement, and in
addition to any other remedy which the City may have under this Agreement or
pursuant to applicable law, if the performance by Concessionaire under this
Agreement or the Program is creating a public health, welfare or safety concern,
as determined by the City Manager, in the City Manager's sole discretion, the
City Manager may immediately suspend the performance of services under this
Agreement, including the Program, until such time as the condition has been
remedied to the satisfaction of the City Manager.
18
126
B. Removal of Concessionaire's Property durinq Emerqency Situations. The City
Manager or his/her designee may direct or require the Concessionaire to
immediately remove, relocate and/or store any equipment located on the
Concession Area and any Program Vessel ("Concessionaire's Property") for
public safety considerations in emerEerrcy situations, including, without limitation,
a threatened tropical storm or hurricane. Upon written and/or verbal notification
by the City Manager of a tropical storm/hurricane warning or alert, or other major
weather event that may adversely impact the City, or upon the designation by the
United States National Weather Service or National Hurricane Center of a
tropical storm/hurricane warning or alert, whichever occurs first, the
Concessionaire shall, within no more than two,u$pyrs of same, remove and store
all of Concessionaire's Property to secure Co-ni$itionaire's Property in response
to the threatened storm or other emergency, and shall take all other measures
which may be necessary for the protecJ[p!$flllpublic with respect thereto. The
notification by the City Manager of a hunicane o_r other major weather event, or
the issuance of a hurricane warring, shall constitute a public emergency
situation. The failure of the City to direct the ConceSsibngire to remove or safety
store Concessionaire's Property shall not relieve the-Concessionaire of its
obligation to remove and store Concessionaire's Prop{f$ in response to a
threatened storm event as outlined herein. $';; h
Should Concession aff.effil,,fo remove Concessionaire's Property within said two
(2) hour period, or in tf*ilietgfi.?r.Ihe City Manager or his/her designee determines,
at his/her sole discretffi,, th' glcessiohaire's removal, storage and other
efforts are otheruvise riot sati5ffiEthrv. Concessionaire shall thereafter beefforts are otheruvise &t.. satiSffi_fy- Concessionaire shall thereafter be
assessedi f66,.of $50.00 pgr noui, ufu:s.uch tirne'as all of Concessionaire's
P ro pe rty ha ve be€n re m oved& .t= =,$fu
=Ma,..a.gg r's sati sf a cti o n . l n a d d iti on, th e
City Manager, without any o'b-'ti 'ti h to do io, may immediately proceed to
remove, ielocate, and/or store the Concessionaire's Property that has othenrvise
not been removed'by the Concedlibnaire, at the Concessionaire's sole cost and
expel:$e, with.paymCnt toithe City fffi all such costs due within thirty (30) days of
Citys invoice to Concessionaire.
'' -li;:i:+ ':=:
i,#,*a. Concessiohd[Fe shalf be solely responsible for any damage to City property or"Wlll,gtner prope@=resulting {rom Concessionaire's failure to remove and store
rlri$.,oncessionaire5 propertf,,"or othenrvise implement appropriate measures in
,U$@fr,,: to a th$ened storm or hurricane.
to comply with this Section shall constitute a material default
under thi and shall entitle the City to pursue its default remedies, as
12.4, without affording Concessionaire an opportunity to
cure the default. The remedies identified herein for Concessionaire's failure to comply
with this Section are cumulative, and in addition to, all remedies that may be available to
the City at law and in equity.
SECTION 13. PERFORMANCE BOND OR ALTERNATE SECURITY.
INTENTIONALLY OMITTED
t9
127
SECTION 14. ASSIGNMENT.
Concessionaire shall not assign all or any portion of its costs or obligations under this
Agreement without the prior written consent of the City Commission, which consent shall be at
the sole and absolute discretion of the City Commission" Concessionaire shall notify the City
Manager of any proposed assignment, in writing, at least sixty (60) days prior to the proposed
effective date of such assignment. ln the event that any such assignment is approved by the
City Commission, the assignee shall agree to be bound by all the covenants of this Agreement
req uired of Concessionaire.
SECTION 15. NO IMPROPER USE.
The Concessionaire will not use, nor suffer or any person to use in any
manner whatsoever, the Concession Area or Program VeSsel,'for any illegal, improper, immoral
or offensive purpose, or for any other purpose in vioiation of any Federal, State, County, or
municipal ordinance, rule, order or regulation, or of any governmeptal rule or regulation now in
effect or hereafter enacted or adopted. The Con'iessionaire will proted, indemnify, and forever
save and keep harmless the City, its officiafS, employees, contractors, and agents from and
against damage, penalty, fine, judgment, expense or cha.rge suffered, imposed, assessed or
incurred for any violation, or breach.of any law, ordinance;.rule, order or re$'il@on occasioned
by any act, neglect or omission of the Concessionaire, or any official, director, agent, contractor,
or servant regarding the concession.'ln.ffif e,,.ygnt of any violation by the Concessionaire, or if
the City or its authorized represent*iye'"r,S_(ftfu,..leem any conduct on the part of the
Concessionaire to be objectionable or ffipropEfffl-thp City shall have the right to suspend
concession operation should the Conces aire f-a -6o1rect any such violation, conduct, or
practice to the satisfaCtion of the City Manag6.@r his designee within twenty-four (24)
hours following written notice of the natuie anO extent of such violation, conduct, or
practice. Such suspenSion to continue until thQftiglation is cured to the satisfaction from the
City Manage.{hgJ,,fiis designee. .=' ;
With copies to:
All notices from the Concessionaire to the City shall be deemed duly served upon
receipt, if mailed by registered or certified mail return receipt requested to the City of
' I .r,l
All noticeSii, the City to"ffi6:'Concessionaire shall be deemed duly served upon receipt, if
mailed Oy rei$u d or certified mail return receipt to the address to the Concessionaire at the
following "OOr"r%.r,,
'TI.IS= ml Ll
20
128
The Concessionaire and the City may cha4ge e above mailing address at any time
upon giving the other party written n-ojifica;tion. Rtt notides under this Concession
Agreement must be in writing. .. ,, .ffi i=..ru*,ffi' "
Concessionaire shall comply 'with all appficadi&\S , County, State, and Federal
ordinances, statutes, rules and regulations, including but not limited to all applicable
environmental City;=,&unty, State, and Federal ordinances, statutes, rules and
17.2 Governinq tjw. ru: k":..
Governing t-aw. "",.
i,S. n Fnt",shall be governed by and construed in accordance
withthe laws of the Stat lU'ffdft'lli
Miami Beach at the following addresses:
With copy to:
City of Miami Beach
1700 Convention Center Drive
Miami Beach, FL 33139
Attn: Parks and Recreation Director
City of Miami Beach
1700 Convention Center Drive
Miami Beach, FL 33139=
Attn: City Manager
17.3
Neither Concessionaire noilny affiliate of Concessionaire performing services
hereunfu, or pursuant hereto,'will discriminate against anyemployee or applicant for
employfi'Ont because of iace, creed, sex, color, national origin, sexual orientation, and
disability @ defined in rl'itle I of ADA). Concessionaire will take affirmative steps to
utilize minoriti€s and females in the work force and in correlative business enterprises.
::. =17.4 No Discrimination. ...,::
All operations and services offered in the Concession Area shall be made available to
the public, subject to the right of the Concessionaire and the City to establish and
enforce reasonable rules and regulations to provide for the safety, orderly operation, and
security of the Concession Area and improvements and equipment thereon.
Concessionaire hereby agrees to comply with City of Miami Beach Human Rights
Ordinance as codified in Chapter 62 of the City Code, as may be amended from time to
time, prohibiting discrimination in employment, housing, public accommodations, or
public services, on the basis of actual or perceived race, color, national origin, religion,
2L
129
SECTION 18. MISCELLANEOUS.
18.1 No Partnership.
Nothing contained in this Agreement shall constitute or be construed to be or create a
partnership or joint venture between the City and Concessionaire.
=,.+ry!l!',
18.2 Modifications. ' ,
This Agreement cannot be changed or mbdified eirypt by Agreement in writing
executed by all parties hereto. Concessionaire acknowled$es 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
sex, intersexuality, sexual orientation, gender identity, familial and marital status, age,
ancestry, height, weight, domestic partner status, labor organization membership,
familial situation, political affiliation, or disability.
Manager or his designee.
,,,, ,l18.3 Complete Aqreement. - ,,, '='+i/ffi??;'= =
This Agreement, together with i@1{hiOffifl fporated hereto, constitutes all the
understandings andftreements of fr.,f;atsoever nature or kind existing between the
pa rtie s with res pect totonce s s ionaffi orP$afrohS,'as co nte mp I ated h e re i n ., 1nw ..::::::=
i ilj,.ii -':::::aaaaaa:.:..:':,:=.
=.':,,':F[,9. section, sub$ n @,paragraph headings contained herein are for convenience
of i,iference only a'fid,,are not*tended to define, limit, or describe the scope or intent of
,.; :*,,,,,,
r,
This Agreement shalf be binding upon and inure to the benefit of the parties hereto and
18.4
18.5
their respective successors and permitted assigns.
18.6 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
130
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.
18.7 Severabilitv.
lf any provision of this Agreement or any portion of
thereof to any person or circumstance shall be held
such provision or the application
to be invalid or unenforceable, or
llaws, then the same as so
applied shall no longer be a part of this remainder of the Agreement,
such provisions and the application thereof to or circumstances, shall not
be affected thereby and this Agreement as so
18.8 Riqht of Entry.
The City, at the direction of the City Manager, shall at all timeS
Agreement remains in effect,
, -,. ,.. :,,, . ..i*18.10 Siqnaqe.
W,r,,'#
Concessionaire shall not :..permitted to install any signage at the Concession Area.
18.11 Procedure for Approvals and/or Consents.
ln each instance in which the approval or consent of the City Manager or his designee is
allowed or required in this Agreement, it is acknowledged that such authority has been
expressly provided herein to the City Manager or his designee by the Mayor and City
Commission of the City. ln each instance in which the approval or consent of the City
Manager or his designee is allowed or required in this Agreement, Concessionaire shall
send to the City Manager a written request for approval or consent (the "Approval
Request").
The City Manager or his designee shall use reasonable efforts to provide written notice
to Concessionaire app.roving of consent to, or disapproving of the request, within thirty
(30) days from the date of Approval Request (or within such other time period as may be
expressly set forth for a particular approval or consent under this Agreement). However,
have the right to enter into and upon any'and all parts of the Cofiffihp_ion Area(s) for the
purposes of examining the same for any reason relating to the obli$a!]pps of parties to
this Agreement. =&=
, ==-=-'
,
t'-'
*.'&a,
i1
It is expressly understood and agig.j tnatt$ir,F..a(, pardel, building, facility, equipment or
space is leased to,the Concessiot% thal.it iE illirponcessionaire and not a lessee; that
the Concessionaire's right to operat6 the concession,shall continue only so long as this
23
131
the City Manager or his designee's failure to consider such request within this time
provided shall not be deemed a waiver, nor shall Concessionaire assume that the
request is automatically approved and consented to. The City Manager or his
designee shall not unreasonably withhold such approval or consent. This
Subsection shall not apply to approvals required herein by the Mayor and
City Commission.
18.12 No Waiver.
It is mutually covenanted and agreed by and between the parties hereto that the failure
of the City to insist upon the strict performance ot.ahy of the conditions, covenants,
terms or provisions of this Agreement, or to exercise any option herein conferred, will not
be considered or construed as a waiver or relinquishment for the future of any such
conditions, covenants, terms, provisions o.qn options but the same shall continue and
remain in full force and effect. A waiver.'&f"any term expressed herein shall not be
implied by any neglect of the City to degtare a forfeiture on account of the violation of
such term if such violation by contihUs$ or repeated subsequently and any express
waiver shall not affect any term other thi{fi-, one specified in sudh waiver and that one
only for the time and in the manner specificaf,ft,.=qt =.,
1-
The receipt of any sum paid by Co=-nce-ssionaire io==the City after breach of any condition,
covenant, term or provision hereihEntained shafl not be deemed a waiver of such
18.13
Nothing, this Agr€erne=a?"5hall confer upon any person or entity, including, but not
limited to sub concesS' g_ires, othdi'than the parties hereto and theirrespective
successors and permitted lss-igns, any iights or remedies by reason of this Agreement.
18.14 No Lien
ln the event any notice or claim of lien shall be asserted against the interest of the City
on account of or arising from any work done by or for Concessionaire, or any person
claiming by, thi!, h or under Concessionaire, or for improvements or work, the cost of
which is the responsibility of Concessionaire, Concessionaire agrees to have such notice
or claim of lien cancelled and discharged within fifteen (15) days after notice to
Concessionaire by City. ln the event Concessionaire fails to do so, City may terminate
this Agreement for cause without liability to City.
SECTION 19. 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 Five Thousand ($5,000.00) Dollars.
24
132
Concessionaire hereby expresses its willingness to enter into this Agreement Five
Thousand ($5,000"00) Dollars limitation on recovery for any action for breach of contract.
Accordingly, and in consideration of the separate consideration of Five Thousand ($5,000.00)
Dollars, the receipt of which is hereby acknowledged, the City shall not be liable to
Concessionaire for damages to Concessionaire in an amount in excess of Five
Thousand ($5,000.00) Dollars, for any action for breach of contract arising out of the
performance or on-performance of any obligations imposed upon the City by this Agreernent.
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, Section768.28. ,.].sEcTtoN 20. VENUE/WAIVER OF JURY TRIAL. ;,,
"',
This Agreement shall be deemed to have been made,,,,,a#isfraff be construed and interpreted in
accordance with the laws of the State of Florida. This'Agreemenftqnatt be enforceable in Miami-
Dade County, Florida, and if legal action is necessary by eithei;arty with respect to the
enforcement of any and all the terms or condltions herein, exclusivd?,96,,!.t.!re for the enforcement
of same shall lie in Miami-Dade County, Florida. ru\
CITY AND CONCESSIONAIRE HEREBY KNOWINGLY AND INTENTIONAIILJ WAIVE THE
RIGHT TO TRIAL BY JURY IN ANY ACTTON OR PROCEEDING. THAT CITY
AND CONCESSIONAIRE MAY H EEIN."/FTER ]NSTITUTE AGAINST EACH OTHER
wrTH RESPECT TO ANy MATTER "xE[$lwC OUT OF OR RELATED TO TH|S
AGREEMENT OR THE CONCESSTON AREA(S). .-
secrott zt. cot{cesstoNetne's C6upLtaild'E:futrH iLoruoe pualtc neconos
21.1 Contractor shall Comply with Florida Fffic Records law under Chapter 119, Florida
Statutes, as may be amehded from tiihk to time. Records made or received in
co-n-n*.ffi-.E..;ryith this Agreement are pubiiC records under Florida law, as defined in
Section i igi0n*tz;, R6rioa Statutes.
*il:7
21.2 PUrcuant to 19.0'78:L= f the Florida Statutes, if the Contractor meets the
definition of Con defihEGin Section 1 19.0701(1Xa), the Contractor shall:
(A) Keep ra,nd maintai records required by the City to perform the service;
of the requdGtbdj:or allow the records to be inspected or copied within a
reasonable timdii:at a cost that does not exceed the cost provided in Chapter 119,
Florida Statutes or as othenryise provided by law;
(C) 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
Contractor does not transfer the records to the City;
(D) Upon completion of the Agreement, transfer, at no cost to the City, all public records
in possession of the Contractor or keep and maintain public records required by the
City to perform the service. lf the Contractor transfers all public records to the City
"r.ij w(B) Upon req0est from tti6"rCity's custodian of public records, provide the City with a copy
25
133
upon completion of the Agreement, the Contractor shall destroy any duplicate public
records that are exempt or confidential and exempt from public records disclosure
requirements. lf the Contractor keeps and maintains public records upon completion
of the Agreement, the Contractor 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.
21.3 Request for Records; Noncompliance.
(A) A request to inspect or copy public records relating1ffi.the City's contract for services
must be made directly to the City. lf the City.:?oes not possess the requested
records, the City shall immediately notify the '' htractor of the request, and the
Contractor must provide the records to the City oi a.llow the records to be inspected
or copied within a reasonable time.
(B) Contractor's failure to comply with the City's request foa records shall constitute a
breach of this Agreement, and the City, at its sole disffition, may: (1) unilaterally
terminate the Agreement; (2) avgll itself of the remetie_-s -set forth under the
Agreement; and/or (3) avail itself of any available remediels at law or in equity.
t t' ,.(C) A Contractor who fails ffiFrovide the p0blie.r.e ds to the City #itHin a reasonable
time may be subject to pffi-[1,t.!=. der s. 11$fl.
21.4 Civil Action . rt'
", ...... ""
-comp6l-roduction of public records
e-urtshall assess and award against
including reasonable attorney
2. At least 8 bUsinesS before filing the action, the plaintiff provided written
notice of the public rebords request, including a statement that the Contractor
has not comptieO with tha request, to the City and to the Contractor.
(B)A notice complies with subparagraph (1Xb) if it is sent to the City's custodian of
public records and to the Contractor at the Contractor's address listed on its contract
with the City or to the Contractor'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.
(C) A Contractor who complies with a public records request within 8 business days after
the notice is sent is not liable for the reasonable costs of enforcement.
21.5 IF THE CONTRACTOR HAS QUESTIONS REGARDING THE APPLICATION OF
CHAPTER 119, FLORIDA STATUTES, TO THE CONTRACTOR'S DUTY TO PROVIDE
PUBLIC RECORDS RELATING TO THIS AGREEMENT, CONTACT THE CUSTODIAN OF
PUBLIC RECORDS AT:
134
CITY OF MIAMI BEACH
ATTENTION: RAFAEL E. GRANADO, CITY CLERK
17OO CONVENTION CENTER DRIVE
MIAMI BEACH, FLORIDA 33139
E-MAIL: RAFAELGRANADOMIAMIBEACHFLGOV
PHONE: 305-673-7411
THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.
t
27
135
lN WITNESS WHEREOF, the parties hereto have caused their names to be signed and their
seals to be affixed, all as of the day and year first above written, indicating their Agreement.
Attest:CITY OF MIAMI BEACH, FLORIDA
Rafael E. Granado, City Clerk
Attest:
Print Name and Title
MIAMI JET SKI EXOTICS R
P tiNdffi'b d
28
136
Exhibit 1
Barry Kutun Boat Ramp at Maurice Gibb Memorial Park
Commercial Concession Plan
* crossed morked section is concession qreo
29
137
Exhibit 2
Application for Commercial Concession Operations
at Public Boat Ramps
...2..'*tttl\\"
;.:::::::::::::::
ry
='::::::1.:.1:li:i
..=.i,,.!i\ ,
30
138
Exhibit 3
Re/ease Form
ttfur,,'
'4!:,!:
31
139
140
RScAgenda ltem
Date t2-ltt-lt
ORDINANCE NO.
AN ORDINANCE OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF MIAMI BEACH, FLORIDA, AMENDING CHAPTER 102 OF
THE CODE OF THE CITY OF MIAMI BEACH, ENTITLED "TAXATION,"
BY AMENDING ARTICLE V, ENTITLED "LOCAL BUSINESS TAX," BY
AMENDING SECTION 102.377 THEREOF ENTITLED "PENALTIES,
ENFORCEMENT; COLLECTION OF DELINQUENT FEES AND TAXES,
AND CRIMINAL PENALTIES," BY ESTABLISHING A MODIFIED
PENALW AND ENFORCEMENT PROVISION WHICH DELINEATES
MONETARY FINES AND CRIMINAL PENALTIES; BY CREATING
SECTION 102.386 THEREOF TO BE ENTITLED "PROPERTY
OWNER'S RESPONSIBILITIES REGARDING LEGALLY PERMISSIBLE
TRANSTENT RENTAL AND OCCUPANCY (SHORT TERM) OF
RESIDENTIAL PROPERTY," BY PROHIBITING PROPERTY OWNERS
FROM ADVERTISING THE TRANSIENT RENTAL OR OCCUPANCY
OF A RESIDENTIAL PROPERW WITHOUT THE SUBMISSION OF AN
AFFIDAVIT TO THE CITY, BY REQUIRING THE AFFIDAVIT TO
CONFIRM THAT THE LAND DEVELOPMENT REGULATIONS
AUTHORIZE TRANSIENT RENTAL AND OCGUPANGY; AND
ENSURING THAT THE PROPERTY OWNER OBTAINS COMPLIANCE
WITH THOSE PROVISIONS SET FORTH WITHIN CHAPTER 102, THE
AMERICAN DISABILITIES ACT, THE FLORIDA FIRE PREVENTION
CODE AND THE FLORIDA BUILDING GODE; AND BY FURTHER
REQUIRING WRITTEN AUTHORIZATION FROM THE CONDOMINIUM
ASSOCIATION FOR THE TRANSIENT RENTAL OR OCCUPANCY OF
THE RESIDENTIAL PROPERW OR UNIT; AND REQUIRING
NOTIFICATION TO PROSPECTIVE GUESTS BY PROPERTY
OWNERS THAT OPERATE INDEPENDENTLY OF THE PRIMARY
HOTEL OPERATOR; AND ESTABLISHING A PENALW PROVISION
FOR VIOLATIONS OF THIS SECTION; PROVIDING FOR REPEALER,
SEVERABILITY, CODIFICATION, AND AN EFFECTIVE DATE.
WHEREAS, the rental of single-family and multi-family residential properties for periods
of less than six months and one day is generally prohibited by the Land Development
Regulations ("LDRs"), with very limited exceptions; and
WHEREAS, property owners of single and multi-family residence(s) or unit(s) continue
to unlaMully engage in the transient rental and occupancy in violation of the City of Miami
Beach Code of Laws and Ordinances (the "City Code"), which creates excessive number of
guests, vehicles and noise, and cause inappropriate adverse impacts on the surrounding
residences and residential neighborhood; and
WHEREAS, the City has a substantial interest in ensuring and maintaining the
aesthetics, character and tranquility of its residential neighborhoods, as well as ensuring
compliance with those City Codes regarding these commercial activities, and this provision
directly advances these interests by serving a narrowly tailored interest of the City; and
141
WHEREAS, the transient rental or occupancy of residential properties or units are more
appropriately held in those specific zoning districts that are designed for such numbers of
persons, with the impacts resulting therefrom more appropriately mitigated; and
WHEREAS, an owner of a residential property or unit seeking to engage in the transient
rental or occupancy must obtain verification that the City's LDR's authorize the transient rental
and occupancy of the residential property as a permitted use; and
WHEREAS, the submission of an affidavit to the City will ensure compliance with the
City Code, and will establish confirmation by the property owner that there has been a
verification of the LDR's for the transient rental and occupancy at the residential property; and
WHEREAS, the affidavit will identify that the property owner has obtained the
appropriate business tax receipt, and mandate that a resort tax registration certificate has been
acquired pursuant to Chapter 102 of the City Code; and
WHEREAS, an owner of a residential property or unit located within an apartment-hotel
or condominium-hotel, which is not affiliated with the primary hotel operator (hotel pool of units),
will be legally required to provide written notification to a prospective guest disclosing the non-
affiliation with the primary hotel operator; and
WHEREAS, the City Commission finds that such a regulation is consistent with and
furthers the public health, safety and welfare of the City, and must be adopted to accomplish the
above objectives.
NOW, THEREFORE, BE IT ORDAINED BY THE MAYOR AND CITY COMMISSION
OF THE GITY OF MIAMI BEACH, FLORIDA, AS FOLLOWS:
SEGTION 1. That Chapter 102 entitled "Taxation," Article V entitled "Local Business Tax," of
the Code of the City Miami Beach is hereby amended to amend Section 102-377 entitled
"Penalties, enforcement; collection of delinquent fees and taxes, and criminal penalties," as
follows:
Sec.
CHAPTER 102
TAXATION
***
Article V. Local Business Tax.
102-377. Penalties, enforcement; collection of delinquent fees and taxes, and
criminal penalties.
Any person who shall carry on or conduct any business for which a tax receipt is
required by this article without first obtaining such tax receipt shall be issued a violation
for the offense. which shall have a civil fine of $1.000.00. The enhanced enforcement
for this violation shall be pursuant to subsection 102-377(d) herein.
The enforcement and aopeal of the Notice of Violation shall be consistent with those
requirements setforth in Section 102-386(C)(2) and (3).
(a)
2
142
(b) Any person who violates any other provision of this article shall be cited with a
notice of violation as provided in ehapte+€e Section 102-386(C) of this Code, and shall
mav be subject to one or more of the following enforcemenUcollection procedures:
(1) Preseeutien befere the eity's speeral master; as previded in ehapter 30; with
@in=
fl-)(2) Suspension/revocation proceedings as set forth in sections 102-383 through 102-
385.
(Q(3) Suit for injunctive relief to enjoin operation of the business in violation of this
article.
(q)(b) As an additional means of enforcemenUcollection and supplemental to the above, when
a notice or record of any past-due business tax/fees and penalties that become due and
payable to the city after the effective date of this section is recorded in the public records
of the county, the notice shall constitute a special assessment lien upon all real and
personal property of the business owing such fees and penalties, and shall remain a lien
equal in rank and dignity with the lien of ad valorem taxes, and shall be superior in rank
and dignity to all other liens, encumbrances, titles and claims in, to or against the
property involved. Such liens may be foreclosed or levied upon in the manner provided
by law.
@(€) ln addition to the above, a continued violation of this-seetien Subsection 102-377(a) for a
period of thirty 30 days or more without first obtaininq a tax receipt. shall be punished by
imprisonment not to exceed 60 days or by imposition of a fine not to exceed $500.00 or
both.
@(d) As an additional means of enforcement and supplemental to the above, if any person
carries on or conducts any business for which a tax receipt is required by this article
without first obtaining such tax receipt, then the city may prevent the business from
operating until the required tax receipt is obtained.
SECTION 2. That Chapter 102 entitled "Taxation," Article V entitled "Local Business Tax," of
the Code of the City Miami Beach is hereby amended to create Section 102-386 to be entitled
"Property Owner's Responsibilities regarding Transient Rental and Occupancy (Short Term) of
Residential Property," as follows:
CHAPTER 102
TAXATION
***
Article V. Local Business Tax.
Sec. 102-386. Propertv Owner's Responsibilities reqardinq Leqallv Permissible
Transient Rental and Occupancv (Short Term) of Residential Propertv.
Prior to receiving
orooertv. a Prooertv
A. An owner of a residential propertv is prohibited from advertisinq the residential property.
or any portion thereof. for its transient rental or occupancv. unless:
143
(_) The propertv owner submits an affidavit to the City. under penalty e+ of_peljg4r, for
each residential property or unit (or anv portion thereof). which states that the
prooertv owner:
a. Has confirmed that the City's Land Development Reoulations. which are
applicable to the residential property. authorize the property owner to enqaqe in
the transient rental or occuoancv of the residential propertv or unit: and
b. Has obtained a business tax receipt that has been issued to the property owner
for the ourpose of enoaoino in the transient rental or occuoancLof the residential
propertv or unit. as authorized bv the City's Land Development Requlations: and
c. Has reoistered the residential property with the Citv Finance Director. and
obtained the appropriate resort tax reoistration certificate pursuant to Chapter
102. Article lV. Division 4 of this Code.
d. Has complied with those apolicable requirements of the American Disabilities Act
Reoulations and desiqn standards. as may be required for the residential
prooerty or unit. in coniunction with attaininq compliance with the Florida Fire
Prevention Code and the Florida Buildinq Code.
e. Has obtained written authorization from the Condominium Association that
expresslv authorizes the propertv owner to enqaoe in the transient rental or
occupancv of the residential property or unit. The written authorization must be
attached to. and incorporated within. the Atfidavit submitted to the City of Miami
Beach.
L Has OisctoseO tne g
unit in tne aOvertise
those orovlsions s
B. Notwithstandino the requirements of Subsection A.. a property owner of a residential
unit(s). which is located within an aoartment-hotel or a condominium-hotel. must disclose
within the atfidavit that each prospective quest receives written notification that the
unit(s) is/are not affiliated with the primarv hotel operator at the property. and the*4he
whether or not the p ctive quest is # entitled to those benefits and amenities that
are offered bv the primary hotel operator. The advertisement o
tne orooertv owner mu
pdmarv notet ooerat
entittement to tfio
opeEtor
C. Penalties and enforcement.
(ll A violation of this Section shall be subiect to the followino fines:
a. lf the violation is the first offense. a person or business shall receive a
efr*H4he+#$;+#X3€9 written-warninq:
b. lf the violation is the second violation within the precedinq six months. a
person or business shall receive a civil fine of $4€€€€9 $l-000i0;
144
c. lf the violation is the third violation within the precedino six months. a
person or business shall receive a civil fine of $3.000.00: and
d. lf the violation is the fourth or subsequent violation within the precedino
six months. a person or business shall receive a civil fine of $5.000.00
anO tne Ousiness ta .
(Q Enforcement. The Code Compliance Department shall enforce this section. This
shall not preclude other law enforcement aqencies from any action to assure
compliance with this section and all applicable laws. lf a violation of this section
is observed. the enforcement officer will be authorized to issue a notice of
violation. The notice shall inform the violator of the nature of the violation.
amount of fine for which the violator is liable. instructions and due date for payinq
the fine. that the violation mav be appealed bv requestinq an administrative
hearino before a special master within ten (10) days after service of the notice of
violation. and that the failure to appeal the violation within ten (10) days of
service shall constitute an admission of the violation and a waiver of the rioht to a
hearino.
(Q Riqhts of violators: payment of fine: rioht to appear: failure to pay civil fine or to
appeal: appeals from decisions of the special master.
a. A violator who has been served with a notice of violation must elect to either:
j. pay the civil fine in the manner indicated on the notice of violation: or
ii. request an administrative hearino before a special master to appeal
the notice of violation. which must be requested within ten (10) days
of the service of the notice of violation.
b. The procedures for appeal by administrative hearing of the notice of violation
shall be as set forth in sections 30-72 and 30-73 of this Code. App*b# A
reouest for the_aelminisHive-hearinqe must be accompanied bv a fee as
approved bv a resolution of the citv commission. which shall be refunded if
the named violator prevails in the appeal.
c. lf the named violator. after issuance of the notice of violation. fails to pav the
civil fine. or fails to timely request an administrative hearinq before a special
master. the special master may be informed of such failure by repc#4rem the
pclbe code enforcement officer. The failure of the named violator to appeal
the decision of the pe*be code_enforcemenlofficer within the prescribed time
period shall constitute a waiver of the violator's riqht to an administrative
hearinq before the special master. and shall be treated as an admission of
the violation. for which fines and penalties shall be assessed accordinqlv.
d. A certified copv of an order imposinq a fine mav be recorded in the public
records. and thereafter shall constitute a lien upon any real or personal
propertv owned by the violator. which mav be enforced in the same manner
as a court judqment bv the sheriffs of this state. includinq lew aoainst the
violator's real or personal propertv. but shall not be deemed to be a court
145
iudqment except for enforcement purposes. On or after the sixtv-first (61st)
day followino the recordinq of anv such lien that remains unpaid. the City may
foreclose or othenruise execute upon the lien.
e. Any partv aoorieved by a decision of a special master may appeal that
decision to a court of competent iurisdiction.
f. The special master shall be prohibited from hearinq the merits of the notice of
violation or considerinq the timeliness of a request for an administrative
hearino if the violator has failed to request an administrative hearing within
ten (10) davs of the service of the notice of violation.
51. The special master shall not have discretion to alter the penalties prescribed
in subsection C(1).
SECTION 2. REPEALER.
All ordinances or parts of ordinances in conflict herewith are hereby repealed.
SECTION3. SEVERAB!LITY.
lf any section, subsection, clause or provision of this Ordinance is held invalid, the
remainder shall not be affected by such invalidity.
SECTION4. CODIFICATION.
It is the intention of the Mayor and City Commission of the City of Miami Beach, and it is
hereby ordained that the provisions of this Ordinance shall become and be made a part of the
Code of the City of Miami Beach, Florida. The sections of this Ordinance may be renumbered
or re-lettered to accomplish such intention, and the word "ordinance" may be changed to
"section," "article," or other appropriate word.
SECTION 5. EFFECTIVE DATE.
This Ordinance shall take effect ten (10) days following adoption.
PASSED AND ADOPTED this
-
day of
ATTEST:
Mayor Philip Levine
Rafael E. Granado, City Clerk
Underline denotes new language
(Sponsored by Commissioners Joy Malakotf and John Elizabeth Alemdn
and Co-Sponsored by Vice-Mayor Michael Grieco)
2016.
APPROVEDASTO
FORM & I.ANGUAGE
6
EFoRrrf=**
J 0o,l- , L'\'tL
a-r-m
146
Agenda ttem R-l L
Date
RESOLUTION NO.
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITYOF MIAMI BEACH, FLORIDA, ACCEPTING THE WRITTEN
RECOMMENDATTON OF THE ClTy MANAGER (AS SET FORTH tN THE
clrY coMMlssloN MEMoRANDUM ACCOMpANytNG THtS RESOLUTTON)
AND WAIVING, BY 5/7THS VOTE, THE COMPETITIVE BIDDING
REQUIREMENT, FINDING SUCH WAIVER TO BE IN THE BEST INTEREST
OF THE CITY; AND APPROVING, IN SUBSTANTIAL FORM, THE
GONCESSION AGREEMENT ATTACHED TO THIS RESOLUTTON
BETWEEN THE GITY AND HECTOR'S WATER SPORTS INC.
(coNcESstoNAtRE) FOR THE USE OF THE BARRY KUTUN BOAT RAMP
AT MAURICE GIBB MEMORIAL PARK, LOCATED AT 17OO PURDY
AVENUE, IN CONNECTION WITH THE OPERATION OF GUIDED JETSKI
TOURS, FOR A TERM OF ONE (1) YEAR, WITH TWO (2) ONE-YEAR
RENEWAL OPTIONS, AT THE CITY'S SOLE DTSGRETTON; SAtD
AGREEMENT BEING SUBJECT TO FTNAL NEGOTIATION BETWEEN THE
ADMINISTRATION AND GONCESSIONAIRE AND SUBJECT TO REVIEW
AND FORM APPROVAL BY THE CITY ATTORNEY'S OFFTGE; AND
FURTHER AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE
THE FINAL NEGOTIATED AGREEMENT.
WHEREAS, at the October 31,2014 Neighborhoods and Community Affairs Committee (NCAC)
meeting, the Committee directed Administration to research and assess options for regulating the use of
the boat ramp; and
WHEREAS, on January 30, 2015, Parks and Recreation Director, John Rebar, provided the
Neighborhoods/Community Affairs Committee (NCAC) with a presentation and discussion on the
potential options to manage and improve marine activities at the Barry Kutun Boat Ramp (the Boat Ramp)
at Maurice Gibb Memorial Park, located at 1700 Purdy Avenue (the Park); and
WHEREAS, following the discussion, the NCAC recommended that the Mayor and City
Commission direct the Administration to proceed with construction of a floating dock for non-motorized
marine vessels at the Park, from which non-motorized vessels including, without limitation, kayaks,
canoes, and paddleboards, may be launched, and to develop and implement a plan to control access to
the Barry Kutun Boat Ramp Park and to limit its use to City of Miami Beach residents for non-commercial
uses only; and
WHEREAS, on March 30, 2015, the City Commission accepted the recommendation from NCAC
and adopted Resolution No. 2015-28957, which authorizes the Administration to proceed with the
construction of a floating dock for non-motorized marine vessels at the Park, establish a policy for
commercial use of the Boat Ramp, and in consultation with the City Attorney's Office, to develop and
implement a plan to limit access to the boat ramp; and
WHEREAS, on May 11,2016, the City Commission approved, on first reading, Ordinance No.
2016-4022, amending Section 82-1 of the City Code, and prohibiting commercial transactions, activities
or operations on streets, parks or other public property, including the Boat Ramp, unless otherwise
approved by the City Manager (if commercial outdoor fee based activity with minimal impact) or
authorized by the City Commission pursuant to an approved concession agreement; and
WHEREAS, at the May 1 1, 2016 meeting, the City Commission expressed their interest in
permitting commercial operations at the Boat Ramp for water taxi service, amphibious tours and kayak
rentals; and
147
WHEREAS, on July 13,2016, the City Commission adopted, on second reading, Ordinance No.
2016-4022: and
WHEREAS, on October 19,2016, the City Commission adopted Resolution No.2016-29617,
directing the City Manager to refer all future applications for commercial concession operations at the
Boat Ramp to the Neighborhood/Community Affairs Committee (NCAC) for a recommendation prior to
submitting a proposed concession agreement to the City Commission for consideration and approval; and
WHEREAS, at the November 18, 2016 NCAC meeting, a discussion was held to consider Hector
Water Sports, lnc.'s application for concession operations at the Boat Ramp; and
WHEREAS, the NCAC meeting did not make a recommendation on the item and moved the item
to the December 2016 Commission meeting for consideration by the full City Commission; and
WHEREAS, Hector's Water Sports, Inc. provides guided jetski tours; and
WHEREAS, The Administration has negotiated with Hector's Water Sports, lnc. a non-exclusive
concession agreement (the Agreement) for the use of the Boat Ramp for entry and exit to and from
Biscayne Bay for the term of one (1) year with two (2) one-year renewal options; and
WHEREAS, pursuant to the proposed Agreement, the Concessionaire shall pay the City on an
annual basis, a total of $7,200 ($1,200 for annual motorized vessel operator fee and $6,000 for annual
launch fees); and
WHEREAS, the Administration recommends that the City Commission approve, in substantial
form, the Concession Agreement attached as Exhibit "l" hereto, subject to final negotiation between the
Administration and Concessionaire, and subject to review and form approval by the City Attorney's Office.
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 accept the written
recommendation of the City Manager (as set forth in the City Commission Memorandum accompanying
this Resolution) and waive, by 5/7ths vote, the competitive bidding requirement, finding such waiver to be
in the best interest of the City; and approve, in substantial form, the concession agreement attached to
this Resolution between the City and Hector's Water Sports, lnc. for the use of the Barry Kutun Boat
Ramp at Maurice Gibb Memorial Park, located at 1700 Purdy Avenue, in connection with the operation of
guided jetski tours, for a term of one (1) year, with two (2) one-year renewal options, at the City's sole
discretion; said Agreement being subject to final negotiation between the Administration and
Concessionaire, and subject to review and form approval by the City Attorney's Office; and further
authorize the Mayor and City Clerk to execute the final negotiated Agreement.
PASSED and ADOPTED this 14th day of December,2016.
ATTEST:
PHILIP LEVINE, MAYOR
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION ob/,
-
Doie
RAFAEL E. GRANADO, CITY CLERK
148
EXHIBIT D
Hector Watersports, I nc.
Draft Concession Agreement
149
CONCESSION AGREEMENT
BETWEEN
150
SECTION
1.
2.
2.1
3.
3.1
3.1.1
3.1.1.1
3.1.1.2
3.1.2
3.1.3
3.2
3.3
4.
4.1
4.2
4.3
4.4
5.
6.
6.2
6.3
7.
7.1
7.2
8.8.1 :
8.2
8.3 :
8.4
8.5
8.6
9.
10.
10.4
11.
11.2
11.3
12.
12.1
12.2
12.3
12.4
12.6
12.7
12.8
INDEX
TITLE PAGE
TERM ...........5
coNcESSroN AREA(S) AND CONTCESSTON SERVTCE ZONE .......5
Concession Area ........ .........5usE(s) .........6
Arnphibious Tours ................6
Approved use of Concession nrea......dii# ...........6
No Parking Privileges .....;::i.':l:. ...........6
Subordination of lnterest
Ownership of Program
EM
. Sgcurityt.-...........i1:::::.:::.:,,.,=...... .................... 10
'',,, lnspectici*'................:. "......".11
INSURANCE ....i:'........ ...................1 1truDEMtltrv.....!i;:.),... ...................."14
=ReleaseEf Liability for Program Participants ".."........... .......... 15
FORCE MA#URE ....... 15LaMr9ispute............ .".......15
Waiver of Loss from Ha2ards............... ................16
DEFAULT AND TERMINATION ..............".,..." 16Bankruptcy ......." 16
Default in Payment................ ........".""..16
Non-Monetary Default ........17
City's Remedies for Concessionaire's Default ."."..17
Surrender of Concession Areas/ Removal by Concessionaire of
EquipmenUlmprovements ............ .......18
Substitute Performance ..""..18
Termination for Convenience ............." 18
151
12.9
13.
14.
15.
16.
17.
17.1
17.2
17.3
17.4
18.
18.1
18.2
18.3
18.4
18.5
18.6
18.7
18.8
18.9
18.10
18.11
18.12
18.13
18.14
19.
VEN AIVER"
ro-
CoNCES$ilil
20.
21.S COMPLIANCE WITH FLORIDA PUBLIC RECORDS
isi
LAW......... .:ta=..;a.:,.':-::.. ..........;.,,... ...........25
EXHIBITS :;. "'.i'#.
= Exhibit 2'! Complet6o Rpptication for Commercial Concession Operations
= at Public Boat Ramps............... ...........30t,,. 1::l
Exhibit 3= Release Form. . ..... ... ...31
152
CONCESSION AGREEMENT
BETWEEN
CITY OF MIAMI BEACH, FLORIDA
AND
HECTOR'S WATER SPORTS, !NC.
("Effective Date"), between the CITY OF MIAMI BEACH, a municipaf=G ration of the State of
Florida, having its principaladdress at 1700 Convention Center Drive, Miami Beach, Florida,
TO UTILIZE THE BARRY KUTUN BOAT RAMP FOR
FOR THE OPERATION OF GU
THIS CONCESSION AGREEMENT (the "Agreqment")
WHEREAS, the Mayor and City Comnl
City
iti!i::*
Si ruO EXIT OF BISGAYNE BAY
TOURS
2016
the'importance of the City's public
property to the residents and viSitors of theti
WHEREAS, the City piohibits cohmercial activities or operations at the City's
greates a dan$e,.rous and hazard situation, which is a direct threat to the residents
and visitors
.::i:it*u ':a@fuana
parks, boat ramp(s), beach strudures, building'or other property or place, maintained or
operated by..tt=1..e..;.City, unless'exp@sly. authorizedSy the City Manager upon its public property,
or pursua-f.i-t.i .E.oE9g11on agreement that is approved by the City Commission; and
*,\#
illegal and"ffiffihori*d commercial transactions, activities and operations upon
r City for potG-.Etial unsdfupulous conduct; and
?4, '=:?? ':i:
WHEREAS, thE is legally ted to ensure the health, safety and welfare of its residents
and visitors who its facilities, and illegal commercial transactions, activities and
the City t,o unwarranted potential liability; andoperations un
directed staff to work with existing amphibious tour companies to continr.re their tours in the City
of Miami Beach and continue to utilize the Barry Kutun Boat Ramp; and
WHEREAS, Staff has negotiated the following non-exclusive concession agreement (the
"Agreement") for the use of the Barry Kutun Boat Ramp (the "Boat Ramp") at Maurice Gibb
Memorial Park (the "Park"), located at 1700 Purdy Avenue, for entry and exit to and from
Biscayne Bay for the operation of guided jetski tours (the "Program").
153
NOW THEREFORE, in consideration of the premises and the mutual covenants
and conditions herein contained and other good and valuable consideration, the receipt
and adequacy of which are hereby conclusively acknowledged, it is agreed by the parties hereto
as follows:
The City hereby grants to the Concessionaire, and the Concessionaire hereby accepts
from the City, the non-exclusive right to operate the Program (as further described herein) within
the Conoession Areas (as defined herein), in conformance with the purposes and for the period
stated herein and subject to all the terms and conditions herein contained and set forth.
The above recitals are true and correct and are incorporated herein by reference as part of this
':;;.,=-, =iLE
'' =
1.1 The term ("Term") of this Agreement shaffipfffor one (1) yeir, commencing on January
1, 2017 ("Commencement Date"), with twg (2) one-year renewal options to be exercised
at the City Manager's sole option and discretion, by providing Concessionaire with
written notice of same no less than thirty {30) days:prior to the eipiration of the then
operations until such time aS',the following have been met: (1) Concessionaire
has provided the City with evidenced.the requ tal approvals to operate
the Program including, without'limitatiOn, all 1itffiruired in subsection 6 !; "ld (?)
1.2
the City has appro-,ved Concessionaire's insurance cot/eiaggs as required in Section 9,
which shall incl,ud.F-.jnsur€nce coverage for all-Program VdSS6ls used by Concessionaire
For purpos"r'B,thir Agredrnent, , "Contr.ct Year" shall be defined as thatcertain 365
The City'fi'ereby grants to the ConcECsionaire the non-exclusive right, during the Term of this
Agreement, to operate the Pqram, aSt$Fcribed herein, upon the Concession Area defined in
subsection 2.1- a1d identified in Exhibit 1 to this Agreement (hereinafter, the "Concession
Area"):
2.1 ConcesCidn nrd5.
The Concession Area shall be the vehicle access path to the Boat Ramp and the
Boat Ramp, as more particularly depicted in Exhibit t hereto, and does not
include any adjacent or surrounding areas (the "Concession Area")" Additionally,
no improvements to the Concession Area ("Concession Area lmprovements")
shall be permitted, and no equipment may be maintained, on the Concession
Area without the prior written approval of the City Manager, which approval, if
provided at all, shall be at the City Manager's sole and absolute discretion, and
Exhibit 1 shall be arnended to incorporate the approved Concession Area
lmprovements and/or permitted equipment.
Concessionaire shall not install or operate any Program sites, nor identify
additional or alternate locations for same (other than as k1entified in Exhibit 1),
154
without the prior written approval of the City Manager, which approval, if provided
at all, shall be at the City Manager's sole and absolute discretion.
SECTION 3. USE(S).
The Concessionaire is hereby authorized to conduct the following kind(s) of businesses and
provide the following kind(s) of services related to the operation of the Program within
the Concession Area, all at its sole cost and expense:
3.1 Amohibious Tours.
3.1.'1. Approved Use of Concession Area
The Concession Area shall be used by -a ,G6ncessionaire on a nonexclusive
basis and solely and exclusively during Short intervals, for the entry and exit of
Biscayne Bay by the Program Vessels (as defined in subsection 3.1.2) during the
approved hours of operation forffiii(Rrogram. ln,the event the Concessionaire
uses the Concession Area for any purpose(s) and/or use(s) not expressly
permitted in this subsection 3.1,1,, such use shall be considered a default underpermitted in this subsection 3j:lii*such use shall be considered a default under
this Agreement, and the City s'hall be efl[itled to all remedies, including
termination of this Agreement, aryr,,.fo..-5tffi subsection 12.4. ln addition,
notwithstanding any other terms of this A$ieement, the City shall be entitled to
seek immediate relief, whether at law or
3.1"1.1 No Parkin0 Pritileqes- No
ln of Use. the public's right to use the Park, including
Dock, for,,non-commercial purposes is primary to theth€.jity has granted Concessionaire under this
rrefor€,.:'tE| rivilege to operate the Program pursuant to
shall not b'ff,bonstrued as limiting, in any way, the public's
including the Boat Ramp, for non-commercial
= Finally, notwithstanding any other terms of this Agreement, the privileges
under this Agreement are non-exclusive; therefore, the City shall not be
pievented,and/or prohibited, in any respect, from contracting for and/or
operating additional commercial activities/uses at the Park and/or at the
Boat Ramp, even if said activities/uses are in direet competition with the
services provided by Concessionaire under the Program.
3.1.2 Proqram Vessels.
The City hereby approves of Concessionaire's plan as to the type of vessel which
will be used in connection with the Program, as described in the Application for
Commercial Concession Operations at Public Boat Ramps, attached as
composite Exhibit 2 hereto (the "Program Vessel(s)"). Any amendments to
Exhibit 2, without limitation, as to type of Program Vessel, must be approved, in
155
3.2
writing, by the City Manager prior to such changes being implemented within the
Concession Area, and Exhibit 2 shall be amended accordingly.
Notwithstanding the above, the City and Concessionaire hereby acknowledge
and agree that the City's approval in subsection 3.1.2 above, as to the type of
Program Vessel is given by the City solely in its proprietary, and not in its
regulatory capacity. Notwithstanding such approval, in the City's proprietary
capacity, Concessionaire agrees to secure, at its sole cost and expense, all
required approvals from all governmental authorities having jurisdiction over the
Program, in connection with the operation of thq,,lp1ogram.
3.1.3 Hours of Operation =dffiA. The hours of operation a,rG+S.tle,$Jribed in Exhibit 2. Any change
with respect to the hours of opeiation shall require the written
approval of the C[FManager, p]ioi to implementing the new
property of Concessionaire
oversioht.con.",.iol}:#LT:]:;[;::::.ffi:T,:w-sitemonitoring
of the Concession Area and the areas surdnding the Concession ffibq.
,aliil ' ,,alir$iaof Proqram Ves+,,.I#{ The Program Vessels shall be the sole and exclusive
SECTION 4. CONCESSION FEES.
th-$.erm of this Ag1,,gement.
W^ I
3.3
4.1
4.2
sionaire is required to make to City which is not paid on or
before the respective date provided for in this Agreement shall be subject to interest at
the rate of eighteen percent (18%) per annum, or the maximum interest allowable
pursuant to Florida law, whichever is less, from the due date of payment until such time
as payment is actually received by the City.
Sales and Use Tax.
Any required Florida State Sales and Use Tax shall be paid by Concessionaire directly
or added to payments, at the designee's sole discretion, and fonararded to the City
4.3
156
4.4
as part of said payments. lt 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.
Marketinq and Advertisinq.
As of the Effective Date, the City Code does not allow advertising to be placed on the
Program Vessels or anywhere on the Concession Area. Advertising on the Program
Vessels or Concession Area shall be prohibited.
SEGTION 6. TAXES. ASSESSMENTS, LIGENSES;
6.1 Concessionaire shall' :pay before*linquenClP*#all taxes (including but not
limited to Re3o*''':fli6+NllA.no assesinrents Or anf=,,-,t<ind levied or assessed upon a
Concession Area and/or 6t
SECTION 5. INSPECTION AND AUDIT.
,..=
Concessionaire shall maintain its financial records pertaining to its operations herein throughout
the Term of this Agreement and for a period of threel3) years after the expiration or other
termination of this Agreement, and such records shall be open and available to the City
Manager or his designee, as deemed necessary-*py them. Concessionaire shall maintain all
such records at its principal office, currently l9=,@ at 7637 Carlvle Avenue, Miami Beach. FL
s!1[!, or, if moved to another location, all such records shall be relocated, at Concessionaire's
expense, to a location in Miami Beach, within tgJr{t0) days'notice (written or verbal) from the
City. These audits are in addition to periodic audits by the City of Resort Tax collections and
payments, which are performed separately. Nothing,*!o_!tained within this Section shall preclude
the City's audit rights for Resort Tax collection OurOosesff .
of Concession@jf!5
Concessionaire will hr
cession=aire by reaso- of this Agreement, or by reason
and/or operations within a Concession Area.
Concessionaire w[l@u.e;1f|i.{fffifi$-,,at its bwn expense, to contest the amount or validity,
in whde or in oart. 6f...anu.:,,,,{5'ffUt}ri ,iisrooriate oroceedinos dilioentlv conducted in ooodin wh6le or in part, 6f,e6r,;;,;; UU$,ffijip,,,fppriate proceedings diligently conducted in good
faith;tonce5bionaire mff.=rcfrain frorg paying a tax to the extent it is contesting the
irnposition of same in a manner that is in accordance with law. However, if, as a result
of such contest, additional ddinsuency charges become due, Concessionaire shall be
responsible for such delinquencV=c.,.!]arges, in iOOition to payment of the contested tax, if
so order6d. ',,; ,r: '':r.1
6.2 Procedure lf Ad.Valorem Taxes Assessed. lf ad valorem taxes are assessed against the
Concession Area (or any portion thereof) by reason of Concessionaire's business and/or
operations thereon, Concessionaire shall be solely responsible for prompt and timely
payment of same.
6.3 Licenses. Concessionaire shall also be solely responsible (at its sole cost and expense)
for obtaining and maintaining current any applicable licenses or permits, as required for
the operations contemplated in this Agreement including, without limitation, any
occupational licenses required by law for the proposed uses contemplated in Section 3;
the U.S. Coast Guard licenses for captains and the Certificates of lnspection for the
vessels; the State of Florida license; and any applicable City licenses.
157
SECTION 7. EMPLOYEES AND INDEPENDENT CONTRACTORS.
7.1 Concessionaire's Employees.
7.1.1 Concessionaire shall select, train and employ such number of employees or
contractors as is necessary or appropriate for Concessionaire to satisfy its
responsibilities hereunder. Concessionaire shall be the sole authority to hire,
terminate and discipline any and all personnel employed by Concessionaire.
7 .1.2 Concessionaire shall designate a competent fulltime employee to oversee the
dayto-day operations, and who shall act as the contract administrator for the
Program and serve as Concessionaire's primary point-person with the City. This
individual shall have the requisite amount of experience in operating, managing,
and maintaining the Program as contempl-ftd herein. The employee shall be
accessible to the City Manager or his designee at all times during normal
business hours to discuss the mA$pgement, operation and maintenance of the
Program, and during non-business hours in the event of emergency. Consistent
7.2
failure by the employee to be..',hccessible shall be reported to Concessionaire's
principal(s), and if not rectiffUd, shall be grounds for replacement of theemPloYee' " '....**
,-.,^ .t =,
Citv Manaoer's desiqnee. Except ror" tnor"\ffiitiriti". expressly set forth in this
Agreement for, respectively, the City- CommisEbn. and/or the City Manager, the City
Manager's designee for this Agreement shall se--rve as the City's day to day
representative and point person for Concessionaire with r-espect to the Agreement. The
City Manage/s designee shall be the Ci!/s Department of Parks and Recreation
8.2
Director or Assi Direp-tor.
AIR and OPERATION
The Concessionaire shall maintain, at its sole cost and expense any equipment (as
required to operate the Program), as well as the Program Vessels. The City shall
maintain the Boat Ramp to address normal wear and tear of the dock; however,
Concessionaire shall be responsible for reimbursing the City for any maintenance and
any repairs as a result of the operation of the Program at the Boat Rarnp, including any
damage which may be caused by the Concessionaire, its employees, contractors,
agents or invitees. Any such maintenance and repairs shall be performed by the City, as
deemed necessary, at the City Manager's sole discretion, and Concessionaire shall
reimburse the City within 10 (ten) days from receipt of the invoice.
The Concp,gflbEaire accEtr{l
this Aglgffiht"?S I&i;, "WH
Date. r1ffi,,, = i,zru.
lfre usffio[ any,''un6 all Concession Areas provided in
RE lS,' afrC;ng.uir Au reuuTS," existing as of the Effective. ,:;#dt;"ij;:::j,,: iLil
8.1 lm M
norllfr
WHIh
158
Concessionaire shall be solely responsible for the day to day operation and shall
maintain any equipment the Program Vessels and any equipment thereon in grood
working order and condition. Concessionaire shall keep Program Vessels free of
graffiti. No repairs to the Program Vessels may be made on-site. Any Program Vessel
needing maintenance shall be removed from circulation and serviced
at Concessionaire's repair center. No Program Vessel or equiprnent may be stored at
the Park.
It shall be Concessionaire's sole obligation
improvements made by Concessionaire to the
to ensure that any repairs and/or
Prog;am Vessels complies with all
applicable life safety codes of governmental jurisdict'ron.
Concessionaire agrees, also at its sole cost , to pay for all garbage disposal
generated by its operations" Garbage may not of at the Concession Area.
8.3 Orderlv Operation.
The Concessionaire shall have a neat and orderly operation at all times and shall be
1. : "solely responsible for the necessary housekeeping services to maintain its
Operations. Concessionaire warrants and presentfthat operation
does not require use of thq,F king or docii'a ldiated at the P;iii=Entry and exit
shall be conducted at extrdffiE,.l . Stahding and stopping will only occur to
allow the safe launch and sthers utiiiZing the Boat Ramp. All applicable
rules, laws and ordinance
8.4
.,.i1 'tltjlti
No Danqerous Materials.
;fu concessionaire.
",:.,:::!ll .',?,,::::,=. :
==1\lTia,
g...9..Ie i5i-Z,gJpentine, benzenC, .aaphtW.lll1lpropane,gas, or other similar
=$ tances,
L]!U:UIL:L:l^J :-
materials, or. expl iVes of any kind, or any substance or thing
piohibited in the rd policies of fire [hSurance companies in the State of Florida, on
on@i: any of thd oh Areas, or on any City property andior right of way.
ire shall ahd hold City harmless from any loss, damage, cost, or
"hazardous sUbfitgncef.p "petroleum products" on, under, in or upon the Concession
Areas as those QryS are defined by applicable Federal and State Statute, or any
environmental ruleS and environmental regulations promulgated thereunder; provided,
however, Concessionaire shall have no liability in the event of the willful misconduct or
gross negligence of the City, its agents, servants or employees. The provisions of this
Subsection 9.4 shall survive the termination or earlier expiration of this Agreement.
8.5 Securitv.
The Concessionaire shall use the Concession Area at its own risk. The City shall not be
obligated to employ or provide any security measures to protect the Concession Area.
Under no circumstances shall the City be responsible for any stolen or damaged
:l
will befihe
10
159
equipment, nor shall City be responsible for any stolen or damaged personal property
of Concessionaire's employees, contractors, agents, patrons, guests, invitees, and/or
other third parties.
8.6 lnsoection.
The Concessionaire agrees that the Concession Area may be inspected at any time by
the City Manager or his designee, or by any other municipal, County, State officer, or
officers of any other agency(ies) having responsibility and/or jurisdiction for inspections
of such operations. The Concessionaire hereby waives all claims against the City for
compensation for loss or damage sustained by reason of any interference with the
concession operation as a result of inspection by any public agency(ies) or officials,
(including, without limitation, by reason of any such public agency or official in enforcing
any laws, ordinances, or regulations as a re-sult thereof). Any such interference shall not
relieve the Concessionaire from any obligati<iri hereunder.
SECTION 9. INSURANCE.
9.1 Without limiting its liability under this
Schedule :
Worker's
ire shall, at all times
during the Term of this Agr.e ent, procure and'maintain, at its sole expense (and
Concessionaire shall require iii Concessionaire, gubcontractors, laborers, materialmen
and suppliers to provide, as @pticable), insurandQ o[ the types and in the minimum
amounts stated below, and provide a certificate with an$[cable endorsements on a form
that is acceptable$*the City's Division of lnsurance and Risk Management evidencing
the following requiied coverages to the City (including coveiage of all Program Vessels
which shall d by Concessionaire to @rate the F.rogram):
Wdrker's Co rn pe n sa t6if,:ft
E*oloyer's Liabitity':::'i
- Limits
Liability
,..- Florida Statutory Coverage
= :, $i,000,000 Each Accident
""'.::s $1,000,000 Disease Policy Limit
$1,000,000 Each Employee/Diseaseii@
lo'ffcessionaire (and to the extent its subcontractors andThis insuiance shall cdVer the Cci
sub-contraftrs are not.othenryise insured, its subcontractors and sub-contractors) for
those sources of liabili-ty which would be covered by the latest edition of the standard
Workers' Compensation policy, as filed for use in the State of Florida by the National
Council on Compensatidn lnsurance (NCCI), without any restrictive endorsements other
than the Florida Employers Liability Coverage Endorsement (NCCI Form WC 09 03),
those which are required by the State of Florida, or any restrictive NCCI endorsements
which, under an NCCI filing, must be attached to the policy (i.e., mandatory
endorsements). ln addition to coverage for the Florida Workers' Compensation Act,
where appropriate, coverage is to be included for the Federal Employers' Liability Act,
USL&H and Jones Act, to extent coverage is not provided by the Protection and
lndemnity policy and any other applicable federal or state law.
Hull Coveraqe: Coverage for direct damage to vessels written on American lnstitute Hull
clauses form, specifically including "Running Down clauses," "Agreed Valuation
1.L
160
clauses," and Amount of insurance based on value of vessels. The policy shall cover
collision liability on a primary basis.
Protection and lndemnity Coveraqe: Form "SP 23" Coverage for water taxi
operations of the watercraft, as included in "SP23" for damage to any harbor, graving,
piers, bumpers, etc.; including, but not limited to, Crew to the extent coverage is not
provided by the Worker's Compensation policy, Passenger and Coverage for property
and liability from land while loading and unloading the Ferry or Water Taxi and on-board
during navigation along with Cargo Legal Liability, Dock Liability, Excess Collision over
insured hull limit.
(Coverage shall include Premises, Pollution Exclusion Buyback Endorsement A,
Personal Effects, Medical Payments, Voluntary Wreck Removal, and Pollution Buyback).
$ I 0,000 "c,overage required.
Vessel Pollution Liability (Occ. Form)
lncluding clean-up cost $ f6.qA,-qp0 Anyong Sched u led*sse l, any
one1fi#ifl, ntf3,ffi$' 90, CERCLA, SpiII
Managdftiib.nt liti'f ighting and Sa|vage and
Defense C6$iii1"rcluding damage to Property
Ashore. "\lildltr,,
lncluding Water Quality lnsurande SyndicatB orlimits). ..ri .- ,.
Coverage foi third party fiebility for land based operations to the public and connection
with the amphibious tour taxi-operation, specifically including Occurrence form, Bodily
lnjury, Property Damage, Products & Completed Operations, Medical Payments,
Per Statutory coverage and
t'x1,S h insuranc'6==.-S,hall be no more restrictive than that provided by the most recent
, Contractual Liability, Ship Repair Liability.
Bumpershoot Liability $1,000,000 Per Occurrence and Aggregate
(The Bumpershoot Liability pollcy shall be in excess of the Employer's Liability,
Commercial General Liability, Automobile Liability, Personal & lndemnity and Pollution
Liability limits without any gap. The Bumpershoot coverage will follow form the
underlying coverages and provide on an Occurrence basis all coverages listed
above.)
Ve,BJon of the sta@,fir,,fl Coftmercial General Liability Form (lSO Form CG 00 01) as
file6* use in the Stbte of Florida without any restrictive endorsements other than those
approVedly the City'sttffi1ce of lnSUrance and Risk Management.=-%;= I g2,ooo,ooo GeneralAggregate
, ::-i=._" $1,ooo,ooo Eachoccurrence
-;!.,;.':' $ 50,000 Fire Damage
$ 5,000 Medical Expenses
t2
161
A,
B.
Waiver of Subroqation. All insurance shall be endorsed to provide for a waiver of
undenruriter's rights of subrogation in favor of the City of Miami Beach and the City's
members, officials, officers and employees.
Additional lnsured: All lnsurance, except Worker's Compensation and Professional
Liability, shall be endorsed to name the City of Miami Beach and City's members,
officials, officers, and employees. Additional Liability shall be in a form no more
restrictive than CG2010 and Automobile Liability CA2048; endorsements will be
provided to, reviewed and approved by the City's Division of lnsurance and Risk
Management prior to commencement of work.
insurance provided by the
Concessionaire for shall apply on a to, and shall not require
maintained by the City orcontribution from, any other insurance orii
City member, official, officer and employee"
D. Deductible or self-insured retention. Except as a s Agreement, the
insurance maintained by the Concessidnaire shallapply on a lar basis without
application of a self-insurance, dedu'ctible, or sClf-insured
c.
!l?&..
il\
authorized specifically i[$fllrifil2in Agreemeht,,'fi-o self-insurance, ddddctible, or self-
insured retention for anyY$ff(ii(0..djnsurance, the Concessionaire shall be responsible
for paying on behalf dfft7,,tll6::=1gitru (and any other person or organization
required insurance) any self-irl$;glancd
under this paragraph. The Cityt""witt
ded ucti bl€S or self-i nsUied
E. Concessionaire'S lnsuiance Addition'dl:,,Remedy. Compliance with the insurance
of this A$reem6ntshall n6t limit the liability of the Concessionaire or its
or Sub- subcontractors, employees or agent to the City or others.
to City or City's members, officials or employees shall be in
in li6u of any other remedy available under this Agreement or
. Neither approval by the City nor failureto di
Conce
tpe=. insurance furnished by Concessionaire shall relieve
-ofSoncessionaire's full responsibility to provide insurance as
required flgreement.
G. Each policy shall be written by an insurer holding a current certificate of authority
pursuant to chapter 624, Florida Statues or accompany that is declared as an
approved Surplus Lines carrier under Chapter 626 Florida Statutes. Such insurance
shall be endorsed to provide for a waiver of underuvriter's rights of subrogation in
favor of the City. Such lnsurance shall be written by an insurer with an A.M. Best
Rating of A-Vll or better. Prior to commencing any Services, Certificates of lnsurance
approved by the City's Division of lnsurance & Risk Management demonstrating the
maintenance of said insurance shall be furnished to City. The Concessionaire shall
Any remed|
13
162
H.
provide an endorsement issued by the insurer to provide the City thirty (30) days
prior written notice of any change in the above insurance coverage limits or
cancellation, including expiration or non-renewal. ln the event the Concessionaire is
unable to obtain such endorsement, the Concessionaire agrees to provide the City
the notice directly. Until such time as the insurance is no longer required to be
maintained by the Concessionaire, Concessionaire shall provide the City with
renewal or replacement evidence of insurance with the above minimum requirements
no less than 30 days before the expiration or termination of the insurance for which
previous evidence of insurance has been provided.
Notwithstanding the prior submission of a Certif:icate of lnsurance, copies of
endorsements, or other evidence initially acceptable to City's Division of lnsurance
and Risk Management, if requested to do so b tha City, the Concessionaire shall,
within thirty (30) days after receipt of a writt€n request from the City, provide the City
with a certified, complete copy of the pplici* of inS'ur:ance providing the coverage
required herein. ds##+'
Anything to the contrary notwitns--ding, the liabilities of tne Concessionaire under
this Agreement shall survive and not be*rminate.i reduced or otheruvise limited by
any expiration or terminatiorr of insurance cov-eFage. Neither approval of, nor failure
to disapprove, insurance furnisheO OyVffi$/lfConcessionaire shall relieve the
Concessionaire or its sub-iontractors or sub-,subcontractors from responsibility to
provide insurance as required by the Agreement.
t.
:-.-r : ,llliliil iture of any aspe-Ct,.,of. y pldject and its accompanying
the City rnayi: at=its sole option require additional insurance
ve to,,those liabilitidS, which may or may not require
as an additional insured.
K.
::::::::: : :::::::]10.1 ln consideration 6f a SEparate and specific consideration of Ten ($10.00) Dollars and
other good and valuable consideration the receipt and sufficiency of which are hereby
acknowledged, Concessionaire shall indemnify, hold harmless and defend the City, its
officials, directors, employees, contractors, agents, and servants from and against any
and all actions (whether at law or inequity), claims, liabilities, losses, and expenses,
including, but not limited to, attorneys'fees and costs, for personal, economic or bodily
injury, wrongful death, loss of or damage to property, which may arise or be alleged to
have arisen from: (1) wholly or in part from the negligent acts, errors, omissions or other
misconduct of Concessionaire, its officers, director, members, employees, agents,
contractors, subcontractors, or any other person or entity acting under Concessionaire's
ffiJ. Depending upoh
exposures:Ofld lia
coverageS |in;Qrnoun
that the City'affue
' i/./iSection 9, within two ({} days fromq}eaeipt of a written request from the City shall
constitute a mat€iial defauit under this Agreement and shall entitle the City to pursue
its default remedies, as set forth.in subsection 12.4, without affording Concessionaire
an opportunity to cure the defauft.
t4
163
control or supervision; (2) Concessionaire's breach of the terms of this Agreement or its
representations and warranties herein; or (3) the operation of the Program. To that
extent, 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.
10.2 ln addition, in consideration of a separate and specific consideration of Ten ($10.00)
Dollars and other good and valuable consideration the receipt and sufficiency of which
are hereby acknowledged, Concessionaire shall indemnify, hold harmless and defend
the City, its officials, directors, employees, contractors,4gents, and servants from and
against any claim, demand or cause of action of whatoVer kind or nature arising out of
any misconduct of Concessionaire, its officialS, directors, employees, contractors,
agents, and servants not included in the paragraph in..the subsection above and for
which the City, its officials, directors, emg,rlii'y.Ees, contractors, agents, and servants are
alleged to be liable {if,
10.3 Subsections 10.1 and 10.2 shall survirlle.termination or expiration of this Agreement.
Subsections 10.1 and 10.2 shall not a
result of the willful misconduct-or gross neg
ver'.!,9*u.,.3ny such liability that arises as a
Release of Liabilitv for ProqffilHsilticipants. Cdncessionaire shall ensure that Program
participants execute a release:.in cbhnection witt{'thpir participation in the Program,
which release shall include':.,.lhe Uififili1lrrB,s an ",H,Hd.itional releasee thereunder.
Concessionaire shall p.rolde the City. with a the'? se form for approval by the
City's Risk Manager, wh1ch approved relerar!6:.. ifu'$.!,,3=! sattached as Exhibit 3 hereto.
10.4
SECTION 11. FORCE MAJEURE:
'=', ., --
"
...r..,11.1 Nej!' E+a'S all b=6 obli$&d' erform"ff"fir,eunder and neither party shall be deemed
, i :::::::eifu Any act or l of:'related acts resulting ll destruction, vandalism or theft oflrlli\\i.U,- ' tvr.-rl-'"ffi1ryater station'@hich rendet at least fifty (5070) percent of the Concessionaire
I lffir-eas unusabl6:at, any oneloint in time and which is not caused by negligence
; flood; act of God; direct act of terrorism; or civil
which renders at least fifty (50%) percent of the Concession
Areas
c. any law, ordinance, rule, regulation or order of any public or military authority
stemming from the existence of economic or energy controls, hostilities, or war
which renders at least fifty (50%) percent of the Concession Areas unusable"
11.2 Labor Dispute.
ln the event of a labor dispute which results in a strike, picket or boycott affecting at least
fifty (50%) percent of the Concession Areas, Concessionaire shall not thereby be
deemed to be in default or to have breached any part of this Agreernent, unless such
dli4
b. ea
164
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).
11.3 Waiver of Loss from Hazards.
The Concessionaire hereby expressly waives all claims against tlrc City for loss or
damage sustained by the Concessionaire resulting from any Force Majeure
contemplated in Subsection 11.1 and Labor Dispute in Subsection 11.2 above, and the
Concessionaire hereby expressly waives all rights, claims, and demands against the City
and forever releases and dischargres the City of Miam[,Rgach, Florida, from all demands,
claims, actions and causes of action arising from anffi th'b aforesaid causes.
:,..,, .=.-==:i...ji=
SECTION f 2. DEFAULT AND TERMINATION. .'':iis *ii-,,
-Subsections 12.1 through 12.3 shall constitute events of default unde-r this Agreement. An
event of default by Concessionaire shall entitle the City to exercise any and all remedies
described as City's remedies under this Agreement, includingiut not limitQr$=tO those set forth in
Subsection 12.4. .jx{
,
lf either the City or Conce$$ftp.naire =5ff,,$r[....:!......g:adjudged bankrupt or insolvent, or if
any receiveror tiustee of alli,br any',$=5fi=6--the business property of either party
shall be appointed, or if any r{ffifuEftt all'or any part of the business property
shall be appointed and shall not be discharged within sixty (60) days after
appointmenti, or if .6ither party shafl make an assignment of its property for the
-,,. iffi*_ $t".of creditors, or shall file a voiuntary petition in bankruptcy, or insolvency,
,:..:.,,,a ' ljr'ruffiflNfl,6p*RlV for organization oi arrangement with its creditors under the7'a bankruptcXfur insolvency laws now in force or hereinafter enacted, Federal,
='*; State, or otlibfuise, or if such petitions shall be filed against either party and shall
not be dismiss@pithin sixty (60) days after such filing, then the other party may
im,pediately, oi1;#|rany time thereafter, and without further demand or notice,
teiB:lnate this Adftment without being prejudiced as to any remedies which may
.:.::aaa.:a:.
be a'tajlable to ffibreach of contract.
12.2
ln the event Concessionaire fails to submit any payment within five (5) days of its
due date, there shall be a late charge of One Hundred and Fifty ($150.00) Dollars
per day for such late payment, in addition to the interest which accrues pursuant
to subsection 4.2. lf any payment and accumulated penalties are not received
within ten (10) days after the payment due date, and such failure continues for
ten (10) days after written notice thereof, then the City may, without further
demand or notice, terminate this Concession Agreement without being
preludiced as to any remedies which may be available to it for breach of contract.
L6
165
12.3 Non-Monetary Default.
Unless othenvise set forth in this Agreement, in the event that Concessionaire or
the City fails to reasonably perform or observe the non-monetary covenants,
terms or provisions under this Agreement, and such failure continues ten (10)
days after written notice thereof from the other party hereto, such non-defaulting
party may immediately or at any time thereafter, and without further demand or
notice, terminate this Agreement without being prejudiced as to any remedies
which may be available to it for breach of contract. ln the event that a default is
not reasonably susceptible to being cured within such period, the defaulting party
shall not be considered in default if it shall, within such period, commence with
due diligence and dispatch to cure such d€fault and thereafter completes with
dispatch and due diligence the curing of such default, but in no event shall such
extended cure period exceed thirty (30) days from the date of written notice
thereof. ln the event ConcesslQ#lklfe' cures any default pursuant to this
subsection, it shall promptly pro_ffid"the City Manager with written notice of
same.
12.4
lf any of the events of=iefault, as set this Section, shall occur, the City
may, after expiration Of the cure periods,qa'C provided above (unless othenruise
provided in the Agreembnt), ''at itssole optip nd discretion, institute such
proceedings-,$ft;, in its opinion are ;'necessary td'' cure such defaults and to
compensatelfGiffiipr damageE resulting from su6fi defaults, including but not
limite6 ine ri$[it to give to Concessionaire a notice of termination of this
Agree - lf sucl! notice is given, the term of this Agreement shall terminate
and every part thereof, shall cease and terminate
any other rights and remedies it may have, retain all
sums paid to it Q.y ire under this Agreement.
ln addition to the rights set forth above, the City shall have the right to pursue any
and all of the following:
a. the'right to injunction or other similar relief available to it under Florida law
againSt Concessionaire; and/or
b. the right to maintain any and all actions at law or suits in equity or other
proper proceedings to obtain damages resulting from Concessionaire's
default.
12.5 lf an event of default by the City shall occur, the Concessionaire may, after
expiration of the cure periods, as provided above, terminate this Agreement upon
written notice to the City. Said termination shall become effective upon receipt of
a written notice of termination by the City, but in no event shall Concessionaire
Area and to,this
and City may,.16
upon the'dfite-spe==dffiri.l such notice from City to Concessionaire. On the date
s-o specified)=ft,n#sionaireshall therr quit and surrender the Concession Area
tO City pursuantTtU"fie provlsio_4q_gJ Subsection 12.6. Upon the termination of this
Agreement, all rigtls- and interesi of Concessionaire in and to the Concession
17
166
specify a termination date that is less than thirty (30) days from the date of the
written termination notice. On the date specified in the notice, Concessionaire
shall quit and surrender the Concession Area(s) to City pursuant to the
provisions of Subsection 12.6.
12.6 Surrender of Concession Areas / Removal bv Concessionaire of
Eq uipment/l mprovements.
Upon expiration, or earlier termination of this Agreement, Concessionaire shall
surrender the Concession Areas in the same condition as the Concession
Areas were prior to the Commencement Date, reasonable wear and tear
excepted. Concessionaire shall, at its sole expense and at no charge to the
City, cease using the Concession Area, no,ffer than thirty (30) days after the
conclusion of the Term, (or from the date of other termination of this Agreement)
unless a longer time period is agreed to, ih writin the City Manager).
Concessionaire's obligation to observe or perform this covenant shall survive the
expiration or other termination of this Agreement. Continued occupancy of any
Concession Areas after termination of the Agreement shall Constitute trespass by
the Concessionaire,._0.*nand may be prosecuted as such... ln, addition, the
Concessionaire shall pay to the City One Thousand ($1,000.00) Dollars per day
:::il:::H::: :: :'@'' I,:;maoes
to r such tres pass a nd ho'|d i n g ove r
12.7
12.8
ln the event that the perform its obligations or
cure any default under the t of written notice from the
City, then the City:Shall have the obligation, to undertake
[i@;ager de appropriate, and to charge Concessionaire for all actual costs
fthdiebEacurred by the Ciiy. ConceB-iionaire shall be responsible for paying all
f,6r Convenience of the C
TY MAY ALSO, THROUGH ITS CITY MANAGER, AND FOR ITS
CONV.ENIENCE#D WITHOUT CAUSE, TERMINATE THE AGREEMENT AT
ANY TtryE, s$UrRlNG THE TERM BY GIVING WRITTEN NOTICE TO
CONCE OF SUCH TERMINATION, WHICH SHALL BECOME
CONCESSIONAIRE OF SUGH NOTICE, FOLLOWING WHICH THE CITY
SHALL BE DISCHARGED FROM ANY AND ALL LIABILITIES, DUTIES, AND
TERMS ARISING OUT OF, OR BY VIRTUE OF, THIS AGREEMENT.
Citv Manaoer Emeroencv Powers
A. Notwithstanding anything to the contrary contained in this Agreement, and in
addition to any other remedy which the City may have under this Agreement or
pursuant to applicable law, if the performance by Concessionaire under this
12.9
167
Agreement or the Program is creating a public health, welfare or safety concern,
as determined by the City Manager, in the City Manager's sole discretion, the
City Manager may immediately suspend the performance of services under this
Agreement, including the Program, until such time as the condition has been
remedied to the satisfaction of the City Manager.
B. Removal of Concessionaire's Property durinq Emerqencv Situations. The City
Manager or his/her designee may direct or require the Concessionaire to
immediately remove, relocate and/or store any equipment located on the
Concession Area and any Program Vessel ("Concessionaire's Property") for
public safety considerations in emergency situations, including, without limitation,
a threatened tropical storm or hurricane.titten and/or verbal notification
by the City Manager of a tropical warning or alert, or other major
or upon the designation by the
Concessionaire shall, within no m6re than two hourS{same, remove and store
all of Concessionaire's Property to secure Concessionaire's Property in response
to the threatened storm or other emergency, and shall take all other measures
which may be necessary for the proteeJion oJlhe public with':-,g,gp_ect thereto. The
notification by the Cityfllanager of a hurricane or other major fr6ather event, or
the issuance of a iif,i{.ffi,Fape warning, shall constitute a public emergency
weather event that may adversely impa#,,tffir{
United States National Weather SeMqe-' or fiional Hurricane Center of a
tropical storm/hurricane warning::, or alert,occurs first, the
situation. The failure 6fiflttr'B-. itylo direct the Concessionaire to remove or safety
store Concessionaire'ttffirr;,,9i,{8@1r,p,Dpll not relieve the Concessionaire of its
obligation to remove aff(f?lstore ",c6--?ioerssionaire's Property in response to aii ::::::::i::.; ^.threatened Storm event as 6utlined heidi.ffihrl,...,qer_\: :uuuu:
Shouid Concessiohaire fail to remo-ve ConcEisionaire's Property within said two
eiiif.ftpse, with pA,, ent to the City for all such costs due within thirty (30) days of
Cil,I$i invo i ce to,€ cessio na i re.
Co I be solely
(2) hour period, or [n the event tttB ity Manager or his/her designee determines,
at his/her sole discretion, that Concessionaire's removal, storage and other
',=='-ft.=-d=.s.,,,,,-are Otherwise not . satisfactory, Concessionaire shall thereafter be
i=aEaEi#d, ,q fee ot'$50.00 pCr houi, until such time as all of Concessionaire's
Propert/r6eve been removed to the City Manager's satisfaction. ln addition, the
,, City Mana$d.i1.;:vith0ut any obligation to do so, may immediately proceed to'€ffiNi5,, vltY lVlctllcl$t2,F:;:::.WlLllUUt allly UUllgarl.lUIl tU UU 5U' llliry llllllltrUlaltlly PlL
B\$hr.emove, relo€ and/or store the Concessionaire's Property that has otherwise
"\,1iiffi,,.P""n remov#by the C6ncessionaire, at the Concessionaire's sole cost and
other resulting from
responsible for any damage to City property or
Concessionaire's failure to remove and store
Conc,essionaire's property, or othenrvise implement appropriate measures in
response to a threatened storm or hurricane.
Concessionaire's failure to comply with this Section shall constitute a material default
under this Agreement and shall entitle the City to pursue its default remedies, as
set forth in subsection 12.4, without affording Concessionaire an opportunity to
cure the default. The remedies identified herein for Concessionaire's failure to comply
with this Section are cumulative, and in addition to, all remedies that may be available to
the City at law and in equity.
19
168
SECTION 13. PERFORMANCE BOND OR ALTERNATE SECURITY.
INTENTIONALLY OMITTED
SECTION 14. ASSIGNMENT.
Concessionaire shall not assign all or any portion of its costs or obligations under this
Agreement without the prior written consent of the City Commission, which consent shall be at
the sole and absolute discretion of the City Commission. Concessionaire shall notify the City
Manager of any proposed assignment, in writing, at least sixty (60) days prior to the proposed
effective date of such assignment. ln the event that any such assignment is approved by the
City Commission, the assignee shall agree to be bound by all.ttre covenants of this Agreement
: iaj
SECTION 15. NO IMPROPER USE. =
*The Concessionaire will not use, nor sufd,,.. r permit "nV person to use in any
manner whatsoever, the Concession Area or,a11ffffiiam Vessel, for any illegal, improper, immoral
or offensive purpose, or for any other purpose in violation of any Federal, State, County, or
municipal ordinance, rule, orderor regulation, oCiif----a-nygovd-mmental rule or regulation now in
effect or hereafter enacted or adopted. The
save and keep harmless the City, itSnfficials, em
against damage, penalty, fine, judgment, expense or charge suffered, imposed, assessed or
incurred for any violation, or breach of any law, ordinance, rule, order or regulation occasioned
by any act, neglect or om-l$Sion of the Concessionairepr any Offigkgl, director, agent, contractor,
or servant regarding the cohcessjon. ln the event of any violatiorx'*,by the Concessionaire, or if
the City or its autfi.0ri26d ve shall deem ahy conduct on the of the
Concessionaire to bE'obi or impropdr, the City Shall have the right to suspend
concession operation sh-6'*ld the cessionaire'fail to correct any such violation, conduct, or
practiceto the satisfactio'F..3.f.==.i ity;:;;. .. -
practice to the satisfactioiiu. f...,,.,t -Qity,Manager or his designee within twenty-four (24)
hours followin$ 'written notice of tne nalure-, and extent of such violation, conduct, or
practice. Such suspension to continue until tffiviolation is cured to the satisfaction from the
Citv Manaoer or his desionee ftu
part
to
City Manager or his desighee.
SECTION 16, NOTICES.=r^
All notices from the City to the Concessionaire shall be deemed duly served upon receipt, if
mailed by registered or certified mail return receipt to the address to the Concessionaire at the
following address:
With copies to:
20
169
All notices from the Concessionaire to the City shall be deemed duly served upon
receipt, if mailed by registered or certified mail return receipt requested to the City of
Miami Beach at the following addresses:
City of Miami Beach
1700 Convention Center Drive
Miami Beach, FL 33139
With copy to:
Attn':=..€ y Manager
The Concessionaire and the,,,,,9ity may ch@e the
upon giving the other party written notification.
Agreement must be in writingffi$il])W,,,
,
"
dbove mailing i
All notices under
at any time
Concession
SECTION 17. LAWS.
17.1 Compliance.
17.2
17.3
comply with all a@cable City, County, State, and Federal
rules and regulations, including but not limited to all applicable
County, State, and Federal ordinances, statutes, rules and
shall be governed by and construed in accordance
Neither Concessiofl'aire nor any affiliate of Concessionaire performing services
hereunder, or pursuant hereto, will discriminate against any employee or applicant for
employment because of race, creed, sex, color, national origin, sexual orientation, and
disability (as defined in Title I of ADA). Concessionaire will take affirmative steps to
utilize minorities and females in the work force and in correlative business enterprises"
27
170
17.4 NoDiscrimination.
All operations and services offered in the Concession Area shall be made available to
the public, subject to the right of the Concessionaire and the City to establish and
enforce reasonable rules and regulations to provide for the safety, orderly operation, and
security of the Concession Area and improvements and equipment thereon.
Concessionaire hereby agrees to comply with City of Miami Beach Human Rights
Ordinance as codified in Chapter 62 of the City Code, as may be amended from time to
time, prohibiting discrimination in employment, housing, public accommodations, or
public services, on the basis of actual or perceived race;, olor, national origin, religion,
sex, intersexuality, sexual orientation, gender identS-,ffimilial and marital status, age,
ancestry, height, weight, domestic partner stafit$*lilllbbor organization membership,ancestry, nergnt, wergnt, oomesttc partner sta#$lltiH
familial situation, political affiliation, or disabilitWi, l, ',,
,"W ru'{i
SECTION 18. MISCELLANEOUS. ":':;!%*,,
18.1 No partnershio.
= ...,r
*rr,*Mw
18.2 Modifications.
This
:.i :i
Nothing contained in this Ag_gppment shall consti nr be construed to be or create a
partnership or joint venture the City and Concessionaire..li
by Agreement in writing
executed by allP'arties he@.ire acknowledges that no modification to this
may be ag d to by the G@ unless approved by the Mayor and City
pt wher6 such authority hA,S::been expressly provided herein to the City
18.3
parties with re-'p$ tq1@cessionaire's operations, as contemplated herein.
18.4 Headinqs. "+'A,:,jE
The section, subsection and paragraph headings contained herein are for convenience
of reference only and are not intended to define, limit, or describe the scope or intent of
any provision of this Agreement.
22
171
18.5 Bindino Effect.
This Agreement shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and permitted assigns.
18.6 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 thEonsideration that either party is
to receive under this Agreement or materially affects the continuing operation of
18.7 Severabilitv.
18.8
The City, at the
:.this Agreement.
18.9 Not a Lease.
lf any provision of this Agreement or any portion of such provision or the application
thereof to any person or circumstance shdlFrjrhp h,g;[${E be invalid oi unenforceable, or
shall become a violation of any local, State;ffi FeOeral laws, then the same as so
applied shall no longer be a'pffi,of this AgreemEh!,but the remainder of the Agreement,
such provisions and the application thereof to other persons or circumstances, shall not
be affected thereby and this Agreement asi,S'otodified{fi-"All.
, ::: a '1"1
Mffhr; 'wtu
?n #fffiCity Manager, shall at all times during hours of operation,
'':;;$|#,lHff$ u$n=ny and all parts of the Concession Area(s) for thehave thE right to enl$F;iffillHf{d u .n V and all parts of the Concession Area(s) for the
pur:posdS of examinin$'$g,same foi. reason relating to the obligations of parties to
It is expressly understood and agreed that no part, parcel, building, facility, equipment or
space is leased to the Concessionaire, that it is a concessionaire and not a lessee; that
the Concessionaire's right to operate the concession shall continue only so long as this
Agreement remains in effect.
==
18.10 Siqnaqe.
Concessionaire shall not be permitted to install any signage at the Concession Area.
23
172
18.11 Procedure for Approvals andlor Consents.
ln each instance in which the approval or consent of the City Manager or his designee is
allowed or required in this Agreement, it is acknowledged that such authority has been
expressly provided herein to the City Manager or his designee by the Mayor and City
Commission of the City. ln each instance in which the approval or consent of the City
Manager or his designee is allowed or required in this Agreement, Concessionaire shall
send to the City Manager a written request for approval or consent (the "Approval
Request")'
@,er
The City Manager or his designee shall use reasorffible."efforts to provide written notice
to Concessionaire approving of consent to, or.ffi flF;pving of the request, within thirty
(30) days from the date of Approval Request (oF= hin.=$119h other time period as may be
expressly set forth for a particular approvalor consent undg-r this Agreement). However,
the City Manager or his designee's failure to consider S*uitr request within this time
provided shall not be deemed a waivei, nor shall assume that the
request is automatically approved and', consented to. The Manager or his
designee shall not unreasonably withhold such approval consent. This
18.12
any term expressed herein shall not be
tr1l i sr,\,, \Nxr,liiffiplied by anl't of the City to deClare a forfeiture on account of the violation of
SUeh term if s ion'by continued or repeated subsequently and any express
waiVer:.shall not term other than the one specified in such waiver and that one
manner specifically stated.
of the City to insist upoh-the strict-lffirf0.- nce ofili y of the conditions, covenants,
terms or provisions of this Agreement,'bi ao exercise any option herein conferred, will not
be considered or'construed-':as a waiv6:r.lg relinquishment for the future of any such
co?,$',tli$ffi1r1co.{enants, terms, provisions'"dP.:,,options but the same shall continue and
rd. iit*"i nvfl llN.\["orce and, effect. A waiver df:sanv term exoressed herein shall not be
only foi"the time and
covenant, terriilifi-!:S.pr- n herein contained shall not be deemed a waiver of such
breach, but sh€be taken, considered and construed as payment for use and
occupation, and not?s rent, unless such breach be expressly waived in writing by the
City.
18.13 No Third Party Beneficiarv.
Nothing in this Agreement shall confer upon any person or entity, including, but not
limited to sub concessionaires, other than the parties hereto and their respective
successors and permitted assigns, any rights or remedies by reason of this Agreement.
24
173
18.14 No Lien
ln the event any notice or claim of lien shall be asserted against the interest of the City
on account of or arising from any work done by or for Concessionaire, or any person
claiming by, through or under Concessionaire, or for improvements or work, the cost of
which is the responsibility of Concessionaire, Concessionaire agrees to have such notice
or claim of lien cancelled and discharged within fifteen (15) days after notice to
Concessionaire by City. ln the event Concessionaire fails to do so, City may terminate
this Agreement for cause without liability to City.
..::_1.1.,
SEGTION 19. LIMITATION OF LtABtLtTY.
,=a,,
The City desires to enter into this Agreement pta-_c" thi operation and management of
the Concession Area(s) in the hands of a private manageniHnt entity only if so doing the City
can place a limit on its liability for any cause of action for bredcffi this Agreement, so that its
liability for any such breach never exceeds the sum of Five T nd ($5,000.00) Dollars.
Concessionaire hereby expresses its willilgness to enter ifil$',,r this Agreement Five
Thousand ($5,000.00) Dollars limitation on recovery for any action foi breach of contract.
Accordingly, and in consideration of the separab consideration of Five Thtiup,..and ($5,000.00)
Dollars, the receipt of which iq,,,, ,,...-..*y acknowledged,".16" City shall ' be liable to
Concessionaire for damages to{ tr cessionaire in an amount in excess of Five
Thousand ($5,000.00) Dollars, for ary-="- tion for breach of contract arising out of the
performance or on-performance of any*ligati,0h.ai*i,pposed upon the City by this Agreement.
Nothing contained in this paragraph or eWffihere'iff;1.$$;,lfigreement is in any way intended to be
a waiver of limitation placed upon the Ciiffifik,tiani}iff ffie!Jortn in Florida Statutes, Section
768.28"
,,.: .fr I \r
secflor.r zo. veuuemArYen G.runv rnr"Af!
This Agreement shall oe UJme6* have been ;;d" and shall be construed and interpreted in
accordance with the laws of the State of Fl6 . Tlii-E\*Agreement shall be enforceable in Miami-
Dade'County, Florida,"and if leOd.action iS hecessary by either partywith respect to the
enforcement of any and all the terms or conditions herein, exclusive venue for the enforcement
of same shall lie in Miami-Dade County, Florida.
CITY AND CONCESSIONAIRE HEREBY KNOWINGLY AND INTENTIONALLY WAIVE THE
RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING THAT CITY
AND CONCESSIONAIRE MAY HEREIN AFTER INSTITUTE AGAINST EACH OTHER
wlTH RESPECT TO ANY ,, MATTER ARISING OUT OF OR RELATED TO THIS
AGREEMENT OR THE CONCESSTON AREA(S).
SECTION 21. CONCESSIONAIRE'S COMPLIANCE WITH FLORIDA PUBLIC RECORDS
LAW.
21.1 Contractor shall comply with Florida Public Records law under Chapter 119, Florida
Statutes, as may be amended from time to time. Records made or received in
connection with this Agreement are public records under Florida law, as defined in
Section 1 19.01 1(12), Florida Statutes.
25
174
21.2 Pursuant to Section 119.0701 of the Florida Statutes, if the Contractor meets the
definition of Contractor as defined in Section 1 19.0701(1Xa), the Contractor shall:
(A) Keep and maintain public records required by the City to perform the service;
(B) 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 1 19,
Florida Statutes or as othenrise provided by law;
(C) Ensure that public records that are exempt or confidential and exempt from public
records disclosure requirements are not disclos,. d, p-icept as authorized by law, for
the duration of the contract term and followin$"completion of the Agreement if the
Contractor does not transfer the records to the City;
(D) Upon completion of the Agreement, tfffi6,Fr, at no co3i..& the City, all public records
in possession of the Contractor or bnd maintain pEblic records required by the
City to perform the servic,e. lf transfers all public records to the City
upon completion of the Agreementffig=Contracto;shall destroy any duplicate public
records that are exempt or confiden@nnO e6ffi.Ht from public records disclosure
requirements. lf the Contractor keeps ail$lffig{fi,fi public records upon completion
of the Agreement, the Contiactor shall meet all applicable requirements for retaining
public records. All records stored electronicill4'qtust be provided to the City, upon
request from the City's custodian of public recordffiin a format that is compatible with
tha infarmalian faahnalnnrr arrolamo af {ha Ci{.r 3$9$ii.ill,-
must be
reedids, the
the City. lf the City does not possess the requested
(B) Contractor's failure to with the City's request for records shall constitute a
reedds, the Citp,ffi.ffiffifffifig#l9t9*.! notify the Contractor of the request, and the
Cohlractor'fu.,, 1p6$g-the recoffi[o the City or allow the records to be inspected
or copied with.in a reiffipe timelsNtii l'
bregch of this A$i6ement,*Bfid",the City, at its sole discretion, may: (1) unilaterally
terminate the Agreement; (Zfi'avail itself of the remedies set forth under the
Agreement; and/or (3) avail itself of any available remedies at law or in equity.
(C) A Contractor:,who fails to provide the public records t,o the City within a reasonable
time may be subject to penalties under s. 1 19.10.
::::21.4 Civil Action.
(A) lf a civil action is filed against a Contractor to compel production of public records
relating to the City's contract for services, the court shall assess and award against
the Contractor the reasonable costs of enforcement, including reasonable attorney
fees, if:
1. The court determines that the Contractor unlaMully refused to comply with the
public records request within a reasonable time; and
26
175
2. At least 8 business days before filing the action, the plaintiff provided written
notice of the public records request, including a statement that the Contractor
has not complied with the request, to the City and to the Contractor.
(B)A notice complies with subparagraph (1Xb) if it is sent to the City's custodian of
public records and to the Contractor at the Contractor's address listed on its contract
with the City or to the Contractor'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
***r-.N;(C) A Contractor who complies with a public records f,€ffist within 8 business days after
the notice is sent is not liable for the reasonable costs of enforcement.
*1 $,' .21.5 rF THE CONTRACTOR HAS QUESTTONSZZBEGART-=IUS THE APPLTCATTON OF
CHAPTER 119, FLORIDA STATUTES, TO THE CONTRAG.]'p',1$,'S DUTY TO PROVIDE
PUBLTC RECORDS RELATTNG TO THrS AGREEMENT, CONTA,E:-I THE CUSTODIAN OF
PUBLIC RECORDS AT:
ctw oF MrAMr BEA.H
1',',
.''i
==
ATTENTION: RAFAEL E. GRANAD.OJITY CLERK
17OO CONVENTION CENTER DRIVE
.:l:i::i:::::1%
^*.,-=-4i:itlll;,l1
?il::l:l=.
.,"?il
27
176
lN WITNESS WHEREOF, the parties hereto have caused their names to be signed and their
seals to be affixed, all as of the day and year first above written, indicating their Agreement.
Attest:CITY OF MIAMI BEACH, FLORIDA
Rafael E. Granado, City Clerk Philip
Attest:
*qi-f,:i,
\Bzz
=
l,Wl,,-
'rliLliti.\
1iiL}M,tffi
. .::a::4.::aaa+\
'.:.:::..:::::4.::
\..a:..4:a::aa.a.;:::..::::--
::=:::=
:::::::::::::
.,:1.
x\l,
_,"rr;,,, , :$:--ffi
W-eaad$'!$
.v.::j:::::::::
.::':,- ':.'::::::,-''-%W
Pri nt Na me and T itle t!,|[Et'//'
,rl,ilf,%r,
28
177
Exhibit 1
Barry Kutun Boat Ramp at Maurice Gibb Memorial Park
Commercial Concession Sife Plan
* crossed morked section is concession oreo
29
178
Exhibit 2
Application for Commercial Concess,on Operations
at Public Boat Ramps
30
179
Exhibit 3
Re/ease Form
31
180
Agenda ttem R1l''l
Date l2-ltl-10
RESOLUTION NO.
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITYOF MIAMI BEACH, FLORIDA, ACCEPTTNG THE WRITTEN
RECOMMENDATTON OF THE CtTy MANAGER (AS SET FORTH !N THE
clTY GOMMISSION MEMORANDUM ACCOMPANYING THtS RESOLUTTON)
AND WAIVING, BY 5/7THS VOTE, THE COMPETITIVE B!DDING
REQUIREMENT, FINDING SUCH WAIVER TO BE IN THE BEST INTEREST
OF THE CITY; AND APPROVING, tN SUBSTANTTAL FORM, THE
CONCESSION AGREEMENT ATTACHED TO THIS RESOLUTTON
BETWEEN THE CITY AND MIAMI WATERSPORTS LLG D/B/A MIAMI
BEACH PADDLEBOARD (GONCESSIONAIRE) FOR USE OF THE BARRY
KUTUN BOAT RAMP AT MAURICE GIBB MEMORIAL PARK, LOCATED AT
17OO PURDY AVENUE, IN CONNECTION WITH PROVTDING KAYAK AND
PADDLE BOARD RENTAL SERVICES, FOR A TERM OF ONE (1) YEAR,
wtTH TWO (2) ONE-YEAR RENEWAL OPTIONS, AT THE CtTy'S SOLE
DISGRETION; SAID AGREEMENT BEING SUBJECT TO FINAL
NEGOTIATION BETWEEN THE ADMINISTRATION AND CONCESSIONAIRE
AND SUBJECT TO REVIEW AND FORM APPROVAL BY THE CITY
ATTORNEY,S OFFICE; AND FURTHER AUTHORIZING THE MAYOR AND
CITY CLERK TO EXECUTE THE FINAL NEGOTTATED AGREEMENT.
WHEREAS, at the October 31,2014 Neighborhoods and Community Affairs Committee (NCAC)
meeting, the Committee directed Administration to research and assess options for regulating the use of
the boat ramp; and
WHEREAS, on January 30,2015, Parks and Recreation Director, John Rebar, provided the
Neighborhoods/Community Affairs Committee (NCAC) with a presentation and discussion on the
potential options to manage and improve marine activities at the Barry Kutun Boat Ramp (the Boat Ramp)
at Maurice Gibb Memorial Park, located at 1700 Purdy Avenue (the park); and
WHEREAS, following the discussion, the NCAC recommended that the Mayor and City
Commission direct the Administration to proceed with construction of a floating dock for non-motorized
marine vessels at the Park, from which non-motorized vessels including, without limitation, kayaks,
canoes, and paddleboards, may be launched, and to develop and implement a plan to control access to
the Barry Kutun Boat Ramp Park and to limit its use to City of Miami Beach residents for non-commercial
uses only; and
WHEREAS, on March 30, 2015, the City Commission accepted the recommendation from NCAC
and adopted Resolution No. 2015-28957, which authorizes the Administration to proceed with the
construction of a floating dock for non-motorized marine vessels at the Park, establish a policy for
commercial use of the Boat Ramp, and in consultation with the City Attorney's Office, to develop and
implement a plan to limit access to the boat ramp; and
WHEREAS, on May 11,2016, the City Commission approved, on first reading, Ordinance No.
2016-4022, amending Section 82-1 ol the City Code, and prohibiting commercial transactions, activities
or operations on streets, parks or other public property, including the Boat Ramp, unless otherwise
approved by the City Manager (if commercial outdoor fee based activity with minimal impact) or
authorized by the City Commission pursuant to an approved concession agreement; and
WHEREAS, at the May 1 1, 2016 meeting, the City Commission expressed their interest in
permitting commercial operations at the Boat Ramp for water taxi service, amphibious tours and kayak
rentals; and
181
WHEREAS, on July 13, 2016, the City Commission adopted, on second reading, Ordinance No.
2016-4022; and
WHEREAS, on October 19, 2016, the City Commission adopted Resolution No. 2016-29617,
directing the City Manager to refer all future applications for commercial concession operations at the
Boat Ramp to the Neighborhood/Community Affairs Committee (NCAC) for a recommendation prior to
submitting a proposed concession agreement to the City Commission for consideration and approval; and
WHEREAS, at the November 18,2016 NCAC meeting, a discussion was held to consider Hector
Water Sports, lnc.'s application for concession operations at the Boat Ramp; and
WHEREAS, the NCAC meeting did not make a recommendation on the item and moved the item
to the December 2016 Commission meeting for consideration by the full City Commission; and
WHEREAS, Miami Watersports LLC d/b/a Miami Beach Paddle Board (Miami Watersports)
provides paddle board and kayak rentals for the public; and
WHEREAS, the Administration has negotiated with Miami Watersports a non-exclusive
concession agreement (the Agreement) for the use of the Boat Ramp for entry and exit to and from
Biscayne Bay for the term of one (1) year with two (2) one-year renewal options; and
WHEREAS, pursuant to the proposed Agreement, the Concessionaire shall pay the City on an
annual basis, a total of $1,645 ($120 for non-motorized vessel operators annual fee and $1,525 for
annual launch fees); and
WHEREAS, the Administration recommends that the City Commission approve, in substantial
form, the Concession Agreement attached as Exhibit "l" hereto, subject to final negotiation between the
Administration and Concessionaire, and subject to review and form approval by the City Attorney's Office.
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 accept the written
recommendation of the City Manager (as set forth in the City Commission Memorandum accompanying
this Resolution) and waive, by 5/7ths vote, the competitive bidding requirement, finding such waiver to be
in the best interest of the City; and approve, in substantial form, the concession agreement attached to
this Resolution between the City and Miami Watersports LLC d/b/a Miami Beach Paddle Board for the
use of the Barry Kutun Boat Ramp at Maurice Gibb Memorial Park, located at 1700 Purdy Avenue, in
connection with providing kayak and paddle board rental services, fora term of one (1)year, with two (2)
one-year renewal options, at the City's sole discretion; said Agreement being subject to final negotiation
between the Administration and Concessionaire, and subject to review and form approval by the City
Attorney's Office; and further authorize the Mayor and City Clerk to execute the final negotiated
Agreement.
PASSED and ADOPTED this 14th day of December,2016.
ATTEST:
PHILIP LEVINE, MAYOR
APPROVED AS TO
TORM & LANGUAGE
& FOR EXECUTION
RAFAEL E. GRANADO, CITY CLERK
'*!/,t
182
CONCESSION AGREEMENT
BETWEEN
..a..:.:'
ttiilill
"'"'1''""'GITY OF MIAMI BEAGH, FLORIDA
MTAMI WATERSPORTS LLC D/B/A MlAiilI BEACH PADDLE BOARD
..,rt]rtr:,:r
TO UTILIZE THE ENNRY'i*UTUN BOAT RAMP FOR.ENTRY ANIO EXIT OF BISCAYNE BAY
FOR
THE PURPOSE OF PROVIDING KAYAK AND PADDLE BOARD RENTAL SERVICES
',l'.,Ii' . , 'r;i]iii::;. .t .. .. .i-r..
ri
'. I
:.ittt"'
r'::l:r' rr rrl:.1
183
INDEX
SECTION
1.
2.
2.1
3.
3.1
3.1.1
3.1 .1.1
3.1.1.2
3.1.2
3.1.3
3.2
3.3
4.
4.1
4.2
4.3
4.4
5.
6.
6.2
6.3
7.
7.1
7.2
8.
8.1
8.2 .j.,8.3 =8.4
8.5
8.6
9.
10.
10.4
11.
11.2
11.3
12.
12.1
12.2
12.3
12.4
12.6
T!TLE
IMPROVE
PAGE
12.7
12.8
INSUMNCE ....:,=..... ...................11
ir'roEiir-r.rriv : :r;:,: : :::::: ::: ::::::::::::: : : :: . .::.:: .. . r+
'Release of Liability for Program Participants ."............. .......... 15
FORCE MAJEURE ......" 15Labdi.:Dispute............ ......... 15
Waiver of Loss from Ha2ards............. ..................16
DEFAULT AND TERMINATION .....................16Bankruptcy ........16
Default in Payment................ ............"" 16
Non-Monetary Default ......."17
City's Remedies for Concessionaire's Default ....."17
Surrender of Concession Areas/ Removal by Concessionaire of
EquipmenUlmprovements ............ .......18
Substitute Performance""............. ........ 18
Termination for Convenience ..............18
184
12.9
13.
14.
15.
16.
17.
17.1
17.2
17.3
17.4
18.
18.1
18.2
18.3
18.4
18.5
18.6
18.7
18.8
18.9
18.10
18.11
18.12
18.13
18.14
19.
No Third Party
L I M ITATION OF LIAB I LITY--?'.;.-........
20.
21.
::::::,
CONCESSTIONAIRE'S COMPIIANCE WITH FLORIDA PUBLIC RECORDS
..i:-:ii:?
Exhibft
ia.,.:a:::::::. ":::::::
,,r;::::::,
Site PIan with Highlight of Ramp/Access .............29
eted Application for Commercial Concession Operations
-Release Form. .........31
Exhibit
185
CONCESSION AGREEMENT
BETWEEN
CIry OF MIAMI BEACH, FLORIDA
AND
MIAMIWATERSPORTS LLC D/B/A MIAMI BEACH PADDLE BOARD
TO UTILIZE THE BARRY KUTUN BOAT RAMP FOR ENTRY AND EXIT OF BISCAYNE BAY
FOR
THE PURPOSE OF PROVIDING KAYAK AND PADDLE BOARD RENTAL SERVTCES
THIS CONGESSION AGREEMENT (the'Agreement") made on 2016
("Effective Date"), between the CITY OF MIAMI BEACH, a municipal corporation of the State of
Florida, having its principal address at 1700 Convention Center Drive, Miami Beach, Florida,
33139 (hereinafter called the "City"), and MIAMI WATERSPORTS LLG d/b/a MIAMI BEACH
PADDLE BOARD, whose address is 1416 18th Street, Vfmi Beach, Florida, 33139 (hereinaftercailed ,,,r,i,,,,,,',,.,. ,,concessionaire,,).
',':,,,.,,:,,,,..
"1il''11""i wlrNESSE :'1""""'"" ":""
WHEREAS, the Mayor and City Commission recognize ti! irportance of the City's public
property to the residents and visitors 9f the City of Miami Beach; and
WHEREAS, the City prohibits commercial transactions, activities or operations at the City's
parks, boat ramp(s), beach S@ip{ures, building or other property or place, maintained or
operated by the City, unless expressly authorized by the City Manager upon its public property,
or pursuant to a concession agreementthat is approved by the City Commission; and
WHEREAS, illegal and unau6rized commercial transactions, activities and operations upon
City property, creetes a dangerous and hazard situation, which is a direct threat to the residents
and visitors of the City for potential unscrupulous conduct; and
WHEREAS, the City is lqally obligated to ensure the health, safety and welfare of its residents
and visitors who utilize its public facilities, and illegal commercial transactions, activities and
operations unnecessarily exposes the City to unwarranted potential liability; and
WHEREAS, accordingly, the City Commission at the July 13th 2016 City Commission Meeting
directed staff to work with existing amphibious tour companies to continue their tours in the City
of Miami Beach and continue to utilize the Barry Kutun Boat Ramp; and
WHEREAS, Staff has negotiated the following non-exclusive concession agreement (the
"Agreement") for the use of the Barry Kutun Boat Ramp (the "Boat Ramp") at Maurice Gibb
Memorial Park (the "Park"), located at 1700 Purdy Avenue, for entry and exit to and from
186
Biscayne Bay for the purpose of providing kayak and paddle board rental services (the
"Program").
NOW THEREFORE, in consideration of the premises and the mutual covenants
and conditions herein contained and other good and valuable consideration, the receipt
and adequacy of which are hereby conclusively acknowledged, it is agreed by the parties hereto
as follows:
The City hereby grants to the Concessionaire, and the Concessionaire hereby accepts
from the City, the non-exclusive right to operate the Program (as further described herein) within
the Concession Areas (as defined herein), in conformance with the purposes and for the period
stated herein and subject to all the terms and conditions herejn.rrcntained and set forth.
The above recitals are true and correct and are incorporated herein by reference as part of this
Agreement.
l, :1.i,,,,,
1.1 The term ("Term") of this Agreement shall be for one (1) year, commencing on January
1,2017 ("Commencement Date"), with two (2),,,one1year renewal optibhs to be exercised
at the City Manager's sole gption and discretion, by providing Concessionaire with
written notice of same no less than thirty (30) days prior to the expiration of the then
current Term. Notwithstanding the foregoing, Concessionaire may not commence
operations until such time as the'fullowin$ conditions have been met: (1) Concessionaire
has provided the,,Sity with evidence of the requlslte governmental approvals to operate
the Program including, without limitation, all lieenses required in subsection 6.3; and (2)
the City has approved Concessionaire's insurance coverages as required in Section 9,
which shall include insurance coverage for all Program Vessels used by Concessionaire
to operate the Program. ,,,rirr,.r
1.2 for,r,pm$6ses',of this Agreement, a 'lGontract Year" shall be defined as that certain 365
day period commencing on the Commencement Date.
s EcrroN 2. c$l:p ESSroN
The City hereby grants to the eoncessionaire the non-exclusive right, during the Term of this
Agreement, to operatetthe Prqgpm, as described herein, upon the Concession Area defined in
subsection 2.1 and id€ntified in Exhibit 1 to this Agreement (hereinafter, the "Concession
Area"):
2.1 Concession Area.
The Concession Area shall be the vehicle access path to the Boat Ramp and the
Boat Ramp, as more particularly depicted in Exhibit t hereto, and does not
include any adjacent or surrounding areas (the "Concession Area"). Additionally,
no improvements to the Concession Area ("Concession Area lmprovements")
shall be permitted, and no equipment may be maintained, on the Concession
Area without the prior written approval of the City Manager, which approval, if
provided at all, shall be at the City Manager's sole and absolute discretion, and
187
Exhibit 1 shall be amended to incorporate the approved Concession Area
lmprovernents and/or permitted equipment.
Concessionaire shall not install or operate any Program sites, nor identify
additional or alternate locations for same (other than as identified in Exhibit 1),
without the prior written approval of the City Manager, which approval, if provided
at all, shall be at the City Manager's sole and absolute discretion.
SECTION 3. USE(S).
.,N
The Concessionaire is hereby authorized to conduct the fol ing kind(s) of businesses and
provide the following kind(s) of services related to=the'bperation of the Program within
the Concession Area, all at its sole cost and expense:". ;.
3.1 Amphibious Tours.
3.1.1. Approved Use of Conces5ipr:'Area
The Concession Area shall be' ed by a Concessioniilib "on a nonexclusive
basis and solely and exclusively -ilring snOt,intervals, for the e-ntry and exit of
Biscayne Bay by the -a=ggqm Vessels (as defined in subsection C. t .2) during the
approved hours of opeiaffi for the Program. ln the event the Concessionaire
uses the Concession'ffia\rfdrl,,,gny purpoie(s) andior use(s) not expressly
permitted in this subsect'ffi3 .1.11i;rffi.use Shall be considered a default under
this Agreement, and the City snffi);,p;e entitled to all remedies, including
termination of this. Agreement, as ffi forth;*gr subsection 12.4. ln addition,
notwithstanding any other terms of.li{is Agredfrient, the City shall be entitled to
seek imrn'ediate reli* whether dtglfu or equity, to restrain such improper use(s).
=N==.ggg;.finO
piivileges shall be provided to the Concessionaire, Concessionaire
emfiV6ffg2, or passengers of the Program Vessel. Additionally, Concessionaire
agrees'tdff,pnsure that the ingress and egress to the Park or the Boat Ramp are
. No parking privileges shall be provided to- the Con ionaire, Concessionaire employees, or passengers of the
.lyoOram Vdssel. Additionally, Concessionaire agrees to ensure that the
ffiressand egress to the Park or the Boat Ramp are not obstructed.
"tS
,,,..,.==aa:3.1::li.E- . the public's right to use the Park, including
the B6at Ramp, for non-commercial purposes is primary to the privileges
which the City has granted Concessionaire under this Agreement;
therefore, the privilege to operate the Program pursuant to the Agreement
shall not be construed as limiting, in any way, the public's right to use of
the Park, including the Boat Ramp, for non-commercial purposes.
Finally, notwithstanding any other terms of this Agreement, the privileges
under this Agreement are non-exclusive; therefore, the City shall not be
prevented or prohibited, in any respect, from contracting for and/or
operating additional commercial activities/uses at the Park and/or at the
3.1"1"1Nid,Parki
188
Boat Ramp, even if said activitiesiuses are in direct competition with the
services provided by Concessionaire under the Program.
3.1.2 Prooram Vessels.
The City hereby approves of Concessionaire's plan as to the type of vessel which
will be used in connection with the Program, as described in the Application for
Commercial Concession Operations at Public Boat Ramps, attached as
composite Exhibit 2 hereto (the "Program Vessel(s)"). Any amendments to
Exhibit 2, without limitation, as to type of Program Vessel, must be approved, in
writing, by the City Manager prior to such chan$es being implemented within the
Concession Area, and Exhibit 2 shall be amended accordingly.
= r:.
Notwithstanding the above, the Citfr afid Conce$$naire hereby acknowledge
and agree that the City's apprg-.,VEl.,in subsection 3.1.2 above, as to the type of
Program Vessel is given by,lne City solely in its proprietary, and not in its
regulatory capacity. Notwithstaffii.ng such a-pproval, in the City's proprietary
3.2
capacity, Concessionaire agrees io secure, at, its sole cost and expense, all
required approvals from all having jurisdiction over the
Program, in connection with the operation Program.
3.1.3 Hours of Operati6*
The initial Use Fee shall be due within thirty (30) days from the Effective Date.
Thereafter, the Use Fee shall be due on or before January tst of any approved renewal
Term.
3.3
property of Concessionaire Ouiing the Term of this Agreement.
SECTION 4. CONCESSION FEES.
4.1 Use Fee:=During the Te!:lf, Concessionaire shall pay the City, in advance, on an annual
basis, the following use fees, as may be modified by the City from time to time ("Use
Fee(s)"):
Motorized Vessel Aihual Fee - $120.00
Launch Fees (per Exhibit 2) - $1,525.00
Total - $1,645.00
189
4.2 lnterest for Late Pavment.
Any payment which Concessionaire is required to make to City which is not paid on or
before the respective date provided for in this Agreement shall be subject to interest at
the rate of eighteen percent (18%) per annum, or the maximum interest allowable
pursuant to Florida law, whichever is less, from the due date of payment until such time
as payment is actually received by the City.
4.3 Sales and Use Tax.
Any required Ftorida State Sales and Use Tax shall be- paid by Concessionaire directly
or added to payments, at the designee's sole discretlon, and fonruarded to the City
as part of said payments. lt is the City's intent that it iF$ receive all payments due from
Concessionaire as net of such Florida State Salei and Use Tax.
4.4 Marketinq and Advertisinq.
.,rrllllr.
a=::,4::;i./i,:aa:
As of the Effective Date, the City Codedoes not allow advertising to be placed on the
Program Vessels or anywhere on the$oncession Area. Advertising on the Program
Vessels or Concession Area shall be pffi1,,q$ . ...,,,
sEcrloN 5. lNSPEcrloN AND AUDJ. Eiiilfu ''
Concessionaire shall maintain its financial records pertainiEg to its operations herein throughout
the Term of this Agreement and for a period of three (3) years after the expiration or other
termination of this Agreement, and Such records shall be open and available to the City
Manager or his designee.f?sdeemed hecessary by:'them. ConCessionaire shall maintain all
such records at its p...{1n6 Offi ..;currently located at 141G;:l8th Sltieet. Miami Beach, FL 33139,
or, if moved to another location, all such records shall be relocated, at Concessionaire's
expense, to a location l(fiMiami B' =ch, within ten (10) days' notice (written or verbal) from the
City. These audits are
payments, which afe
the City's audit rights for
audjts by the City of Resort Tax collections and
:-=.Nothing contained within this Section shall preclude
%;:".,i6n'p
ses
sEcTroN 6..,r'AxEs. ASSES ENTsl LpENSES.
6.1 Concessionaire agreei.,and snati pay before delinquency all taxes (including but not
limited to'Resort Taxei) and assessments of any kind levied or assessed upon a
Concession Area and/or on Concessionaire by reason of this Agreement, or by reasonof Concessionair€'s business and/or operations within a Concession Area.
Concessionaire will have the right, at its own expense, to contest the amount or validity,
in whole or in part, of any tax by appropriate proceedings diligently conducted in good
faith. Concessionaire may refrain from paying a tax to the extent it is contesting the
imposition of same in a manner that is in accordance with law. However, if, as a result
of such contest, additional delinquency charges become due, Concessionaire shall be
responsible for such delinquency charges, in addition to payment of the contested tax, if
so ordered.
6.2 Procedure lf Ad Valorem Taxes Assessed. lf ad valorem taxes are assessed against the
Concession Area (or any portion thereof) by reason of Concessionaire's business and/or
operations thereon, Concessionaire shall be solely responsible for prompt and timely
190
payment of same.
6.3 Licenses. Concessionaire shall also be solely responsible (at its sole cost and expense)
for obtaining and maintaining current any a.pplicable licenses or permits, as required for
the operations contemplated in this Agreement including, without limitation, any
occupational licenses required by law for the proposed uses contemplated in Section 3;
the U.S. Coast Guard licenses for captains and the Certificates of lnspection for the
vessels; the State of Florida license; and any applicable City licenses.
SECTION 7. EMPLOYEES AND INDEPENDENT CONTRACTORS.
7.1 Concessionaire's Emplovees.
7.1.1 Concessionaire shall select, train and such number of employees or
contractors as is necessary or "'' f,.Concessionaire to satisfy its
responsibilities hereunder. Concessionaire shaii be the sole authority to hire,
terminate and discipline any and,.,..--q ersonnel empl0ffity Concessionaire.
7.1.2 Concessionaire shall designate a competent fulltime-6mptoy"" to oversee the
day-to-day operations, and who slrall act as the contraif:administrator for the
Program and serve as€oncessionaiie's primary point-person-'@ the City. This
individual shall have**-Er:,euuisite amount of experience in opeiating, managing,
and maintaining the'F=. ,{g..111. as contemplated herein. The employee shall be
accessible to the Citf-- ger or his designee at all times during normal
Program, and during non-:@ness
failure by the employee to .'6. acc
business hours to discu*{he ment, operation and maintenance of the
rl the event of emergency. Consistent
I be reported to Concessionaire's
l$ipunds for replacement of the
7.2
principal(s), andl not rec
employee.
City [43n?gpr's deSiqhee- Except for thcisE responsibilities expressly set fo(h in this
Agr#$ffieat=,f.o=,r,,4spectively, the City Commission and/or the City Manager, the City
iilr tbger's dd*.ig:aee for,.{his AgrEement -shall serve as the City's day to day$\il,jlffr ravsr o ue>Isit]
\t-epresentative and
City,. ffanager's ddt
D i redteiKro r Ass i sta nt
int p€rson for Condessionaire with respect to the Agreement. The
lgpe shall be the City's Department of Parks and Recreation
The Concessionaffi#t!!!asceptq9,.,,i}lie use of any and all Concession Areas provided in
this Agreement "AS IS='WHERE lS,' and "WITH ALL FAULTS," existing as of the Effective
8.1 lmprovements.
Concessionaire may not make any improvements to the Concession Area without City
Manager's Approval, which approval, if provided at all, shall be at the City Manager's
sole and absolute discretion.
8.2 Maintenance/Repair.
The Concessionaire shall maintain, at its sole cost and expense any equipment (as
required to operate the Program), as well as the Program Vessels. The City shall
191
maintain the Boat Ramp to address normal wear and tear of the dock; however,
Concessionaire shall be responsible for reimbursing the City for any maintenance and
any repairs as a result of the operation of the Program at the Boat Ramp, including any
damage which may be caused by the Concessionaire, its employees, contractors,
agents or invitees. Any such maintenance and repairs shall be performed by the City, as
deemed necessary, at the City Manager's sole discretion, and Concessionaire shall
reimburse the City within 10 (ten) days from receipt of the invoice.
Concessionaire shall be solely responsible for the day to day operation and shall
maintain any equipment the Program Vessels and any equipment thereon in good
working order and condition. Concessionaire shall keep Program Vessels free of
graffiti. No repairs to the Program Vessels may be made on-site. Any Program Vessel
needing maintenance shall be removed from circulation and serviced
at Concessionaire's repair center. No Program Vressel or equipment may be stored at
the Park"
It shatt be concessionaire's "oeffin ,o ".iF= ,, any repairs and/or
improvements made by Concession6iiej to the Pro-gram Vessels complies with all
applicable life safety codes of governmental authorities having jurisdiction.
Concessionaire agrees, also atits.sole cost a to pay for all garbage disposal
generated by its operations. Garbage may not bd of at the Concession Area.
8.3 Orderlv Operation.
The Concerrio=n= .have a neet and orderly op" n at all times and shall be
solely responS@ for *'tffiHiir,necessary housekeeping services to properly maintain its
Operations. Cdncessionaiffiwanants and represents that Concessionaires operation
does not require use of the parking or dock areas located at the Park. Entry and exit
shall be.conducted'lat eXienieg,gyl6speeds. Standing and stopping will only occur to
allow th6::safe launch:a retrieVHffi1iffifu$fers utilizing the Boat Ramp. All applicable
rules, laws and ord:i11yCe*ffi adhePBff';p by concessionaire.
1 '::t
-=2
8.4 No Danoerous Materiali.
The Concessionaire agrees not to use or permit the storage and/or use of gasoline, fuel
oils, diesel, illuminating oils, oil lamps, combustible powered electricity producing
generators, turpentinq, benzene, naphtha, propane, natural gas, or other similar
substances, combustible materials, or explosives of any kind, or any substance or thing
prohibited in the standard policies of fire insurance companies in the State of Florida, on
or within any of the Concession Areas, or on any City property and/or right of way.
Concessionaire shall indemnify and hold City harmless from any loss, damage, cost, or
expense of the City, including, without limitation, reasonable attorney's fees, incurred as
a result of, arising from, or connected with the placement by Concessionaire of any
"hazardous substance" or "petroleum products" on, under, in or upon the Concession
Areas as those terms are defined by applicable Federal and State Statute, or any
environmental rules and environmental regulations promulgated thereunder; provided,
however, Concessionaire shall have no liability in the event of the willful misconduct or
10
192
8.5
8.6
gross negligence of the City, its agents, servants or employees. The provisions of this
Subsection 9.4 shall survive the termination or earlier expiration of this Agreement.
Securitv.
The Concessionaire shall use the Concession Area at its own risk. The City shall not be
obligated to employ or provide any security measures to protect the Concession Area.
Under no circumstances shall the City be responsible for any stolen or damaged
equipment, nor shall City be responsible for any stolen or damaged personal property
of Concessionaire's employees, contractors, agents, patrons, guests, invitees, and/or
other third parties.
lnspection. -'.''''=
The Concessionaire agrees that the Concessiohlrea may be inspected at any time by
the City Manager or his designee, or by any other municipal, County, State officer, or
officers of any other agency(ies) having,. $pbnsibility and/or jurisdiction for inspections
of such operations. The Concessionaire hereby waives all claims against the City for
compensation for loss or damage sustained by reason of any interference with the
concession operation as a result of inSpection by any public agency(ies) or officials,
(including, without limitation, by reason of a i1mVnfii,.rt*$Blic agency or official in enforcing
any laws, ordinances, or regulations as a resulf thereofl. Any such interference shall not
relieve the Concessionaire from: any obligation
SECTION 9. INSURANCE.
Concessionaire ,:;[tS..d9oncessiona i re, s u bco ntractors, la bo rers, materia I meni' ii.ti.qable), insurance of the types and in the minimum
9.1 Without limiting its liability under this Agreement, Con""rrionaire shall, at all times
during the Teffid this A$ieement, procure and maintain, at its sole expense (and
ovid6=3' rtificate with applicable endorsements on a form
s Divisi6firCItlilnsurance and Risk Management evidencing
Schedule
to the City (including coverage of all Program Vessels
ii$ire to oPerate the Program):
Limits
loyers Liability
Florida Statutory Coverage
$1,000,000 Each Accident
$1,000,000 Disease Policy Limit
$1,000,000 Each Employee/Disease
This insurance shall cover the Concessionaire (and to the extent its subcontractors and
sub-contractors are not othenruise insured, its subcontractors and sub-contractors) for
those sources of liability which would be covered by the latest edition of the standard
Workers' Compensation policy, as filed for use in the State of Florida by the National
Council on Compensation lnsurance (NCCI), without any restrictive endorsements other
than the Florida Employers Liability Coverage Endorsement (NCCI Form WC 09 03),
those which are required by the State of Florida, or any restrictive NCCI endorsements
which, under an NCCI filing, must be attached to the policy (i.e., mandatory
Lt
193
endorsements). ln addition to coverage for the Florida Workers' Compensation Act,
where appropriate, coverage is to be included for the Federal Employers' Liability Act,
USL&H and Jones Act, to extent coverage is not provided by the Protection and
lndemnity policy and any other applicable federal or state law.
Hull Coveraqe: Coverage for direct damage to vessels written on American lnstitute Hull
clauses form, specifically including "Running Down clauses," "Agreed Valuation
clauses," and Amount of insurance based on value of vessels. The policy shall cover
collision liability on a primary basis.
"'iti:=
Protection and lndemnitv Coveraqe: Form "SP Z3y age for water taxi operations
of the watercraft, as included in "SP23" for damige to any harbor, graving, piers,
bumpers, etc.; including, but not limited to, Crewto thepxtent coverage is not provided
by the Worker's Compensation policy, Passen$$f'and''ffiqage for property and liability
from land while loading and unloading the Ferry or Wffir".Taxi and on-board during
navigation along with Cargo Legal Liability, Dock Liability, Eicess Collision over insured
hull limit. $5*W"(Coverage shall include Premises, PollUtion Exqlusion Buybdc(-fndorsement A,
Personal Effects, Medical P;.,y.alents, Voluntary Wreck Removal, and Poffution Buyback).
One.iEdibent fof 90, CERCLA, Spill
Ma**gement, Firefighting and Salvage and
Defdfise Cost including damage to Property
Ashoid;=
lnjury, Prdp.erty Dam Products & Completed Operations, Medical Payments,
Personal Inju$f,$ffi#.] l Liabi|ity, Ship Repair Liabi|ity.
Such insurance sPrbll be no more restrictive than that provided by the most recent
version of the standard Commercial General Liability Form (lSO Form CG 00 01) as
filed for use in the State of Florida without any restrictive endorsements other than those
approved by the City's Office of lnsurance and Risk Management.
$2,000,000 GeneralAggregate
$1,000,000 EachOccurrence
$ 50,000 Fire Damage
$ 5,000 Medical Expenses
L2
194
Bumpershoot Liability $'1,000,000 Per Occurrence and Aggregate
(The Bumpershoot Liability policy shall be in excess of the Employer's Liability,
Commercial General Liability, Automobile Liability, Personal & lndemnity and Pollution
Liability limits without any gap. The Bumpershoot coverage will follow form the
underlying coverages and provide on an Occurrence basis all coverages listed
above.)
A. Waiver of Subroqation. All insurance shall be endorsed to provide for a waiver of
underuvriter's rights of subrogation in favor of the City of Miami Beach and the City's
members, officials, officers and employees. ,.==.,.
:'B. Additional lnsured: All lnsurance, except Wqr r's Compensation and Professional
Liability, shall be endorsed to name the Ci$ Miami Beach and City's members,
officials, officers, and employees. Addj{ionaF'Liability shall be in a form no more
restrictive than CG2010 and Autom-e,ffjl&. Liability CM048; endorsements will be
provided to, reviewed and approv,e- the City's DiVision of lnsurance and Risk
Management prior to commencement oJ work.
l;iltffi insurance provided by the
shall not requireConcessionaire for shall=pply on a basis to, and
C.
D.
contribution from, any othel inSurance or sdffr[purance maintained by the City or
City member, official, officer and employee. "@*
::'.:::::
in this Agreement, the
.[.Eq'ui,,,f,,gq i n s uiance, the Con cess iona i re shal l be responsi b le
of-1hg: ity (and any other person or organization
iE,lhis Agiee.m.g€t, agreed to include as an insured for the
required insurance) a,i$.] tt-insuran6'6 deductible, or self-insured retention allowed
under this para$raph. The City will not be responsible for any self-insurance,
d@ctibles or seltinsured retQ$ions under this Agreement.
Concessiohaire's lnsurance Additional Remedv. Compliance with the insurance
req,r'rements of th, iability of the Concessionaire or its
Subcontractors oi'Sub- subcontractors, employees or agent to the City or others.
Any remedy provided to City or City's members, officials or employees shall be in
addition to and not in lieu of any other remedy available under this Agreement or
othenryise.
No Waiver by the Citv Approval/Disapproval. Neitl'er approval by the City nor failure
to disapprove the insurance furnished by Concessionaire shall relieve
Concessionaire of Concessionaire's full responsibility to provide insurance as
required under this Agreement.
Except..as
insurance-mEihtaine8lE!.the Conce's-sionaire shallapply on a first dollar basis without
application,,f,.o self,
insurance- maihtainedlQ.f:Jhe Conce'ss.ionaire shall Apply on a first dollar basis without
applicatioh ,*j,ra self-inS.urance, deductible, or self-insured retention. Except as
authorized s'iiffifically-..:\_-i this Agre6'ment, no self-insurance, deductible, or self-
insured
for pa$hg on
Concessionaire
E.
F.
13
195
G.Each policy shall be written by an insurer holding a current certificate of authority
pursuant to chapter 624, Florida Statues or accompany that is declared as an
approved Surplus Lines carrier under Chapter 626 Florida Statutes. Such insurance
shall be endorsed to provide for a waiver of undenryriter's rights of subrogation in
favor of the City. Such lnsurance shall be written by an insurer with an A.M. Best
Rating of A-Vll or better. Prior to commencirg any Services, Certificates of lnsurance
approved by the City's Division of lnsurance & Risk Management demonstrating the
maintenance of said insurance shall be furnished to City. The Concessionaire shall
provide an endorsement issued by the insurer to provide the City thirty (30) days
prior written notice of any change in the above insurance coverage limits or
cancellation, including expiration or non-renewal. ln the event the Concessionaire is
unable to obtain such endorsement, the Concessionaire agrees to provide the City
the notice directly. Until such time as the inSUrance is no longer required to be
maintained by the Concessionaire, Concessionaire shall provide the City with
renewal or replacement evidence of insurahC€'with th€-bove minimum requirements
no less than 30 days before the expilgtioh or termination of the insurance for which
previous evidence of insurance has bebn provided.
Notwithstanding the prior. ,r0r831fi.,9,, of a Certificate of lnsurance, copies of
endorsements, or other evidence initially acceptable to City's Division of lnsurance
and Risk Management, if requested to dQ:9.:.1ffitlie City, the Concessionaire shall,
within thirty (30) days after receipt of a written ie(uest from the City, provide the City
with a certified, complete cbpy of the policies o,f insurance providing the coverage
required herein.
,.=-i
Anything 1o the contrary notwithstanding, the liabilities'6f the Concessionaire under
this Agreemd-nt shall Survive and not be terminatod,. reduced or othenrvise limited by
any expiration or termlnation of insurance coverage. Neither approval of, nor failure
to disapproV6, insurance furnished by the Concessionaire shall relieve the
H.
t.
*9ft,t$rlesj;,ipnaire 'or'its Sub-contractors or sub-subcontractors from responsibility to
fffi;ffiiB
d 'i as r1,cuired by the Agreement'
J.'tP,,epending upoiliffi; nature of any aspect of any project and its accompanying
EEffigures and lieiffii,gs, the City may, at its..sole option require additional insurance
coV6f,ages in amouffiresponsive to those liabilities, which may or may not require
that thQ Oity also Oeffift[neO as an additional insured.'"'=
.,,.....€......|lK. Concessionaiid"€'Efure to provide evidence of insurance coverage set forth in this
Section 9, within-.fuo (2) days from receipt of a written request from the City shall
constitute a material default under this Agreement and shall entitle the City to pursue
its default remedies, as set forth in subsection 12.4, without affording Concessionaire
an opportunity to cure the default.
SECTION 1 O. INDEMNITY/RELEASE.
10.1 ln 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
L4
196
officials, directors, employees, contractors, agents, and servants from and against any
and all actions (whether at law or inequity), claims, liabilities, losses, and expenses,
including, but not limited to, attorneys'fees and costs, for personal, economic or bodily
injury, wrongful death, loss of or damage to property, which may arise or be alleged to
have arisen from: (1) wholly or in part from the negligent acts, errors, omissions or other
misconduct of Concessionaire, its officers, director, members, employees, agents,
contractors, subcontractors, or any other person or entity acting under Concessionaire's
control or supervision; (2) Concessionaire's breach of the terms of this Agreement or its
representations and warranties herein; or (3) the operation of the Program. To that
extent, Concessionaire shall pay all such claims and l.g..ppes and shall pay all such costs
and judgments which may issue from any lawsuit a".r=$=i from such claims and losses,
and shall pay all costs and attorneys'fees expend" , the City in the defense of such
claims and losses, including appeals.
10.2 ln addition, in consideration of a separate ari specificm{Fideration of Ten ($10.00)
Dollars and other good and valuable consideration the reEHht and sufficiency of which
are hereby acknowledged, Concessionaire shall indemnify, hold trarmless and defend
the City, its officials, directors, employees, contractors, agents, and servants from and
against any claim, demand or cause of aCtion of whatever kind oi nature arising out of
any misconduct of Conce,p;ionaire, its officialsi directors, emplo/dgs, contractors,
agents, and servants not indluded in the paragraph in the subsection above and for
which the City, its officials, diieotoi.Ej.e.=.ql loyees, C'ontractors, agents, and servants are
alleged to be liable. ' , ;*_
10.3 Subsections 10.1 and 10.2 shall .u".##" the &ination oi expiration of this Agreement.
Subsections 10.1 and 10.2 shall not"flflplyllhdu0eV6i, to any such liability that arises as a
result of the willful misconduct or gross negligence of the City.
10.4 Release of Liabilitv for Proqiam Participi:ilfib. Concessionaire shall ensure that Program
paiill#rffiF..lEexecute a release in conne&i-$g, with their participation in the Program,
ffilpn. idl€es stall ihclude the City tts an additional releasee thereunder.
ii0d;rcessionaire shall provide the City with a copy of the release form for approval by the
Ci$'s,8isk Manager, which approved release form shall be attached as Exhibit 3 hereto.
11.1 Neither party ted to perform hereunder and neither party shall be deemed
to be in default if by:
water stations which render at least fifty (50%) percent of the Concessionaire
Areas unusable at any one point in time and which is not caused by negligence
of Concessionaire;
b. earthquake; hurricane; flood; act of God; direct act of terrorism; or civil
commotion occurring which renders at least fifty (50%) percent of the Concession
Areas unusable.
lbe
SECTION 11.
15
197
c. any law, ordinance, rule, regulation or order of any public or military authority
stemming from the existence of economic or energy controls, hostilities, or war
which renders at least fifty (50%) percent of the Concession Areas unusable.
11.2 Labor Dispute.
ln the event of a labor dispute which results in a strike, picket or boycott affecting at least
fifty (50%) percent of the Concession Areas, 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).
11.3 Waiver of Loss from Hazards. . . =,
The Concessionaire hereby expressly wr?kqs all claim'S,.4ainst the City for loss or
damage sustained by the Concessicinaire resulting from any Force Majeure
contemplated in Subsection't1.1 and Labor Dispute in Subsedtion 11.2 above, and the
Concessionaire hereby expressly waiVe$,;all rights, claims, and demands against the City
and forever releases and discharges the City MiamiBeach, Floiida, from all demands,
claims, actions and causes of action arising"fie he aforesaid causes.
sEcTtoN 12. DEFAULT AND TERMINAT|OIY. .""
,
.
Subsections 12.1 through- 123 shall constitute events of O@n"under this Agreement. An
event of default by CO.fir$,*i aire shall entitle the City to eiercise any and all remedies
described as City's rgffi'dies und$his Agreement, including but not limited to those set forth in
12.1
lf either the City shall be adjudged bankrupt or insolvent, or if
any recerver or all or any part of the business property of either party
shall be appointed, orffiE1ry receiver of all or any part of the business property
shall be appointed anO*tE"btt not be discharged within sixty (60) days after
appointment, or if either party shall make an assignment of its property for the
benefit of creditors, or shall file a voluntary petition in bankruptcy, or insolvency,
or shall apply for reorganization or arrangement with its creditors under the
bankruptcy or insolvency laws now in force or hereinafter enacted, Federal,
State, or othenruise, or if such petitions shall be filed against either party and shall
not be dismissed within sixty (60) days after such filing, then the other party may
immediately, or at any time thereafter, and without further demand or notice,
terminate this Agreement without being prejudiced as to any remedies which may
be available to it for breach of contract.
Default in Pavment.
ln the event Concessionaire fails to submit any payment within five (5) days of its
due date, there shall be a late charge of One Hundred and Fifty ($150.00) Dollars
per day for such late payment, in addition to the interest which accrues pursuant
12.2
16
198
to subsection 4.2" lf any payment and accumulated penalties are not received
within ten (10) days after the payment due date, and such failure continues for
ten (10) days after written notice thereof, then the City may, without further
demand or notice, terminate this Concession Agreement without being
prejudiced as to any remedies which may be available to it for breach of contract.
12.3 Non-Monetarv Default.
Unless otherwise set forth in this Agreement, in the event that Concessionaire or
the City fails to reasonably perform or observe the non-monetary covenants,
terms or provisions under this Agreement, and such failure continues ten (10)
days after written notice thereof from the other party hereto, such non-defaulting
party may immediately or at any time thereafter, and without further demand or
notice, terminate this Agreement without being prejudiced as to any remedies
which may be available to it for !.r.S.{tS of contract. ln the event that a default is
not reasonably susceptible to being cured within suCh period, the defaulting party
shall not be considered in Oeffif.[-rrff it shall, within suCh period, commence with
due diligence and dispatch to cllf-"E,'such deleHft and thereafter completes with
dispatch and due dilig_ence the curi f.,,of su-cliqarefault, but in no'event shall such
extended cure periqfffu ed thirty 130)
thereof. ln the evd"fi sionaire
subsection, it shall pr6futly:::p vide the
ry from the date of written notice
e...q1....1. s any default pursuant to this
ffianager
with written notice of
same.
12.4
;i
,,Uffi'
l
lf any of the events.,of default,'ffi*set forth in this Section, shall occur, the City
, after eipiration'of the cure.@ods, as provided above (unless othenrvise
in the Agieement),, at iQ.6ple option and discretion, institute such
g.g as in.,.its opinion are necessary to cure such defaults and to
soep ied, Coffissionaire shall then quit and surrender the Concession Area
to CitlEft?rsuant he provisions of Subsection 12.6. Upon the termination of this
AgreemBffi=a.F. $hts and interest of Concessionaire in and to the Concession
Area and t6-..,!Ei- Agreement, and every part thereof, shall cease and terminate
and City may, in addition to any other rights and remedies it may have, retain all
sums paid to it by Concessionaire under this Agreement.
ln addition to the rights set forth above, the City shall have the right to pursue any
and all of the following:
a. the right to injunction or other similar relief available to it under Florida law
against Concessionaire; and/or
L7
199
b. the right to maintain any and all actions at law or suits in equity or other
proper proceedings to obtain damages resulting from Concessionaire's
default.
12.5
12.6
12.7
12.8
lf an event of default by the City shall occur, the Concessionaire may, after
expiration of the cure periods, as provided above, terminate this Agreement upon
written notioe to the City. Said termination shall become effective upon receipt of
a written notice of termination by the City, but in no event shall Concessionaire
specify a termination date that is less than thirty (30) days from the date of the
written termination notice. On the date specilt,g-A in the notice, Concessionaire
shall quit and surrender the Concession*st$ffi(s) to City pursuant to the
provisions of Subsection 12.6. _* :
Surrender of Concession Areas =-. 1 bv Concessionaire of
Equipmenulmprovements'
,;if :..:, r
,,r ,
Upon expiration, or earlier ter i aiion of this Agreeing,p! Concessionaire shall
surrender the Concession Ar 'in the same conditiE*rs the Concession
Areas were prior to the CommencemenJ;,Date, reasofr''*Ele wear and tear
excepted.Lq.,gire shall, at its sol'elxpense and at no charge to the
City, cease using the Area, n6''later than thirty (30) days after the
conclusion of the Terrflli the date of::6lher termination of this Agreement)
unless a longer time , in wfiti'ng, by the City Manager).
qW
Concessionaire's obligatiofirtb bserv€-.ol'.:.::perrform this covenant shall survive the
expiraJion or other terminatiG.E-f .$is Agreement Continued occupancy of any
Conc6sSion Areas af&er terminEtid@f the Agreement shall constitute trespass by
the Concessionaire, and may**pe prosecuted as such. ln addition, the
====,,,9,gp9essionaire
shali pay to the ffi;,,,pne Thousand ($t,ooo.0o) Dollars per day
=,:Wnii lryssion Area as liquidated d{ihaSes for such trespass and holding over.
Substitrit'dXl$gformance "'i:'
,
!"?lfun the event thdt tne Concessionaire fails to properly perform its obligations or
"u:dBre any defa[lt.under the Agreement, after receipt of written notice from the
Ci$$en the Gity, shall have the right, but not the obligation, to undertake
Co@sionairep duties and obligations under the Agreement, as the City
N4anagefiiliftg_grm$i$ppropriate, and to charge Concessionaire for all actual costs
thereby inC.l{.1ffiffi''bV the City. Concessionaire shall be responsible for paying all
of said costsl*,"
Termination for Convenience of the Citv
THE CITY MAY ALSO, THROUGH ITS CITY MANAGER, AND FOR ITS
CONVENIENCE AND WITHOUT CAUSE, TERMINATE THE AGREEMENT AT
ANY TIME DURING THE TERM BY GIVING WRITTEN NOTICE TO
CONCESSIONAIRE OF SUCH TERMINATION, WHICH SHALL BECOME
EFFECTTVE WTTHTN THTRTY (30) DAYS FOLLOWTNG RECEIPT BY THE
200
12.9
CONCESSIONAIRE OF SUGH NOTICE, FOLLOWING WHICH THE CITY
SHALL BE DISCHARGED FROM ANY AND ALL LIABILITIES, DUTIES, AND
TERMS ARISING OUT OF, OR BY VIRTUE OF, THIS AGREEMENT.
Citv Manaqer Emerqency Powers
A. Notwithstanding anything to the contrary contained in this Agreement, and in
addition to any other remedy whlch the City may have under this Agreement or
pursuant to applicable law, if the performance by Concessionaire under this
Agreement or the Program is creating a public health, welfare or safety concern,
as determined by the City Manager, in the City Manager's sole discretion, the
City Manager may immediately suspend the perf_ormance of services under this
Agreement, including the Program, until suCh time as the condition has been
remedied to the satisfaction of the CityJt/anag"r.,,,=
B. Removal of Concessionaire's P[gmrtv durinq EBsrqencv Situations. The City
Manager or his/her designee m,ay direct or require the Concessionaire to
immediately remove, relocate-'#tl/or store any equipment located on the
Concession Area and any Program Vessel ("Concessionaire's Property") for
public safety considerations in emeigency situations, including, without limitation,
a threatened tropical storm or hurricanp., .lt ..!l|l ritten and/or verbal notification
by the City Manager of 'a tropical storrii/fiUrffine warning or alert, or other major
weather event that may adversely impact the City, or upon the designation by the
United States National Weather Service'@dational Hurricane Center of a
tropical storm/hurricane warning or alert, whichever occurs first, the
Concessionair,e.$all, within no more than two houis of same, remove and store
all of S,p.##sbii@ire's Property to secure Concessionaire's Property in response
b h#|i!{ atened=$rm or other emergency, and shall take all other measures
which ma,y- be necessary for the protection of the public with respect thereto. The
notificati6njllby,_the Ciily-.,Uanager of a hurricane or other major weather event, or
the issuand$l$,sfi:illflltltlhU#i$..1r9 warning, shall constitute a public emergency
SituationJne fiijlfiib of the City to direct the Concessionaire to remove or safety
store Ca'ncessio'ftflipjs Prop6ffi-s661; not relieve the Concessionaire of its
obligation=to remo1}$]xlhnd store'Concessionaire's Property in response to a
|hreatened sto event #,ff, rrr""O herein.
Should Concessionaire fail to remove Concessionaire's Property within said two
(2)"tuur period, or in the event the City Manager or his/her designee determines,
at his/her sole discretion, that Concessionaire's removal, storage and other
efforts aie othenryise not satisfactory, Concessionaire shall thereafter be
assessed a i€e of $50.00 per hour, until such time as all of Concesslonaire's
Property have been removed to the City Manager's satisfaction. ln addition, the
City Manager, without any obligation to do so, may immediately proceed to
remove, relocate, and/or store the Concessionaire's Property that has otherwise
not been removed by the Concessionaire, at the Concessionaire's sole cost and
expense, with payment to the City for all such costs due within thirty (30) days of
City's invoice to Concessionaire.
Concessionaire shall be solely responsible for any damage to City property or
other property resulting from Concessionaire's failure to remove and store
19
201
Concessionaire's property, or otherwise implement appropriate measures in
response to a threatened storm or hurricane.
Concessionaire's failure to comply with this Section shall constitute a material default
under this Agreement and shall entitle the City to pursue its default remedies, as
set forth in subsection 12.4, without affording Concessionaire an opportunity to
cure the default. The remedies identified herein for Concessionaire's failure to comply
with this Section are cumulative, and in addition to, all remedies that may be available to
the City at law and in equity.
sEcTloN 13. PERFORMANCE BOND OR ALTERNATE SEqURTTY.
INTENTIONALLY OMTTTE;
SECTION 14. ASSIGNMENT. .i
Concessionaire shall not assign all or any poition of its costs or obligations under this
Agreement without the prior written consent of the City Commission, wiich consent shall be at
the sole and absolute discretion of the City Commission. Concessionaire shall notify the City
Manager of any proposed assignment, in writing, at least sixty (60) days prior to the proposed
effective date of such assignment. |4 the event that anysuch assignment''is approved by the
City Commission, the assignee shall bgree to be bound by all the covenants of this Agreement
required of Concessionaire. ,rE
_.riNiM,,,*,,, :
%*L*i,%,= =..-.,.
The Concessionaire will ioi:.:qse, noffiiufer oi penr*it any person to use in any
manner whatsoever, the Concession Area oi'Program Vessel, for any illegal, improper, immoral
or offensive purpose, or for any other purpose in violation of any Federal, State, County, or
municipal or-.$299e, rule, order or regulation, or of,any governmental rule or regulation now in
effect ot.,k9,E"!rffi;,.$$, .WAea or adoFted. The Conciffsionaire will protect, indemnify, and forever
save and k66p hd. Iessfhe Gi$ its officials, emiilbyees, contractors, and agents from and
againdtidamage, penal$;"#e, jud$ment, expenSe or charge suffered, imposed, assessed or
incurred for:.any violation, ffi bf.any law, ordinance, rule, order or regulation occasioned
by any act, h0glect or om
or servant regardi,glg the
the Concessionaire, or any official, director, agent, contractor,
ln the event of any violation by the Concessionaire, or if
the City.or 1ts e=ii rilgd l"ffisentative shall deem . any conduct on the part of the
Concessionaire to b6='l@ectiofiiable or improper, the City shall have the right to suspend
concession operation S EB'Concessionaire fail to correct any such violation, conduct, or
practice to the satisfactEd4f tne City Manager or his designee within twenty-four (24)
hours following written notice of the nature and extent of such violation, conduct, or
practice. Such suspension to continue until the violation is cured to the satisfaction from the
City Manager or his designee.
SECTION 16. NOTICES.
All notices from the City to the Concessionaire shall be deemed duly served upon receipt, if
mailed by registered or certified mail return receipt to the address to the Concessionaire at the
following address:
20
202
With copies to:
tt:i.\
All notices from the Concessionaire to the City shallobe)deemed duly served upon
receipt, if mailed by registered or certified mail retuing6beipt requested to the City of
Miami Beach at the following addresses: _,;Iiftffi...qffi
City of M.i.q....qni Beach W,
1700 Convention Center Drive "
Miami Beach, FL 33139 "vliru$,$.l1
Attn: Parks and Recreation Director "'i.,
With copy to:
l\:
City of Miami Beach
1 7Q0=C6fiVention Centei Drive
'-.i'\'':S?
benYrtns
SECTION 17. LAWS. ':r
17.1 ry .W
ConceSGi ire snall S^,.[5rnly with all applicable City, County, State, and Federal
ordinance6;'statutes, rules and regulations, including but not limited to all applicable
environmental City, Cb-uhty, State, and Federal ordinances, statutes, rules and
17.2 Governinq Law. =..:::i
Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of Florida.
17.3 Eoual EmplovmentOpportunity.
Neither Concessionaire nor any affiliate of Concessionaire performing services
hereunder, or pursuant hereto, will discriminate against any employee or applicant for
employment because of race, creed, sex, color, national origin, sexual orientation, and
21
203
disability (as defined in Title I of ADA). Concessionaire will take affirmative steps to
utilize minorities and females in the work force and in correlative business enterprises.
17.4 NoDiscrimination.
All operations and services offered in the Concession Area shall be made available to
the public, subject to the right of the Concessionaire and the City to establish and
enf,orce reasonable rules and regulations to provide for the safety, orderly operation, and
security of the Concession Area and improvements andrequipment thereon.
::::=
Concessionaire hereby agrees to comply with City of Miami Beach Human Rights
Ordinance as codified in Chapter 62 of the City Code, as may be amended from time to
time, prohibiting discrimination in employment, "housing, public accommodations, or
public services, on the basis of actual or perceived race, cofor, national origin, religion,
sex, intersexuality, sexual orientation, gelClr identity, famitiat and marital status, age,
ancestry, height, weight, domestic partner status, labor organization membership,
familial situation, political affiliation, ordi bility.
SECTION 18. MISCELLANEOUS.
18.1 No Partnership.
'{u".." ,&,
Nothing contained-in$s Agreement shall'Cohstitute oib-e construed to be orcreate a
partnership or joint venture between ine Clty and Concessionalre.
==
18.2 Modifications.'%flffi, .:;::::::;,;=
-l
'qlfllll
,,**L**i{11,,.
This Agreement cannot'- changd'U\l$hs modified except by Agreement in writing
executed by all parties hereffiConcessionaire acknowledges that no modification to this
Agreement may be agreed to nV the City unless approved by the Mayor and City
Commissior except where such authority has been expressly provided herein to the City
Manager 01 designee,
18.3 Complete Aqi6ement. : '
This Agreement, tog€ther with all exhibits incorporated hereto, constitutes all the
understandings and Agreements of whatsoever nature or kind existing between the
parties with respect to Concessionaire's operations, as contemplated herein.
18.4 Headinqs.
The section, subsection and paragraph headings contained herein are for convenience
of reference only and are not intended to define, limit, or describe the scope or intent of
any provision of this Agreement.
22
204
18.5 Bindinq Effect.
This Agreement shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and permitted assigns.
18.6 Clauses.
18.7 Severabilitv.
lf any provision of this Agr.9..e_1p;nl or any'portionff'such provision.ohtheapplication
thereof to any person or an€j$,,ffi,,,tspce snati be held to be invalid or unenforceable, or
shall become a violation of any local, State, or Federal laws, then the same as so
applied shall no longer be a pa;\tfprlthi$.:.,AGreement but'ihe remainder of the Agreement,
such provisions and the applicatidn thereof tffither persons or circumstances, shall not
be arrected th and th s noreeme;t "i tdpeoj1.fid.*;'""
, ?.",
18.8 Riqht of Entry. "",?
T.he1r.qfftYitH.tiTffielrection of the City Managei, shall at all times during hours of operation,
.-=he the right'to-enter into and upon any and all parts of the Concession Area(s) for the
'p@oses of exaffiihffig the same for any reason relating to the obligations of parties to
thiS Agreement. ; r''
18.9 Not a Leabe.
\: , /.:
It is expressiy understoo$anO agreed that no part, parcel, building, facility, equipment or
space is leasedr,to{h*': cessionaire, that it is a concessionaire and not a lessee; that
the Concessionaird,lEiQht to operate the concession shall continue only so long as this
Agreement remains in effect.
'18.10 Siqnaqe.
Concessionaire shall not be permitted to install any signage at the Concession Area.
The illegality or invalidity of any term or any clause of.,ffiAgreement shall not affect the
validity of the remainder of the Agreement, and the.,t$gi€'bment shall remain in full force
and effect as if such illegal or invalid term or clause weie not contained herein unless the
elimination of such provision detrimentally redubes the _consideration that either party is
to receive under this Agreement or materidrl{fl affe6t$-,1 e continuing operation of
this Agreement. %.
,.
23
205
18.11 Procedure for Approvals and/or Consents.
ln each instance in which the approval or consent of the City Manager or his designee is
allowed or required in this Agreement, it is acknowledged that such authority has been
expressly provided herein to the City Manager or his designee by the Mayor and City
Commission of the City. ln each instance in which the approval or consent of the City
Manager or his designee is allowed or required in this Agreement, Concessionaire shall
send to the City Manager a written request for
Request").
or consent (the "Approval
The City Manager or his designee shall use [o--g='. .efforts to provide written notice
to Concessionaire approving of consent to, oi+itfiSapproy,il6g" of the request, within thirty
(30) days from the date of Approval Request (or within sucff:gJher time period as may be
expressly set forth for a particular approval or consent unde}:this Agreement). However,
the City Manager or his designee's failure to consider such request within
provided shall not be deemed a waiver, nor shall Concessiori5ii*,-ssume
request is automatically approved and consented to. The City ltanager or his
designee shall not unreasonably withhold such approval or consent. This
this time
that the
Subsection shall not
City Commission.
18.12 No Waiver.
apply:--=,=t'6=-@provals required herein by the Mayor and
:::: _ii:::::::::::::::=
:= ":':a::::::::::=.::::::::],,..+
The receipt of any sum pliO by Concessionaire to the City after breach of any condition,
covenant, term or"@vision herein contained shall not be deemed a waiver of such
breach, but shall be taken, considered and construed as payment for use and
occupation, and not as rent, unless such breach be expressly waived in writing by the
City.
18.13 No Third Partv Beneficiarv.
Nothing in this Agreement shall confer upon any person or entity, including, but not
limited to sub concessionaires, other than the parties hereto and their respective
successors and permitted assigns, any rights or remedies by reason of this Agreement.
tet\-L'**%:lgI,F*-isions of this'lQieement, or to exercise any option herein conferred, will not
b*$1u!.ffiffi5ifi"6F,"$,"$| construed as a waiyer o$irelinquishment for the future of any such
z#{Iitions, COF ts, terms, provisions or options but the same shall continue and
"f€mgin in full foi =and effeal A waiver of any term expressed herein shall not be.: k,alirp 9r,r"ny any neglQff;
206
18.14 No Lien
ln the event any notice or claim of lien shall be asserted against the interest of the City
on account of or arising from any work done by or for Concessionaire, or any person
claiming by, through or under Concessionaire, or for improvements or work, the cost of
which is the responsibility of Concessionaire, Concessionaire agrees to have such notice
or claim of lien cancelled and discharged within fifteen (15) days after notice to
Concessionaire by City. ln the event Concessionaire fails to do so, City may terminate
this Agreement for cause without liability to City.
.=
SECTION 19. 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 -a-e Ln for breach of this Agreement, so that its
liability for any such breach never exceeds. th$rbum of Five Th and ($5,000.00) Dollars.
Concessionaire hereby expresses its willin$ness to enter ihto this Agreement Five
Thousand ($5,000.00) Dollars limitation on ieCovery for any action for breach of contract.
Accordingly, and in consideration of the separate_gonsideration of Five Thousand ($5,000.00)
Dollars, the receipt of which is hereby acknowiedged]he City shall 'not be liable to
Concessionaire for damages to Concessionaire' in an amount in excess of Five
Thousand ($5,OOO.OO) Dollars, for any aCtion for OreaCn of contract arising out of the
performance or on-performance of any obligations imposedt*on the City by this Agreement.
Mthing contained in this p.ar:qgraph or el$Wnere inrthis Rgree'ii- s 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.':rns! !lt r'\$!US
\\tw
OF: rURY TRIAL-
This Agreement',s-.hall .be :tO=fiaV-e,1Q.9*pn made and shall be construed and interpreted in
accordance with the laws of te of
of same shall lie in Miami-Dade Counti, Florida.
CITY AND CONCESSIONAIRE HEREBY KNOWINGLY AND INTENTIONALLY WAIVE THE
RIGHT TO TRIAL BY JURY rN ANY ACTTON OR PROCEEDTNG THAT CITY
AND CONCESSIONAIRE MAY HEREIN AFTER INSTITUTE AGAINST EACH OTHER
WITH RESPECT TO ANY MATTER ARISING OUT OF OR RELATED TO THIS
AGREEMENT OR THE CONCESSTON AREA(S).
SECTION 21. CONCESSIONAIRE'S COMPLIANCE WITH FLORIDA PUBLIC REGORDS
LAW.
21.1 Contractor shall cornply with Florida Public Records law under Chapter 119, Florida
Statutes, as may be amended from time to time. Records made or received in
connection with this Agreement are public records uMer Florida law, as defined in
Section 1 19.01 1(12), Florida Statutes.
25
207
21.2 Pursuant to Section 119.0701 of the Florida Statutes, if the Contractor meets the
definition of Contractor as defined in Section 1 19.0701(1Xa), the Contractor shall:
(A) Keep and maintain public records required by the City to perform the service;
(B) 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 1 19,
Florida Statutes or as othenuise provided by law;
(C) Ensure that public records that are exempt or tial and exempt from public
records disclosure requirements are not d as authorized by law, for
the duration of the contract term and followi pletion of the Agreement if the
Contractor does not transfer the records to
(D) Upon completion of the Agreement, transjei, at no coiflta. the City, all public records
in possession of the Contractor or keep and maintain pu-bliorecords required by the
City to perform the service. lf the Contractor transfers all=public records to the City
upon completion of the Agreement, the Contractor shall destroy any duplicate public
records that are exempt or confidential and exempt from pubiiC iecords disclosure
requirements. lf the Contraclor keeps and maihtains public records "upon completion
of the Agreement, the Cohtractor shall meet all applicable requirements for retaining
public records. All records stgred.electronically must be provided to the City, upon
request from the City's custffian #ffi.$6kliq recordS, in a format that is compatible with
the information technology systems oftfiE City.
21.3 Request for Rec6rds; NohCompliance.
(A) A request to inspect or copy public records relating to the City's contract for services
must be made directly to the City.'' if the City does not possess the requested
,.Afiffi i=lthe City shaf immeOiatety notify the Contractor of the request, and the
,zl._j. ilfuct€must provide the records to the City or allow the records to be inspected
';11;,l ,or copied wltEi reasd,nable time.
(Elf$ntractor's failuie to comply with the City's request for records shall constitute a
"fifgngh of this A$Fdement3nd the City, at its sole discretion, may: (1) unilaterally
te'ftffi, Je the Agieement; (2) avail itself of the remedies set forth under the
Onrdrug}; and/or {$} avail itself of any available remedies at law or in equity.
(C) A ContrJ''8t5,r,, h"#fi to provide the public records to the City within a reasonable
time may be subjeldt to penalties under s. 1 19.10.
..__.,7iy
21.4 CivilAction.
(A) lf a civil action is filed against a Contractor to compel production of public records
relating to the City's contract for services, the court shall assess and award against
the Contractor the reasonable costs of enforcement, including reasonable attorney
fees, if:
1. The court determines that the Contractor unlaMully refused to comply with the
public records request within a reasonable time; and
26
208
2. At least 8 business days before filing the action, the plaintiff provided written
notice of the public records request, including a statement that the Contractor
has not complied with the request, to the City and to the Contractor.
(B)A notice complies with subparagraph (1Xb) if it is sent to the City's custodian of
public records and to the Contractor at the Contractor's address listed on its contract
with the City or to the Contractor's registered agent. Such notices must be sent by
common carrier delivery serviee 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 forma,.
*.
(C) A Contractor who complies with a public records redfest within 8 business days after
the notice is sent is not liable for the reason,?,.9,jr*S=.if . of enforcement.
:::::::::::::::::::::::,
21.5 tF THE CONTRACTOR HAS QUESTIONS
.._EARDING THE APPLICATION OF
GHAPTER 119, FLORTDA STATUTES, TO THE CONTRAGf".-q 'S DUTY TO PROVIDE
PUBLIC RECORDS RELATING TO THIS AGREEMENT, CONfACT THE GUSTODIAN OF
PUBLIC REGORDS AT: ,. r .
CITY OF MIAMI BEACH ., .l
ATTENTIOw: RAFAF! E: GEANA-DO, CITY CLERK
1700 coNVENTtON CENTER DRTVE i,,n
MIAMI BEACH, FLORTDA 33139 $ff.1- . ..
E-MAI L: RAFAE LG RANADOM IAM ! BE*(: l'lFffinfl
PHONE: 305-673-7411 ;tA
THE REMAINDER OF.JHIS PAGE ALLY LEFT BLANK.
27
209
lN WITNESS WHEREOF, the parties hereto have caused their names to be signed and their
seals to be affixed, all as of the day and year first above written, indicating their Agreement.
Attest:CITY OF MIAMI BEACH, FLORIDA
Rafael E. Granado, City Clerk Philip Levin ayol
-ffir"
==,===
Attest:
Print Name and Title -Pii ,Name and Title
M!AMI.=WA
BEAC
LLC.DIB/A MIAMI
s
:t::=i
iWir rrr
28
210
Exhibit 1
Barry Kutun Boat Ramp at Maurice Gibb Memorial Park
Commercial Concess,on Sife Plan
* crossed morked section is concession oreo
29
211
Exhibit 2
Application for Commercial Concess,on Operations
at Public Boat Ramps
"o,*?,1.'i:/^
iirirti.lli
30
212
Exhibit 3
Re/ease Form
_Qs-$,$,,,IP&
:: ..::::::::::::::::::::
.::::::::::::::::
''.:::lL:'..:L:1L
''.::...;-:a..:.::=
,,... v
..LL !
31
213
214
Resolutions - R7 R
MIAMI BEACH
COMMISSION MEI'JIORAN DU M
TO: Honorable Mayor and Members of the City Commission
FROM: Raul J. Aguila, CityAttorney
DATE: December 14,2016
SUBJECT: A RESOLUT]ON OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH, FLORIDA, URGING THE FLORIDA LEGISLATURE TO
ESTABLISH A RESTAURANT GRADING SYSTEM TO BE IMPLEMENTED BY
THE DIVISION OF HOTELS AND RESTAURANTS OF THE FLORIDA
DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION.
RECOMMENDATION
Pursuant to the request of Commissioner Ricky Arriola, the attached Resolution is submifted for
consideration by the Mayor and City Commission at the December 14, 2016 Cornnfssion Meeting.
Legislative Tracking
Office of the CityAttomey
Soonsor
Commissioner Ricky Aniola
ATTACHMENTS:
Description
o Reso Urging Fla Legis to establish Restaurant Grading System 2016 F.A 12.12.2016
Page '1280 of 1457
215
RESOLUTION NO.
A RESOLUTION OF THE MAYOR AND CITY CONNUISSION OF
THE CITY OF MIAMI BEACH, FLORIDA, URGING THE FLORIDA
LEGISLATURE TO ESTABLISH A RESTAURANT GRADING
SYSTEN' TO BE II,IPLEMENTED BY THE DIVISION OF HOTELS
AND RESTAURANTS OF THE FLORIDA DEPARTMENT OF
BUSINESS AND PROFESSIONAL REGULATION.
WHEREAS, research has shown that most bacterial, viral and
based foodborne illnesses occur because of poor hygiene, improper
handling, and the inadequate cooling and heating of food; and
contaminant-
storage and
WHEREAS, grading systems to notifo customers of the cleanliness of
restaurants have been implemented in the various jurisdictions around the nation and,
notably, within the City of New York; and
WHEREAS, under New York City law, restaurants are rated with an A, B, or C,
and are required to follow food safety rules that require workers to, among other things,
wash hands before touching food, keep foods at their proper temperature to prevent the
groMh of dangerous bacteria, avoid cross-contamination of foods, prevent rodent and
pest infestations by maintaining clean spaces and using proper extermination methods,
and have a supervisor trained in food protection present at all times to oversee
operations; and
WHEREAS, research in New York City, and elsewhere, has shown that
restaurants with poorer inspection results are more likely to be associated with
outbreaks of illness; and
WHEREAS, prior to the implementation of the grading system in New York City,
restaurants were motivated to practice food safety by their own desire to maintain
healthful conditions and by the threat of fines and violations; however, and the
introduction of the grading system provides the additional incentive of recognition with
an A grade for excellent food safety practices; and
WHEREAS, more significantly, a study of the restaurant grading system in New
York City after 18 months of implementation revealed that grading has led to significant
irnprovements in restaurant sanitary practices because fewer restaurants have
violations associated with foodborne illnesses, and more restaurants earn A grades on
initial inspections, require less frequent inspections, and avoid fines; and
UTHEREAS, a restaurant grading system should be implemented in the State of
Florida, by the Division of Hotels and Restaurants of the Florida Department of
Business and Professional Regulation, to protect the health, safety, and welfare of the
dining public and to enhance Florida's status as a premier tourist destination.
Page 1281 o'f 1457
216
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY
COM[,||SS|ON OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City
Commission hereby urge the Florida Legislature to establish a restaurant grading
system in the State of Florida to be implemented by the Division of Hotels and
Restaurants of the Florida Department of Business and Professional Regulation.
PASSED AND ADOPTED this _ day of December, 2016.
ATTEST:Philip Levine, Mayor
Rafael E. Granado, City Clerk
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
-
Dole
F:\rATTo\TURN\REsos\ Reso Urging Fla Legis. to establish Retauraflt Grading System 2016 f,Eso.doc
,)/,,Ir,
Page 1282 of 1457
217
THIS PAGE INTENTIONALLY LEFT BLANK
218