HomeMy WebLinkAboutBoucher Brothers Concession Agm
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Amended and Restated
Boucher Brothers
Miami Beach LLC
Beachfront
Concession
Agreement
INDEX
SECTION
TITLE
PAGE
1 TERM.. .................. ...... ...... ............... ......... ..... ......... .................... ..... ........ ............... ....... ..... 5
2. CONCESSION AREA(S) ........ ......... ......... ... ........... ...... ................... ........ ............. ......... ..... 6
2.1 Lummus Park. ...... ......... ...... ...... ... ..... ............................. ....... ........ ........... ......... ..... 6
2.2 Ocean Terrace ........... ......... ......... ..... ......... ...... ............. ...... ........ ...... ..... ........... ..... 7
2.3 North Shore Open Space Park .............................................................................. 8
2.6 Buffer Zones.. ...... ......... ...... ............ ........... ...... ................... ........ ...... ....... .............. 9
3. USE(S) ....... ................. ..................... ......... ..... ......... ................... ...... ........ ...... ....... ......... ..... 9
3.1 Rental of Beach Equipment ...................................................................................9
3.2 Food and Beverage Service ................................................................................ 12 .
3.3 Sale of Beach Related Sundries .......................................................................... 14
3.4 Watersport Equipment RentaL............ ................................ ........ ......................... 15
3.5 Storage of Concession Facilities/Equipment ....................................................... 21
3.6 Hu rricane Evacuation Plan .................................................................................. 22
3.7 Sea Turtles.... ......... ....... ...... ....................... .......... ................. ............ ............... .... 22
3.8 City Occupational Licenses. ....................... .......... ............ ............. ................. ...... 23
4. CONCESSION FEES ..... ................... ...... ... ............... ................ ............. ........... ............... 23
4.1 Minimum Guarantee ....... ............ ............... ............ .................... ........... .... ........... 23
4.1.1 Minimum Guarantee on Optional Services (MGO) ..............................................24
4.2 Percentage of Gross (PG) vs. MG ....................................................................... 24
4.2.1 Percentage of Gross on Optional Services (PGO) vs. MGO ...............................24
4.3 I nterest for Late Payment..................................................................................... 26
4.4 Sales and Use Tax...............................................................................................26
5. MAINTENANCE AND EXAMINATION OF RECORDS .................................................... 26
6. INSPECTION AND AUDIT .......... ............ ............ ............... ...... ........ ........ .................... ..... 27
7. TAXES, ASSESSMENTS, AND UTILITIES...................................................................... 28
7.2 Procedure if Ad Valorem Taxes Assessed ..........................................................29
8. EMPLOYEES ........... ....... ........ ......... .......................................... ...... ........ ................... ...... 29
9. HOU RS OF OPERATION... ............. ...... ..... '.' ....... ............ ............ ................................ .... 29
10. MAINTENANCE. ............. ................. ...... ............................... ................. ............ ............... 30
10.2 Garbage Receptacles and Fenced Storage Area................................................ 30
10.3 Facilities/Equipment............................................................................................. 31
10.4 Orderly Operation................................................................................................. 31
10.5 No Dangerous Materials...................................................................................... 31
10.6 Security ......... ...................... .... ....... ....... ..... .......... ............ ............... ............. ........ 32
10.7 Vehicles on the Beach ......................................................................................... 32
10.8 Inspection............................................................................................................. 33
11. INSURANCE......... ...... ..... ....................... ..... ....... ......... ...... ......... ...... ............................. ... 33
12. INDEMNITy............. ... ..... ....... .... ........ ...... ... ........... .... ............. ........ ........ ......... ................ 34
12.4 Subrogation... ............. ... ...... ........... ..... ....... ...... ............. ... ..... ...... ...... ....... ...... ...... 35
12.5 Force Majeure.... ......... .......... ...... ..... ....... ...... ......... ............ ........ .......................... 35
12.6 Labor Dispute.......... ................. .......... ....... ...... ...... ....... ........ ..... ................ ........... 36
12.7 Waiver of Loss from Hazards .............................................................................. 36
13 DEFAULT AND TERMINATION ....................................................................................... 36
13.1 Bankruptcy. ..... ....... ....... ...... ........ ..... ....... .......... ....... .......... ............... ............. ...... 36
13.2 Default in Payment.. ........... ...... ............... ............ ..... .......... ....... ............ ............... 37
13.3 Non-Monetary Default ..................... ....... ..... .......... ......... ........... ..... ............. ......... 37
13.4 City's Remedies for Concessionaire's Default..................................................... 37
13.6 Termination for Convenience/Partial Termination ............................................... 38
13.7 Surrender of Concession Areas........................................................................... 38
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SECTION
TITLE
PAGE
14. PERFORMANCE BOND OR ALTERNATE SECURITy................................................... 39
15. ASSIGNMENT ........ ..... .... ..... .................................. ..... .................. ..... ....... ....... .... ........ .... 40
16. SPECIAL EVENTS / SPONSORSHiPS............................................................................ 41
16.2 City Special Events .............................................................................................. 41
16.4 Sponsorships.. ........... ..... .......... ........... ........... .................. ............ ......... .............. 42
17. NO IMPROPER USE... .... ....... ............... ........... ..... ...... .......... ........ ............ ....... ...... .... ...... 42
18. PRICE SCHEDULES ....... ....... ..... .......... ......... ............. .......... ...... .............. ........... ............ 43
19. NOTiCES.......................................................................................................................... 43
20. LAWS ....... ........ ............ ...... ..... ..... ....... ..... ......... ...... ... ....... ....... ...... ..... .... ... ....... ...... ...... .... 44
20.1 Compliance ..... ......... ................. ................. ............... ........ .............. ..... ...... .......... 44
20.2 Governing Law..................................................................................................... 44
20.3 Equal Employment Opportunity.. ............................ ............................................. 44
20.4 No Discrimination..... ....... ...... ........ ..... ....... ........ ..................... .... .......... ........ ........ 45
21 . M ISCELLAN EOUS............................................................................................................ 45
21 .1 No Partnership..................................................................................................... 45
21.2 Modifications ........ ......... ........ .... ........ ..................... ........ ......... ..... ....... ..... ....... ..... 45
21.3 Complete Agreement................ ........ ....... ...... ................ ......... ..... ....... ...... ...... ..... 45
21.4 Headings.. ...... ...... ..... ..... ................... ............. ................ .............. .... ............. ....... 45
21.5 Binding Effect............ ..... ............ ....... ............. .............. .................. ............. ......... 45
21.6 Clauses.... ................. ......... ............... ....... ... ............. ................. ........ ............ ....... 46
21.7 Severability....... ......... ................. ....... ............. .......... ...... ............................... ....... 46
21 .8 Right of Entry....................................................................................................... 46
21.9 Not a Lease... ...... ....................... .... ....... ........ ........ ........ ..... ......... ....... ..... ............. 46
21.10 Signage. ....................... .............. ...... ..... .......... ..... ... ............... ............ .... .............. 46
21.11 Use of Beach ....................................................................................................... 46
21.12 Conflict of Interest ................................................................................................47
21.13 Reasonableness .................................................................................................. 47
21.14 Procedure for Approvals and/or Consents........................................................... 47
21 .15 No Waiver............................................................................................................ 47
21.16 No Third Party Beneficiary ................................................................................... 47
22. LI M ITA TION OF LIABILITy.............................................................................................. 48
23. VENUE.... ..... ...... .... ........ ..... ........... ..... ........ .... ... .... .... ...... ........ ...... ....... ............ ...... .......... 48
EXHIBITS
Exhibit 1.2 ............ ....... .......... ............... ............ ....................... ........ ..... ........ ........ 50
Exhibit 3.1 ............................................................................................................ 51
Exhibit 3.1.1 .........................................................................................................57
Exhibit 3.1.2 ......................................................................................................... 60
Exhibit 3.1.3 ......... .................. .................................. ......... ............ ....... ................ 72
Exhibit 3.1.7 ... ......... ............ ........ ....... ............ ................ ..... ......... ........ .... ............ 73
Exhibit 3.2.1 ........ ............... ............... ...................... ...... ............ ... ....... ..... ............ 74
Exhibit 3.2.1.1 ...................................................................................................... 77
Exhibit 3.3 .......... ............... ......... ...... ....... ............... ..... ............. .......... .................. 78
Exhibit 3.4.1 ..... ....... .................. .... ....... .......... ....... ........... .......... ..... ....... ...... ........ 79
Exhibit 3.5.1 ...... ......... ........ ............. ............ ......... ..... ................ ........ ....... ............ 80
Exhibit 3.6 .............. ................... ......... .......... ......... .............. ....... ........ .......... ......... 85
Exhibit 4.3 .. ............... ............. ........ ......... ............ ... .................. ...... ............. ......... 90
Exhibit 6 ......................... ......... ........... .......... ......... ..... ...... ........ ............ ........ ........ 91
Exhibit 10.2.1 ............. ........ ............... .......... ....... ....... ..... ......... ........ ....... ...... ........ 94
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AMENDED AND RESTATED
CONCESSION AGREEMENT BETWEEN
CITY OF MIAMI BEACH, FLORIDA AND
BOUCHER BROTHERS MIAMI BEACH LLC
FOR MANAGEMENT AND OPERATION OF BEACHFRONT CONCESSIONS
PURSUANT TO REQUEST FOR PROPOSALS NO. 22-00/01
THIS AMENDED AND RESTATED AGREEMENT made the 18th day of May ,2005,
between the CITY OF MIAMI BEACH, a municipal corporation of the State of Florida
(hereinafter called "City"), having its principal address at 1700 Convention Center Drive,
Miami Beach, Florida, 33139, and BOUCHER BROTHERS MIAMI BEACH LLC, a limited
liability company of the State of Florida, with offices at 420 Lincoln Road, Suite 265, Miami
Beach, Florida, 33139 (hereinafter called "Concessionaire").
WITNESSETH
WHEREAS, in accordance with Management Agreement No. 750-0006 by and between
the Board of Trustees of the Internal Improvement Trust Fund of the State of Florida and
the City, the City is vested with management of, jurisdiction over, and control of, all
beaches in the City of Miami Beach; and
WHEREAS, on October 2, 1985, the Mayor and City Commission adopted Resolution No.
85-18222, approving a Concession Agreement, dated November 7, 1985, between the City
and Penrod Brothers for the rental of beach equipment, water recreation equipment and
food and beverage service at Pier Park, Oceanfront Park, and Lummus Park; and
WHEREAS, said Concession Agreement, as amended, was scheduled to expire on
November 4, 2000 and, as such, on October 18, 2000, the Mayor and City Commission
approved an amendment to the Concession Agreement, providing, in part, for a one year
extension, to expire on November 4, 2001, to allow for the issuance of a Request for
Proposals (RFP) for the future operation of beachfront concessions on the beaches
seaward of Lummus Park, Ocean Terrace and North Shore Open Space Park; and
WHEREAS, on February 21, 2001, the Mayor and City Commission authorized the
issuance of said RFP and same was subsequently issued; and
WHEREAS, on July 18, 2001, the Mayor and City Commission authorized the
Administration to negotiate with Boucher Brothers Miami Beach, LLC, as the successful
proposer; and
WHEREAS, the Administration successfully negotiated said Concession Agreement with
Boucher Brothers Miami Beach, LLC, for the operation and management of beachfront
concessions including beach equipment rentals, food and beverage sales, and watersport
rentals on the beaches seaward of Lummus Park, Ocean Terrace and North Shore Open
Space Park; said Agreement commenced on November 5, 2001, and is set to expire
November 4, 2006, with an option to renew for an additional five (5) year term as provided
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herein; and
WHEREAS, said Concession Agreement provided for the City and Boucher Brothers
Miami Beach LLC, after the end of each contract year, to meet to review their performance
for the previous contract year to discuss quality, operational, maintenance and other
issues; and
WHEREAS, as a result of said review process, the City and Boucher Brothers Miami
Beach LLC have agreed to amend and restate certain provisions of the Concession
Agreement, which have been incorporated herein.
NOW THEREFORE, in consideration of the premises and the mutual covenants and
conditions herein contained and other good and valuable consideration, the receipt and
adequacy of which are hereby conclusively acknowledged, it is agreed by the parties
hereto as follows:
The City hereby grants to the Concessionaire, and the Concessionaire hereby accepts
from the City, the exclusive right to operate the following described concession within the
Concession Areas in conformance with the purposes and for the period stated herein and
subject to all the terms and conditions herein contained and fairly implied by the terms
hereinafter set forth.
SECTION 1. TERM.
1.1 This Agreement shall be for an initial term of five (5) years, commencing
retroactively on the fifth day of November, 2001 (the "Commencement
Date"), and ending on the fourth day of November, 2006. For purposes of
this Agreement, "contract year" shall be defined as that certain period
commencing on November 5th, and ending on November 4th of the following
year, throughout the Term of this Agreement.
1.2 Provided that the Concessionaire is not in default under Section 13 hereof,
commencing upon written notice from Concessionaire to the City, which
notice shall be given in the fourth contract year of the initial term (November
5, 2004 - November 4, 2005) and then no later than 180 days prior to
expiration of said term, Concessionaire and the City shall negotiate
exclusively with each other in good faith for a period of sixty (60) days to
extend the term of this Agreement for an additional five (5) year period. Each
of the parties agrees to use its respective best efforts to negotiate such an
extension on such reasonable terms and conditions that are mutually agreed
upon, excepting the financial terms set forth in Exhibit 1.2 hereto. The parties
acknowledge and agree that the financial terms set forth in Exhibit 1.2 for
such renewal term are fair and reasonable. In the event of such renewal, the
financial terms contained in Exhibit 1.2 shall be the financial terms of the
agreement pertaining to the renewal term of the Agreement. Any such
renewal shall require Concessionaire to purchase new equipment for the
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renewal term, subject to the prior written approval of the City. Concessionaire
shall deliver to City, at least 180 days prior to the expiration of the initial term,
(i) a schedule of any equipment which was replaced during the initial term,
and (ii) an itemized list of proposed replacement equipment; both to be
delivered to, reviewed, and approved by the City prior to commencement of
negotiations for a renewal term.
SECTION 2. CONCESSION AREA(S).
The City hereby grants to the Concessionaire the exclusive right, during the term of this
Agreement, to operate a concession as described herein in the following Concession
Area(s) (hereinafter referred to individually as a "Concession Area" or collectively as the
"Concession Areas"):
2.1 Lummus Park.
This Concession Area is limited to the beach area bounded on the south by
the northernmost line of the 5th Street right-of-way; bounded on the north by
the southernmost line of the 14th Lane right-of-way; bounded on the west by
a line 50 feet east from the easternmost edge of the Dune; and bounded on
the east either by a line 60 feet west of the Mean High Water Line (MHWL)
or by a line 5 feet west of the westernmost lifeguard stand in this Concession
Area, whichever is further east.
2.1.1 Lifeguard Facility Zone:
Concessionaire shall not use or deploy any equipment and/or facilities
on or within those portions of the beach where lifeguard
facilities/stands are currently located (e.g. 6th Street, 8th Street, 10th
Street, 12th Street, 13th Street, and 14th Street, etc.), or may be
located in the future, including the area extending from the
easternmost foot of the Dune to the shoreline and bounded by a line
one hundred (100) feet north of the lifeguard stand(s) and bounded by
a line one hundred (100) feet to the south of such stand(s).
2.1.2 13th to 14th Street Zone:
With regard to the area bounded to the north by a line 50 feet to the
north of the midpoint between 13th and 14th Streets, bounded to the
south by a line 50 feet to the south of the midpoint between 13th and
14th Streets, and bounded to the east and west by the easternmost
and westernmost boundaries of this Concession Area, respectively,
Concessionaire shall not initially deploy any equipment, except in the
event of demand.
2.1.3 9th to 10th Street Zone:
With regard to the area bounded to the north by a line 50 feet to the
north of the midpoint between 9th and 10th Streets, bounded to the
south by a line 50 feet to the south of the midpoint between 9th and
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10th Streets, and bounded to the east and west by the easternmost
and westernmost boundaries of this Concession Area, respectively,
Concessionaire shall not initially deploy any equipment, except in the
event of demand.
2.1.4 Southern Handicap Zone:
With regard to the area bounded to the north by a line 50 feet north of
the southern boundary of this Concession Area, to the south by the
southern boundary of this Concession Area, and bounded to the east
and west by the easternmost and westernmost boundaries of this
Concession Area, respectively, Concessionaire shall not deploy any
equipment, unless specifically requested by a handicapped patron.
2.1.5 Northern Handicap Zone:
With regard to the area bounded to the south by a line 50 feet south
of the northern boundary of this Concession Area, to the north by the
northern boundary of this Concession Area, and bounded to the east
and west by the easternmost and westernmost boundaries of this
Concession Area, respectively, Concessionaire shall not deploy any
equipment, unless specifically requested by a handicapped patron.
City and Concessionaire acknowledge that as of the Commencement Date of
this Agreement, there are a total of six (6) lifeguard stands/facilities existing
within the Lummus Park Concession Area and two (2) additionally proposed
lifeguard stand/facility locations (location of which shall be determined by the
City Manager or his designee) which for purposes of this Subsection 2.1 shall
be considered as if they were also existing, bringing the total number of
lifeguard stands/facilities to eight (8). As such, City and Concessionaire
agree that if and when the total number of lifeguard stands/facilities in the
Area is ten (10), then, in the event more lifeguard stands/facilities are added,
the size of the buffer area around the lifeguard stands/facilities shall be
reduced so as not to further reduce the size of the Concession Area.
. The City and Concessionaire agree and acknowledge that the public's use of
the Concession Area is of prime consideration; accordingly, with regard to
this Concession Area, the Concessionaire shall at all times use reasonable
efforts to strive to maintain approximately forty nine (49%) percent of the
beach frontage within the entire Lummus Park beach area free and clear of
Concessionaire facilities, beach equipment, and watersport equipment, so
that such portion of the beach may remain free and clear for the public's use
and enjoyment.
2.2 Ocean Terrace.
This Concession Area is limited to the beach area bounded on the south by
the northernmost line of the 73rd Street right-of-way; bounded on the north
by the southernmost line of the 75th Street right-of-way; bounded on the
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west by a line 50 feet east from the easternmost edge of the Dune; and
bounded on the east either by a line 60 feet west of the Mean High Water
Line (MHWL) or by a line 5 feet west of the westernmost lifeguard stand in
this Concession Area, whichever is further east.
2.2.1 Lifeguard Facility Zone:
Concessionaire shall not use or deploy any equipment and/or facilities
on or within those portions of the beach where lifeguard
facilities/stands are currently located (e.g. 74th Street), or may be
located in the future, including the area extending from the
easternmost foot of the dune to the shoreline and bounded by a line
one hundred (100) feet north of the lifeguard stand and bounded by a
line one hundred (100) feet to the south of such stand.
2.3 North Shore Open Space Park.
This Concession Area is limited to the beach area bounded on the south by
the northernmost line of the 79th Street right-of-way; bounded on the north
by the southernmost line of the 87th Street right-of-way; bounded on the
west by a line 50 feet east from the easternmost edge of the Dune; and
bounded on the east either by a line 60 feet west of the Mean High Water
Line (MHWL) or by a line 5 feet west of the westernmost lifeguard stand in
this Concession Area, whichever is further east.
2.3.1 Lifeguard Facility Zone:
Concessionaire shall not use or deploy any equipment and/or facilities
on or within those portions of the beach where lifeguard
facilities/stands are currently located (e.g. 79th Street, 81 st Street,
83rd Street, and 85th Street), or may be located in the future,
including the area extending from the easternmost foot of the dune to
the shoreline and bounded by a line one hundred (100) feet north of
the lifeguard stand and bounded by a line one hundred (100) feet to
the south of such stand.
2.4 Notwithstanding the Concession Area(s) granted to Concessionaire above,
Concessionaire herein understands, agrees, and acknowledges that the
aforestated Concession Area(s), along with any and all other public
beachfront area(s) not specifically identified herein, are public and, as such,
must remain available for the use and enjoyment of the general public
whether or not the public chooses to use any of Concessionaire's equipment,
purchase its products, or engage in any of the services it provides. In the
event that a member of the public is within a particular Concession Area, as
set forth herein, Concessionaire agrees to allow for his/her continued
peaceful enjoyment of said Area.
2.5 City and Concessionaire acknowledge that the buffer zones around the
lifeguard stands/facilities referenced above shall not apply to other areas of
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the beach (i.e. non-Concession Areas) in which the upland owner is a private
entity, unless the City's Rules and Regulations for Beachfront Concessions,
as same may be amended from time to time, explicitly so provide.
Notwithstanding the preceding sentence, the provisions of this subsection
shall in no way be deemed or otherwise construed as a waiver on the part of
the City of its Rules and Regulations for Beachfront Concessions.
2.6 Buffer Zones:
City and Concessionaire acknowledge that there are certain areas within
Lummus Park Beach, Ocean Terrace Beach, and North Shore Open Space
Park Beach, that either lie outside of the respective Concession Areas, or
Concessionaire's use of which is limited and/or restricted, including Lifeguard
Facility Zones (defined in Sections 2.1.1, 2.2.1, 2.3.1); Handicap Zones
(defined in Section 2.1.4, 2.1.5) and other defined Zones (Sections 2.1.2 and
2.1.3) which were designed to facilitate public access to the ocean and
shoreline and create buffer zones between Concession Areas and Lifeguard
facilities.
SECTION 3. USE(S).
The Concessionaire is hereby authorized to conduct the following kind(s) of businesses
and provide the following kind(s) of services within the Concession Area(s), as provided
below; all at its sole cost and expense:
3.1 Rental of Beach Equipment.
This shall generally include the rental of chairs, pads, umbrellas and sun
canopies. The City herein approves the rental of beach equipment, as
defined in the preceding sentence and the prices for same; all as set forth in
Exhibit 3.1. Any amendments to Exhibit 3.1, whether as to type(s) of beach
equipment to be rented or as to changes in prices for same, must be
approved in writing by the City Manager or his designee prior to such
changes being implemented within the Concession Area(s), and a new
updated Exhibit 3.1 will be incorporated into this Agreement.
3.1.1 The design, type, material, and color of any and all beach equipment,
as defined above, shall be approved in writing by the City's Planning
Department prior to the Commencement Date of this Agreement. A
photo or photo(s) of such City approved beach equipment is
incorporated herein as Exhibit 3.1.1. Thereafter, Concessionaire shall
not change, alter, or modify said City approved design, type, material
and color of any beach equipment without the prior written consent of
the City Manager or his designee, and, if so approved, an updated
Exhibit 3.1.1 will be made a part of and incorporated into this
Agreement.
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3.1.2 With regard to an individual Concession Area, all respective beach
equipment within that Area shall be placed substantially in
accordance with the attached site plan(s), herein approved by the City
and as set forth, by designated Area, in Exhibit(s) 3.1.2, attached
hereto and incorporated herein. Concessionaire shall not deviate from
or alter the approved site plan(s) without the prior written consent of
the City Manager or his designee.
3.1.3 The set up of beach equipment to be placed within a Concession
Area, substantially in accordance with the site plan(s) approved
pursuant to Exhibit(s) 3.1.2, shall be permitted daily before 1 0:00AM
or as soon thereafter in the event of inclement weather (as soon as
weather permits) (the "Set Up Period") during which time
Concessionaire shall be permitted to set up to the maximum number
(as defined in Exhibit(s) 3.1.5) of beach equipment allowable for that
particular area. In addition to conformance with the approved site
plan(s), daily placement of beach equipment for the Set Up Period
shall be in accordance with and shall not exceed the maximum
numbers, per Area, set forth in Exhibit(s) 3.1.5, attached hereto and
incorporated herein.
3.1.4 The parties acknowledge that Concessionaire's patrons may
themselves relocate chairs and other beach equipment within a
Concession Area and/or to an immediately adjacent "Buffer Zone".
Such relocation shall be permitted, provided that, in the aggregate,
Concessionaire does not materially alter, or allow to be materially
altered, the configuration of a particular Concession Area, as set forth
in the site plan(s) approved pursuant to Exhibit(s) 3.1.2, and/or an
adjacent "Buffer Zone". In the event of this occurrence,
Concessionaire shall immediately correct any material alteration
within a Concession Area to bring same back into substantial
conformance with the approved site plan(s).
Moreover, if Concessionaire determines to replace a certain number
of standard chairs with luxury chairs (above the number of luxury
chairs currently permitted under this Agreement) at any time (not to
exceed the aggregate maximum number of chairs permitted under
this Agreement), thereafter if any member of the public desires a
standard chair which is unavailable due to such replacement,
Concessionaire shall offer and provide a luxury chair at the standard
chair rate.
Notwithstanding anything in this Subsection 3.1.4, the City's Beach
Patrol shall at all times have the sole and absolute discretion to
require Concessionaire, and/or Concessionaire's patrons, to relocate
chairs and other beach equipment in the event that such chairs and/or
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beach equipment in any way impede and/or obstruct sightlines, or
have any other effect whatsoever which would directly or indirectly
impede the performance of Beach Patrol activities. Notwithstanding,
the Beach Patrol's right to require relocation of chairs and/or beach
equipment as provided herein, Concessionaire will cooperate with
Beach Patrol in compliance with the preceding sentence.
3.1.5 The City and Concessionaire agree and acknowledge that the public's
use of the beach is a prime consideration and must be balanced
accordingly with the services to be provided to the public and the
respective financial remunerations to City and Concessionaire,
pursuant to this Agreement. Accordingly, notwithstanding the site
plan(s) and maximum numbers (as provided for in the Set Up Period)
set forth in Subsection 3.1.3 above, Concessionaire further agrees
that, notwithstanding its right to set up its maximum numbers during
the Set Up Period, if during the entire period of time between said Set
Up Period and 1 :OOPM Standard Time or 2:00PM daylight savings
time, as applicable, of any day during the hours of operation herein,
more than twenty-five percent (25%) of Concessionaire's maximum
number of each type of beach equipment for a particular area was
vacant ("vacant" being defined as the beach equipment not being
rented), then Concessionaire shall remove at 1 :OOPM Standard Time,
or 2:00PM daylight savings time, as applicable, that day from the
particular area that number of items of each type of beach equipment
that equates to the difference between such percentage of vacant
equipment and twenty-five percent (25%) of such equipment as
described above (For example, assuming that 100 chairs are the
maximum, if 100 chairs are set up in an area during the Set Up
Period, and 60 are rented and 40 are vacant, then at 1 :OOPM or
2:00PM, as applicable, Concessionaire must remove 15 chairs, which
equals the difference between the actual number of vacant (non-
rented) chairs minus 25% of the maximum number of chairs allowable
during the Set Up Period). If items of equipment are removed as
provided in the preceding sentence, Concessionaire may later that
day increase the number of items of beach equipment based upon
demonstrated increased demand; provided, however, in no event
shall the increased number of chairs in any particular area exceed the
maximum number for that area by twenty percent (20%), without the
prior written consent of the City Manager or his designee.
Notwithstanding the preceding paragraph, within thirty (30) days after
the end of each contract year, City and Concessionaire may meet as
provided in the last paragraph of Section 6 hereof to review, and
subject to mutual agreement of City and Concessionaire, revise, the
maximum numbers (as provided for in the Set Up Period) set forth in
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Subsection 3.1.3 and the formula for removal of vacant beach
equipment set forth in this Subsection 3.1.5.
3.1.6 The condition and quality of Concessionaire's beach equipment shall
at all times be maintained in a manner that is consistent with the
condition and quality of first class concession beach equipment
located at public beaches adjacent to world class beach resorts. It is
the City's intent, and Concessionaire hereby agrees and
acknowledges same, to develop and promote world class public
beach concession facilities and operations that would be comparable
to those found at other world class public beach concession facilities.
Accordingly, Concessionaire shall not only, at a minimum, maintain all
beach equipment placed within the Concession Areas in usable
condition, but shall adhere, as indicated in this subsection, to high
ongoing maintenance standards for same. Following the
Commencement Date of this Agreement, the City may, at its option,
request that Concessionaire provide it with a full inventory of all beach
equipment contemplated for use herein, including types and numbers
(per item); dates of lease and/or purchase; and initial condition,
established as of the date of inventory. Thereafter, City and
Concessionaire shall jointly prepare a plan and schedule for the
ongoing replacement and/or updating of beach equipment throughout
the term of this Agreement.
3.1.7 City and Concessionaire acknowledge that the buffer zones around
the lifeguard stands/facilities referenced herein shall not apply to other
areas of the beach (Le. non-Concession Areas) in which the upland
owner is a private entity, unless the City's Rules and Regulations for
Beachfront Concessions, as same may be amended from time to
time, explicitly so provide. Notwithstanding the preceding sentence,
the provisions of this subsection shall in no way be deemed or
construed as a waiver on the part of the City of its Rules and
Regulations for Beachfront Concessions.
3.2 Food and Beverage Service.
3.2.1 Concessionaire shall prepare, or cause to be prepared, for sale within
each respective Concession Area herein, such cooked, prepared,
and/or prepackaged foods and such non-alcoholic beverages, as
those set forth in Exhibit 3.2.1, attached hereto and incorporated
herein. However, actual cooking and heating from Concessionaire's
on-site facilities shall not be allowed, except if allowed pursuant to
Subsection 3.2.7. The City herein approves the types of food and
beverages, and prices for same, as those set forth in Exhibit 3.2.1.
Any amendments to Exhibit 3.2.1, whether as to type of food and
beverages to be sold, or as to changes in prices for same, must be
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approved in writing by the City Manager or his designee prior to such
changes being implemented within the Concession Area(s), and a
new updated Exhibit 3.2.1 will be incorporated into this Agreement.
3.2.1.1 Additionally, Concessionaire shall be permitted to utilize no
more than five (5) non-motorized, stationary carts in the
Lummus Park Concession Area, as defined in Subsection 2.1 ,
to dispense ice cream. The design, size, type, material, and
color of any and all ice cream carts shall be approved in writing
by the City's Planning Department. The location of same shall
be designated within Concessionaire's site plan(s) as
referenced in Exhibit 3.1.2. A photo or photo(s) of such City
approved ice cream cart(s) is incorporated herein as Exhibit
3.2.1.1. Thereafter, Concessionaire shall not change, alter, or
modify said City approved ice cream cart(s) without prior
written consent of the City Manager or his designee, and if so
approved, an updated Exhibit 3.2.1.1 will be made a part of
and incorporated into this Agreement.
3.2.2 The City herein approves and acknowledges Concessionaire's use of
Monty's Miami Beach LLC to provide the food and beverage services
contemplated within this Subsection 3.2 and this Agreement (the
"Subconcessionaire").
I n the event that Su bconcessionaire is or will no longer be associated
with Concessionaire, or otherwise ceases to participate in the
Agreement, then any replacement subconcessionaire selected by
Concessionaire shall be subject to the prior written approval of the
City Manager or his designee. Concessionaire shall submit a
minimum of three (3) replacement subconcessionaires; said
replacements to be submitted no later than sixty (60) days prior to
Subconcessionaire's last day of participation in this Agreement, or if
Concessionaire receives less than sixty (60) days advance notice of
Subconcessionaire's cessation of services, then said replacements
shall be submitted to the City Manager or his designee no later than
sixty (60) days after Concessionaire becomes aware the
Subconcessionaire has ceased operations or will cease operations. In
the event that the City Manager or his designee declines in writing to
approve all such proposed replacement subconcessionaires, following
submittal of the same by Concessionaire, then the City Manager or
his designee, at his sole option, may terminate this Agreement for
cause without further demand or notice.
3.2.3 All food and beverages sold within the Concession Areas will be
properly prepared and served in compliance with all applicable health
and sanitary standards, laws and regulations.
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3.2.4 The quality of food, beverages, and service offered will be first-rate
and comparable to that available on public beaches adjacent to world
class beach resorts on par with the City of Miami Beach or, at a
minimum, to the quality of food, beverages, and service provided by
concessionaires behind privately owned hotels within the City of
Miami Beach.
3.2.5 In addition to Concessionaire's maintenance obligations for the
Concession Areas in general, as set forth in Section 10 hereof, all
food and beverage dispensing facilities, and the immediately
surrounding 25-foot adjacent areas, shall at all times be maintained in
a clean and sanitary manner. At least one supervisory employee must
possess a Food Service Management Certification issued by a
County Public Health Department in Florida, as required by law. In
addition, each food service facility must be licensed by the Florida
Department of Business Regulation, Division of Hotels and
Restaurants, and/or the Department of Agriculture, and/or as may
further be required by State law and as required by corresponding
agencies.
3.2.6 Food and beverage services shall be offered daily to patrons at all
times during the Concession Area(s) hours of operation, as set forth
in Section 9 herein; provided that if Concessionaire can show, to
City's reasonable satisfaction, that if either an increase or decrease in
demand for such service exists in one or all of the Concession Areas
then, in that event, Concessionaire shall obtain the City's prior
consent in writing, before extending or decreasing service beyond the
hours of operation.
3.2.7 Notwithstanding the prohibition on cooking and heating, as setforth in
Subsection 3.2.1, the City Manager or his designee may allow
cooking and heating in the Ocean Terrace and North Shore Open
Space Park Concession Areas, if recommended by the North Beach
community, which shall include, but not be limited to, the advisory
recommendations of the North Beach Development Corporation, and
North Beach area hotels and restaurants. Notwithstanding a
recommendation from the North Beach community to allow cooking
and heating in the Ocean Terrace and North Shore Open Space Park
Concession Areas, the final recommendation shall rest with the City
Manager or his designee.
3.3 Sale of Beach Related Sundries.
This shall generally include the sale of those sundry items identified in
Exhibit 3.3, substantially in accordance with the price ranges set forth
therein. Any amendments to Exhibit 3.3, whether as to changes and/or
additions of items to be offered for sale, or in the respective price ranges for
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same, must be approved in writing by the City Manager or his designee, prior
to such changes and/or additions being implemented within the Concession
Area(s), and a new updated Exhibit 3.3 will be incorporated into this
Agreement.
3.3.1 City and Concessionaire herein acknowledge and agree that the sale
of beach sundries pursuant to this Subsection is contemplated and
therefore approved as an optional service. Accordingly, in the event
the City Manager or his designee determines, at his sole option and
discretion, that the provision of this optional service is no longer
desired, then the City may revoke Concessionaire's right to provide
said optional service, without cause, upon thirty (30) days written
notice to Concessionaire. Any percentage of gross paid by
Concessionaire to City for this optional service, pursuant to
Subsection 4.3.1 of the Agreement, shall be prorated and/or adjusted
accordingly as of the date of termination for said optional service, and
no further payment shall be required for same during the term of this
Agreement, unless the City reinstates the optional service, at which
time the payment provisions of Subsection 4.3.1 shall once again
apply.
Notwithstanding anything herein to the contrary, the sale of lotions,
oils and skin care products (collectively, "Skin Care Products") are
approved hereby and are not considered an optional service. The City
herein approves the sale of Skin Care Products and the prices for
same, all as set forth in Exhibit 3.1. Any amendments to Exhibit 3.1,
whether as to type(s) of Skin Care Products to be sold, or as to
changes in prices for same, must be approved in writing by the City
Manager or his designee prior to such changes being implemented
within the Concession Area(s), and a new updated Exhibit 3.1 will be
incorporated into this Agreement.
3.4 Watersport Equipment Rental.
3.4.1 At this time, City and Concessionaire agree and acknowledge that
watersport equipment rentals shall include only the rental of eight (8)
waverunners, one (1) parasail boat, one (1) banana boat and six (6)
kayaks. Any future requests for other watersport equipment activities
or additional items of the watersport equipment referenced above
must be approved in writing by the City Manager or his designee, who
shall first obtain a non-binding recommendation from the City's Marine
Authority Board. The City herein approves the rental of that
watersport equipment, as defined in this Subsection and the prices for
same; all as set forth in Exhibit 3.4.1. Any amendments to Exhibit
3.4.1, whether as to type(s) or number of watersport equipment to be
rented, or as to changes in prices for same, must be approved in
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writing by the City Manager or his designee prior to such changes
being implemented within the Concession Area(s), and a new
updated Exhibit 3.4.1 will be incorporated into this Agreement.
3.4.2 City and Concessionaire herein acknowledge and agree that the
rental of watersport equipment pursuant to this subsection is
contemplated and therefore approved as an optional service.
Accordingly, in the event the City Manager or his designee
determines, at his sole option and discretion, that the provision of this
optional service is no longer desired, then the City may revoke
Concessionaire's right to provide said service, without cause, upon
thirty (30) days written notice to Concessionaire. Any minimum
guarantee on options or percentage of gross paid by Concessionaire
to City for this optional service, pursuant to Subsections 4.2.1 and
4.3.1 of the Agreement, respectively, shall be prorated and/or
adjusted accordingly as of the date of termination for said optional
service, and no further payment shall be required for same during the
term of this Agreement, unless the City reinstates the optional service,
at which time the payment provisions of Section 4 shall once again
apply. Because a minimum guarantee on this optional service, is paid
in advance, City agrees to refund such prorata minimum guarantee to
Concessionaire upon sixty (60) days written demand from
Concessionaire.
3.4.3 City and Concessionaire agree and acknowledge that watersport
equipment rentals, as contemplated in Subsection 3.4.1 above, shall
be permitted only from a designated channel, to be located on the
beachfront at Ninth (9th) Street. During the term of the Watersport
PGO Waiver (as defined in Subsection 4.2.1), Concessionaire agrees,
at its sole cost and expense, to provide one off-duty police officer
during weekends and federal holidays to monitor the watersport
channel, during all times that watersport channel is operating.
Concessionaire's future use of any alternate or additional channel(s)
is subject to the prior written approval of the City Manager or his
designee, who shall first obtain a non-binding recommendation from
the City's Marine Authority Board. Notwithstanding the preceding
sentences of this subsection, the City Manager or his designee may
consider the establishment of watersport channel(s) in the Ocean
Terrace and/or North Shore Open Space Park Concession Areas. In
addition to consideration of these channel(s) by the Marine Authority,
the City shall also consider the non-binding and advisory
recommendations of including, but not limited to, the following: North
Beach Development Corporation, North Beach area hotels and
restaurants and the City's Beach Patrol. Results of this process will be
provided first to the Marine Authority and, having obtained their
recommendation, to the City Manager or his designee for final
16
consideration. This process, exclusive of the City Manager's final
recommendation, shall be completed no later than six (6) months
following the approval of this Amended and Restated Concession
Agreement by the Mayor and City Commission.
All channels shall be used as an access route through which users of
watersport equipment may leave the beachfront and enter open
water. Said channel(s) shall be a minimum of fifty (50) feet in width
and shall extend 300 feet east, and perpendicular to the shore line
and be marked by removable high visibility orange colored buoys
which shall be a minimum of eighteen (18) inches in diameter. There
shall be a minimum of eight (8) buoys on each side of the channel,
equally spaced. All buoys shall be clearly marked "IDLE SPEED" in
six (6") inch high letters. Specifications or a sample of the line to be
used for the channel buoys must be sent to the Bureau of Protected
Species for approval prior to use.
Watercraft shall not exceed "idle speed" within the channel.
3.4.4 All watersport concession operations must have a "chase boat" and
properly certified concession staff, readily available to operate same.
The chase boat must be positioned at the eastern end of the
watersport channel, if any rented watercraft are in the water, unless
the chase boat is being used for other customary life safety related
functions related to the approved watersport operation(s). The chase
boat must be capable of catching, and performing a proper rescue of,
all watercraft which are available for rent. The chase boat must be
readily available for use and be safely located on shore, or within the
channel, unless monitoring or recalling a patron. In addition to these
requirements, all chase boat operators shall wear high visibility yellow
colored personal floatation devices when operating the chase boat.
When the chase boat is on shore, said high visibility yellow colored
personal floatation device shall be placed on top of the chase boat, in
order to identify same. All concession staff must be properly certified
(complete boater's education course approved by the NASBLA or
pass the State of Florida "How to Boat Smart" course), and wear the
required identification badge to reflect same, and staff must be readily
available at all times that concession is operating.
3.4.5 The operation of all watersport equipment shall be conducted east of
the 300-foot swimming area ("guarded area") and no closer than 400
feet of any lifeguard stand. Concessionaire is responsible for
instructing clients on the safe operation of watersport equipment,
including advising them to stay away from all "guarded areas." The
"guarded area" extends 300 feet east of the shoreline and 1 00 feet
from the nearest bather or swimmer.
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3.4.6
3.4.7
3.4.8
3.4.9
3.4.10
The Concessionaire must instruct all users as to all safety
precautions, including avoidance of swimmers and bathers, and
inform said users of any and all Municipal, County, State and Federal
requirements associated with the use of the respective watersport
equipment.
All concession activities, including the placement and/or use of
umbrellas, sun canopies, watersport equipment, and any and all other
concession-related equipment, shall not obstruct the view of a
lifeguard. Any request from a lifeguard to relocate any item that
obstructs his/her view shall be complied with immediately by the
Concessionaire.
Concessionaire shall not knowingly permit anyone under the minimum
age, as required by Federal, State, County or Municipal law (unless
appropriate written consent of the parent or guardian is provided,
pursuant to applicable law), nor anyone under the influence of alcohol
or other mood altering drug, to rent, or use any watersport equipment.
Concessionaire shall not knowingly permit anyone under the age of
18 to rent watersport equipment. Concessionaire shall not knowingly
permit anyone under the age of 16 to operate motorized watercraft
equipment. Concessionaire shall not knowingly permit, until October
1, 2001, a person born after September 30, 1980, and on or after
October 1,2001, a person 21 years of age or younger, to operate a
marine vessel of 10 horse power or more, unless such person has in
his/her possession aboard the vessel, a photo identification and proof
of completion of a boater education course approved by the State of
Florida, and/or the National Association of State Boating Law
Administrators.
Concessionaire shall supply all users of watersport equipment with
the appropriate United States Coast Guard approved "personal
flotation device" in appropriate sizes. Proper "personal flotation
devices" must be "speed rated".
All watersport equipment shall be maintained at Concessionaire's sole
cost and expense and shall meet the registration and licensing
requirements of the State of Florida, and any other governing agency.
Concessionaire agrees that all motorized watersport equipment shall
be at minimum of commercial grade and quality. All motorized
watersport equipment shall be no more than two (2) model years old.
City reserves the right to request proof of title or other proof of
purchase related to such equipment in order for the City to properly
monitor this requirement. To assure that all watersport equipment is at
all times maintained in accordance with the highest industry
standards, the City reserves the right to request periodic service
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3.4.11
3.4.12
3.4.13
3.4.14
3.4.15
3.4.16
3.4.17
and/or maintenance reports, to be provided and, if required, certified
or otherwise guaranteed by Concessionaire, at its sole cost and
expense. As new fuel injected four (4) stroke engines are developed
and become available on motorized watersport equipment,
Concessionaire shall replace within two years of the reasonable
availability of such fuel injected four (4) stroke engines, all of its
motorized watersport equipment regarding this Agreement with the
new models; provided, however, without limitation, Concessionaire
shall not have to replace such equipment with such fuel injected four
(4) stroke engines if it is not economically feasible.
All motorized watercraft shall be equipped with "kill-switches" in
proper working order.
All watersport equipment shall be clearly marked to identify the
specific concessionaire with ten- inch (10") high, one and one-half
inch (1 2") thick, contrasting numbers.
Any fueling of watercraft on the beach must comply with FDEP,
Miami-Dade County DERM and USCG Regulations.
Concessionaire must be equipped, on site, with operating fire
extinguisher and cellular/wireless type telephone.
Concessionaire must provide renters or users a thorough
demonstration of the operation of the rented watersport equipment
and use of all safety equipment, including but not limited to handling
characteristics of personal watercraft. Furthermore, all renters and
users must be instructed as to the location and proper usage of all on-
board safety equipment, including but not limited to fire
extinguisher(s).
Concessionaire must inform all watersport equipment renters or users
as to the locations of known diving areas and reefs, how to identify a
diving flag, and instruct them to maintain a minimum 100' distance
from dive flags, swimmers, other boaters, markers and marked areas.
Concessionaire shall have, at a minimum during peak usage ("peak
usage" defined as anytime in which eight (8) motorized watersport
equipment items are present at the subject Concession Area), three
(3) employees on site while the watersport equipment concession is
open, provided however, that this number may be increased from time
to time, if required by the City Manager or his designee.
Concessionaire shall have at least one (1) Red Cross Lifeguard
Course certified employee, on duty at all times during which the
watersport equipment concession is open.
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3.4.18
3.4.19
3.4.20
Any and all watersport concession activities shall only be conducted
when the weather conditions and the conditions of the surf permit for
the safe operation of same. Concessionaire shall inform each and
every prospective patron that if the Beach Patrol of the City of Miami
Beach (Beach Patrol) determines that conditions are unsafe or
hazardous, he or she may be required to immediately come to shore
and discontinue using the watersport equipment. In the event that
conditions are of such a nature that the Beach Patrol deems them
unsafe or hazardous to the individuals who are operating watersport
equipment, or to the swimmers and bathers in the vicinity of said
equipment, the Beach Patrol shall request that Concessionaire
discontinue operating its respective watersport concession. Once it is
concluded that unsafe or hazardous conditions exist, the Beach Patrol
shall notify Concessionaire verbally and/or by posting a banner or flag
indicating same, on or in the vicinity of the Lifeguard stands advising
of the unsafe or hazardous conditions. Upon such notification and/or
posting of said banner, Concessionaire shall be required to
immediately cease renting any and all watercraft and watersport
equipment, and shall call for all watercraft equipment that is in the
water, to come to shore. Concessionaire will be solely responsible to
ensure that any watercraft and/or watersport equipment under its
jurisdiction be immediately brought to shore. The determination that
an unsafe or hazardous condition exists will be at the sole discretion
of the Beach Patrol.
All watersport concession operations shall open no earlier than one
(1) hour after sunrise daily, and close no later than one (1) hour
before sunset daily. All watercraft and watersport equipment shall be
on shore at least one (1) hour after sunrise and be returned to shore
no later than one (1) hour before sunset. Failure to comply with these
hours, for the first violation, will result in a warning; a second violation
within a one (1) year period will result in an immediate two (2) week
suspension of the Concessionaire's grant to conduct watersport
equipment rentals pursuant to this Agreement, said suspension
effective immediately upon written notice to Concessionaire. A third
offense within a one (1) year period during the term herein may, at the
City's sole option and discretion, result in a partial termination of the
Agreement; said partial termination revoking Concessionaire's right
hereunder to operate watersport equipment rentals, effective upon
thirty (30) days written notice to Concessionaire.
Concessionaire agrees and understands that the maximum
horsepower of any motorized watersport equipment intended to be
used for rental purposes shall not exceed 750 cubic centimeters
("CC"), and chase vessels shall not exceed 1200 cc. However, in the
event the 750 cc or 1200 cc models are no longer manufactured
20
and/or cost prohibitive, then the City Manager or his designee may
approve, at his sole discretion, other comparable equipment.
3.4.21 Concessionaire agrees and understands that in the event of any
accident or collision involving any of its watersport equipment, it must
complete and submit a written report to the City's Marine Patrol, with
copies to the City's Beach Patrol and Office of Asset Management.
3.5 Storaae of Concession Facilities/Equipment.
3.5.1 The design, materials, color, signage, etc. of facilities to dispense
services and/or for storage proposed to be used by Concessionaire
within the Concession Area(s) must obtain City design review
approval prior to the Commencement Date of this Agreement and
said facilities shall be incorporated herein as Exhibit 3.5.1. The size
of the food and beverage trailers shall be no larger than 8 feet by 12
feet; provided, however, if cooking or heating is allowed at any
Concession Area, then the size of such food and beverage trailers at
such Concession Area shall be no greater than 8 feet by 16 feet. The
location of same must be approved by the City Manager or his
designee, and shall be designated within Concessionaire's proposed
site plan(s) as referenced in Exhibit 3.1.2. Concessionaire shall not
deviate from or change the type, design and/or location of its
proposed storage/dispensing facilities without the prior written consent
of the City Manager or his designee.
3.5.2 Prior to the Commencement Date of this Agreement, Concessionaire
shall provide the City Manager or his designee with a written plan for
storage and removal of Concessionaire's beach equipment; removal
of dispensing facilities; and storage and removal of watersport
equipment, for approval by the City Manager or his designee. This
shall include the use of any storage facilities contemplated in
Subsection 3.5.1 above. The aforestated written storage plan and
dispensing and/or storage facilities, as approved pursuant to
Subsection 3.5.1 above, shall comply with the City's Rules and
Regulations for Beachfront Concession Operations in effect on the
date of adoption of this Agreement by the Mayor and City
Commission, without regard to any subsequent amendment to such
Rules and Regulations. Notwithstanding the preceding sentence, in
the event that the State of Florida deems that those provisions in the
City's Rules and Regulations for Beachfront Concession Operations
pertaining to storage of concession facilities are deemed not to
comply with State law, then the City and Concessionaire shall
immediately take such actions as necessary so as to bring said
provisions into compliance. Accordingly, for the City, this shall mean
reviewing and revising its Rules and Regulations for Beachfront
21
Concession Operations to bring same into compliance with State law.
For Concessionaire, this shall mean, as necessary, revising its
storage plan and/or either altering or removing its facilities from the
Concession Areas, at Concessionaire's sole cost and responsibility.
Concessionaire herein further acknowledges that it shall not hold the
City liable for any expenses and/or other damages incurred as a result
of compliance with State requirements as referred to in this
subsection, except in the event of the willful misconduct or gross
negligence of City, its agents or employees.
3.6 Hurricane Evacuation Plan.
Concessionaire agrees that all its storage and dispensing facilities, beach
equipment, watersport equipment, and any and all other equipment or other
items used in the concession operations will be removed from the beachfront
immediately within eight (8) hours of the issuance of a Hurricane Warning by
the Miami-Dade County Office of Emergency Management, and stored at an
approved, private, off-site location. Prior to the Commencement Date ofthis
Agreement, Concessionaire shall provide the City Manager or his designee
with a hurricane preparedness/evacuation plan, which shall include the
location and proof of ownership and/or control by Concessionaire (either
through a deed, lease or other form satisfactory to the City Manager and/or
his designee) of a proposed hurricane storage facility; both of which shall be
attached as Exhibit 3.6 to this Agreement.
3.7 Sea Turtles.
Concessionaire agrees and understands that the State of Florida has
advised that in order to place facilities and/or equipment on the beach,
surveys for marine turtle nesting activity must be ongoing, and have been
conducted daily for 65 days previous to the initial date of operation or
beginning May 1, of each year. The Concession Area(s) are currently
surveyed by the Beach Maintenance Division of the Miami-Dade County
Parks and Recreation Department.
a. It is the responsibility of the Concessionaire to abide by any order
issued by the State of Florida and/or cooperate with Miami-Dade
County to ensure that nesting surveys may be conducted in
accordance with the conditions set forth by the State.
b. In the event an unmarked marine turtle nest is exposed, or a dead,
injured, or sick marine turtle is discovered, the Florida Marine Patrol
(1-800-DIAL-FMP) shall be notified immediately such that appropriate
conservation measures may be taken.
c. No temporary lighting associated with the concession will be permitted
at any time during the marine turtle nesting season and no permanent
lighting is authorized.
22
d. The placement and removal of facilities and equipment on the beach
seaward of 230 feet from the high water line shall be conducted
during daylight hours and shall not occur in any location prior to
completion of the necessary marine turtle protection measures.
e. The beach area seaward of the 230-foot setback from the high water
line should be cleared of all furniture and equipment, except lifeguard
equipment, at nights during the turtle-nesting season.
f. Disturbing the existing beach, and dune topography and vegetation is
prohibited.
3.8 City Occupational Licenses.
Concessionaire shall obtain, at its sole cost and expense, any occupational
licenses required by City law, as amended from time to time, for the
proposed uses contemplated in Section 3 of the Agreement. To the extent
required by City law, as same may be amended from time to time,
occupational licenses shall be obtained for each proposed use within a
particular Concession Area (e.g. Lummus Park Concession Area,
Concessionaire would be required to obtain four (4) occupational licenses
for: (i) Rental of Beach Equipment; (ii) Food and Beverage Service; (Hi) Sale
of Beach-related Sundries; and (iv) Rental of Watersport Equipment).
SECTION 4. CONCESSION FEES.
4.1 Minimum Guarantee (MG):
In consideration of the City executing this Agreement and granting the rights
provided in this Agreement, on November 5th of each year (except as
provided below) during the initial term of the Agreement, the Concessionaire
shall pay to the City a Minimum Guaranteed Annual Concession Fee (MG)
for Food and Beverage Sales, Beach Equipment Rentals, and the Sale of
Skin Care Products of four hundred twelve thousand five hundred dollars
($412,500) (except as provided below); provided, however, the MG for the
first contract year (a "contract year" being defined as that certain period from
November 5th to November 4th of the following year) shall be due on March
5, 2002, representing the prorated MG payment for November 5,2001 to
March 4, 2002, for the first contract year that is applied to the second
contract year; provided further, however, the amount ofthe MG payment for
the second contract year shall be reduced by the sum of one hundred thirty
seven thousand five hundred dollars ($137,500). Notwithstanding any
reduced MG payment for the second contract year, for purposes of (i) the
annual five percent (5%) increase of MG; (ii) calculation of the percentage of
gross, as setforth in Subsection 4.2; and (iii) any other term and condition of
this Agreement relating to the MG, the base dollar amount used shall be the
original MG contemplated in the Agreement, which is $412,500.
23
Commencing with the second contract year, said MG shall be automatically
increased, by five percent (5%) per year, from the previous year's MG, and
shall be due and payable to the City on November 5th of each year during the
term of this Agreement.
4.1.1 Minimum Guarantee on Optional Services (MGO):
In addition to the above stated MG, the Concessionaire shall pay to
the City on March 5, 2002, and thereafter on November 5th of each
year during the initial term of the Agreement, a Minimum Guaranteed
Annual Concession Fee for the City approved Optional Services
(MGO). The optional service, to which MGO is applicable,
contemplated at this time is the rental of wate rs port equipment. MGO
is not applicable to the sale of sundries or Skin Care Products. The
MGO for watersport equipment rentals is thirty thousand dollars
($30,000). Commencing with the second contract year, said MGO
shall be automatically increased, by five percent (5%) per year, from
the previous xear's MGO, and shall be due and payable to the City on
November 5 of each year during the term of this Agreement.
4.2 Percentaqe of Gross (PG) vs. MG:
For each contract year, in the event that the applicable amount as set forth in
Exhibit 4.2 of Concessionaire's gross receipts for Food and Beverage Sales
(FBS) exceeds the amount (MG) provided in 4.1 above, then the
Concessionaire shall also pay to the City the difference between the
percentage of gross (PG) amount and the amount provided in 4.1 above, no
later than December 31, of each year during the initial term of this
Agreement.
For each contract year, in the event that the amount equal to twenty (20%)
percent (PG) of Concessionaire's gross receipts for Beach Equipment
Rentals (BER) and Skin Care Product Sales (SCPS) exceeds the amount
(MG) provide in 4.1 above, then the Concessionaire shall also pay to the City
the difference between the PG amount and the amount provided in 4.1
above, no later than December 31 , of each year during the initial term of this
Agreement.
4.2.1 Percentaqe of Gross on Optional Services (PGO) vs. MGO:
For each contract year, in the event that the amount equal to twenty
percent (20%) (PGO) of Concessionaire's gross receipts for Optional
Services exceeds the amount (MGO) provided in 4.1 above, then the
Concessionaire shall also pay to the City the difference between the
PGO amount and the amount provided in 4.1 above, no later than
December 31, of each year during the initial term of this Agreement,
provided however, the MG for the period from November 5, 2001 to
March 4,2002, will not be applicable and Concessionaire will be liable
for payment of PG for said period. The parties agree and
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acknowledge that from and after November 5, 2002, no amount in
excess of the MGO shall be due by Concessionaire in consideration
of any and all adverse impact which Concessionaire's operations may
have sustained as a result of the City's sand excavation project (the
"Watersport PGO Waiver"). Concessionaire agrees and
acknowledges that the Watersport PGO Waiver shall be
Concessionaire's sole remedy as to any alleged adverse impact
sustained by the concession operations, and the City shall have no
further liability or obligation to Concessionaire with regard to this
matter. Notwithstanding the foregoing, the provisions of this Section
4.2.1 shall be reinstated, commencing with the next contract year, at
such time as the City, in its sole judgment and reasonable discretion,
has determined that adequate beach accretion has occurred so as to
render the Watersport PGO invalid.
Notwithstanding the foregoing and as a result of the City's sand excavation
from the beach adjacent to Lummus Park for the beach renourishment
project at 30th Street, City and Concessionaire agree that any PGO amounts
due on the MGO for contract years two (2) and three (3) shall be waived in
their entirety. Furthermore, Concessionaire shall only be required to pay to
the City sixty two and one half percent (62.5%) of the PGO on the MGO for
contract year four (4). Concessionaire shall be required to pay to the City one
hundred percent (100%) of the PGO on the MGO for contract year five (5).
The term "gross receipts" is understood to mean all income collected or
accrued, derived by the Concessionaire under the privileges granted by this
Agreement, excluding amounts of any Federal, State, or City sales tax, or
other tax, governmental imposition, assessment, charge or expense of any
kind, collected by the Concessionaire from customers and required by law to
be remitted to the taxing or other governmental authority. Except as
otherwise provided, with regard to a special event under Subsection 16.1
hereof in which Concessionaire is providing the food and beverage service at
a Concession Area, "gross receipts" includes all income collected, accrued or
derived by the Concessionaire from the sale of food, beverages and any
other products sold by Concessionaire at such special event at such
Concession Area. In the case of a special event under Subsection 16.1
hereof in which Concessionaire is not providing the food and beverage
service at a Concession Area, any use fee or other moneys remitted by the
City to the Concessionaire shall be excluded from the definition of the term
"gross receipts". I n the case of a special event under Subsection 16.1 hereof,
and regardless of whether Concessionaire is or is not providing the food and
beverage service at a Concession Area, if the City is not charging, assessing
or collecting any special event permit fee or other charge or moneys in
connection with such special event, all income collected, accrued or derived
by the Concessionaire in connection with such special event shall be
excluded from the definition of the term "gross receipts". In the case of a
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special event at a Concession Area under Subsection 16.1 hereof, if any
income is collected, accrued or derived by the Concessionaire from the
provision or sale of any goods or services, exclusive of food, beverage and
beach equipment that Concessionaire is expressly authorized in Subsections
3.1 and 3.4 of this Agreement to provide or sell as part of its concession
hereunder, then the amount of any moneys which is paid, directly or
indirectly, by Concessionaire to another person or entity to pay for all or any
portion of the cost or price of any such goods or services or any part thereof
(commonly known as a "pass-through") shall be deducted from the amount
of "gross receipts".
4.3 Interest for Late Payment.
Any payment which Concessionaire is required to make to City which is not
paid on or before the respective date provided for in this Agreement shall be
subject to interest at the rate of twelve percent (12%) per annum, from the
due date of payment until such time as payment is actually received by the
City.
4.4 Sales and Use Tax.
It is also understood that the required Florida State Sales and Use Tax shall
be added to Concessionaire's payments and forwarded to the City as part of
said payments. It is the City's intent that it is to receive all payments due from
Concessionaire as net of such Florida State Sales and Use Tax.
SECTION 5. MAINTENANCE AND EXAMINATION OF RECORDS.
Concessionaire shall maintain current, accurate, and complete financial records on an
accrual basis of accounting related to its operations pursuant to this Agreement. Systems
and procedures used to maintain these records shall include a system of internal controls
and all accounting records shall be maintained in accordance with generally accepted
accounting principles and shall be open to inspection and audit, but not photocopying, by
the City Manager or his designee upon reasonable prior request and during normal
business hours. Such records and accounts shall include a breakdown of gross receipts,
expenses, and profit and loss statements. Concessionaire shall maintain accurate receipt-
printing cash registers or a like alternative in all Concession Areas which will record and
show the payment for every sale made or service provided in such Areas; and such other
records shall be maintained as would be required by an independent CPA in order to audit
a statement of annual gross receipts and profit and loss statement pursuant to generally
accepted accounting principles.
A monthly report of gross receipts must be submitted to the City, through the Finance
Department's Revenue Supervisor, to be received no later than thirty (30) days after the
close of each month.
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SECTION 6. INSPECTION AND AUDIT.
Concessionaire shall maintain its financial records pertaining to its operations for a period
of three (3) years after the conclusion of any contract year and such records shall be open
and available to the City Manager or his designee, as deemed necessary by the City
Manager or his designee, but shall not be subject to photocopying. Concessionaire shall
maintain all such records at its principal office, currently located at 420 Lincoln Road, Suite
265, Miami Beach, Florida, 33139, or, if moved to another location, all such records shall
be relocated, at Concessionaire's expense, to a location in Miami Beach, within ten (10)
days' written notice from the City.
The City Manager or his designee shall be entitled to audit, but not photocopy,
Concessionaire's records pertaining to its operation as often as it deems reasonably
necessary throughout the term of this Agreement, and three (3) times within the three (3)
year period following termination of the Agreement, regardless of whether such termination
results from the natural expiration of the term or for any other reason. The City shall be
responsible for paying all costs associated with such audits, unless the audit(s) reveals a
deficiency of five percent (5%) or more in Concessionaire's statement of gross receipts for
any year or years audited, in which case the firm shall pay to the City, within thirty (30)
days of the audit being deemed final (as specified below), the cost of the audit and a sum
equal to the amount of the deficiency revealed by the audit, plus interest; provided,
however, the audit shall not be deemed final until Concessionaire has received the audit
and has had a reasonable opportunity to review the audit and discuss the audit with the
City. These audits are in addition to periodic audits by the City of Resort Tax collections
and payments, which are performed separately. Nothing contained within this Section shall
preclude the City's audit rights for Resort Tax collection purposes.
Concessionaire shall submit at the end of each contract year, an annual statement of gross
receipts, in a form consistent with generally accepted accounting principles. Additionally,
such statement shall be accompanied by a report from an independent CPA firm which
shall perform certain agreed upon procedures, as described in the attached Exhibit 6.
The parties acknowledge and agree that, in lieu of the aforestated annual statement of
gross receipts and report from an independent CPA firm, as required and set forth in the
preceding paragraph, for contract years One, Two and Three (November 5, 2001 -
November 4, 2004) of the Agreement, the City's Internal Auditor shall perform an audit of
contract terms and gross receipts for each of said contract years, and the cost of such
audits shall be reimbursed by the Concessionaire to the City, immediately upon written
notice to Concessionaire from City, as follows:
(i) Ten Thousand ($10,000) Dollars for the City audit covering the period
of November 5, 2001 through March 31, 2003; payable Five
Thousand ($5,000) Dollars upon execution of this Amended and
Restated Agreement, and Five Thousand ($5,000) Dollars on
November 5, 2005.
27
(ii) Ten Thousand ($10,000) Dollars for the City audit covering the period
of April 1, 2003-November 4, 2004. Said payment shall be made in
full at the time the audit is completed and upon receipt of City Finance
Department invoice for same by Concessionaire.
It is Concessionaire's intent to stay informed of comments and suggestions by the City
regarding Concessionaire's performance under the Agreement. Within thirty (30) days after
the end of each contract year, Concessionaire and City may meet to review
Concessionaire's performance under the Agreement for the previous contract year. At the
meeting, Concessionaire and City may discuss quality, operational, maintenance and any
other issues regarding Concessionaire's performance under the Agreement.
SECTION 7. TAXES. ASSESSMENTS. AND UTILITIES.
7.1 Concessionaire agrees to and shall pay before delinquency all taxes
(including but not limited to resort taxes) and assessments of any kind
assessed or levied upon Concessionaire by reason of this Agreement or by
reason of the business or other activities of Concessionaire upon or in
connection with the Concession Area(s). Concessionaire will have the right,
at its own expense, to contest the amount or validity, in whole or in part, of
any tax and/or assessment by appropriate proceedings diligently conducted
in good faith. Concessionaire may refrain from paying a tax or assessment to
the extent it is contesting the assessment or imposition of same in a manner
that is in accordance with law; provided, however, if, as a result of such
contest, additional delinquency charges become due, Concessionaire shall
be responsible for such delinquency charges, in addition to payment of the
contested tax and/or assessment if so ordered.
Concessionaire shall also pay for any fees imposed by law for licenses or
permits for any business or activities of Concessionaire upon the Concession
Area(s) under this Agreement.
Concessionaire shall pay before delinquency any and all charges for utilities
used by, for, or on behalf of the operations contemplated herein (including,
but not limited to, water, electricity, gas, heating, cooling, sewer, telephone,
trash collection, etc.).
City acknowledges that Concessionaire requires an electrical outlet to
operate its point of sale (POS) system. Concessionaire will use its best
efforts to operate said POS equipment from an adjacent Ocean Drive hotel
property. If distance does not permit, then Concessionaire will advise the City
Manager or his designee, and the parties will use best efforts to seek
placement of the POS system at the Offices of the Miami Design
Preservation League, located at the 10th Street Auditorium. If unsuccessful,
Concessionaire may then request from the City the location of the POS
system within the City-owned (non - Miami Design Preservation League used
28
portion of the) 10th Street facility, at Concessionaire's sole cost and expense,
for as long as said facility is operational.
7.2 Procedure If Ad Valorem Taxes Assessed.
Notwithstanding Subsection 7.1 above, the parties agree that the operations
contemplated herein are for public purposes and, therefore, no ad valorem
taxes should be assessed by the Miami-Dade County Tax Appraiser. If,
however, said taxes are assessed, City and Concessionaire shall use
reasonable efforts to address payment of same.
SECTION 8. EMPLOYEES AND INDEPENDENT CONTRACTORS.
8.1 In connection with the performance of its responsibilities hereunder,
Concessionaire may hire its own employees and/or independent contractors,
who will be employees and/or independent contractors of Concessionaire
and not of the City. Concessionaire shall select the number, function,
qualifications, compensation, including benefits (if any), and may, at its
discretion and at any time, adjust or revise the terms and conditions relating
to such employees and/or independent contractors.
8.2 Concessionaire and its employees and/or independent contractors shall wear
identification badges and uniforms approved by the City during all hours of
operation when such employee or independent contractor is acting within the
scope of such employment or such independent contractor relationship. All
employees and/or independent contractors shall observe all the graces of
personal grooming. The Concessionaire shall hire people to work in its
concession operation who are neat, clean, well groomed and shall comport
themselves in a professional and courteous manner. The Concessionaire
and any persons hired by same, shall never have been convicted of a felony.
If Concessionaire materially fails to comply with this provision the City may
send notice of default. The Concessionaire shall have an experienced
manager or managers overseeing the concession operations at all times.
SECTION 9. HOURS OF OPERATION.
All Concession Areas and concession operations thereon shall be open every day of the
year, weather or events of force majeure permitting, and shall be open no earlier than one
(1) hour after sunrise daily, and close no later than one (1) hour before sunset daily.
Sunrise and sunset shall be established on a daily basis by the National Weather Service.
Any change in the hours of operation shall be at the City's sole option and discretion, and
any request by Concessionaire for an increase or decrease in same shall be subject to the
prior written approval of the City Manager or his designee.
Notwithstanding anything herein to the contrary, the City Manager or his designee, in his
sole discretion, may allow Concessionaire to operate a concession at the North Shore
Open Space Park Concession Area on an intermittent and/or reduced basis; provided,
29
however, Concessionaire's exclusive right to operate a concession at the North Shore
Open Space Park Concession Area and all Concession Areas as provided in this
Agreement shall not be disturbed. During any time that Concessionaire is not operating a
concession at the North Shore Open Space Park Concession Area, Concessionaire shall
have no obligations under this Agreement regarding the North Shore Open Space Park
Concession Area. If, during any time that Concessionaire is not operating a concession at
the North Shore Open Space Park Concession Area, the City Manager or his designee
desires that a concession be operated at that Area, the City Manager or his designee shall
so advise Concessionaire and Concessionaire shall promptly commence or re-commence,
as applicable, operating a concession at that Area.
SECTION 10. MAINTENANCE.
10.1 The Concessionaire accepts the use of the Concession Area(s) provided in
this Agreement in its "as is" condition. Concessionaire assumes sole
responsibility and expense for maintenance of the Concession Area(s) and
all facilities and equipment therein, and the dune area landward and adjacent
thereto. This shall include daily removal of litter, garbage and debris; said
removal to be the sole responsibility and expense of Concessionaire. Daily
maintenance shall be accomplished 365 days per year. Concessionaire
agrees, also at its sole cost and expense, to pay for all garbage disposal
generated by its operations.
10.2 Garbaae Receptacles and Fenced Storaae Area.
With respect to litter, garbage and debris removal, the Concessionaire shall
provide, at its sole cost and expense, receptacles within the confines of the
Concession Area(s) and shall provide a sufficient number of these
receptacles for its own use and for the use of the public. Disposal of the
contents of said receptacles and removal of litter, garbage and debris within
the Concession Area(s), shall be done on a daily basis, and shall be the sole
responsibility of the Concessionaire. The Concessionaire shall be permitted,
at its sole cost and expense, to utilize the dumpster area on the north side of
the 10th Street Auditorium, but must provide for its disposal. By the
Commencement Date, Concessionaire shall enter into an agreement with a
trash hauler for disposal at the 10th Street dumpster facility and provide a
copy of such agreement to the City. Any costs for removal of the contents of
said trash receptacles by the City, because of the Concessionaire's failure to
do the same, will be assessed upon, and become the responsibility of the
Concessionaire. The dumping or disposal of any refuse, discards, trash or
garbage, generated by, or as a result of the concession operations, into any
of the Miami-Dade County trash receptacles, by the Concessionaire
(including its staff and employees), shall be strictly prohibited. Determination
of the "number" of receptacles shall at all times be within the City's sole
discretion, and Concessionaire shall agree to be bound by same.
10.2.1 Concessionaire shall also be permitted to locate and maintain,
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including landscaping, at Concessionaire's sole cost and expense, a
twenty five (25) foot by twenty five (25) foot fenced stora~e area
adjacent to the dumpster area on the north side of the 10 Street
Auditorium, in accordance with Exhibit 10.2.1, for umbrella and chair
storage only. Said fenced storage area shall be approved by the City's
Planning Department and, if deemed necessary by the City, by any
other applicable authority.
10.3 Facilities/Equipment.
The Concessionaire must provide and maintain, at its own cost and expense,
all facilities and equipment required to operate the concession. The
Concessionaire shall maintain said facilities, equipment, and furnishings
during the term of this Agreement at its sole cost and expense. In the event
any of the aforesaid items are lost, stolen, or damaged, they shall be
replaced or repaired at the sole cost and expense of the Concessionaire
within fifteen (15) days of written notice from the City.
10.4 Orderlv Operation.
The Concessionaire shall have a neat and orderly operation at all times and
shall be solely responsible for the necessary housekeeping services to
properly maintain the Concession Area(s) and all facilities incident thereto.
There shall be no living quarters nor shall anyone be permitted to live within
the facilities and/or Concession Area(s). The Concessionaire shall make
available all facilities within the Concession Area(s) under its control for
examination during hours of operation by the City Manager or his authorized
representative.
10.5 No Danqerous Materials.
The Concessionaire agrees not to use or permit in the Concession Area(s) or
facilities the storage and/or use of gasoline, fuel oils, diesel, illuminating oils,
oil lamps, combustible powered electricity producing generators, turpentine,
benzene, naphtha, propane, natural gas, or other similar substances,
combustible materials, or explosives of any kind, or any substance or thing
prohibited in the standard policies ottire insurance companies in the State of
Florida. Any such substances or materials found within the Concession
Area(s) shall be immediately removed. This subsection shall not apply to any
substances permitted by the City's Rules and Regulations for Beachfront
Concession Operations, in effect on the date of approval of this Agreement
by the Mayor and City Commission; provided such substances are used or
stored in connection with concession operations, and are not (at anytime)
otherwise prohibited by County, State or Federal law.
Notwithstanding any contrary provisions of this Agreement, Concessionaire,
after the Commencement Date, 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
31
with the placement by Concessionaire, after the Commencement Date, but
during the term of this Agreement, of any "hazardous substance" or
"petroleum products" on, under, in or upon the Concession Areas as those
terms are defined by applicable Federal and State Statute, or any
environmental rules and environmental regulations promulgated thereunder;
provided, however, Concessionaire shall have no liability in the event of the
willful misconduct or gross negligence of the City, its agents, servants or
employees. The provisions of this Subsection 10.5 shall survive the
termination or earlier expiration of this Agreement.
10.6 Security.
The Concessionaire shall be responsible for and provide reasonable security
measures which may be required to protect the Concession Area(s) and any
of the equipment, materials and facilities thereon. Under no circumstances
shall the City be responsible for any stolen or damaged equipment, materials
and facilities, nor shall City be responsible for any stolen or damaged
personal property of Concessionaire's patrons, guests, invitees, and/or other
third parties.
10.7 Vehicles on the Beach.
Concessionaire's vehicles shall include (i) any "on-road vehicle" and/or
trailers licensed in accordance with applicable County, State and Federal
law, to operate on public streets and roadways and shall also include any (ii)
non "on-road" vehicles such as golf carts and all terrain vehicles ("A TV'''s)
(both (i) and (ii) shall be referred collectively herein as "vehicles").
Concessionaire's vehicles shall only be allowed on the beachfront for
purposes of supplying the concession operations, and to remove equipment
at the close of operations each day, and must be removed from the
beachfront immediately thereafter. Anyone operating a vehicle for or on
behalf of Concessionaire must have a current valid Florida Driver's License.
Said supplying and removal operations shall only be permitted during regular
hours of operation, and shall be completed safely and expeditiously. No
vehicular traffic will be permitted on the beach after sunset or prior to sunrise.
Access to the beach shall only be permitted via specifically designated dune
crossovers authorized for such use and nearest to the concession operation.
Vehicles operated on the beachfront shall not exceed 5 M.P.H. and shall only
operate in the immediate vicinity of the concession or to-and-from the
nearest predetermined and assigned access ramp. After transporting
equipment to a Concession Area, the vehicles shall be removed from the
beachfront area and parked in a legally authorized location. Driving on the
beachfront area shall be kept to a minimum. No vehicular traffic will be
permitted on the beach, at any time or for any purpose, other than as stated
herein. Driving from one Concession Area, concession facility and/or
concession location to anotherto service, supervise, orfor any other reason,
is prohibited. Concessionaire must exit to the street as provided above to
32
access other locations. All vehicles operated on the beach must have a tire-
to-ground pressure of ten pounds per square inch (10 p.s.i) or less.
Eighteen-inch (18") high cones, orange in color, shall be placed in front of,
and at the rear of the vehicle when parked. Vehicle operator must inspect the
vehicles perimeter and surrounding area, prior to turning the vehicles ignition
switch, to assure a clear path of egress and only proceed with extreme
caution. Vehicles must always remain on the "hard-packed" sand area.
Driving or parking on any "soft-sand" area is prohibited.
All vehicles must have signage, on each side, with the name of the
concession operator in 4" high letters on a contrasting background.
A total of six (6) vehicles, (which may include such combination of the type of
vehicles specified in (i) and (ii) above as Concessionaire may deem
necessary but which total number of vehicles shall in no event exceed six
(6)) are herein permitted, and shall be properly marked and identified as in
accordance with the applicable guidelines for vehicles provided above.
Provided, however, that in order to contain vehicular traffic on the beach to a
minimum, the City Manager or his designee, must approve any additional
"on-road" and/or non "on-road" vehicles to be used by Concessionaire prior
to such use.
10.8 Inspection.
The Concessionaire agrees that the Concession Area(s) and all facilities,
equipment, and operations thereon may be inspected at any time during
hours of operation by the City Manager or his designee, or by any other
Municipal, County, State officer, or agency having responsibilities for
inspections of such operations. The Concessionaire hereby waives all claims
against the City for compensation for loss or damage sustained by reason of
any interference (which interference, if by the City, must be reasonable) with
the concession operation by any public agency or official in enforcing their
duties or any laws or ordinances. Any such interference (which interference,
if by the City, must be reasonable) shall not relieve the Concessionaire from
any obligation hereunder.
SECTION 11. INSURANCE.
Concessionaire shall maintain, at its sole cost and expense, the following types of
insurance coverage at all times throughout the term of this Agreement.
a. Comprehensive General Liability:
(i) except as specifically provided for in a(ii) below, comprehensive
general liability in the minimum amount of Two Million Dollars
($2,000,000) per occurrence for bodily injury and property damage.
33
This policy must also contain coverage for premises operations,
products and contractual liability.
(ii) for all watersport equipment rental, as defined in Section 3.4,
comprehensive general liability in the minimum amount of One Million
Dollars ($1,000,000) per occurrence for bodily injury and property
damage. This policy must also contain coverage for premises
operations, products and contractual liability.
b. Workers Compensation Insurance shall be required in accordance with the
Laws of the State of Florida.
c. Automobile Insurance shall be provided covering all owned, leased, and
hired vehicles and non-ownership liability for not less than the following
limits:
Bodily Injury $1,000,000 per person
Bodily Injury $1,000,000 per accident
Property Damage $1,000,000 per accident
The policies of insurance referred to above shall not be subject to cancellation or
changing coverage except upon at least thirty (30) days prior written notice to the
City, and then only subject to the prior written approval of the City Manager or his
designee. Prior to the Commencement Date of this Agreement, Concessionaire
shall provide City with a Certificate of Insurance for each such policy. ALL
POLICIES SHALL NAME THE CITY OF MIAMI BEACH FLORIDA AS AN
ADDITIONAL NAMED INSURED. All such policies shall be obtained from
companies authorized to do business in the State of Florida with an A.M. Best's
Insurance Guide (latest edition) rating acceptable to the City's Risk Manager, and
any replacement or substitute company shall also be subject to the approval of the
City's Risk Manager. Should Concessionaire fail to obtain, maintain or renew the
policies of insurance referred to above, in the required amounts, the City may, at its
sole discretion, obtain such insurance, and any sums expended by City in obtaining
said insurance, shall be repaid by Concessionaire to City, plus ten percent (10%) of
the amount of premiums paid to compensate City for its administrative costs. If
Concessionaire fails to repay City's expenditures within fifteen (15) days of demand,
the total sum owed shall accrue interest at the rate of twelve percent (12%) until
paid, and such failure shall be deemed an event of default hereunder.
SECTION 12. INDEMNITY.
12.1 In consideration of a separate and specific consideration of $1 0.00 and other
good and valuable consideration the receipt and sufficiency of which are
hereby acknowledged, Concessionaire shall indemnify, hold harmless and
defend the City, its agents, servants and employees from and against any
claim, demand or cause of action of whatsoever kind or nature arising out of
34
error, omission, or negligent act of Concessionaire, its subconcessionaire(s),
agents, servants or employees in the performance of services under this
Agreement.
12.2 In addition, in consideration of a separate and specific consideration of
$10.00 and other good and valuable consideration the receipt and sufficiency
of which are hereby acknowledged, Concessionaire shall indemnify, hold
harmless and defend the City, its agents, servants and employees from and
against any claim, demand or cause of action of whatever kind or nature
arising out of any misconduct of Concessionaire not included in the
paragraph in the subsection above and for which the City, its agents,
servants or employees are alleged to be liable.
12.3 Subsections 12.1 and 12.2 shall survive the termination or expiration of this
Agreement. Subsections 12.1 and 12.2 shall not apply, however, to any such
liability, that arises as a result of the willful misconduct or gross negligence of
the City, its agents, servants or employees.
12.4 SubroQation.
The terms of insurance policies referred to in Section 11 shall preclude
subrogation claims against Concessionaire, the City and their respective
officers, employees and agents.
12.5 Force Maieure.
Neither party shall be obligated to perform hereunder and neither party shall
be deemed to be in default if performance is prevented by:
a. fire which renders at least thirty percent (30%) of the Concessionaire's
cumulative facilities and equipment unusable and which is not caused
by negligence of Concessionaire;
b. earthquake; hurricane; flood; act of God; direct act ofterrorism; or civil
commotion occurring on the Concession Area(s); or
c. any law, ordinance, rule, regulation or order of any public or military
authority stemming from the existence of economic or energy
controls, hostilities, or war.
The parties hereto acknowledge that Concessionaire's obligations and
benefits hereunder may be negatively affected by an event of Force Majeure.
If an event of Force Majeure occurs during a contract year, and provided
further that Concessionaire's minimum guarantee payment(s) to the City for
that contract year is greater than the applicable percentage payment, then
the City Manager or his designee, in his sole discretion, may extend the
Term of this Agreement for a reasonable period of time; provided, however,
such extension shall take effect only if Concessionaire agrees to such
35
extension.
12.6 Labor Dispute.
In the event of a labor dispute which results in a strike, picket or boycott
affecting the Concession Area(s) or operation described in this Agreement,
Concessionaire shall not thereby be deemed to be in default or to have
breached any part of this Agreement, unless such dispute shall have been
caused by illegal labor practices or violations by Concessionaire of applicable
collective bargaining agreements and there has been a final determination of
such fact which is not cured by Concessionaire within thirty (30) days.
12.7 Waiver of Loss from Hazards.
The Concessionaire hereby expressly waives all claims against the City for
loss or damage sustained by the Concessionaire resulting from fire, water,
natural disasters/acts of God (e.g. hurricane, tornado, etc.), civil commotion,
riot, or any other Force Majeure contemplated in Subsection 12.5 and Labor
Dispute in Subsection 12.6 above, and the Concessionaire hereby expressly
waives all rights, claims, and demands against the City and forever releases
and discharges the City of Miami Beach, Florida, from all demands, claims,
actions and causes of action arising from any of the aforesaid causes.
SECTION 13. DEFAULT AND TERMINATION.
Subsections 13.1 through 13.3 shall constitute events of default underthis Agreement. An
event of default by Concessionaire shall entitle City to exercise any and all remedies
described as City's remedies under this Agreement, including but not limited to those set
forth in Subsection 13.4 and Section 14. An event of default by City shall entitle
Concessionaire to exercise any and all remedies described as Concessionaire's remedies
under this Agreement, including but not limited to those set forth in Subsection 13.5.
13.1 Bankruptcv.
If either the City or Concessionaire shall be adjudged bankrupt or insolvent,
or if any receiver or trustee of all or any part of the business property of
either party shall be appointed, or if any receiver of all or any part of the
business property shall be appointed and shall not be discharged within sixty
(60) days after appointment, or if either party shall make an assignment of its
property for the benefit of creditors, or shall file a voluntary petition in
bankruptcy, or insolvency, or shall apply for reorganization or arrangement
with its creditors under the bankruptcy or insolvency laws now in force or
hereinafter enacted, Federal, State, or otherwise, or if such petitions shall be
filed against either party and shall not be dismissed within sixty (60) days
after such filing, then the other party may immediately, or at any time
thereafter, and without further demand or notice, terminate this Agreement
without being prejudiced as to any remedies which may be available to it for
breach of contract.
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13.2 Default in Payment.
In the event Concessionaire fails to submit any payment within five (5) days
of its due date, there shall be a late charge of $50.00 per day for such late
payment, in addition to interest at the highest rate allowable by law (currently
12% per annum). If any payment and accumulated penalties are not received
within fifteen (15) days after the payment due date, and such failure
continues three (3) days after written notice thereof, then the City may,
without further demand or notice, terminate this Concession Agreement
without being prejudiced as to any remedies which may be available to it for
breach of contract; and may begin procedures to collect the Performance
Bond required in Section 14 herein.
13.3 Non-Monetary Default.
I n the event that Concessionaire or the City fails to perform or observe any of
the covenants, terms or provisions under this Agreement, and such failure
continues thirty (30) days after written notice thereof from the other party
hereto, such non-defaulting party may immediately or at any time thereafter,
and without further demand or notice, terminate this Agreement without
being prejudiced as to any remedies which may be available to it for breach
of contract. In the event that a default is not reasonably susceptible to being
cured within such period, the defaulting party shall not be considered in
default if it shall, within such period, commence with due diligence and
dispatch to cure such default and thereafter completes with dispatch and due
diligence the curing of such default, but in no event shall such extended cure
period exceed ninety (90) days from the date of written notice thereof. In the
event Concessionaire cures any default pursuant to this subsection, it shall
promptly provide City with written notice of same.
13.4 City's Remedies for Concessionaire's Default.
If any of the events of default, as set forth in this Section, shall occur, the
City may, after notice (if required) and the expiration of cure periods, as
provided above, at its sole option and discretion, institute such proceedings
as in its opinion are necessary to cure such defaults and to compensate City
for damages resulting from such defaults, including but not limited to the right
to give to Concessionaire a notice of termination of this Agreement. If such
notice is given, the term of this Agreement shall terminate upon the date
specified in such notice from City to Concessionaire. On the date so
specified, Concessionaire shall then quit and surrender the Concession
Area(s) to City pursuant to the provisions of Subsection 13.7. Upon the
termination of this Agreement, all rights and interest of Concessionaire in and
to the Concession Area(s) and to this Agreement, and every part thereof,
shall cease and terminate and City may, in addition to any other rights and
remedies it may have, retain all sums paid to it by Concessionaire under this
Agreement, including but not limited to, beginning procedures to collect the
Performance Bond in Section 14 herein. In addition to the rights set forth
above, City shall have the rights to pursue any and all of the following:
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a. the right to injunction or other similar relief available to it under Florida
law against Concessionaire; and or
b. the right to maintain any and all actions at law or suits in equity or
other proper proceedings to obtain damages resulting from
Concessionaire's default.
13.5 If an event of default, as set forth in this Section, by the City shall occur, the
Concessionaire may, after notice (if required) and the expiration of the cure
periods, as provided above, at its sole option and discretion, terminate this
Agreement upon written notice to the City and/or sue for damages. Said
termination shall become effective upon receipt of a written notice of
termination by the City, but in no event shall Concessionaire specify a
termination date that is less than sixty (60) days from the date of the written
termination notice. On the date specified in the notice, Concessionaire shall
quit and surrender the Concession Area(s) to City pursuant to the provisions
of Subsection 13.7.
13.6 Termination for Convenience/Partial Termination.
13.6.1 Concessionaire acknowledges that the City intends to develop a
schedule of capital improvements for the North Shore Open Space
Park Concession Area which may entail a closure of all or a portion of
the Park, at the City Commission's sole discretion. In the event that
the City closes down the North Shore Open Space Park for the
purpose of undertaking a capital improvement plan thereon, then the
parties agree that that portion of the Agreement referencing North
Shore Open Space Park shall be partially terminated for convenience,
without cause and without penalty to either party, and only as to that
portion of the Concession Area which has been closed. Such a
termination shall become effective upon sixty (60) days prior written
notice to Concessionaire.
13.6.2 In the event of termination or partial termination by City of the
Agreement pursuant to this Subsection, Concessionaire herein
acknowledges and agrees that it shall not have any claim, demand, or
cause of action of whatsoever kind or nature, against the City, its
agents, servants and employees (including, but not limited to, claims
for interference in business or damages for interruption of services or
interference in its concession operations for beach equipment rental,
beach sundries sales, food and beverage sale/service, and watersport
equipment rental).
13.7 Surrender of Concession Areas.
At the expiration of this Agreement, or earlier termination in accordance with
the terms of this Agreement, Concessionaire shall surrender the Concession
38
Area(s) in the same condition as the Concession Area(s) were prior to the
commencement of this Agreement, reasonable wear and tear excepted
(including any beach erosion not directly caused by Concessionaire and/or
its operation). Concessionaire shall remove all its facilities, equipment,
fixtures, personal property, etc. upon forty-eight (48) hours written notice
from the City Manager or his designee unless a longer time period is agreed
to by the City. Concessionaire's obligation to observe or perform this
covenant shall survive the expiration or other termination of this Agreement.
Continued occupancy of the Concession Area(s) after termination of the
Agreement shall constitute trespass by the Concessionaire, and may be
prosecuted as such. In addition, the Concessionaire shall pay to the City one
thousand dollars ($1,000) per day as liquidated damages for such trespass
and holding over.
SECTION 14. PERFORMANCE BOND OR ALTERNATE SECURITY.
Concessionaire shall, on or before the Commencement Date ofthis Agreement, furnish to
the City Manager or his designee a Performance Bond in the penal sum as stated below
for the payment of which Concessionaire shall bind itself for the faithful performance of the
terms and conditions of this Agreement. A Performance Bond in the amount of Two
Hundred Thousand Dollars ($200,000.00) shall be required and be in faithful observance of
this Agreement. A cash deposit, irrevocable letter of credit, or certificate of deposit may
also suffice, as determined by the City Manager or his designee in his reasonable
discretion. The form of the Performance Bond or letter of credit shall be as required by the
City Manager or his designee. In the event that a Certificate of Deposit is approved, it shall
be a Two Hundred Thousand Dollar ($200,000.00) one-year Certificate of Deposit in favor
of the City, which shall be automatically renewed, the original of which shall be held by
City. Concessionaire shall be so required to maintain said Performance Bond or alternate
security, as accepted by City Manager or his designee, in full force and effect throughout
the term of this Agreement; provided, however, in the event that any of Concessionaire's
equipment in connection with this Agreement is acquired by a lease, then, if requested in
writing from Concessionaire by the City Manager or his designee, in his discretion, such
Performance Bond or alternate security shall be in the total amount of $300,000
commencing with the fourth contract year and $400,000 commencing with the fifth contract
year; provided, further, that, in lieu of such increased Performance Bond, if requested in
writing by the City Manager or his designee, in his discretion, Concessionaire shall file a
UCC-1 financing statement providing to the City a security interest in such leased
equipment. Concessionaire shall have an affirmative duty to notify the City, in writing, in the
event said Performance Bond or alternate security lapses or otherwise expires. All interest
that accrues in connection with any financial instrument or sum of money referenced above
shall be the property of Concessionaire, except in an event of default, in which case the
City shall be entitled to all interest that accrues after the date of default.
39
SECTION 15. ASSIGNMENT.
Except as otherwise provided in this Subsection, Concessionaire shall not assign;
sublease; grant any concession or license (other than the subconcession for food and
beverages approved with Monty's LLC herein, or as otherwise permitted pursuant to the
procedures set forth in Section 3.2 hereof); permit the use of by any other person other
than Concessionaire; or otherwise transfer all or any portion of this Agreement and/or of
the Concession Area(s) (all of the forgoing are herein after referred to collectively as
"transfers"), without the prior written consent of the City, which consent shall not be
unreasonably withheld.
If there is a change in control of Concessionaire, then any such change in control shall
constitute a "transfer" for purposes of this Agreement and shall be approved by the City
Commission prior to consummation of such change in control. "Change in control", for
purposes hereof, shall mean a change of the ownership, directly or indirectly, of greater
than thirty-three and four tenths percent (33.4%) of the voting or ownership interest or right
to profits in such Concessionaire, by means of one or more transfers, sales, mergers,
consolidations, dissolutions or otherwise; provided that the foregoing shall not be deemed
to include (i) a pledge or collateral assignment of the profits of Concessionaire in
connection with any financing, provided such pledge or collateral assignment is
subordinate to the rights of the City to the fees payable to the City pursuant to Section 4
hereof; (ii) any transfer to other owners of Concessionaire or to trusts the beneficiaries of
which are any owner(s) of Concessionaire or member(s) oftheir immediate family; or (iii) a
change in the ownership of Concessionaire through a registered public offering of shares in
Concessionaire ((i), (ii) and (iii) above collectively are referred to herein as the "Transfer
Exclusions"). Except for the Transfer Exclusions, any change of the ownership, directly or
indirectly, of thirty-three and four tenths percent (33.4 %) or less of the voting or ownership
interest or right to profits in such Concessionaire (a "Minor Change"), by means of one or
more transfers, sales, mergers, consolidations, dissolutions or otherwise, shall be subject
to the approval of the City Manager or his designee.
Concessionaire shall notify the City of any proposed transfer, and shall notify the City
Manager or his designee of any proposed Minor Change, prior to consummation of same
and the City or the City Manager or his designee, as applicable, shall respond within thirty
(30) days. In the event that any such transfer or Minor Change is approved, the transferee
shall agree to be bound by all the covenants of this Agreement required of the transferor
hereunder. Any transfer or Minor Change made without complying with this Section shall
be null, void, and of no effect and shall constitute an act of default under this Agreement.
Notwithstanding any such consent, or any permitted transfer or Minor Change under any
provision of this Section, unless expressly released by the City, Concessionaire shall
remain jointly and severally liable (along with each approved transferee, who shall
automatically become liable for all obligations of the transferor hereunder with respect to
that portion of the Agreement so transferred), and the City shall be permitted to enforce the
provisions of this Agreement directly against Concessionaire or any transferee of the
Concessionaire without proceeding in any way against any other person.
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SECTION 16. SPECIAL EVENTS / SPONSORSHIPS.
16.1 Concessionaire's proposed uses, as defined in Section 3 herein, do not
contemplate the production, promotion or sponsorship by the Concessionaire
of special events in any of the Concession Areas. In the event
Concessionaire does produce, promote or sponsor a special event in the
City, other than those provided for in this Agreement, it shall abide by the
City's Special Events Permit Requirements and Guidelines, as same may be
amended from time to time. For any use, other than those provided for in this
Agreement, a special events permit may be required and shall be obtained
through the City's Office of Arts, Culture and Entertainment. The City
Manager's authorization must be obtained for any such special event.
The City Administration shall evaluate requests for special events permits on
a case by case basis, in accordance with the City's Special Event Permit
Requirements and Guidelines, as same may be amended from time to time.
In the event that a special event and/or film permit is requested by an entity,
other than the Concessionaire, and the proposed special event and/or film is
scheduled to occur within the Concession Area(s) and would cause the
operations within that particular Area(s) to cease, wholly or partly, and
provided Concessionaire is not in default under the Agreement at the time of
the request, the Concessionaire agrees to cooperate with the City and the
special event permit applicant to allow use ofthe Concession Area(s) during
the period of the special event, including set-up and break-down time. City
agrees that, to the extent the special event permittee provides food and
beverage service at the special event and does not utilize the
Concessionaire for said service, the special event permittee will be required
to remit twenty percent (20%) of the gross revenues generated at the event
to the City. The City agrees to remit thirty percent (30%) of said remittance to
the Concessionaire as a use fee in consideration of the special event
permittee's use of the Concession Area(s).
16.2 City Special Events.
Notwithstanding Subsection 16.1 above, and in the event that the City, at its
sole discretion, deems that it would be in the best interest of the City, the City
reserves the right to displace the Concessionaire for City produced special
events and/or City produced productions. In such cases, the City may
request that the Concessionaire cease and desist operations during the term
of, and in the area of the special event and/or production, and the
Concessionaire shall cease and desist during said term. If the
Concessionaire is not required to close, or chooses to remain open without
interference to the special event and/or production, Concessionaire agrees to
cooperate with the City. If the Concessionaire is allowed to remain open
during special events and/or productions, the Concessionaire may be
allowed to have in operation its normal daily complement of equipment and
staff. "Normal" shall be defined as equipment and staff, approved by the City,
41
that the Concessionaire has available for the public on a normal day, 365
days per year. Such equipment or staff shall not be increased or altered
during special events and/or productions without the prior written permission
of the City Manager or his designee. To the extent that the normal daily
complement of equipment and staff is displaced by the special event and/or
production, the Concessionaire may reallocate such displaced equipment
and staff on a pro-rata basis within the Concession Area(s) not being utilized
by the special event.
16.3 Notwithstanding anything to the contrary, if a special event occurs in all or
any portion of any Concession Area(s), Concessionaire shall not be liable for
any charge, fee or other expense, governmental or otherwise, in connection
with such special event. To the extent the preceding sentence conflicts with
the City's Rules and Regulations for Beachfront Concession Operations or
conflicts with any other City rule, law, regulation, charter or code provision,
this Agreement governs.
16.4 Sponsorships.
The City reserves unto itself all present and future rights to negotiate all
forms of endorsement and/or sponsorship agreements based on the
marketing value of any City trademark, property, brand, logo and/or
reputation. Any and all benefits derived from an endorsement and/or
sponsorship agreement based on the marketing value of a City trademark
property, brand, logo and/or reputation, shall belong exclusively to the City.
Concessionaire shall be specifically prohibited from entering into, or
otherwise creating, sponsorships and/or endorsements with third parties
which are based solely or in any part on the marketing value of a City
trademark, property, brand, logo and/or reputation.
The prohibition on Concessionaire entering into such sponsorship and/or
endorsement agreements, as are defined in this subsection 16.1, shall not
be interpreted to include nor prohibit the Concessionaire's right to sell, rent,
or use, exclusively, any particular brand or product that would be permitted
for use or sale pursuant to this Agreement. Moreover, the City will not limit
Concessionaire's ability to negotiate a reduced rate for purchase, from any
vendor, whose product(s) Concessionaire uses or offers for sale or rent
pursuant to this Agreement.
SECTION 17. NO IMPROPER USE.
The Concessionaire will not use, nor suffer or permit any person to use in any manner
whatsoever, the Concession Area(s) or facilities for any improper, immoral or offensive
purpose, or for any purpose in violation of any Federal, State, County, or Municipal
ordinance, rule, order or regulation, or of any governmental rule or regulation now in effect
or hereafter enacted or adopted. The Concessionaire will protect, indemnify, and forever
42
save and keep harmless the City, its agents, employees and contractors from and against
damage, penalty, fine, judgment, expense or charge suffered, imposed, assessed or
incurred for any violation, or breach of any law, ordinance, rule, order or regulation
occasioned by any act, neglect or omission of the Concessionaire, Subconcessionaire, or
any employee or agent regarding the Concession. In the event of any violation by the
Concessionaire or if the City or its authorized representative shall deem any conduct on the
part of the Concessionaire to be objectionable or improper, the City shall have the right to
suspend the operation of the concession should the Concessionaire fail to correct any such
violation, conduct, or practice to the satisfaction of the City within twenty-four (24) hours
after receiving written notice of the nature and extent of such violation, conduct, or practice,
such suspension to continue until the violation is cured. The Concessionaire further agrees
not to commence operation during the suspension until the violation has been corrected to
the satisfaction of the City.
SECTION 18. PRICE SCHEDULES.
Concessionaire agrees that prices charged for beach equipment rentals, sale of food and
beverage service, sale of beach related sundries, and watersport equipment rentals will be
consistent with the price schedule(s) herein submitted by the Concessionaire and approved
by the City and incorporated herein as exhibits to this Agreement. All subsequent price
approvals and changes must be approved in writing by the City Manager or his designee.
Prices shall be reasonably consistent with those charged for similar items and services in
the general viCinity. The City shall have the final right of approval for all such prices and
changes, but said right shall not be arbitrarily or unreasonably exercised. The
Concessionaire agrees to refrain from the sale or rental of any item identified as prohibited
by the City and to sell or rent only those items approved by the City. The Concessionaire
agrees to maintain an adequate supply necessary to accommodate beach patrons.
SECTION 19. NOTICES.
All notices from the City to the Concessionaire shall be deemed duly served upon receipt, if
mailed by registered or certified mail with a return receipt to the Concessionaire at the
following address:
Boucher Brothers Miami Beach LLC
420 Lincoln Road. Suite 265
Miami Beach, Florida 33139
With copies to:
Alexander I. Tachmes, Esq.
Alexander I. Tachmes, P.A.
Two South Biscayne Boulevard
One Biscayne Tower, Suite 2475
Miami, Florida 33131
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Abigail C. Watts-FitzGerald
Hunton & Williams
1111 Brickell Avenue, Suite 2500
Miami, Florida 33131
All notices from the Concessionaire to the City shall be deemed duly served upon receipt, if
mailed by registered or certified mail return receipt requested to the City of Miami Beach at
the following addresses:
City Manager
City of Miami Beach
1700 Convention Center Drive
Miami Beach, FL 33139
With copy to:
City Attorney
City of Miami Beach
1700 Convention Center Drive
Miami Beach, FL 33139
The Concessionaire and the City may change the above mailing address at any time upon
giving the other party written notification. All notices under this Concession Agreement
must be in writing.
SECTION 20. LAWS.
20.1 Compliance.
Concessionaire shall comply with all applicable City, County, State, and
Federal ordinances, statutes, rules and regulations, including but not limited
to all applicable environmental City, County, State, and Federal ordinances,
statutes, rules and regulations, subject to the provisions of Subsection 10.5
hereof.
20.2 GoverninQ Law.
INTENTIONALLY OMITTED.
20.3 Equal Emplovment Opportunity.
Neither Concessionaire nor any affiliate of Concessionaire performing
services hereunder, or pursuant hereto, will discriminate against any
employee or applicant for employment because of race, creed, sex, color,
national origin, sexual orientation, and disability, as defined in Title I of ADA.
Concessionaire will take affirmative steps to utilize minorities and females in
the work force and in correlative business enterprises.
44
20.4 No Discrimination.
The Concessionaire agrees that there shall be no discrimination as to race,
sex, sexual orientation, color, creed, national origin, familial status, religion or
handicap, in its employment practice or in the operations referred to by this
Concession Agreement;' and further, there shall be no discrimination
regarding any use, service, maintenance, or operation within the Concession
Area(s). All services offered on the beach shall be made available to the
public, subject to the right of the Concessionaire and the City to establish
and enforce rules and regulations to provide for the safety, orderly operation
and security of the facilities.
20.4.1 Pursuant to Sections 62-90 and 62-91, of Chapter 62, of the Miami
Beach City Code entitled "Human Relations", Concessionaire, by
executing this Agreement, certifies that it does not discriminate in its
membership or policies based on race, color, national origin, religion,
sex, sexual orientation, familial status or handicap.
SECTION 21. MISCEllANEOUS.
21.1 No Partnership.
Nothing contained in this Agreement shall constitute or be construed to be or
create a partnership or joint venture between the City and Concessionaire.
21.2 Modifications.
This Agreement cannot be changed or modified except by agreement in
writing executed by all parties hereto. Concessionaire acknowledges that no
modification to this Agreement may be agreed to by the City unless approved
by the Mayor and City Commission except where such authority has been
expressly provided herein to the City Manager or his designee.
21.3 Complete Aqreement.
This Agreement, together with all exhibits incorporated hereto, constitutes all
the understandings and agreements of whatsoever nature or kind existing
between the parties with respect to Concessionaire's operations, as
contemplated herein.
21.4 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.
21.5 Bindinq Effect.
This Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns.
45
21.6
21.7
21.8
21.9
21.10
21.11
Clauses.
The illegality or invalidity of any term or any clause of this Agreement shall
not affect the validity of the remainder of the Agreement, and the Agreement
shall remain in full force and effect as if such illegal or invalid term or clause
were not contained herein unless the elimination of such provision
detrimentally reduces the consideration that either party is to receive under
this Agreement or materially affects the continuing operation of this
Agreement.
Severability.
If any provision of this Agreement or any portion of such provision or the
application thereof to any person or circumstance shall be held to be invalid
or unenforceable, or shall become a violation of any local, State, or Federal
laws, then the same as so applied shall no longer be a part of this
Agreement but the remainder of the Agreement, such provisions and the
application thereof to other persons or circumstances, shall not be affected
thereby and this Agreement as so modified shall.
Rioht of Entry.
The City, at the direction of the City Manager, shall at all times during hours
of operation, have the right to enter into and upon any and all parts of the
Concession Area(s) for the purposes of examining the same for any reason
relating to the obligations of parties to this Agreement.
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.
Siqnaqe.
Concessionaire shall provide, at its sole cost and expense, any required
signs at its concessions. All advertising, signage and postings shall be
approved by the City, and shall be in accordance with all applicable
Municipal, County, State and Federal laws and regulations. Any signage
posted by Concessionaire on its facilities and equipment shall be subject to
the prior approval of the City as to size, shape and placement of same.
Use of Beach.
The beach is for the use and enjoyment of the public, for recreation and
other public purposes and the public's right to such use shall not be
infringed upon by any activity of the Concessionaire. Upon execution of
this Agreement, Concessionaire acknowledges that all of the beaches
are public and as such concession operations must not restrict, or
appear to restrict, access to the general public, or in any way limit the
46
21.12
21.13
21.14
21.15
21.16
public nature or ambiance of the beachfront. The Concessionaire will
conduct its operations so as to maintain a reasonably quiet and tranquil
environment for the adjacent area, and make no public disturbances.
Conflict of Interest.
Concessionaire shall perform its services under this Agreement and conduct
the concession operations contemplated herein, in a manner so as to show
no preference for other concession operations/facilities (e.g. particularly
concession operations behind private property along the City's beachfront)
owned, operated, managed, or otherwise controlled by Concessionaire with
regard to its responsibilities pursuant to this Concession Agreement.
Reasonableness.
Notwithstanding anything to the contrary in this Agreement, including but not
limited to references to "sole option" or "sole discretion" or words of similar
meaning, in each instance in which the approval or consent or other action of
the City Commission or the City Manager or his designee is allowed or
required in this Agreement, such approval, consent or other action shall not
be unreasonably withheld, conditioned or delayed.
Procedure for Approvals and/or Consents.
In each instance in which the approval or consent of the City Manager or his
designee is allowed or required in this Agreement, it is acknowledged that
such authority has been expressly provided herein to the City Manager or his
designee by the Mayor and City Commission of the City. In each instance in
which the approval or consent of the City Manager or his designee is allowed
or required in this Agreement, Concessionaire shall send to the City Manager
a written request for approval or consent (the "Approval Request"). The City
Manager or his designee shall have up to sixty (60) days from the date of
Approval Request to provide written notice to Concessionaire approving of,
consenting to or disapproving of the request. However, the City Manager or
his designee's failure to consider such request within this time provided shall
not be deemed a waiver, nor shall Concessionaire assume that the request
is automatically approved and consented to. The Subsection shall not apply
to approvals required herein by the Mayor and City Commission.
No Waiver.
No waiver of any covenant or condition of this Agreement by either party
shall be deemed to imply or constitute a waiver in the future of the same
covenant or condition or of any other covenant or condition of this
Agreement.
No Third Party Beneficiary.
Nothing in this Agreement shall confer upon any person or entity, including,
but not limited to subconcessionaires, other than the parties hereto and their
respective successors and permitted assigns, any rights or remedies by
47
reason of this Agreement.
SECTION 22. LIMITATION OF LIABILITY.
The City desires to enter into this Agreement placing the operation and management ofthe
Concession Area(s) in the hands of a private management entity only if so doing the City
can place a limit on its liability for any cause of action for breach of this Agreement, so that
its liability for any such breach never exceeds the sum of $100,000.00. Concessionaire
hereby expresses its willingness to enter into this Agreement with a $100,000.00 limitation
on recovery for any action for breach of contract. Accordingly, and in consideration of the
separate consideration of $1 00,000.00, 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 $1 00,000.00, for any action for breach of contract arising out of the performance
or non-performance of any obligations imposed upon the City by this Agreement. Nothing
contained in this paragraph or elsewhere in this Agreement is in any way intended to be a
waiver of limitation placed upon the City's liability as set forth in Florida Statutes, Section
768.28.
SECTION 23. VENUE.
This Agreement shall be deemed to have been made and shall be construed and
interpreted in accordance with the laws of the State of Florida. This Agreement shall be
enforceable in Miami-Dade County, Florida, and if legal action is necessary by either party
with respect to the enforcement of any and all the terms or conditions herein, exclusive
venue for the enforcement of same shall lie in Miami-Dade County, Florida. CITY AND
CONCESSIONAIRE HEREBY KNOWINGLY AND INTENTIONALL YWAIVE THE RIGHT
TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING THAT CITY AND
CONCESSIONAIRE MAY HEREIN AFTER INSTITUTE AGAINST EACH OTHER WITH
RESPECT TO ANY MATTER ARISING OUT OF OR RELATED TO THIS AGREEMENT
OR THE CONCESSION AREA(S).
[ Remainder of page intentionally left blank]
48
IN WITNESS WHEREOF, the parties hereto have caused their names to be signed
and their seals to be affixed, all as of the day and year first above written, indicating their
agreement.
Attest:
CITY OF MIAMI BEACH, FLORIDA
Signature
,eo~~~ #e>os.o
Print Name
r
~'s )(;~-
r CITY CLERK Robert Parcber
Witnesu
~ !3ig ature
~s (<. J1-tL~
Name and Title of Signatory
J",sc.. '1)qjll.l.l..{'l....-
Print Name
F:\DDH P\$ALL \ASSET\BEACH FRN\PU BLlC\R FP _2001 \BOUCH ER\BBMBLLC _AmendedRestatedAgreement.doc
APPROVED AS TO
FORM & LANGUAGE
& FOR EXECUTION
() -F: t'i:: 57i- :I/oY
v~~ Dale
49
EXHIBIT 1.2
FINANCIAL TERMS APPLICABLE TO RENEWAL TERM
1. With regard to the equipment, as same is defined in Exhibit 3.1.3 (i.e. chairs,
umbrellas, sun canopies, storage/work facilities, storage, and food and beverage
trailers), contemplated to be used by Concessionaire during the renewal term,
Concessionaire shall acquire by purchase or lease (provided, in the event of a
lease, the terms of the lease shall be subject to the approval of the City Manager or
his designee), within 120 days after the commencement of the renewal term, new
equipment. Such equipment shall have a value of no less than five hundred
thousand dollars ($500,000), and no greater than eight hundred thousand dollars
($800,000); provided, that in the event that the City requires that Concessionaire
acquire equipment having a value of eight hundred thousand dollars ($800,000),
Concessionaire shall acquire equipment having a value of at least $680,000, and
Concessionaire shall acquire ancillary concession-related capital improvements
having a value of at least $120,000; provided, however, to the extent
Concessionaire acquires ancillary concession-related capital improvements having
a value of less than $120,000, then Concessionaire agrees to acquire equipment
having a value equal to the difference between $120,000 and the value of the
ancillary concession-related capital improvements so acquired. The City Manager or
his designee shall approve any proposed acquisition of equipment contemplated in
this Paragraph 1 prior to Concessionaire's order of same.
2. The yearly fee due to the City as a result of beachfront equipment rentals and the
sale of Skin Care Products shall be the greater of (a) the amount of the beachfront
equipment and sale of Skin Care Products fee minimum guarantee ($388,288,
without options; $449,549 with options) applicable to the fifth year of the original term
of the Agreement, and (b) the amount of the average, over the original five year term
of the Agreement, of the annual percentage beachfront equipment and sale of Skin
Care Products fee with or without options, as applicable. This yearly fee (i.e., the
greater of (a) and (b)) will be escalated annually at the rate of 5% during the renewal
term.
3. The yearly fee due to the City as a result of food and beverage sales shall be the
greater of (a) the amount of the food and beverage fee minimum guarantee
($143,581) to the City applicable to the fifth year of the original term of the
Agreement, and (b) the amount of the average, over the original five year term of the
Agreement, of the annual percentage food and beverage fee to the City. This yearly
fee (i.e., the greater of (a) and (b)) will be escalated annually at the rate of 5% during
the renewal term.
50
EXHIBIT 3.1 (page 1 of 6)
beach equipment price schedule by area
Lummus Park
Beach Rentals
Lounge chair
Umbrella
Cabana
Towel
S8.00 - 510.00
$10.00
$15.00
$3.00
Luxury Oasis Rentals
Lounge chair
Umbrella
Cabana
Towel
$15.00
$15.00
520.00
55.00
Waters ports
Waverunner (1 person) 1/2 hr.
Waverunner (2 people) 1/2 hr.
Banana Boat (each)
Para-sailing 6 min.
Para-sailing 12 min.
Para-sailing 15 min.
Kayak 1 hr.
$65.00
$70.00
515.00
540.00
S60.00
S80.00
$25.00
Lotions
Lifeguard Special
Hawaiian Tropic Oil
Hawaiian Tropic # 4 Gel
Hawaiian Tropic # 8 Gel
Hawaiian Tropic spf 4 Lotion
Hawaiian Tropic spf 8 Lotion
Hawaiian Tropic spf 15 Lotion
Hawaiian Tropic spf 30 Lotion
$30.00
$25.00
$25.00
515.00
515.00
$15.00
515.00
51
EXHIBIT 3.1 (page 2 of 6)
beach equipment price schedule by area
Lummus Park (cont'd)
Lotions (cont'd)
Store Brand
Hawaiian Tropic Protective Tanning Dry Oil $15.00
Hawaiian Tropic Aloe Vera $12.00
Hawaiian Tropic Baby Faces Sunblock $9.59
Hawaiian Tropic Splash for Kids $8.49
Hawaiian Tropic 30 Plus Sunblock $8.49
Hawaiian Tropic 15 Plus Sunblock $8.29
Hawaiian Tropic Deep Dark SelfTanning Lotion $8.29
Hawaiian Tropic Protective Tanning Lotion $7.19
Hawaiian Tropic Golden Tanning Lotion $7.19
Hawaiian Tropic Dark Tanning Lotion $5.99
Hawaiian Tropic Protective Tanning Dry Oil $6.99
Hawaiian Tropic Dark Tanning Oil $6.99
Hawaiian Tropic Tan Amplifier Spray Oil $6.99
Hawaiian Tropic Tan Amplifier Spray Gel $6.99
Hawaiian Tropic Tan Amplifier Carrot Oil $6.99
Hawaiian Tropic Tan Amplifier Tan Max Spray $8.29
Hawaiian Tropic Tan Amplifier Tan Max Lotion $8.29
Hawaiian Tropic Aloe After Sun Moisturizer $6.59
Hawaiian Tropic Cool Aloe I.C.E. Burn Relief $6.59
52
EXHIBIT 3.1 (page 3 of 6)
beach equipment price schedule by area
Ocean Terrace
L
Beach Rentals
Lounge chair
Umbrella
Cabana
Towel
$5.00
$7.00
$10.00
$3.00
Watersports
Waverunner (1 person) 1/2 hr.
Waverunner (2 people) 1/2 hr.
Banana Boat (each)
Para-sailing 6 min.
Para-sailing 12 min.
Para-sailing 15 min.
Kayak 1 hr.
Hobie Cat 1 hr.
$65.00
$70.00
$15.00
$40.00
$60.00
$80.00
$25.00
$40.00
Lotions
Lifeguard Special
Hawaiian Tropic Oil
Hawaiian Tropic # 4 Gel
Hawaiian Tropic # 8 Gel
Hawaiian Tropic spf 4 Lotion
Hawaiian Tropic spf 8 Lotion
Hawaiian Tropic spf 15 Lotion
Hawaiian Tropic spf 30 Lotion
$30.00
$25.00
$25.00
$15.00
$15.00
$15.00
$15.00
53
EXHIBIT 3.1 (page 4 of 6)
beach equipment price schedule by area
Ocean Terrace Icont'd)
Lotions (cont'dl
Store Brand
Hawaiian Tropic Protective Tanning Dry Oil $15.00
Hawaiian Tropic Aloe Vera $12.00
Hawaiian Tropic Baby Faces Sunblock $9.59
Hawaiian Tropic Splash for Kids $8.49
Hawaiian Tropic 30 Plus Sunblock $8.49
Hawaiian Tropic 15 Plus Sunblock $8.29
Hawaiian Tropic Deep Dark Self Tanning Lotion $8.29
Hawaiian Tropic Protective Tanning Lotion $7.19
Hawaiian Tropic Golden Tanning Lotion $7.19
Hawaiian Tropic Dark Tanning Lotion $5.99
Hawaiian Tropic Protective Tanning Dry Oil $6.99
Hawaiian Tropic Dark Tanning Oil $6.99
Hawaiian Tropic Tan Amplifier Spray Oil $6.99
Hawaiian Tropic Tan Amplifier Spray Gel $6.99
Hawaiian Tropic Tan Amplifier Carrot Oil $6.99
Hawaiian Tropic Tan Amplifier Tan Max Spray $8.29
Hawaiian Tropic Tan Amplifier Tan Max Lotion $8.29
Hawaiian Tropic Aloe After Sun Moisturizer $6.59
Hawaiian Tropic Cool Aloe I.C.E. Burn Relief $6.59
54
EXHIBIT 3.1 (page 5 of 6)
beach equipment price schedule by area
North Shore Open Space Park
Beach Rentals
Lounge chair
Umbrella
Cabana
$5.00
$7.00
$10.00
Watersports
Waverunner (1 person) 1/2 hr.
Waverunner (2 people) 1/2 hr.
Banana Boat (each)
Para-sailing 6 min.
Para-sailing 12 min.
Para-sailing 15 min.
Kayak 1 hr.
Hobie Cat 1 hr.
$65.00
$70.00
$15.00
$40.00
$60.00
$80.00
$25.00
$40.00
lotions
lifeguard Special
Hawaiian Tropic Oil
Hawaiian Tropic # 4 Gel
Hawaiian Tropic # 8 Gel
Hawaiian Tropic spf 4 Lotion
Hawaiian Tropic spf 8 Lotion
Hawaiian Tropic spf 15 Lotion
Hawaiian Tropic spf 30 Lotion
$30.00
$25.00
$25.00
$15.00
$15.00
$15.00
$15.00
55
EXHIBIT 3.1 (page 6 of 6)
beach equipment price schedule by area
North Shore Open Space Park (cont'dj
Lotions (cont'd)
Store Brand
Hawaiian Tropic Protective Tanning Dry Oil $15.00
Hawaiian Tropic Aloe Vera $12.00
Hawaiian Tropic Baby Faces Sunblock $9.59
Hawaiian Tropic Splash for Kids $8.49
Hawaiian Tropic 30 Plus Sunblock $8.49
Hawaiian Tropic 15 Plus Sunblock $8.29
Hawaiian Tropic Deep Dark Self Tanning Lotion $8.29
Hawaiian Tropic Protective Tanning Lotion $7.19
Hawaiian Tropic Golden Tanning Lotion $7.19
Hawaiian Tropic Dark Tanning Lotion $5.99
Hawaiian Tropic Protective Tanning Dry Oil $6.99
Hawaiian Tropic Dark Tanning Oil $6.99
Hawaiian Tropic Tan Amplifier Spray Oil $6.99
Hawaiian Tropic Tan Amplifier Spray Gel $6.99
Hawaiian Tropic Tan Amplifier Carrot Oil $6.99
Hawaiian Tropic Tan Amplifier Tan Max Spray $8.29
Hawaiian Tropic Tan Amplifier Tan Max Lotion $8.29
Hawaiian Tropic Aloe After Sun Moisturizer $6.59
Hawaiian Tropic Cool Aloe I.C.E. Burn Relief $6.59
56
EXHIBIT 3.1.1 (page 1 of 3)
equipment description
STANDARD
standard vinyl strap lounge chairs with umbrella & 3 inch pad
standard vinyl strap lounge chair with sun canopy
57
EXHIBIT 3.1.1 (page 2 of 3)
equipment description
OASIS
t
/"., .
\ U ..!~_~.~~
l':; ,"f;i':l!':,.,':' "
f
"
double wide mesh lounge chair with side table & umbrella
double wide mesh lounge chair with 6 inch pad, side table & umbrella
58
EXHIBIT 3.1.1 (page 3 of 3)
" \
,
: (j - StJ.L&. 11tC.
....
I \ CUSHlr"'" I JMBRELLAS
8378 NW 5i3 ~;ThEE r . MIAMI. ~L :!'; ;, j.
PH 305,5: 2..::303 . ~AX 305,51 :';'. .'
~
-::7/-:::';-.//1 c; .2
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DESIGN REVIEWn-fISTORIC PRESF:RVATlON
FOR BUILDING PERMIT C' .v"/
OA TE OF DIRECTOR APPROV ALL:J. J / BY /;;.y_
BUILDING PERMIT CANNOT BE ISSUED
AFTEP.:
A~Y pr-- I.' nONS TO THES!: PERMIT DRAWINGS
M.'," l' '"WED O-l('l APPROVED BY DESIGN
Rt:. .. . '.:-:".C :::::flVATIONSTAFFPRIORTO
T;" " rJlIII.D:r-''1 PERMIT. ANY
M '~::2 V-- "IT DRAWINGS
". .. ,.... ': . .. "':='.F:MITMlJST
F, -: : .1 .. IJESIGN
R. . .._., ,..~ ;:>RIOR TO
TI1;: cor-........_ .._.. vr I nL., "'HO..It:I.a.
59
EXHIBIT 3.1.2 (page 1 of 12)
Site Plan Exhibit Clarification
Concessionaire and City agree and understand that the following exhibits (Exhibit 3.1.2)
which total eleven in all, may be amended by the parties, as mutually agreed upon, in order
to facilitate operational issues which may result from time to time, related to the
deployment of chairs, layout of the concession facilities, proximity to life guard stands,
buffer zone locations, etc. within the Concession Areas, so long as the Lummus Park
beach frontage that is to be left unencumbered by any of the Concessionaire's equipment
and/or facilities and not subject to Concessionaire's use, does not equal less than forty
nine percent (49%) of the total beach frontage (from the northernmost boundary to the
southernmost boundary) of the Lummus Park Beach as defined in Paragraph 2.1 of this
Concession Agreement.
60
EXHIBIT 3.1.2 (page 2 of 12)
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Area Chairs Umbrellas Sun Storage / Work Storage Food & Beverage
Canopies Facilities Trailers
5th Street 150 50 10 1 0 1
6th Street 150 50 10 1 1 1
7th Street 150 50 10 0 1 0
8th Street 200 60 10 1 1 1
9th Street 275 130 15 1 2 1
10th Street 275 130 15 1 2 1
11 th Street 150 35 5 1 0 1
12th Street 150 35 5 0 1 0
13th Street 300 100 15 2 2 1
14th Street 100 30 10 1 1 1
14th Lane 100 30 10 0 1 0
Ocean Terrace 200 70 10 1 2 1
N.S.a.S. Park 200 70 10 1 2 1
Total 2400 840 135 11 16 10
72
EXHIBIT 3.1.7
Minimum Required Concession Equipment to be available for deployment as of
November 5, 2001 :
ITEM
Quantity
Standard Lounge Chair ............................................... 600
Luxury Lounge Chair ................................................... 1 00
Um brellas... ........... .... ...................................................... 30
Sun Canopies................................................................... 0
Storage Facilities........................................................... 10
Dispensing Facilities....................................................... 0
Food & Beverage Facilities ............................................. 2
73
EXHIBIT 3.2.1 (page 1 of 3)
food & beverage menu
Lummus Park
Salads
Price
Frozen Grapes
Fresh Seasonal Fruit
Caesar Salad
Chicken Caesar Salad
Seafood Salad
6,00
6,00
5.00
7,00
7.00
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9,00
8.00
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6.00
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Sirloin Burger 8 oz.
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Seafood Crepe
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Potato Chips
3.00
6.00
7.00
7.00
7,00
6.00
1.00
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2.75
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Prices subject to change within 15% range
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2.00
74
EXHIBIT 3.2.1 (page 2 of 3)
food & beverage menu
Ocean Terrace
Salads
Price
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Chicken Caesar Salad
Seafood Salad
6.00
6.00
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7.00
7.00
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8.00
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6.00
Hot Sandwiches
Kosher Hot Dog
Sirloin Burger 8 oz.
Blackened Chicken Sandwich
Cuban Sandwich
Seafood Crepe
Vegetable Crepe
Potato Chips
3.00
6.00
7.00
7.00
7.00
6.00
.75
Beverages
Bottled Water
Soft Drinks
Iced Tea
Gator Aid
Fresh Juice
Virgin Daiquiri
Virgin Piiia Colada
Iced Cappuccino
Virgin Margarita
2.50
2.50
2.50
3.00
3.00
4.00
4.00
3.00
4.00
Desserts
Frozen Yogurt
Ice Cream
Specialty Desserts
Cuban Pastries
Prices subject to change within 15% range
3.00
3.00
4.00
2.00
75
EXHIBIT 3.2.1 (page 3 of 3)
food & beverage menu
North Shore Open Space Park
Salads Price
Frozen Grapes 6.00
Fresh Seasonal Fruit 6.00
Caesar Salad 5.00
Chicken Caesar Salad 7.00
Seafood Salad 7.00
Appetizers
Shrimp Cocktail 9.00
Peel & Eat Shrimp 8.00
Monty's Stone Crabs (Seasonal) Market Price
Cold Sandwiches
Turkey Wrap 6.00
Club Wrap 6.00
Hot Sandwiches
Kosher Hot Dog 3.00
Sirloin Burger 8 oz. 6.00
Blackened Chicken Sandwich 7.00
Cuban Sandwich 7.00
Seafood Crepe 7.00
Vegetable Crepe 6.00
Potato Chips .75
Beverages
Bottled Water 2.50
Soft Drinks 2.50
Iced Tea 2.50
Gator Aid 3.00
Fresh Juice 3.00
Virgin Daiquiri 4.00
Virgin Pifia Colada 4.00
Iced Cappuccino 3.00
Virgin Margarita 4.00
L Desserts
Frozen Yogurt 3.00
Ice Cream 3.00
Specialty Desserts 4,00
Cuban Pastries 2.00
Prices subject to change within 15% range
76
EXHIBIT 3.2.1.1
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77
EXHIBIT 3.3
sundries
Beach Toys $5.00 to $25.00
Children's Beach Toys $5.00 to $25.00
Hats $10.00 to $20.00
Lip Balm $ 3.00 to $ 8.00
Misters $10.00 to $20.00
Rafts $10.00 to $25.00
Prices subject to change within 15% range
78
EXHIBIT 3.4.1
beach equipment price schedule by area
Lummus Park
Waters ports
Waverunner (1 person) 1/2 hr.
Waverunner (2 people) 1/2 hr.
Banana Boat (each)
Para-sailing 6 min.
Para-sailing 12 min.
Para-sailing 15 min.
Kayak 1 hr.
$65.00
$70.00
$15.00
$40.00
$60.00
$80.00
$25.00
79
EXHIBIT 3.5.1 (page 1 of 5)
CITY OF MIAMI BEACH
PLANNING DEPARTMENT
ADMINISTRA T1VE DESIGN REVIEW APPLICATION FORM
1700 Convention Center Drive. Miami Beach. FI. 33139
Telephone: (305) 673-7550 FAX: (305) 673-7559
PLEASE TYPE OR USE BOLD PRINT TO COMPLETE ALL APPLICABLE ITEMS BELOW.
~fC>t\.(S fY\if.\JV\\ BeCt(,~ L.L-~
Name of Business or Property (if any)
b/YJ/?/L./5 ~/2-..~ 6EA~J-J-
Address of P.lf~erty (job site) . D
(,!.!::\ l'lf- Mt 4 M \ t! e Ct c.h
Name of Property O"ner
~M(;
Address of Property Owner (if same, so indicate)
~
B OUlC~t(1.
Single Family Home
DYes ONo
GdC,ES-5/ (jJ
Unit #
Telephone
Fe 3 "1 ({Olephone
Telephone
THE UNDERSIGNED APPLICANT HEREBY CERTIFIES THAT HE/SHE UNDERSTANDS THAT A COMPLETED "OWNERS AFFIDAVIT" EXECUTED BY THE OWNER OF THE
SUBJECT PROPERTY SHALL BE SUBMITTED TO THE MIAMI BEACH BUILDING DEPARTMENT. IF REQUIRED, PRIOR TO THE ISSUANCE OF A BUILDING PERMIT. THE
UNDERSIGNED FURTHER CERTIFIES THAT HE/SHE IS AUTHORIZED (ON BEHALF OF THE OWNER) TO REQUEST THE ABOVE ADMINISTRATIVE DESIGN REVIEW
^~O~~M
Signature otApplicant
6 \-tvi.*' 8OJek,el
(Print Name)
q ll~ \ 0 \
Date Signed
NOTES:
I. The fee must be paid at the time of application: if paying by check, please make it payable to the
"City of Miami Beach"
2. For additional information on required exhibits, please refer to the application instructions on the reverse side.
3. An administrative design review approval shall only be effective when this form is executed by an
authorized staff person of the City of Miami Beach's Planning Department.
4. If mailing, send to: Planning Department, 1700 Convention Center Drive, Miami Beach, PI. 33139
SEE REVERSE SIDE FOR EXHIBITS AND FEES REQUIRED
(Do Not Write Below This Line -- For Staff Use Onlvl
DAntenna DAwning DFence Olnterior Ruildout OLendscepinlt- OPeint OPerking lot ORemp OShutters OSign DSpeakars OStorafront
DWindows OOthe,
File No.
IS'J?r
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9.:ZH.
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)
Date Approv~
MCR#:
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EXHIBIT 3.6 (page 1 of 5)
~) l,:~.: T -~ 1 l. -- ~-;: ('." ('.' 1 (:.' '~~ :; ':" "::'"f. P t1 'b t:) ~.J 't~ H E H 't{ F> (I 1 H f:- r;i 1~1 H t', f"1l _
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IOUCHI!R IROTHERS MANAGEMENT. INC.
"A Pool, Beach and Wat.,. Spo.. Management Company"
OClober 11, 2001
Joe Ollmion
City Of Mleml Beach
1100 COm/entlon Center Onve
Miami Beach, FL. 33139
RE: EvaQUMIQn Plan
Dear Mr. Damlon:
We would like to inform you of our .~Ino evacuation plan for tho properttea of Lummus Park.
Ocean Terrace and North Open Space Park. As part of this plan. Boucher Brothers Management,
Inc. will move all ooach equipment off the beach In the even, of a huoieane warning.
In oraer to make the evaculltlon pt"OC9SS 8S expedient as possible, the Boucher Brothers have 8
contll1ct wlth 8 local tow truck oompany. This company wtll assist us In moving our equipment off
the beach area lIS soon as _ get 8 hun1cane warning, All beach equipment. including lounge
c08lf!j. umbfelllls. cabana, ltOd stof1lOe huts woutd ",""am off the beech ullUl . hun1Cane wemtnQ
Is no longer In e1"fec1,
11 you should nave Gny quest/om, ple~ feel free to contact liS at (305) 535-8177. We are confldent
thet O\lf eVQ('.uatlon piall Is efn('Jem and will guanwtee 811 eq"lpmem Is moved off the beech In .. timely
fashion,
11~
Boucher Brothers
20971 NE 30ttJ COURT
AVENTURA. FLORIDA 331$0
MAIN OFFICE (305)53~e177/(30r;)933-377e)
$. BEACH OFFICES (305)218-1024 1(305)218-1028 N. BEACH OFFICES (30~)2.,e-1025/(30~}211S-1023
FAX II!S (305)933-939<41(30~)538-3288 E MAIL Aoubros4~Ol.COM
85
EXHIBIT 3.6 (page 2 of 5)
f'It.-,'1 t
n ~ (,; 1 1
BOUCHER BROrtIERS wfAl~AGEMENT
EV ACUA TION PLAN
LVMMUS p~ ~~~~ TE~C;:" OriN SPACE P~RX
In the event of a hurricane watch, Boucher Brothers Management win
implement its existing Evacuation Plan for the areas of Lummus Park,
Ocean Terrace, and North Open Space Park. One of the Evacuation Plan's
main goals is to have all beach operations shut down and all beach
equipment moved off the beach within 8 hours after a hurricane watch has
been issued. Thi~ goal of expedient evacuation does not compromise, but is
in fact congruent, with the safety ofthe process.
· The Boucher Brothers Management has a trained Evacuation Team
comprised of 20-40 team members from its staff. There are 3 team
members responsible for charting any disturbances on the Atlantic
Ocean, particularly the Caribbean zone, during Hurricane Season. These
are the same people responsible for tracking and reporting all inclement
weather for water sports and beach rental purposes year-round. One team
member is stationed in the main office and the other two are stationed out
in the field. It is these three team members who will report to the
president of the company (James R. Bou~her) whenever a hurricane
watch is in effect for South Florida.
· Once the president of the company has been advised that a hurricane
watch has been issued for the South Florida area by the National
Hurricane Center. it is he who has the authority and will make the
decision to implement OUT EV3<::uation Plan.
. In order to be fillly informed of any developments relating to the
hurricane, there is an EVclcuation Team member who is responsible for
monitoring any information, recommendations or updates released by the
Miami-Dade Office of Emergency Management and the Emergency
Operations Center. This team member is also responsible for monitoring
the ROC's Evacuation Zone Map
86
v,. ~ C1~?
EXHIBIT 3.6 (page 3 of 5)
t'IU'.," \Jt, ..:..::l;Jl.:J 1 ~_~ .7,; ".f. } 1.~ t:i__~j)l ~";f' r-,' ,l::~'1.~; !iJ.::_i~' !'~r!l__.,: i ~
.:: ~~, ":' "~-' ~, ..
· Within minutes after our Evacuation Plan is called into effect, the
Director of Operations for the Lummus Park, Ocean Terrace, and Open
Space Park is contacted. The Director of Operations th~n contacts the
Boucher Brothers Site Managers with the decision to evacuate. The
Property Managers then contact all Boucher Brothers Staff under their
sup..."'T'Vision and infonn them that the Evacuation Plan is in effect.
· Within 15 minutes after receiving word that we are evacuating, the Site
Managers immediately close down all concessions where beach rentals
(lounge chairs, beach umbrellas, cabanas, towels, etc.) and sales (skin
care lotions, beach toys, rafts, etc.) operations take place.
* In anticipation of inclement weather, our water sports equipment
(waverunners, kayaks, etc.) would typically already be in storage off the
beach on a day of a hurricane watch. For safety reasons, Boucher
Brothers Management does not operate water sports on days when the
ocean is rough and the winds are too strong. On a day of a hurricane
watch, there would not be a need to move water sports equipment to an
off-beach location because the equipment would already be there.
· Within 30 minutes after the Evacuation Plan is called into effect, one of
the Boucher Brothers is responsible for contacting Anchor Towing. The
Boucher Brothers Management has an agreement with Anchor Towing, a
tow truck company located at 1560 NE 131 Street, in Miami, Florida.
Per our agreement, Anchor Towing will systematically work with us to
move our equipment off the beach in the event of a hurricane watch. It is
lmderstood that this tow truck company will meet OUf needs and assist us
in having all equipment off the beach within 6-7 hours.
· Additionally, the Boucher Brothers Own 4 flat bed trailers which will aid
in the transporting of equipment off the beach in case of a hurricane
watch. These trailers will be used to move the lounge chairs, beach
umbrellas, and cabanas from the beach to storage area. These trailers are
normally kept in a storage location at the Holiday Inn South Beach Hotel,
2201 Collins Avenue, in Miami Beach, Florida. The chairs, umbrellas
and cabanas win start to get transported off the beach within 45 after the
Evacuation Plan is put in effect. This process wiH take approximately 3
to 4 hours.
87
F ~ 0.:;
EXHIBIT 3.6 (page 4 of 5)
t'-.j 0 '-/ ,:) (" :: () C:t J. ';) : 4 I' F f" }: fl U I H L. :..;' B k :~,I r H t - }-' '--; f'1 t'i ',:1 f .
~; t1 ':.":,) .t. ::{ .~-: ".:~. ~3;3
· The Boucher Brothers Management has several storage facilities in
different properties along Miami Beach. We have storage areas and
secured parking garages at our disposal at The Fontainebleau Hilton
Hotel. Holiday Inn South Beach Hotel, and the Loews Hotel. It is to
these storage areas where we witt bring and keep aU our beach equipment
during a hwricane watch.
· Aside from moving the chairs, umbrellas, cabanas, and water sports
equipment off the beach, we will also move all the on-be3(;h storage
facilities and work/concession huts. Moving the huts will typically start
to take place within 1 hour after the Evacuation Plan is put into effect.
This process will take from 4 to 5 hours. The huts will be moved to one
of the Boucher Brothers Management off-beach storage locations
mentioned above.
· The Boucher Brothers Staff is not only responsible for assisting in the
moving of all beach equipment during a hunicane watch evacuation, but
also of informing all beach patrons of the situation. Once all sales/rental
operations are shut down, Boucher Brothers staff and Evacuation Team
members will advise the people on the beach that, for their safety, they
should leave and evacuate the beach area. This will typically start to take
place within 15 after Evacuation Plan is implemented and will continue
throughout the entire evacuation process, which wiU take less than 8
hours.
.. During the evacuation process, Boucher Brothers Management staff at
Lummus Park, Ocean Terrace, and North Open Space Park will be
supervised and provided with guidance by their respective Site Managers,
and the Site Managers will accordingly be supervised by the Director of
Operations for those properties. The Director of Operations will be under
the direct supervision of the Boucher Brothers.
88
F' _ 04
EXHIBIT 3.6 (page 5 of 5)
Apr 26 05 03:501" Boucher Brothers
Apr 07 05 07:38a
305-538-3288
APR-25-2005 18:02
TOE JAM F: LM/p ! C lLRl'f2PERF
TOE JAM FILMS
160 NW 21 - S,."t:llT. MIAMI FL 33 1 37
PH(306)769.0441i FAX(306)76lil-StJ.15
To whom it may concem:
I acknowledge the paragraph below from an agreement between
Boucher Brothers a.nd the City of Mia.mi Beach and the timing
relating to the issuance of a Hurricane Warning.
This is to notify you tnat that the Boucher Brothers have an
agreement with Toe Jam Films to utilize our warl8house for the
storage of their Beach equipment during times of Hurricane
Warnings and Hurricanes.
Our 18,000 square foot warehouse is located at:
1 SO NW 21st Street
Miami. Florida
Plea.se call me should you have any questions.
Sincerely.
~
------
OOO_~_;:>e:::\QI;;": ~c..:;~C',,':'U)M c::"a~:
1".2
1".1
P.liJ2/02
ID:
PAGE: 002 R;lOO"
89
EXHIBIT 4.3
I Minimum Guarantee RFP Year 1 Guarantee (Years 2-5)
Monthly Yearly Year Year Year Year Total
Monthly Yearly Minimum Minimum 2 3 4 5
Description Percentage Adiustmenl G uara nl ee Guarantee Guarantee Guarantee Guarantee Guarantee Guarantee
Food & Beverage 15% See Schedule Below 9,375 112.500 118,1251124.031 1130,2331136.744 621,634
750,001 To 1,000,000 1'6%
1,000001 To 1,250,000 17%
1,250,001 To 1.500.000 18%
1.500,001 To 1,7 50.000 19%
1,750,001 To 2,000.000 20%
2,000,001 To 2,250,000 21%
2,250.001 To 2,500,000 22%
2,500,001 T~ 2,750,000 23%
2,750,001 To 3,000.000 24%
3,000,001 To 3,250,000 25%
90
EXHIBIT 6 (page 1 of 3)
CITY OF MIAMI BEACH
BOUCHER BROTHERS MIAMI BEACH, LLC
AGREED-UPON PROCEDURES
1. Inquire of management and obtain and review documentation on the nature of the company's
business and the factors that affect sales. Inquire about and document any major changes made
during the period.
a. Review procedures for recording sales for all sources of beachfront rental Income.
b. Obtain the operating policies and procedures from the concessionaire.
c. Interview key company representatives to determine procedures used.
d. Observe the utilization and effectiveness of the procedures through quarterly site visits to
beach concession locations.
2. Test to determine that the concessionaire maintained proper internal controls and documentation to
support the reported gross receipts figure for each open and closed section.
a. Document the procedures, if any, for determining how sections are recorded as open and
closed.
b. For _ months, test manual Open and Closed Sections sheet to Daily Rental sheets for
_ days to determine if for sections opened revenues are recorded and that for closed
sections, proper supervisory approval is evidenced. Agree earned revenues to entries on
master Consolidated Sales schedule.
c. Determine that all daily rental sheets have been accounted for.
d. Verify the notations of "inclement weather" or "special events" for days in which the revenues
are unusually low.
e. Document the findings.
3. Obtain a Consolidated Sales schedule for the year ended , prepared in
conformity with the concession agreement between the City of Miami Beach and Boucher Brothers
Miami Beach, LLC dated October 17, 2001. Recalculate concession fees for the period based on
sales per the schedule and the terms of the concession agreement.
4. Review the concession agreement(s) and inquire about major changes, if any, in the definition of
which sales are included and excluded from the Consolidated Sales schedule.
5. Perform an analytical test of sales by obtaining a schedule summarizing sales by revenue type (i.e.
food and beverage, water sports, etc.). Analyze this schedule and critically evaluate explanations for
significant variations that are unusual in amount or nature.
6. Obtain or prepare a reconciliation of total sales recorded in the general ledger for the period to the
Consolidated Sales schedule provided to the City of Miami Beach. Also, obtain or prepare an analysis
of sales summarized by revenue type. Perform the following procedures:
a. Test the analysis by selecting a few categories, and compare the amounts shown with those
recorded in the sales schedule. Document the items selected for testing. Agree the sales
schedule balances to the general ledger.
91
EXHIBIT 6 (page 2 of 3)
b. Review the analysis, and identify any unusual trends or variations within the period or the
prior period.
c. Obtain sound business reasons for large or unusual variations in the amounts included in the
analysis.
7. Scan the accounting records for large and unusual transactions, review evidence and document any
findings.
8. Perform a test of sales completeness by applying the following procedures:
a. Using sales documentation or daily cash register recaps, select 1 (one) day per month
throughout he year, including weekdays and weekends. Document the items selected for
testing. The sales documentation or daily cash register recaps should include original sales
documents (including cash sales and credit card sales), credit memos, etc.
b. Agree the summary information on the daily cash register recap or daily collection sheet to
the supporting documents (which may be sales tickets, cash register tape, etc.). Determine
that details are appropriately reflected on the summary and that all collection sheets have
been accounted for.
c. Agree the amounts on the daily cash register recaps to proper recording in the sales
schedule and general ledger, as appropriate.
d. Determine that proper accounting treatment has been applied to these sales transactions.
e. Agree deposits per the daily register recap to the daily collection sheets and ultimately to the
bank statement.
f. Agree sundries to supporting inventory sales sheets.
g. Agree water sports/parasailing contract amounts to selected rental agreements.
h. Test the propriety of the numerical sequence of the executed water sports
agreements/waivers.
i. Agree revenues from equipment rentals to Daily Sheets. Check for proper sign-off approval
by attendant and supervisor.
j. Agree _ daily deposits to daily revenue sheets and bank statements.
k. Foot and cross foot selected months of Consolidated Sales schedule and other linked
spreadsheets to verify their accuracy.
I. Compare total sales for selected months to sales tax returns filed with the applicable taxing
jurisdictions.
9. Verify that the concessionaire's rental payments were remitted timely in adherence to the dates
designated by the City.
10. Review the products and prices charged by the concessionaire and his sub-concessionaire to
determine if the City Manager or his designee has approved them.
a. Obtain pricing from site visits to beach locations.
b. Compare prices to agreement terms. Recalculate any increase to determine if it falls with the
limits of the agreement.
c. Determine if the city has authorized any price increases and verify if the Company has the
authorization in its files.
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EXHIBIT 6 (page 3 of 3)
11. Verify the status of operations in both North Shore Open Space Park (inactive) and Ocean Terrace
(active).
a. Conduct site visit to determine the level of operations.
b. Review provided documents to determine the period of activity.
c. Discuss and document any variances with Boucher Brothers Management for explanation.
12. Verify that the sub concessionaire has timely paid all resort taxes to the City's Finance Department
and ensure the correct calculation of resort tax due.
13. Review the records maintained of all secret shoppers and determine:
a. The shoppers' results and corresponding actions taken by management.
b. That all locations (including Monty's kiosks) were periodically covered by secret shoppers.
c. The frequency and timing of the shoppers on a quarterly basis.
d. That all revenues were recorded in the Consolidated Sales schedule.
14. Determine and document how management verifies which Monty's kiosks were open in a particular
day.
a. Agree food and beverage sales to sub concessionaire reports. Agree amounts sold to daily
inventory sheets.
b. Using sales documentation or daily cash register recaps, select one day per month
throughout the year, including weekdays and weekends. Document the items selected for
testing. The sales documentation or daily cash register recaps should include original sales
documents (including cash sales and credit card sales), credit memos, etc.
c. Agree the summary information on the daily cash register recap or daily collection sheet to
the supporting documents (which may be sales tickets, cash register tape, etc.). Determine
that details are appropriately reflected on the summary and that all collection sheets have
been accounted for.
d. Agree the amounts on the daily cash register recaps to proper recording in the sales
schedule and general ledger, as appropriate.
e. Verify the notations of "inclement weather" or "special events" for days in which the revenues
are unusually low.
f. Select _ days and ensure that both the attendant and a supervisor sign-off on the
applicable daily inventory sheet attesting to the accuracy of the beginning and ending
inventory counts as well as any other inventory changes for the day.
g. For the days selected above, ensure that the ending inventory agrees to the next days
opening inventory. Document any discrepancies.
h. Review management's periodic reconciliations of the food and beverage revenues performed
by analyzing the inventory reports and cash register tapes. Document any discrepancies and
management follow-up.
F:\DDHP\$ALL \ASSET\BEACHFRN\PUBLlC\RFP _2001 \BOUCHER\Exhibit 6,doc
93
EXHIBIT 10.2.1
FENCED STORAGE AREA
PENDING
94