2001-24533 RESO
RESOLUTION NO. 2001-24533
A RESOLUTION OF THE MAYOR AND CITY COMMISSION
OF THE CITY OF MIAMI BEACH, FLORIDA, AUTHORIZING
THE ADMINISTRATION TO NEGOTIATE WITH THE
SECOND RANKED FIRM OF BOUCHER BROTHERS MIAMI
BEACH, LLC, PERTAINING TO THE RANKING OF THE
PROPOSALS RECEIVED IN RESPONSE TO REQUEST FOR
PROPOSALS (RFP) NO. 22-00/01, FOR THE MANAGEMENT
AND OPERATION OF BEACHFRONT CONCESSIONS ON
THE BEACHES SEAWARD OF LUMMUS PARK, OCEAN
TERRACE AND NORTH SHORE OPEN SPACE PARK
WHEREAS, the City Commission, at its February 21, 2001 meeting, via
Commission Memorandum No. 79-01, authorized the Administration to issue a Request for
Proposals (RFP) for the management and operation of beachfront concessions on the
beaches seaward of Lummus Park, Ocean Terrace, and North Shore Open Space Park;
and
WHEREAS, on February 1 ,2001, input was received from the Marine Authority and
the South Pointe Advisory Board; the Administration also met with the Ocean Drive
Association and the Beach Preservation Committee on December 12, 2000, and also
advised them of the key components of the proposed RFP; and
WHEREAS, the RFP notices were sent by DemandStar by Onvia to 73 individuals
and/or firms, which resulted in 18 individuals and/or firms obtaining a copy of the RFP with
three responses: Penrod Brothers, Inc. (Penrod's), Boucher Brothers Miami Beach, LLC
(Boucher Brothers), and Playtime Watersports (Playtime); and
WHEREAS, Letter to Commission (LTC) No. 87-2001, established an Evaluation
Committee consisting of the following individuals:
Samuel!. Burstyn, P.A., Miami Beach Resident
. Pablo Cejas, PLC Investments
Laurie Holtz, Audit Committee Member
. Timothy Hemstreet, Special Assistant to the City Manager
Amadeo Lopez-Castro, Chairman of the Public Health Trust of Miami-Dade County
Ira Nausbaum, Marine Authority Chairman
Hank Oppenborn, Beach Patrol Supervisor
Wyatt Porter-Brown, Beach Preservation Committee Chairman
Vivian Rodriguez, Miami-Dade Parks and Recreation Director; and
WHEREAS, the City Manager subsequently appointed Joe Garcia, Executive
Director of the Cuban-American Foundation to replace Pablo Cejas, and also appointed
Morris Sunshine, Marine Authority Member to replace Ira Nausbaum; and
WHEREAS, on June 13,2001, letters were sent via facsimile to the three proposers:
Penrod's, Boucher Brothers, and Playtime; said letters informed each proposer that they
had been scheduled for a 20 minute oral.presentation, followed by a 30 minute question
and answer session with the Committee; and
WHEREAS, each Committee member completed their Evaluation Matrix forms,
which resulted in the following ranking of firms as follows: (1) Penrod's; (2) Boucher
Brothers; and (3) Playtime; and
WHEREAS, members of the City's Administrative staff and the City Attorney's
Office briefed the City Manager on the Evaluation Committee's recommendation, and the
process followed relative to the RFP; and
WHEREAS, the Administration has reviewed the Committee's recommendations,
and the issues raised by the various proposers, and will ensure that during negotiations
with the successful proposer, the following goals are achieved:
. higher minimum guaranteed amount;
. internal controls to ensure financial accountability and consistent reporting
methodology; and
. negotiate aesthetic, design, and density issues as permitted in the RFP, with the
successful proposer in the best interest of the City; and
WHEREAS, the Administration recommended that the Mayor and City Commission
accept the City Manager's recommendation pertaining to the ranking of firms, and
authorize the Administration to negotiate an agreement with the top ranked firm of Penrod
Brothers, Inc., and if unsuccessful in negotiating an agreement with Penrod Brothers, Inc.,
authorize the Administration to enter into negotiations with Boucher Brothers; and
WHEREAS, at the City Commission meeting on July 18, 2001, the Mayor and City
Commission authorized the Administration to negotiate with the second ranked firm of
Boucher Brothers Miami Beach, LLC.
NOW, THEREFORE BE IT DULY RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and City
Commission hereby authorizes the Administration to negotiate with the second ranked firm
of Boucher Brothers Miami Beach, LLC, pertaining to the ranking of the proposals received
in response to Request for Proposals (RFP) No. 22-00/01, for the management and
operation of beachfront concessions on the beaches seaward of Lummus Park, Ocean
Terrace and North Shore Open Space Park.
PASSED AND ADOPTED this 18th day of July 200
ATTEST:
~r p~~
Robert Parcher, CITY CLERK
F:\DDHP\$ALL \ASSET\BEACH FRN\PUBLlC\RFP _2001 \BOUCHER\AmendedReso2001_24533.doc
APPROVED AS TO
FORM a LANGUAGE
a EXECUTION
CITY OF MIAMI BEACH
CITY HALL 1700 CONVENTION CENTER DRIVE MIAMI BEACH, FLORIDA 33139
hltp:\\ci. miami-beach. fl. us
COMMISSION MEMORANDUM NO.
'lY6-0(
TO:
Mayor Neisen O. Kasdin and
Members of the City Commission
JorgeM. Gonzalez \ .~
City Manager 0 I/" 0
DATE: July 18, 2001
FROM:
SUBJECT: A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE
CITY OF MIAMI BEACH, FLORIDA, ACCEPTING THE
RECOMMENDATION OF THE CITY MANAGER PERTAINING TO THE
RANKING OF THE PROPOSALS RECEIVED IN RESPONSE TO REQUEST
FOR PROPOSALS (RFP) NO. 22-00/01, FOR THE MANAGEMENT AND
OPERATION OF BEACHFRONT CONCESSIONS ON THE BEACHES
SEAWARD OF LUMMUS PARK, OCEAN TERRACE AND NORTH SHORE
OPEN SP ACE PARK; AUTHORIZING THE ADMINISTRATION TO
ENTER INTO NEGOTIATIONS WITH THE TOP RANKED FIRM OF
PENROD BROTHERS, INC., AND IF UNSUCCESSFUL IN NEGOTIATING
A CONTRACT WITH THE TOP RANKED FIRM OF PENROD BROTHERS,
AUTHORIZING THE ADMINISTRATION TO NEGOTIATE A CONTRACT
WITH THE SECOND RANKED FIRM OF BOUCHER BROTHERS.
ADMINISTRATION RECOMMENDATION:
Adopt the Resolution.
ANALYSIS:
On November 7, 1985, the Mayor and City Commission adopted Resolution No. 85-18222,
approving a Concession Agreement between the City of Miami Beach and Penrod Brothers, Inc.
(Penrods) for the operation and management of beach front concessions, including rental of beach
equipment, water recreation equipment, and food and beverage service at Pier Park, Oceanfront Park,
and Lummus Park. The Concession Agreement which was subsequently amended as follows:
· On August 13, 1986, via Resolution No. 86-18539 (Amendment No.1);
· On September 4, 1986, via Resolution No. 85-18571 (Amendment No.2); and
· On April 20, 1988, via Resolution No. 88-19223 (Amendment No.3), the Concession agreement
was scheduled to expire on November 4, 2000.
AGENDA ITEM
R7I
DATE
7-/f-CJj
Commission Memo
RFP 22-00/01 - Beach Concessions
July 18,2001
Page 2 of 15
On October 18, 2000, the Mayor and City Commission adopted Resolution No. 2000-24137,
approving Amendment No.4 to the Concession Agreement, extending its term for a period of one
year, pending the issuance of an RFP, and providing that Penrods operate a Pilot Concession
Program on the beaches east of North Shore Open Space Park and Ocean Terrace. The term
extension contained therein provided for the following:
· an opportunity to finalize the Rules and Regulations for Beachfront Concession
Operations;
. an opportunity to confer with, and seek input from, the Ocean Drive Association and
other interested parties with regard to the new RFP;
. ensuring the non-interruption of services to beach patrons;
· an opportunity to provide a short term pilot program to establish the feasibility of a beach
concession program on the beaches east of North Shore Open Space Park and Ocean Terrace;
· an expiration date of November 5, 2001, for the existing Concession Agreement; and
· an increase of revenues due to the City from a minimum of 10% to a minimum of 15%.
The Administration met with and sought input from the Marine Authority, South Pointe Advisory
Board, and Ocean Drive Association. On February 1, 2001, input was received from the Marine
Authority, South Pointe Advisory Board, and Ocean Drive Association. The Administration also
met with the Beach Preservation Committee on December 12,2000, and advised said Committee
of the key components of the proposed RFP and requested that the Committee begin to develop
recommendations. Copies of the proposed RFP were sent to the Committee on December 28,2000.
The Administration also attended the Beach Preservation Committee meeting of January 9, 2001,
but the Committee did not have a quorum. The Committee then met on Tuesday, February 13,2001,
at which time formal recommendations were provided.
Formal recommendations, as provided by the respective groups, and comments of the groups'
individual members were reviewed and incorporated, as appropriate, in RFP No. 22-00/01.
Meetings with community organizations/interested parties:
Ocean Drive Association
South Pointe Advisory Board
Community Workshop
Beach Preservation Committee
Marine Authority
Conclusion of Rules and Regulations issues with State
City Commission approval of Rules and Regulations
November 07, 2000
November 16, 2000
December 05, 2000
Dec. 12,2000 & Jan. 8,2001
Dec. 12,2000 & Jan. 8,2001
February 2001 (still pending)
Pending State approval
Commission Memo
RFP 22-00/01 - Beach Concessions
July 18, 2001
Page 3 of 15
The City Commission at its February 21, 2001 meeting, via Commission Memorandum No. 79-01,
authorized the Administration to issue a Request for Proposals (RFP) for the management and
operation of beach front concessions on the beaches seaward of Lummus Park, Ocean Terrace, and
North Shore Open Space Park.
RFP No. 22-00/01 ("the RFP")
The RFP notices were sent by DemandStar by Onvia to 73 individuals and/or fIrms, which resulted
in 18 individuals and/or firms obtaining a copy of the RFP with three responses: Penrods, Boucher
Brothers, and Playtime Watersports.
The scope of services for the management and operation of beachfront concessions originally
provided for a more limited overall concession area in comparison to the existing RFP which
included Lummus Park (5th Street to 14th Lane), Pier Park (Biscayne-lst Street) and Oceanfront
Park (2nd-3rd Street). The RFP was limited to the beaches east of Lummus Park, and does not
include those beachfront portions east of public street ends. The proposed Lummus Park beach
Concession Area is more specifIcally described below:
Lummus Park
The Concession Area is limited to the beach area bounded on the south by the northern most line of
the 5th Street right-of-way, bounded on the north by the southern most 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 by a line 60 feet west of the Mean High Water Line (MHWL). The Concession Area
does not include those portions of the beach located east of the respective street ends beginning and
inclusive of 5th Street through and inclusive of 14th Lane along Ocean Drive. The easterly extension
of these street rights-of-way onto the beach area shall be established using the recommended
methodology of extending the respective northern and southern boundaries of the these rights-of-way
seaward to the Erosion Control Line (ECL) and then proceeding seaward perpendicular to the ECL
until reaching the shoreline.
However, in keeping with the Pilot Program being conducted on the beaches at North Shore Open
Space Park and Ocean Terrace by Penrod Brothers, in accordance with its Concession Agreement,
as extended, the RFP also includes the additional North Shore Open Space Park beaches and Ocean
Terrace beaches more specifically described as follows:
Ocean Terrace
The Concession Area is limited to the beach area bounded on the south by the northern most line of
the 73rd Street right-of-way, bounded on the north by the southern most line of the 75th 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 by a line 60 feet west of the Mean High Water Line (MHWL).
Commission Memo
RFP 22-00/01 - Beach Concessions
July 18,2001
Page 4 of 15
The Concession Area does not include those portions of the beach located east of the respective
street ends beginning and inclusive of 73rd Street through and inclusive of 75th Street along Ocean
Terrace.
The easterly extension of these street rights-of-way onto the beach area shall be established using
the recommended methodology of extending the respective northern and southern boundaries of the
these rights-of-way seaward to the Erosion Control Line (ECL) and then proceeding seaward
perpendicular to the ECL until reaching the shoreline.
North Shore Ooen Soace Park
The Concession Area is limited to the beach area bounded on the south by the northern most line of
the 79th Street right-of-way, bounded on the north by the southern most 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 by a line 60 feet west of the Mean High Water Line (MHWL). The Concession
Area does not include those portions of the beach located east of the respective street ends beginning
and inclusive of 79th Street through and inclusive of 87th Street along Collins Avenue. The easterly
extension of these street rights-of-way onto the beach area shall be established using the
recommended methodology of extending the respective northern and southern boundaries of the
these rights-of-way seaward to the Erosion Control Line (ECL) and then proceeding seaward
perpendicular to the ECL until reaching the shoreline.
As described above, a buffer zone would be created at each street-end along the Lummus Park,
Ocean Terrace, and North Shore Open Space Park beaches that would not be encumbered by any
concession operation, so as not to restrict, appear to restrict, or in any way limit the public access to
the beachfront areas.
The selected Proposer would be authorized to conduct the type(s) of business and to provide the
type(s) of services within the Concession Area, in accordance with the guidelines, as set forth in the
City of Miami Beach Rules and Regulations for Beachfront Concession Operations, and as provided
below, at its sole cost and expense:
1) Rental of lounge chairs, chair pads, and umbrellas within the Concession Area. The
design, materials, and color of the any and all lounge chairs, chair pads, and umbrella
must be approved in writing by the City.
2) Food and beverage service within the Concession Area. The specific list of foods and
beverages to be provided by Concessionaire must be approved in writing by the City.
3) Facilities to conduct the above services. Any and all facilities proposed to be used by
Concessionaire within the Concession Area must be approved in writing by the City.
Commission Memo
RFP 22-00/01 - Beach Concessions
July 18,2001
Page 5 of 15
4) Other services as they may be negotiated with the City at the time of the contract
award.
The percentage of gross revenues payable to the City by the successful Proposer was initially set at
a minimum of 15% of gross revenues, which is the percentage that was negotiated with Penrod
Brothers for its one year extension. The previous percentage was 10%. The City reserved the right
to negotiate separate terms for any of the above-described Concession Areas, if it is deemed to be
in the City's best interest.
On March 30, 2001, a pre-proposal meeting was held and as a result of the issues raised, and
inquiries and requests that were made, Addendum No.1 to the RFP was issued with the following
changes incorporated into the RFP:
· The Agreement to be entered into between the City and the successful Proposer shall be for an
initial term of five (5) years, with the option if mutually agreed upon, to renew for an additional
five one -year periods.
· Deadline for receipt of questions was changed from April 4, 2001 at 5:00 p.m. to April 17, 2001
at 5 :00 p.m.
· The deadline for receipt of proposals is changed from April 12, 2001 @ 3 :00 p.m. to April 27,
2001 @ 3:00 p.m.
· Written clarification relative to Prohibited Campaign Contribution was provided to all proposers
via City Attorney's Memo dated March 21,2001.
· Proposer's Experience was changed to read as follows: Proposer must have five years of
experience with the management and operation of beach concessions.
· Manager's Experience was changed to read as follows: A comprehensive resume of the
experience and qualifications of the individual selected to serve as the on-site manager at each
location. Individual must have a minimum of two years experience in the management and
operation of beach concessions.
· Financial Stability was changed to read as follows: Yearly Gross Revenue of facilities, including
expenditures and operating costs.
· The Price Proposal Form was revised to remove the required minimum of$15,000 per month,
and the required percentage of 15% was also deleted. The revised Proposal Form dated April 5,
2001, and replaced with the following:
· The Proposer shall pay the greater of the two to the City as a monthly fee, as follows:
(1) Guaranteed Monthly Concession Fee; or
(2) Percentage of Gross Receipts.
· The following documents were also provided to all proposers via Addendum No.1:
Rules and Regulations for Beachfront Concession Operations; Penrod's Financial Documents
for the past two years; City's Auditing Policies and/or Audit; the differences between the scope
of services and the concession agreement.
· Revised Cone of Silence.
Commission Memo
RFP 22-00/01 - Beach Concessions
July 18,2001
Page 6 of 15
EVALUATION COMMITTEE:
Letter to Commission (LTC) No. 87-2001, established an Evaluation Committee consisting of the
following individuals:
Samuel 1. Burstyn, P.A., Miami Beach Resident
Pablo Cejas, PLC Investments
Laurie Holtz, Audit Committee Member
Timothy Hemstreet, Special Assistant to the City Manager
Amadeo Lopez-Castro, Chairman of the Public Health Trust of Miami-Dade County
Ira Nausbaum, Marine Authority Chairman
Hank Oppenbom, Beach Patrol Supervisor
Wyatt Porter-Brown, Beach Preservation Committee Chairman
Vivian Rodriguez, Miami-Dade Parks and Recreation Director
The City Manager appointed Mr. Laurie Holtz as the Committee Chair.
Mr. Ira Nausbaum notified the City Manager's office that he would be out of town on June 20, 2001
- the date the Evaluation Committee meeting was scheduled. Therefore, Mr. Nausbaum was
replaced by Dr. Morris Sunshine, Marine Authority Committee member. Additionally, it was
determined that Mr. Pablo Cejas had a conflict of interest, and was therefore replaced by Mr. Joe
Garcia, Executive Director of the Cuban American National Foundation.
COMMITTEE MEETING:
On June 8, 2001, the Committee was provided with the following documents:
. Proposals received from Penrod Brothers, Inc., Boucher Brothers, and Playtime Watersports;
. RFP No. 22-00/01 with Addendum No.1;
. Disclosure Questionnaire form;
. Evaluation Matrix form; and
· Proposed Agenda for the June 20, 2001 Committee meeting.
The Committee members were informed that it is very important that they adhere to the City's Cone
of Silence Ordinance and the Government in the Sunshine Law. All Committee members were
asked to disclose any association or relationship, which would constitute a conflict of interest, either
actual or perceived, with any firm and/or individuals comprising or representing each proposer.
All Committee members completed the Disclosure Questionnaire Forms and certified that their
answers were true and correct to the best of their knowledge.
Commission Memo
RFP 22-00/01 - Beach Concessions
July 18, 2001
Page 7 of 15
On June 13,2001, letters were sent via facsimile to the three proposers: Boucher Brothers, Penrods,
and Playtime. Said letters informed each proposer that they had been scheduled for a 20 minute oral
presentation, followed by a 30 minute question and answer session with the Committee.
On June 18, 2001, Mr. Wyatt Porter Brown, Committee Member, and Chairman of the Beach
Preservation Committee requested that the Evaluation Committee meeting scheduled for 9:00 a.m.
on June 20 should be "postponed, to allow inclusion of terms which would attempt to correct current
abuses - abuses which are not addressed in the RFP, which would award concession contracts now
for five years."
Mr. Brown was advised that the Committee meeting would not be postponed, and as a Committee
member, he may bring to the attention of his fellow Committee members his concerns with the terms
and conditions adopted by the Beach Preservation Committee. Additionally, Mr. Brown was
informed that the RFP could not be modified since proposals had been received. However, that
should the Administration and/or the City Commission desire that the terms and conditions that were
adopted by the Beach Preservation Committee be incorporated into a contractual agreement with
the successful proposer, that it could be the subject of contract negotiations.
On June 20, 2001, the Committee convened in the Commission Chambers, and all members were
in attendance. The agenda of the meeting was as follows:
1. Introductions
2. Project Overview
3. RFP Requirements
4. Evaluation Criteria
5. Presentation and Question and Answer Sessions:
a. Boucher Brothers
b. Penrods
c. Playtime
6. Lunch
7. Deliberations
Commission Memo
RFP 22-00/01 - Beach Concessions
July 18, 2001
Page 8 of 15
COMMITTEE MEETING
The project overview was provided by Joe Damien, Asset Manager. Mr. Damien provided the
Committee with the background and history on beachfront concessions, and a summary of the scope
of services. Specifically, the scope of the RFP fairly broad in an attempt to generate interest among
the beach concession community and allow them to be creative in their responses.
The RFP requirements was provided by Gus Lopez, Procurement Director. Mr. Lopez read from
page 14 of the RFP, entitled Minimum Requirements/Qualifications, which included the following:
1. Proposer's Experience:
Proposer must have five years of experience with the management and operation of similar sizes and
types of concessions, such as those specified within the Concession Areas, pursuant to the Scope of
Services in Section II herein.
2. Manae:er's Experience:
A comprehensive resume of the experience and qualifications of the individual selected to serve as
the on-site manager at each location. Individual must have a minimum of two years experience in
the management and operation of comparably sized concessions, such as those specified within the
Concession Areas, pursuant to the Scope of Services in Section II of the RFP.
3. List of Beach Concessions Previouslv or Currentlv Manae:ed and Operated:
A list of previously or currently managed concessions. Information should include at a minimum:
. Name of facilities
. Address of facilities
· Name, Address, and Telephone Number of facilities' owners
· Size offacilities (Square Feet, Number of and Type of Concession Stands, Number of Chairs,
Number of Umbrellas, etc.)
· Yearly Gross and Net Revenue of facilities, including expenditures and operating costs
4. Manae:ement:
List the members of the Proposer's executive staff. Provide a list of the executive personnel that
will be involved with the management and operation of the Concession Areas. A resume including
education, experience, and any other pertinent information shall be included for each executive staff
member.
Commission Memo
RFP 22-00/01 - Beach Concessions
July 18,2001
Page 9 of 15
5. Financial Stability:
Demonstration of financial stability of the Proposer. Include a financial statement, balance sheet or
assurance that indicates the financial capacity and viability of the Proposer. This statement should
be certified by an appropriate corporate official or by an independent Certified Public Accountant.
6. Operatinl! Plan:
Proposer must include a detailed description of the Proposer's management and operating plan for
concession operations at the Concession Areas including, but not limited to:
· Concept plan
. Design and layout of equipment and facilities
. Projection of operating costs, including revenues and expenses
7. Amounts Payable to the City:
The Proposer shall propose an amount to be paid to the City as a fee for the management and
operation of the Concession Areas, including both a percentage of gross receipts and a minimum
monthly guarantee.
The following issues were then raised and addressed:
Public Comment? Mr. Raul Aguila, First Assistant City Attorney, informed the Evaluation
Committee that the meeting is a duly noticed public meeting, and that the Committee does not have
to hear public comment, but if the Committee desires public comment it is at their discretion. The
Committee agreed to allocate time for public comment at the end of the presentations.
Should the Meeting be Postponed as Requested by Mr. Brown? Mr. Joe Damien stated that the
RFP and the process the Administration followed has been a very thorough public process, including
a review by various Boards and Committees, and the City Commission, and that the Committee's
task should not be hindered by the issues raised, and that these issues could be addressed by the
Administration and/or the City Commission. The Committee agreed that they proceed expeditiously.
Assignment of Weights to the Evaluation Criteria:
The Committee discussed the various options associated with assigning a weight to each criteria. The
Committee members discussed the factors that they believed should be assigned a high weight. After
much discussion the Committee decided that each member would read aloud their weight for each
criteria, and that the average of the Committee members would decide the weight to be assigned. The
results were as follows:
Commission Memo
RFP 22-00/01 - Beach Concessions
July 18,2001
Page 10 of 15
CRITERIA
WEIGHT
Plan for the management and operation of the Concession Areas. . . . . . . . . . . . .. 4.8
Professional qualifications and/or recommendations of the Proposer. . . . . . . . .. 2.6
Prior history and current operations of other similar size/types of concessions. . . . 3.8
Demonstration of financial stability of the Proposer. . . . . . . . . . . . . . . . . . . . . . . .4.4
Experience, education and performance record of individuals who would
be instrumental in the management and operation of the concessions. . . . . . . . . . . 2.7
Proposer's concept plan, design and layout of equipment and facilities. . . . . . . . . . 4.4
Proposer's fee(s) payable to the City. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.8
ORAL PRESENTATIONS:
Boucher Brothers:
Mr. Robert Todak, General Manager, Delano Hotel, spoke very highly of Boucher Brothers'
passion, hands on involvement, immense detail, great communication, and a really pleasant
group of people to work with.
Mr. Michael Milberg, Boucher Brothers' Strategic Planner, provided a PowerPoint presentation
on the following:
· Team members
· Commitment to the Community
· Hotels that are currently under operation
· Twenty one (21) five-star recommendations
· Monty's Miami Beach -- Food and Beverage
· Monty's Experience and Qualifications
· Beach Concession Managers
· Paradigm Shift from the Ordinary Public Beach to the Extraordinary (i.e. Five Star Hotel)
· Targeting the South Beach Market (2100 South Beach Hotel Rooms along Ocean Drive and
Collins Avenue)
· North Beach: Targeting the North Beach market through environmentally sensitive
programming
· Compliance with all adopted and newly proposed Beach Concession Rules & Regulations
· Delivery of Equipment
· Start-Up Costs (Capital Equipment - $700,000; City Guarantee - $412,500; and Operating
Capital- $200,000) total $1,312,500.
· Letters ofIntent to Finance: Total Bank ($1,300,000), and Bank of America ($700,000)
· Welcome to Hotel Miami Beach - Sensitivity to balancing the environmental and
commercial needs of our community.
Commission Memo
RFP 22-00/01 - Beach Concessions
July 18, 2001
Page 11 of 15
Boucher Brothers Presentation Continued:
· Standard Equipment (Vinyl Strapped Lounge Chair, Children's Play Area, 3" pads, towels,
umbrellas, cabanas, ADA compliant
· Oasis in the Sand - Lummus Park (8th Street and 12th Street)
· Oasis Equipment (Double Vinyl Mesh Lounge Chairs, 6" pads, Towels, Umbrellas, Cabanas,
Side Tables, Board Games, Children's Play Area, ADA Compliant
· ADA Compliance - Beach Wheelchairs
· Safety is Paramount
· More than just a minimum guarantee for the City - "Show Me the Money" Video Clip
· Increased Sales + Accountability = More $ to the City
· Audit Trails for cash transactions, checks and balances, hand-held computers, credit card
charges, hotel room charges, and resort fee program.
· Shift from Cash transactions to Paper transactions.
· More than 600 rooms between Collins A venue and Ocean Drive to commit to the room
charge program - mitigate cash transactions.
· Remuneration - proposer's fees(s) payable to the City.
· Comparison of current concessionaire (Penrods) - cannot make sense of reported numbers -
there is more out there.
· Comparison Baseline Deviations (Boucher, Penrod's, Playtime).
· Penrod's assertions relative to Boucher Brothers' operation should be noted in the City's
Internal Audit Report on Penrod's.
Penrods' Presentation:
Mr. Gerald K. Schwartz, Attorney, Beloffand Schwartz, provided background information and
history relative to Mr. Jack Penrod.
· Experience and qualifications of Mr. Penrod.
· Partnership with Ocean Drive and Miami Beach for 16 years.
· Compliment to Hotels and Restaurants.
· Highest proposal of all proposals - 20% of all sales.
· Earned opportunity to take the City Beaches to the next highest level.
Mr. Jack Penrod, presented the following points:
· Not the high bidder in the minimum bid because of not being sure on what the State or City
would decide relative to the number of chairs.
· We are the high bidder in percentage - 20% across the board.
· Great new look with upgraded services.
· The City residents need their space.
· 16 years of managing the City's public beach.
Commission Memo
RFP 22-00/01 - Beach Concessions
July 18, 2001
Page 12 of 15
Penrod's Presentation Continued:
. Introduction of team.
· Introduce a chart - amounts paid to the City.
· Rent Payable Projections: Actual Rent Paid - $198,358; Rent Payable at 20% (new pricing)-
$493,328; Rent Payable at 20% with Added Amenities - $881,994; and Rent Payable Added
Amenities Alcohol - $1,081,994.
Mr. Stephane Dupoux, Concept Designer, presented a PowerPoint presentation relating to his vision
on the design concepts. The sample chairs and umbrellas were placed in the Commission Chambers.
Chef Ron Rusberg of Pearl and Champagne Lounge, and Chef Brian Malloy of Nikki Beach
Club, discussed the food and beverage items that would be provided, while Penrod's staff
members distributed sampling of the various food and beverages.
Mr. Nat Dorman, General Manager, stated that Penrod's has 16 years of experience in running
and operating a public beach without any violation or complaints from their partner - the City of
Miami Beach. Presentation included:
· Hurricane Preparedness procedures.
· Balance between local residences and tourists.
· More is needed to keep the image of Ocean Drive and South Beach alive and well.
· New look for two sections: In front of the Tides Hotel, and the other in front of Park
Central.
· Manager for each section equipped with cell phones to allow for reservation of lunch,
lounge chair, and other amenities.
· Of more than 100 staff members, many are bilingual and have been employed by Penrod's
for more than 10 years.
· Accounting system: Numbered chairs, numbered umbrellas, and numbered control sheets.
· Independent Checker who reports directly to General Manager, audits the attendants.
Mr. Penrod, in closing, discussed the removal of all items from the Beach at the end of each day,
and that he is committed to the North Beach area. Additionally, Mr. Penrod summarized his 16
years of experience of managing the public beaches.
Playtime Watersports Presentation:
· Vision Statement.
· Revenue Sharing Plan - Minimum Annual Guarantee of $480,000 or 20% of Gross Receipts.
· Commitment to pay first year's guarantee upfront.
· Will provide for yearly financial audits and practice an open book policy to their finances.
Commission Memo
RFP 22-00/01 - Beach Concessions
July 18,2001
Page 13 of 15
Playtime Presentation Continued:
· Commitment to Service and Beach Preservation.
· Improve the Aesthetics of the Beachfront
· Minimize Commercial Pollution
· Beach Beautification
· Beach Concierges - Johnny Rockets, and Larios.
. Upgrade services currently offered.
· Record of Service - Hotel Concessions Managed.
· Experience of Project Team
The Committee decided to continue the question and answer sessions with all three firms after their
lunch break. During the question and answer sessions, each proposer agreed to the following:
· $1 MILLION UP FRONT CAPITAL COMMITMENT;
· REDUCTION AND/OR RECONFIGURA TION OF FACILITIES AND SERVICES;
· JET SKIS NOT NECESSARY TO FULFILL MINIMUM FEE GUARANTEE TO THE CITY;
· NO OBJECTIONS TO ELIMINATING THE JET SKI CHANNEL AT 9th STREET.
The Committee also voted to recommend to the City the following contract conditions:
· At or before contract signing, the vendor be required to fund an investment of $500,000
earmarked to the capitalization of the project.
· The contract is to provide that the City reserves the power to require reduction or
reconfiguration of facilities and services in order to protect the public interest in the beach.
Each Committee member completed their Evaluation Matrix forms, which resulted in the
following ranking of firms as follows: (1) Penrods; (2) Boucher Brothers; and (3) Playtime.
The Committee members scoring and ranking is tabulated as follows:
Commission Memo
RFP 22-00/01 - Beach Concessions
July 18,2001
Page 14 of 15
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, ___ _____ - - - - - - ___J _.____-"_~, .'.--,-,-_J~,-- _J ~__ _ _ _ _ 1 _ __ I __ i _ _ _ _ _
TIMOTHY HEMSTREET 208.8 2 214.9 1 170.6 3
WYATT PORTER-BROWN 133.8 3 167 1 161.5 2
DR. MORRIS SUNSHINE 183.1 2 217.5 1 145.4 3
SAMUEL 1. BURSTYN 208.9 1 200.6 2 189.3 3
LAURIE HOLTZ 177.8 2 190.8 1 161.9 3
HENRY "HANK" 213.1 2 232.6 1 190.6 3
OPPENBORN III
VIVIAN DONNELL 178.5 2 216.6 1 151 3
RODRIGUEZ
AMADEO LOPEZ-CASTRO 241.9 1 216.3 3 227.6 2
JOE GARCIA 217.5 2 207.8 3 238.4 1
On June 24, 2001, the Law Offices of Alexander 1. Tachmes, P.A. protested the Evaluation
Committee's recommendation (See Attached Letter dated June 24,2001).
On July 3, 2001, the Law Offices of Beloff & Schwartz, responded to Mr. Tachmes letter dated June
24,2001 (See Attached Letter dated July 3, 2001).
On July 5, 2001, the Law Offices of Alexander 1. Tachmes, P.A. provided additional points relative
to their protest (See Attached Letter dated July 5, 2001).
On July 6, 2001, the Law Offices of Alexander 1. Tachmes, P.A. responded to Mr. Schwartz's letter
dated July 3, 2001 (See Attached Letter dated July 6, 2001).
Members of the City's Administrative staffand an Assistant City Attorney, briefed the City Manager
on the Evaluation Committee's recommendation, and the process followed relative to the Beachfront
Concessions RFP. The City Manager also reviewed all of the material, documentation and videotape
of the evaluation process, and the various letters of protest.
Commission Memo
RFP 22-00/01 - Beach Concessions
July 18, 2001
Page 15 of 15
In the past the Commission has benefited from presentations from the proposers when projects of
such a significant magnitude as Beachfront Concessions are being considered. Therefore, while I
am recommending the ranking of firms provided by the Evaluation Committee, I believe it is in the
best interest of the City to allow for presentations and an opportunity for the City Commission to ask
questions of the top two proposers. As such, on July 10,2001, both Penrods and Boucher Brothers
were asked to please attend the Commission meeting of July 18,2001, and to be prepared to provide
the City Commission with a 20-minute presentation.
The Administration has reviewed the Committee's recommendations, and the issues raised by the
various proposers, and will ensure that during negotiations, the following goals are achieved:
. Higher minimum guaranteed amount;
· Internal controls to ensure financial accountability and consistent reporting methodology; and
· Negotiate aesthetic, design, and density issues with the successful proposer in the best interest
of the City.
The necessary internal controls will be in placed, to ensure compliance with the terms listed in the
concession agreement to include but not limited to: timely payments to the City, all necessary
licenses, insurance certificates, and performance bonds. .
The Administration recommends that the Mayor and City Commission adopt the Resolution and
accept the City Manager's recommendation pertaining to the ranking of firms, and authorize the
Administration to negotiate an agreement with the top ranked firm of Penrod Brothers, Inc., and if
unsuccessful in negotiating an agreement with Penrod Brothers, Inc., authorize the Administration
to enter into negotiations with Boucher Brothers.
JMG:~JD:GL I
f1
T:\AGENDA \2001 \FEB2101 \REGULAR\BEACHRFP.MEM 2/8/01
~
CITY OF MIAMI BEACH
Office of the City Manager
Interoffice Memorandum
m
To:
Luis R. Garcia Jr.
Commissioner
Date: July 12,2001
From:
JorgeM. GOllZaleZ\ .A~
City Manager U yv- D
BID PROCEDURES
Subject:
In response to your memorandum dated July 9, 2001 regarding Bid procedures, specifically relating
to the Beachfront Concession RFP No. 22-00/01, below please find the answers to your questions.
1. Was the Evaluation Committee presented with all of the pertinent information in order to
be able to come to the decision that is most beneficial for the residents and visitor to our
City?
Yes. The Evaluation Committee was presented with all of the pertinent information in order to be
able to render a decision that is most beneficial to the City. The information supplied to the
Committee members included copies of the RFP, addendum No.1 to the RFP, and copies of all three
(3) proposals submitted together with information made available by the public and committee
members.
2. Was there a recent audit of the present concessionaire conducted, if so, was it presented to
the Evaluation Committee for consideration?
Yes. A recent audit of the present concessionaire was conducted. The audit report was concluded
on June 18, 2001. Copies of the audit report were available for the Committee members, if
requested; however, the Committee did not request distribution of the audit report.
The City Administration normally distributes audit reports to the corresponding City Departments
and the firm that is audited. Copies of previous audits of the current concessionaire and other
concession operations conducted were requested at the pre-proposal conference and subsequently
supplied in Addendum No.1 to the RFP.
During the presentation, the Boucher Brothers introduced the recently completed (June 18,2001)
audit of the current Beachfront Concessionaire (Penrods Brothers) attached hereto. Subsequently,
the Administration made copies of the recent audit report available for the Committee members to
review. The Committee members asked questions to the Boucher Brothers regarding the relevance
of the audit and did not request any further distribution of the audit report, although the
Administration offered to distribute the report. The Committee Chair did not find the report relevant
nor did any other Committee member request it be distributed despite its availability.
For clarification, the audit report was introduced by the proposers and was not part of the RFP
process. The audit is incorporated into the Administration's evaluation process to determine whether
to accept the Evaluation Committee's recommendations or to recommend a different proposer.
Likewise, the City evaluates all audits of all proposers in this final recommendation process. The
audits reviewed by the Administration reflects no major deviation among proposers as it relates to
their payment history.
3. Are Mr. Tachmes' allegations that the present concessionaire failed to provide the City
with periodic CPA reviews of operations as required by the present contract correct?
Yes. Mr. Tachmes' allegations that the present concessionaire failed to provide the City with
periodic CPA reviews of "gross receipts" (not operations as Mr. Tachmes states), is true.
The Administration demanded that present concessionaire comply with all.contract requirements.
4. If the answer to the previous questions is affirmative, are these grounds for disqualification
in future bidding?
No, these are not grounds for disqualification as confirmed by the City Attorney's Office.
5. Did all the proposals submitted and evaluated by the Committee comply with aU of the
Beachfront Rules and Regulations as mandated by the State and Federal rules and
regulations?
No, all proposals submitted and evaluated by the Committee did not comply with all Beachfront
Rules and Regulations as mandated by State and Federal rules and regulations.
In fact, some items shown by the different proposers would require approval by the State before any
implementation could be approved.
Page 13 of the RFP sets forth that the City "reserves the right to negotiate aesthetic/design issues
with the successful proposer during the contract negotiations". Furthermore, the Rules and
Regulations are silent as to specific issues you highlight regarding Penrods concept design with
exception of prohibiting overnight storage of beach equipment. In some instances, it may be
ultimately up to the State to permit issues such as plantings and walkways.
In Penrods presentation, the proposer discussed the potential revenue that would be generated as part
of this conceptual design and discussed that these revenues were contingent upon successful
permitting of the aforementioned design concept.
The Administration will negotiate these items as part of contract negotiations.
6. Has a fair comparison taken place as to the revenues that would be generated, and are the
City and its taxpayers getting the best financial deal possible?
The revenues each proposer indicated they would generate is based on a density and design concept
that is subject of contract negotiations. It is the Administration's intention to negotiate the best
financial deal possible with the selected proposer; whichever firm is ultimately selected.
If you have any further questions, please do not hesitate to contact me.
JMG\CMC\rar
F:ICMGR\$ALLICHRISTINUMGlBidProcedures CommGarcia.doc
c: Honorable Mayor and Members of the City Commission
Murray H. Dubbin, City Attorney
2"<UlJ '~/Iics
.A1..Ex.ANDER I. TACHMES, RA.
BANK OF" AMERICA TOWER AT INTERNATIONAL PlAcE
100 S.E. 2ND STREET. SUITE 3920
MIAMI. FLORIDA 33 1 3 1
TELEPHONE: (305) 374-5343
FACSIMILE: (305) 374-9054
E-MAIL: AlTACHMES@AOL.COM
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June 24, 2001
Murray Dubbin, Esq., City Attorney
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
RE: Beachfront Concession Request for Proposals No. 22-00/01 - Boucher
Brothers Miami Beach, L.LC.
Dear Murray:
This law finn represents Boucher Brothers Miami Beach, L.L. C. ("Boucher Brothersj, one of the
respondents to the Beachfront Concession Request for Proposals No. 22-00/01 (the "RFPj. This
letter is a fonnat protest of results as decided by the Selection Committee Wednesday, June 20,
2001. The following will outline some of the irregularities and inconsistencies in the bid proced:Jre
that contaminated the process.
1) Penrod's obtained from the City, for use in Penrod's RFP response, a copy of a 2/22101 City
audit of beachfront concessions, alleging that Boucher Brothers and Playtime owed funds to the
City. However, the City failed to distribute to Committee members copies of the 6/18/01 City
Audit of Penrod's beachfront concession operations, which reads, in relevant part: "Both the
Finance Department and the City's Asset Manager agreed that Penrod's has consistently
submitted its rental payments late through February 2001." Audit, p. 5. The Audit also found
"two separate months for which the City did not receive the correct monies from Penrod's." Audit,
p. 4. Other serious violations are found throughout that same audit. By not having the benefit of
this recent City audit of Penrod's, the Committee was deprived of highly relevant infonnation.
Boucher Brothers suggested during the presentation that Committee members review that most
recent Penrod's audit. City staff retrieved and made copies of the audit. However, the copies
were, for some reason, not distributed to Committee members. They were not distributed on the
day of release, not distributed prior to the day of presentation, not distributed the day of, and to
this day remain - not distributed.
Had Committee members received the audit, they would have seen vastly different information
than that which was contained in an old, outdated 1995 audit of Penrod's which was induded by
the City as part of the RFP. As a result, members assigned scores on two heavily weighted
evaluation criteria based on outdated information. Additional detail on those criteria and the
ftawed ranking process is set forth below. .
2) Obviously, all bids submitted in response to requests for proposal issued by the City must
confonn with law. Regarding beachtront concessions, City and State laws are embodied in the
City's "Rules and Regulations for Beachfront Concessions" (the "Rules and Regulationsj. The
Rules and Regulations were attached as an addendum to the RFP.
Although the proposals by Penrod's and Playtime violated the Rules and Regulations. the City did
not reveal those violations to Committee members nor direct that the violations be considered in
evaluating the criteria. The criteria relevant to the violations were the two most heavily weighted
aiteria of the seven used for evaluation. The disclosure of the violations would have. without
question, changed the scores.
Examples of the violations indude the foRewing: Penrod's plan shows palm trees and an artificial
walkway on the beach at its proposed concession. However, concessionaires are forbidden to
plant or place trees or create walkways on the beach (except for special events). Penrod's
proposes pavilions with tables, chairs and shaded seating areas on the beach. However, such
pavilions and seating areas also are forbidden.
Because Boucher Brothers' response conforms completely to the Rules and Regulations, the
other bidders were evaluated under unfair and advantageous considerations. The City subverted
the integrity of the bid process by subjecting different bidders to different standams.
3) The Committee proceedings were scheduled from 9:00 a.m. to 2:00 p.m., Wednesday, June
20, 2001, but continued past 2:00 p.m. Two of the nine Committee members, citing scheduling
commitments, left the proceedings prior to their condusion. Those two members completed their
score sheets, despite missing valuable information. The remaining seven members asked
questions, held discussions and opened the floor to public comment - all without the two
departed members and after the two had finished their evaluations.
The two departed Committee members never heam Boucher Brothers and Penrod's express a
willingness to invest $1,000,000 in connection with the beachfront concession. (Another bidder,
Playtime had already answered that question). Consequently, the score sheets suggest that
Committee members either lacked knowledge or were confused. All three proposers agreed to
the $1,000,000 commitment, yet some committee members ranked Penrod's million higher than
Boucher Brothers' minion. What could account for such a difference? Are Penrod's million
dollars more valuable?
Another of the many inexplicable discrepancies in the scored evaluations occurred in the aiterion
.Prior History & Current Operations of Similar Size and Type-. The experience and revenues of
the Boucher Brothers businesses, in factual numbers and data, exceed those of Penrod's.
However, several Committee members gave considerably higher scores to Penrod's on that
aiterion (in the case of one member, six times higher). Again, we can only conclude that
evaluators were confused and not provided with appropriate explanation of the grading criteria.
4) The weighting system applied to the various criteria exacerbated the defective scoring.
Correcting these discrepancies would not only close what is a 100 point gap currently in Penrod's
favor, but likely would give Boucher Brothers the highest score. Here are just a few examples:
With regard to the aiterion .Concept Plan and Design, Layout of Equipment I Facilities, - Or.
Morris Sunshine gave Boucher Brothers a score of 6 and gave Penrod's a score of 10. As
indicated above, Penrod's facilities plan violated the Rules and Regulations. If the Committee
was aware of the violation, certainly Penrod's would not have received a score of 10. Assuming
that Penrod's received the same score from that Committee member as the BouCher Brothers,
because that criterion has a multiplier of 4.4, Penrod's would have lost 17.6 points.
Second, regaming the same criterion, Hank Oppenbom gave Boucher Brothers a score of 8 and
Penrod's a score of 10. Again, assuming the Committee kneW the plan violated the Rules and
Regulations and Penrod's received from that evaluator the same score as Boucher Brothers,
Penrod's would have lost 8.8 points.
Thim, with regam to the criterion .Oemonstration of Financial Stability,. VIVian Rodriguez, who left
the meeting ear1y, gave Boucher Brothers a score of 6 and Penrod's a score of~. However, as
indicated above, Ms. Rodriguez did not hear that both Boucher Brothers and Penrod gave the
same answer to the question of whether each would commit $1,000,000 to the concession. If
Boucher Brothers also received a 9, with a multiplier of 4.4, Boucher Brothers would have gained
an additional 13.20 points. Although there are more examples, by looking at only three, the point
difference between Boucher Brothers and Penrod's already narrows considerably.
5) The results ofthe scored evaluations were announced erroneously as -1st, 2nd & 3rd p1ace-,
disregarding the more significant allocations of point totals based on weighted criteria.
Overall point totals were calculated by adding the score attributable to each criterion and then
multiplying each criterion's score by a multiplier based on that criterion's importance. Such
overall point totals are the best barometer of the Committee's intentions. However, the City
merely announced the number of first, second and third place votes that Penrod's and Boucher
Brothers were given, which does nothing to communicate the fad that Boucher Brothers' point
total was within five percent of Penrod's. Moreover, the Committee never contemplated a ranking
based on 1st, 2nd & 3rd place votes. Proposers were to be ranked only by cumulative point totals.
The result of the Administration's announcement was to create a misperception as to the margin
between and among the evaluations.
In light of all the concerns outlined above, we strongly urge the City Manager to examine
personally all the proposals and the Selection Committee process, especially with regard to the
concerns raised. We respectfully suggest that the City Manager recommend both Boucher
Brothers and Penrod's to the City Commission, and that both proposers be brought in to make
presentations before the City Commission. The presentations by the Construda and Relati:!d
Housing groups in connedion with the 72nd Street RFP'sJ, the presentations by Wolfberg Alvarez
and EDAW, and the presentations by URSlGreiner and A4 serve as precedent for such a
procedure.
't:lJ ~y ~rswz--
~chmes
For the Finn
cc: Boucher Brothers Miami Beach, LL.C.
Raul Aguila, Esq., First Assistant City Attorney
YJL-~3-2001 17:12
CME CITY MANAGERS OFFICE
305 673 7782
P.01/04
GEIWD K.. SCHwARTZ, ESQ.
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July 3, 2001
HAND DELIVERY
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Mr. M1:IR'ay Dubbin, City Attorney
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
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Re: BeachfroDt Concession RFP No. 22.00/01
Dear Mr. Dubbin
This office represents Penrod Brothers. Inc. (''Penrod''). This letter is in response to the letter of
Alexander I. Tachmes on behalf of Boucher Brothers Miami Beach, L.L,C. (''Boucher'') to you of June
24, 2001 in regard to the above referenced matter. Mr. Tachmes listed five specific areas of
objections. I will respond to each using the same numbering system. While I believe Mr. Tachmes
should have addressed his letter to the City Manager, I too have addressed this to you and have copied
the City Manager.
I will address each of Mr. Tachmes' issues and show that they are without merit. It should be noted
however, that the real issue to be considered is the bad faith e\fidenced by Boucher and their clear
intent to UDdermine the selection process. As you will see, four of the five objections raised by Mr.
Tachmes could have and should have been raised during the presentation process and prior to the final
vote. BOucher intentionally failed to timely raise their objections and should not now be permitted to
benefit from their self-serving actions. '
I. The Audit: The Audit of 2/22101 included all lbe beach concessionaires wilb the exception
of Peurod's as slated in lbe audit. That audit was specifically requested by lbe Boucher's
representatives at the pre-bid conference. It reflected that all of the beach concessionaires Were frotjJ
time to time delinquent. Boucher could have easily requested lbe audit of Penrod upon the receipt of
their COpy of that audit. They did not. They could have further raised that issue fullowing the
presentations when all bidders were present.
At the time of the Bid response the Penrod audit hl!li not been finalized and ;n :&ct the only copy that
Penrod received Was clearly nun:ked "Draft" for their review and response. To our knowledge the
"Draft" audit is still not finalized.
,.
\.
JUL~03-2001 17:13
CME CITY MANAGERS OFFICE
305 673 7782
P.02/04
Mr. Murray Dubbin, City Attorney
City ofMianQ. Beach
July 3, 2001
Page 2
The Penrod's Audit was consistent with the general beach audit, reflecting all parties from time to time
delinquenl in pa)'lllenls, and as .pecifically slated in the audit. a lack on the pari of the City 10 belte<
follow up with all concessionaires.
2. Bids Musl Confo!JQ to the Law: All bidders to the RFP responded in acconIance with lbe
mslIUctions specifically given at lbe Pro-Bid Conference, Biddm Were instructed to "let their
~ go". All bidders DDderstood that the City, during the contracl oegotiatiOllS, would impose
changes and restrictions on lbem, In fact, lbe Selection Committee agreed that lbe finaJ contract
should include language that gave lbe City the right to make cbanges from time 10 time in lbe beach
operation. If Boucher was concerned with the legality of the Penrod's presentation, they should have
raised that issue to be resol"ed at the presentation.
Boucher included the sale of alcohol on the beach which lbe Slale prohibils except by special license,
and lbon only for a non-ptOfil organization. If there is a violation to he considered in lbe proposals,
thaI, is obviOUSly a violation. We have no Objection to that suggestion and although we think lbe sale
of alcohol on the beach Would be inappropriate, Penrod would follow the City'. decision on that issue.
It should be DOled that alcohol has been sold behind various hotels that the Bouchers opOl1lte. A short
walk along the beach behind the Boucher's hOlels will clearly show that BOUcher does and has violated
numerous City regulations including the use of umbrellas with advertising and large unapproved
Ilailers, Such violations Were nol raised by City staff or by Penrod at the presentation, as il was always
Penrod'. intent until Mr. Taclones' lelte< to deal with a positive presentation. It should also be noled
that Penrod has DO violations in its beach OPeration and il regularly adjusts its operation to comply wilb
any request the City makes from time to time.
3. Committee Members Left Earll(: If Boucher bad any concern for the fiu:t that a Committee
member left before the conclusion, Ibey should hav~ raised that objection at that time so it could have
been addressed in a timely manner.
The fiu:t that Penrod was consistently rated higher in the categoIy of "Prior History and Cunent
OperatiOllS of Similar Size and Type" do.. DOt reflecl confusion, but ralher a total understanding of the
question. The undeniable fiu:t is thaI only Penrod operates a public beach having 10 deal wilb the
public, hotel. and their guests and Various promoters hosting special """"Is on the beach. The other
bidders need only satist'y Ibe demands of one specific holel at a time and do not have to address the
needs and the concerns of the public and the surrounding community. Nor do they have to change and
mudiJY their operation for various special events and to work co-operativeJy wilb every ptOmoter to
accommodate their specific needs and requirements.
.
5UL-03r2001 17:13
CME CITY MANAGERS OFFICE
305 673 7782
P.03/04
Mr. M1lIIiIy Dubbin, City Attorney
City ofMiatni Beach
July 3, 2001
Page 3
To the question raised by Mr. Tacbmes "Are PODrOd's million dollars Dlore valuable than Boucher's?"
The answer may be yes, based on 1be long history of credibility PODrOd bas working wilb Ibe City, and
the fact that the Penrod's col)lOration includes substantial olber Miami Beach assets. It is alwa:ys easy
to respond yes and another thing to produce when you Ill1ISl USe outside financing Or go tbmugb other
investors to produce.
4. The Scoring Process: This ftivolous issue raised by Mr. Taclunes could be discussed endlessly
and from any perspective the ''what ili;" are endless and should not be pan of any consideration. Six of
the nine COIl1Ioittee members could DOl have all mode erron. in Penrod's favor, That line of thought ill
totally irrational and is only :relied on by Mr. Tachmes because his claim lacks merit.
5. The Results of the llcoring: The last of Mr. Tacbmes' o~ectioos bas DO greater merit than his
four previous o~ectiOJ1S. It is impossible; unless Ibe Bouchers violated the Code of Silence for Mr.
Tacbmes to claim "the Committee never contemplated a l1Illking based on 1", 2'" and 3'" place votes.
Either his statement is pure hopeful speculation or in fact there was a violation of Ibe City Code.
The cmking used by Ibe Administzation Was always contemplated as was evident in 1be pre-
presentation discussion and in Mr. BIlIstyn's early remario; during that discussion. Whether PODrOd
was 5% or 500/0 ahead of Boucher in Ibe number ofpoiots is iueJevant Penrod was 1be high scorer On
six of the nine ballots. A very convincing margin.
PODrOd may have been only 5% ahead in total, but three of the nine ballots bad PODrOd ahead by
18.79%, 21.34% and 24.81 %. If we total Ibe percentage of those six selecting Penrod, they avemge
15.72%. Doing 1be sSllle calculation for Ibe three that did DOt select Penrod, they average 6.85%. It is
obvious Ibot even if we play various number games as suggested by Mr. Tacluoes, PODrOd ill still the
clear choice.
There can be no comparison with other RFP's. The ultimate boll om line ill that Penrod was the
convincing and overwhehoing selection of the COmmittee, 6 of 9 finlt place votes. Their decision
should stand and the process should Dot be violated.
The efforts of Tacbmes to question the oUlconie is understandable, but his logic for questioning 1be
vote is lacking and tota11y SPeculative based neither on fact or meriL It do.. reflect, however, the true
intent and motivation of Boucher. Thot intent and motivation was to uodennine 1be )>I'OCeSs if lbey
were not lbe SUCCessful bidder by raising objections (that 1bey should in fact be deemed to have waiVed
for failure to raise them in · timely llllIIIoer) in hop.. of creating suflicient COn1i1sion to bring Ibis
before the City COIl1Ioission. We believe such action OD their pan to be self-serving and evidence of
bad faith.
gUL-0~2001 17:14
.
CME CITY MANAGERS OFFICE
305 673 7782
P.04/04
Mr. Murray Dubbin, City Attomey
Ciry of Miami Beach
1uly 3, 2001
Page 4
Virtually, every ground that Mr. Tachmes has raised was known to him and his client either prior to the
presentation or prior to the vote. Items 1 through 4 as raised by Mr. Tachmes could have been
addressed by the Committee or the staff prior to the vote. If Boucher was concerned with those issues,
they should have raised them at the time. To raise the issues now is detrimental to Penrod, the
Administratio~ the process and the Conunittee. This is the loser's effort to get another bite at the
apple after they have had the opportunity to have, seen all of the presentations' and understand the
ttUriking 'of the Committee. Boucher wDlfully and intentionally failed to timely raise the objections
that they DOW assert in furtherance of their best interest Boucher is obviously acting and has
acted ill bad faith and they shOuld Dot DOW be permitted to benefit from their own willful acts.
The votes clearly reflect that the Committee fully understood their responsibility and the process.
Their votes reflect the history, expertise and the superior plan and presentation made by Penrod.
To now require the parties to present to the City. Conunission is totally inconsistent with the intent of
the process and totally destroys the credibility of the process. We submit that the decision of the
Committee should stand and Penrod should be the sole recommendation of the City Manager.
Gerald K. Schwartz
cc: Mr. Jorge Gonzalez. City Manager ~
Mr. Jack Penrod
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ALEXANDER I. T ACHl\1ES, EA.
BANK OF AMERICA TOWER AT INTERNATIONAL P1AGE
100 S.E. 2ND STREET. SUITE 3920
MIAMI. FLORIDA 33 13 1
TELEPHONE: (305) 374-5343
FACSIMILE: (305) 374-9054
E-MAIL: AITACHMES@AOL.COM
July 5, 2001
Murray Dubbin, Esq., City Attorney
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
RE: Beachfront Concession Request for Proposals No. 22-00/01 - Boucher Brothers
Miami Beach, L.L.C.
Dear Murray:
As you know, this law firm represents Boucher Brothers Miami Beach, L.L.C. ("Boucher
Brothers"), one of the bidders in connection with the above Request for Proposals (the "RFP").
Since our letter of June 24, 2001, we have had more time to examine the bid process. As a .
follow-up to our earlier letter, we have set forth below additional points for your consideration.
The items in this letter, together with those mentioned in our prior correspondence, conclusively
demonstrate that serious irregularities in the bid procedure and inadequate guidance to the
Selection Committee prevented the fair and even consideration of all bids.
First, as we stated earlier, Penrod's bid does not conform with the City's Rules and Regulations.
Although concessionaires are forbidden to plant trees or create walkways on the beach, Penrod's
plan shows palm trees and an artificial walkway on the beach at its proposed concession.
Penrod's proposes pavilions with tables,.chairs and shaded seating areas on the beach. Such
pavilions and seating areas also are forbidden.
In the past, the City has taken a firm position and required the removal of structures on the beach
that the City considered not permitted by the Rules and Regulations. One example of such a firm
stance was the City's demand that the Delano beach village be removed.
The RFP indicates, in at least five (5) separate places, that bidders must comply with the City's
Rules and Regulations.
1. Subsection I(O) of the RFP (p. 8) states:
"0. RULES; REGULA nONS; LICENSING REQUIREMENTS
Proposers are expected to be familiar with, and comply with, all Federal, State and
Murray Dubbin, Esq., City Attorney
City of Miami Beach
July 5, 2001
Page 2 of5
local laws, ordinances, codes, and regulations that may in any way affect the
services offered, including the Americans with Disabilities Act, Title VII of the
Civil Rights Act, the EEOC Uniform Guidelines, and all EEO regulations and
guidelines. Ignorance on the part of the Proposer will in no way relieve it from
responsibility for compliance."
2. Subsection I(Y) of the RFP (p.ll) states:
"Y. CODE OF BUSINESS ETHICS
Pursuant to Resolution No. 2000-23879 each person or entity that seeks to do
business with the City shall adopt a Code of Business Ethics ("Code'~) and submit
that Code to the Procurement Division with your bid/response or within five days
upon receipt of request.
The Code shall, at a minimum, require your firm or you as a sole proprietor, to
comply with all applicable gov.ernmental rules and regulations including, among
others, the conflict of interest, lobbying and ethics provision [sic] of the City
Code. "
3. Section II, Scope of Services, of the RFP (p. 13) states in relevant part:
"The Proposer will be authorized to conduct the kind of businesses and to provide
the kind of services in the Concession Areas, in accordance with the terms of a
Concession Agreement to be negotiated between the City and the successful
Proposer, and in accordance with the City of Miami Beach Rules and Regulations
for Beachfront Concession Operations;..."
4. Each bidder was required to complete and sign an Acknowledgment of Addenda
form. The form is contained at page 22 of the RFP. As indicated in paragraph 8
of Addendum No. 1 of the RFP, the Ru1es and Regulations were attached to that
Addendum as Attachment (A).
5. As stated in the Addendum, each bidder was required to acknowledge that it
received the Addendum and, thus, the Rules and Regulations. Page three (3) of
. the Addendum states: "Proposers must acknowledge receipt of this addendum
to be deemed responsive." (bold and underlined emphasis in original)
Simply put, the RFP mandates compliance with law. Boucher Brothers' bid was designed to
comply with the law and does so. To consider other bids that violate the law subjects different
Murray Dubbin, Esq., City Attorney
City of Miami Beach
July 5, 2001
Page 3 of5
bidders to different requirements. Other proposers have submitted proposals that would be
prevented by law from taking effect. In this scenario, there is no "level playing field."
Second, Penrod's bid does not comply with the RFP because Penrod's failed to disclose at least
one pending lawsuit in which it is involved. Section III of the RFP (p. 14) requires the disclosure
of all pending lawsuits. Penrod's bid failed to disclose a lawsuit, styled Gladstone v. Penrod
Brothers Inc., Miami-Dade County Circuit Court Case No. 99-007500.
Third, Penrod's gross revenue calculation includes projected revenue (with remuneration to the
City as a result thereof) from water sport operations and skate and bike rentals, which are
exceptions to the RFP's scope of services. This gross revenue calculation is confirmed by both
the video and audio recordings of the Selection Committee proceedings. Section II of the RFP,
entitled "Scope of Services," does not list water sport operations or skate and bike rentals as
permitted services to be offered in connection with the RFP. Section I(K) of the RFP (p. 7) states
as follows: "Proposers must clearly indicate any exceptions they wish to take to any of the terms
in this RFP, and outline what alternative is being offered. The City, at its sole and absolute
discretion, may accept or reject the exceptions."
Boucher Brothers offers water sports and skate and bike rentals as exceptions and clearly
indicates the exceptions as a line item in its projections and in its "Remuneration Schedule,"
which is included in its response and presentation. Penrod's, however, adds projected water
sport and bike and skate rental revenue to its gross revenue projection, without clearly indicating
by a line item that such total projection is based on exceptions to the scope of services. Thus,
there was no fair comparison of Boucher Brothers' and Penrod's remuneration amounts because
of the failure of Penrod's to show clearly water sports revenue and bike and skate reIital revenue
as exceptions.
Fourth, the bid process did not allow sufficient time for the proper consideration of all
information. Committee member Dr. Morris Sunshine made a motion to continue
the deliberations until the following day in order to have adequate time to consider all of the
information. Dr. Sunshine stated at 1:49:35 P.M.:
I don't think with an issue of this size that it may be feasible for this board or
committee to reach final conclusions today. For example, every one of these
presenters, at the last minute, just before they talk, has delivered materials - some
of which contain heavy financial stuff that I've not seen before. And this is - the
beach is the center of the City - and I'm not sure that I want to go ahead; and I
hope people will join me in this. In feeling compelled to make a decision today,
one of our members - and I'm not sure she's the only person - is going to be
leaving - soon! - will not hear the questions we're going to be putting in the
..
J .
Murray Dubbin, Esq., City Attorney
City of Miami Beach
July 5, 2001
Page 4 of5
post-question period - will not be available in our deliberations. I think, if I
understand her - she intends to submit her form before she leaves without the
benefit of discussing her reactions with us. So we're deprived as well. Therefore,
I'd like to put on the table, at least for discussion, that we come back for another
short meeting.. ..
It is clear that, to date, the Administration's evaluation process relating to the RFP has not treated
all bidders equally. Boucher Brothers has been hurt by such unfair treatment because, among
other things, bidders have been evaluated using different standards. All bids should be required
to comply with law. In.view of the lack of compliance by Penrod's with the RFP's requirements,
Penrod's bid should be disqualified for being non-responsive and non-responsible.
Based on the points raised in this letter and in our prior letter, we believe the City Manager
should not adopt the recommendation of the Committee and should instead recommend that the
contract be awarded to Boucher Brothers. If all bidders were treated the same and bidding
irregularities did not exist, we believe the Committee would have given Boucher Brothers the
highest score. For example, the Committee was not informed of violations contained in Penrod's
bid and was not instructed to disregard the matters which were violations of the Rules and ..
Regulations. The Committee did not have adequate time to evaluate the bids and, as stated in our
prior letter, did not have the benefit of knowing the results of the City's most recent audit of
Penrod's. Among other things, the.audit found that, contrary to Penrod's agreement with the
City, Penrod's did not subnut to'the City annual statements of gross receipts certified as true,
accurate and complete by a Certified Public Accountant. (This matter alone likely would have
led to substantially different scores for the evaluation criterion entitled "Prior History and
Experience.") In addition, two (2) members of the Committee had to leave the meeting before it
concluded and did not hear all of the information in the question and answer periods or the
deliberations.
At the very least, Boucher Brothers and Penrod's should both be deemed "qualified bidders." In
that event, the City should schedule a re-hearing of the full presentations before the Mayor and
City Commission and provide proper guidance and evaluation of facts and figures for use during
. such deliberations.
We appreciate your consideration.
Very truly yours,
~~
For the Firm
Murray Dubbin, Esq., City Attorney
City of Miami Beach
July 5, 2001
Page 5 of5
cc: Boucher Brothers Miami Beach, L.L.C.
Raul Aguila, Esq., First Assistant City Attorney
CY i7!))Jf3
,Z<UlI l"fittce
ALEXANDER I. T ACHMES, EA.
BANK OF AMERICA TOWER AT INTERNATIONAL PLACE
100 S.E. 2ND STREET. SUITE 3920
MIAMI. FLORIDA 33 I 3 I
TELEPHONE: (305) 374-5343
FACSIMILE: (305) 374-9054
E-MAIL: AITACHMES@AOL.COM
July 6,2001
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Mr. Murray Dubbin, City Attorney
City of Miami Beach
1700 Convention Center Drive
Miami Beach, Florida 33139
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Re: Beachfront Concession RFP No. 22-00/01
Dear Murray:
I have received a copy ofa letter dated July 3, 2001, to you from Gerald K.
Schwartz regarding the above captioned matter. Mr. Schwartz' letter to you about
. the Beachfront Concession RFP process is obfuscatory and replete with error. Incidentally, this
letter, like the prior two (2), is addressed to you because proper practice is to direct
correspondence to the recipient's counsel, when such party is represented by counsel.
First, name calling and making various allegations of
bad faith on the part of my client is not in anyone's interest, and surely
is not in the interest of the citizens of Miami Beach. I assure you that
Boucher Brothers Miami Beach, L.L.C. ("Boucher Brothers") is interested only in a fair and open
competition to provide responsible and responsive beachfront concessions to
citizens and visitors in accordance with applicable law.
Whether the objections I raised in my letters to you could have or should
have been raised by the Boucher Brothers during the presentation process and
prior to the final vote is irrelevant. The RFP specifically provides that objections to the bidding
process may be made as late as five (5) days after contract award by the City Commission.
Accordingly, our objections are well within the RFP's time parameters. Moreover, the bid
submitted by Penrod's is either in compliance with local, State and Federal law or it is not. The
process either has integrity or it does not. It is not self serving, as Mr.
Schwartz complains, to point out errors in a public review process. On the
contrary, it is quite in the public interest to ensure that the review
process with respect to any government contract be conducted on a level playing field.
With respect to Mr. Schwartz' comments about the Penrod audit still being in
draft form, he should know that the audit was final by the time the
Mr. Murray Dubbin, City Attorney
City of Miami Beach
July 6, 2001
Page 2 of3
evaluation committee met, and that it was highly relevant to the evaluation
criteria being considered by the committee. Whether requested or not by
committee members or anyone else associated with administering this process,
the evaluation committee should have been informed that an audit had
recently been completed concerning the incumbent Penrod's and its findings should
have been distributed. To complain now about the timing of when the audit should
have been requested is a classic form over substance objection.
Mr. Schwartz states in his letter that all bidders responded in accordance
with the instructions specifically given at the Pre-Bid Conference. He goes
on to state that if Boucher was concerned with the legality of the Penrod
presentation, he should have raised that issue at the presentation. Again,
Mr. Schwartz misses the point. Proposers of government services are not
lawyers charged with the responsibility of monitoring and administering a
public review process. City administration is charged with this
responsibility. The RFP and its addenda made clear that all proposals must
comply with Beachfront Rules & Regulations and other applicable law. The
proposals should have been analyzed by staff prior to the meeting and the
members of the evaluation committee should have been briefed on the
propriety and legality of each proposer's proposal.
To now claim that the City would later fix the proposal submitted by the
successful bidder during contract negotiations is ludicrous. Making such changes to a bid after it
is submitted is contrary to law. In practical terms, that would mean that the successful proposer
whose bid was illegal could later adopt the unsuccessful bidder's legal proposal during final
contract negotiations. No public bidder should realistically claim that a
proposal would be acceptable whether or not it complies with the law,
particularly in a case where the public rules and regulations were made a
part of the bid package (as was the case here).
I should also point out that Mr. Schwartz' reference to serving alcohol at
the hotels served by Boucher is irrelevant to this process. However, it
should be noted that the Boucher team does not serve alcohol anywhere.
Given the above points, any reference to scoring in Mr. Schwartz' letter is
also irrelevant, although I am pleased to point out that even with the
discrepancies in the evaluation process the difference in raw scores between
Boucher and Penrod was minimal. Scoring can be based only on an evaluator's
understanding of a legal and proper proposal. The evaluators of the beach
concession proposals were not properly infomied and guided and thus their
Mr. Murray Dubbin, City Attorney
City of Miami Beach
July 6, 2001
Page 3 of3
scores are meaningless.
Accordingly, the credibility of the process demands a second look at the
proposals from Boucher and Penrod by the Commission. Both proposals should
be evaluated on the bases of law and propriety. To do otherwise would not
be in the best interest of the public.
Very truly yours,
Alexander I. Tachmes
For the Firm
CITY OF MIAMI BEACH
CITY HALL 1700 CONVENTION CENTER DRIVE MIAMI BEACH, FLORIDA 33139
www.ci.miami-beach.f1.us
COMMISSION MEMORANDUM
To:
Mayor Neisen O. Kasdin and
Members of the City Commission
Date: July 18, 2001
From:
Jorge M. Gonzalez ~ . ~
City Manager ~ 0
R71 - SUPPLE ME TAL INFORMATION/FINANCIAL ANALYSIS
Subject:
Attached, as supplemental information, is a financial analysis of the return to the City as proposed
by the three (3) different respondents to the Beachfront Concession RFP.
The attached chart breaks out each Proposer's offer to the City which is summarized as follows:
Boucher Brothers:
Boucher offered:
-Minimum of$412,500, escalated annually by 5% up to year five (5), or 20% of equipment
rentals and 15% of food and Beverage sales, whichever is greater.
Additionally, if permitted, the Boucher Brothers proposed to pay additional rental, over and
above the minimum, to the City consisting of:
20% of waters port rentals
20% of bike and skate rentals
15% of alcohol sales
Boucher also proposed that the percentage offered on food/beverage and alcohol sales would
increase from 15% up to a maximum of25% of these sales based on 1 % increase for every
$250,000 of incremental sales above the $750,000 threshold.
Penrod Brothers:
Penrod offered:
- Minimum of $400,000 or 20% of gross sales, whichever is greater.
Playtime Watersport:
Playtime offered:
- Minimum of $480,000 or 20% of gross sales, whichever is greater.
The attached analysis indicates that on a "minimum guarantee basis", Playtime offers the highest
guaranteed return, at $480,000; Boucher Brothers offered $412,500/year one, $433, 125/year two,
$454,7811year three, $477,521/year four, and $501,396/year five, for an average guaranteed annual
return of $455,865 over the first five years; and Penrod offers the lowest annual guaranteed return
of$400,000/year.
July 18,2001
Commission Memorandum
R71 - Financial Analysis
Page 2 of2
If sales exceeded the guaranteed minimum, from a percentage perspective, Playtime and Penrod
offered a straight 20% return on all gross sales while Boucher Brothers offered 20% return on
rentals only and 15% (with a subsequent staggered increase once sales exceed $750,000) on food
and beverage sales.
To illustrate the differences in the proposals, and based on historical revenue information
provided by the current concessionaire (penrod), attached please find three (3) different scenarios
based on the following assumptions: (Scenario 1 assumptions reflect the actual gross revenues
reported in FY 2000 which totaled $1,610,184 and were comprised of $501,630 in food and
beverage sales and $1,108,554 in rental revenue. FY 2001 numbers to date reflect comparable
revenue levels).
Scenario 1:
Assumption:
Annual gross revenue on rentals: .........................$1,108,554
Annual gross revenues on food and beverage: .......$501,630
Return:
Boucher ..... ...... ...... .................. ...... ...... ..... ............. ..$412,500
Penrod. ....... ...... ...... ...... ...... ...... ...... ... ...... ....... ........ .$400,000
Playtime................................................................. .$480,000
Scenario 2:
Assumption:
Annual gross revenues on rentals: .......................$2,000,000
Annual gross revenues on food and beverage:........$500,000
Return:
Boucher.................................................................. .$475,000
Penrod. ...... ...... ...... ...... ...... ...... ...... ...... ..... ..... ..... ... ..$500,000
Playtime................................................................. .$500,000
Scenario 3:
Assumption:
Annual gross revenues on rentals: .......................$2,000,000
Annual gross revenues on food and beverage:.....$I,OOO,OOO
Return:
Boucher.................................................................. .$5 52,500
Penrod.................................................................... .$600,000
Playtime................................................................. .$600,000
Based on Scenario 1, Playtime would offer the highest return to the City, due to their higher
minimum guaranteed amount, and Boucher and Penrod would be ranked second and third,
respectively. However, under Scenarios 2 and 3, the gross revenues would trigger payments
based on percentage of revenues being paid with Penrod and Playtime providing the highest
returns, paying 20% of gross revenues, while Boucher pays slightly less, at 20% of rental
revenues and 15% on food and beverage sales, up to $750,000 and 16% on food and beverage
sales between $750,000 - $1,000,000.
JMG/CMC/JD/rar
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