C2B - Water Taxi Service

Procurement Requests - C2 B

C2 B A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, APPROVING, IN SUBSTANTIAL FORM, A CONCESSION AGREEMENT WITH WATER TAXI OF FORT LAUDERDALE, LLC, PURSUANT TO REQUEST FOR QUALIFICATIONS NO. 2025-284-ND FOR WATER TAXI SERVICE; AND AUTHORIZING THE CITY MANAGER TO FINALIZE THE AGREEMENT; AND FURTHER AUTHORIZING THE CITY MANAGER AND CITY CLERK TO EXECUTE THE FINAL AGREEMENT. (TRANSPORTATION AND MOBILITY) Applicable Area:

COMMISSION MEMORANDUM

RECOMMENDATION

The City Administration (“Administration”) recommends that the Mayor and City Commission (“City Commission”) adopt the Resolution.

BACKGROUND/HISTORY

The City of Miami Beach (“City”) has long recognized the potential benefits of waterborne transportation as a sustainable, efficient, and congestion-reducing alternative to traditional road- based transit. To that end, the City seeks to establish a robust and integrated water taxi network that aligns with broader transportation goals. The Request for Qualifications (“RFQ”) 2025-284- ND invited experienced water taxi operators to propose sustainable, innovative, and financially viable service models that enhance connectivity, reduce roadway congestion, and integrate seamlessly with the City’s existing transit infrastructure. The envisioned service will ensure a strategically planned water taxi network that meets passenger needs and regulatory requirements and supports both local and regional mobility.

The Miami-Dade County Transportation Planning Organization (“TPO”) conducted a Waterborne Network Feasibility Study (“Feasibility Study”) to evaluate the feasibility of a regional waterborne transit network, identifying potential routes, docking locations, infrastructure needs, and integration with existing transit systems. The Feasibility Study aims to enhance mobility, reduce roadway congestion, and provide sustainable waterborne transportation options. The City will utilize the Feasibility Study’s findings to develop its long-term water taxi service, ensuring alignment with the broader regional vision for waterborne transit.

On March 19, 2025, the City Commission authorized the issuance of RFQ 2025-284-ND for a water taxi service. RFQ responses were due and received on May 5, 2025. The City received proposals from three (3) vendors: Aqua-Jet Miami LLC d/b/a Aqua Party Boat, Code Name E-Lixr Inc., and Water Taxi of Fort Lauderdale LLC.

On May 23, 2025, an evaluation committee appointed by the City Manager convened to review and rank the proposals received. The evaluation process resulted in the ranking of proposers in the following order: 1st ranked - Water Taxi of Fort Lauderdale LLC

2nd ranked - Aqua-Jet Miami LLC d/b/a Aqua Party Boat 3rd ranked - Code Name E-Lixr Inc.

ANALYSIS

On June 25, 2025, the City Commission adopted Resolution No. 2025-33708, authorizing the Administration to enter into negotiations with Water Taxi of Fort Lauderdale LLC, as the top- ranked proposer; further, if the Administration is not successful in negotiating an Agreement with Water Taxi of Fort Lauderdale LLC, authorizing the Administration to enter into negotiations with Aqua-Jet Miami LLC d/b/a Aqua Party Boat, as the second-ranked proposer; further, if the Administration is not successful in negotiating an Agreement with Aqua-Jet Miami LLC d/b/a Aqua Party Boat, authorizing the Administration to enter into negotiations with Code Name E-Lixr Inc., as the third-ranked proposer. The Resolution provided that the final negotiated agreement be subject to the prior approval of the City Commission.

As directed by the City Commission, the Administration immediately commenced negotiations with Water Taxi of Fort Lauderdale LLC (“Water Taxi of Fort Lauderdale”). Additionally, to support the City in developing a sustainable long-term waterborne transit service, the Administration engaged KPFF Consulting Engineers (“KPFF”), a nationally recognized transportation and engineering consultant with specific expertise in waterborne transportation, ferry service planning, and transit integration. KPFF has advised multiple municipalities and regional agencies across the United States on marine-based transit systems, including vessel selection, operations planning, and concessionaire agreements. KPFF’s involvement in the negotiation process ensured that the City had access to technical expertise in service design, cost modeling, and contract drafting, while also providing a neutral third-party perspective to align the operator’s proposal with the City’s transportation goals and financial constraints.

The Administration began discussions with Water Taxi of Fort Lauderdale based on an “ideal” service scenario that assumed two (2) vessels operating seven (7) days a week, 365 days a year, with 30-minute service frequency (headways) for approximately 12 hours daily, and at no cost (i.e. free) to passengers. The water taxi service would operate across Biscayne Bay between Maurice Gibb Memorial Park (1790 Purdy Avenue) in Miami Beach and the Venetian Marina & Yacht Club (1635 North Bayshore Drive) in Miami, with ambassadors staffed at both dock locations during all operating hours. This scenario would provide consistent reliability and coverage connecting Miami Beach and Miami, in close proximity to existing mass transit services in both cities. However, the total annual operating cost of the service under this scenario would be approximately $2 million which significantly exceeds the City’s available budget allocation of $1.2 million in Fiscal Year (“FY”) 2025/26 (comprised of a $600,000 grant from the Florida Department of Transportation (“FDOT”) and a $600,000 City match).

Given the financial constraints, the negotiations subsequently centered on creating a commuter- focused water taxi service plan that could be implemented within the available budget in FY 2025/26. Tailored adjustments to service frequency (headways), vessel assignments, and operating hours were considered to ensure a reliable water taxi service that remained both attractive to commuters and financially viable within the available budget of $1.2 million in FY 2025/26. A total of five (5) different water taxi service scenarios were developed and reviewed during the contract negotiations among the City staff, KPFF, and Water Taxi of Fort Lauderdale.

With the support of KPFF, the Administration negotiated a “fare free” water taxi service plan consisting of two (2) 40-foot vessels with a 55-passenger capacity, operating Monday through Friday with an afternoon peak period service frequency (headways) of 30 minutes and ambassador staffing at the Maurice Gibb Memorial Park dock. This approach ensures a reliable commuter-focused water taxi service while remaining within the available budget.

Below is an image of the proposed cross-bay water taxi route and a photo of the program vessel.

The negotiations with Water Taxi of Fort Lauderdale also accounted for the City’s goal of leveraging Art Week 2025 as a launch platform. As part of the agreement with Water Taxi of Fort Lauderdale, a one (1)-week long enhanced Art Week water taxi service will operate from Monday, December 1, 2025 to Sunday, December 7, 2025, with expanded hours, additional vessels during peak times, and at no charge to passengers, to showcase the new water taxi service to residents and visitors. The Art Week water taxi service will operate across Biscayne Bay between Maurice Gibb Memorial Park (1790 Purdy Avenue) in Miami Beach and the Venetian Marina & Yacht Club (1635 North Bayshore Drive) in Miami, with ambassadors stationed at both dock locations. This activation, featuring high service frequency (approximately 10-minute headways during peak times) and expanded operating hours will cost approximately $200,000 and will be funded through

a separate Art Week funding allocation, ensuring it does not draw from the $1.2 million available operating budget for the long-term water taxi service. The negotiated agreement with Water Taxi of Fort Lauderdale includes a provision for special event water taxi services, at the City’s discretion.

Below is the tentative schedule of the negotiated long-term water taxi service, premised on launching on December 8, 2025, immediately following Art Week 2025. It is important to note that the City Manager has the authority to modify the schedule, provided that such changes do not increase the total number of service hours.

Depart Venetian 700 800 900 1000 1100 1200 1300 1400 1500 1600 1630 1700 1730 1800 1830 1900 Arrive Purdy 720 820 920 1020 1120 1220 1320 1420 1520 1620 1650 1720 1750 1820 1850 1920 Depart Arrive Purdy Venetian 730 750 830 850 930 950 1030 1050 1130 1150 1230 1250 1330 1350 1430 1450 1530 1550 1630 1650 1700 1720 1730 1750 1800 1820 1830 1850 1900 1920 1930 1950

Boat A Boat A Boat A Boat A Boat A Boat A Boat A Boat A Boat A Boat A Boat B Boat A Boat B Boat A Boat B Boat A

The service during FY 2025/26 is designed to build reliability, test ridership demand, and position the City for potential future expansion, including north-south service along the west coast of the City and service along the Indian Creek waterway, contingent on securing additional funding, including from Miami-Dade County, City of Miami, and/or state/federal grant programs.

Following are the key terms of the long-term water taxi service agreement with Water Taxi of Fort Lauderdale:

• • •

• •

• •

Term: Five (5) years with two (2) optional one (1)-year extensions. Service Days: Monday through Friday (excluding national holidays). Schedule/Headways: o Morning peak, mid-day, and early afternoon (7:00 a.m. to 4:30 p.m.): 60-minute service frequency (1 vessel). o Afternoon/evening peak (4:30 p.m. to 7:20 p.m.): 30-minute service frequency (2 vessels). Stops: Maurice Gibb Memorial Park (1790 Purdy Avenue) in Miami Beach and the Venetian Marina & Yacht Club (1635 North Bayshore Drive) in Miami. Vessel: Two (2) 40-foot vessels with a 55-passenger capacity. Cost: o $1,193,250 during FY 2025/26 (December 8, 2025 – September 30, 2026). o $1,312,828 for a full year (12 months) of service

• •

• •

• •

• •

• •

• •

Special Event Service: Art Week 2025 - a one (1)-week enhanced launch service from December 1, 2025 through December 7, 2025. The total cost is approximately $200,000, funded through a separate “one-time” FY 2025/26 operating budget enhancement allocation. Branding and Advertising: Vessel branding to be designed by the City. The operator may solicit advertising, subject to City review/approval. Revenue sharing is subject to further negotiations. Additionally, the water taxi service will operate under the “Miami Beach Water Taxi” name/brand, with the vendor establishing a new company under this identity. Performance Oversight/Penalties: Monthly performance meetings, submittal of monthly ridership reports, vessel maintenance reporting obligations, and performance penalties based on non-compliance with on-time performance goals. Ambassadors: Required at all dock locations during hours of operation, subject to funding availability. At a minimum, Water Taxi of Fort Lauderdale will have ambassador staffing at the Maurice Gibb Memorial Park dock. Service Adjustments/Expansion: Agreement allows for adjustments and expansion of service, including, but not limited to additional service hours, additional vessels and routes. All changes must be reflected in a written amendment executed by Water Taxi of Fort Lauderdale and the City Manager. Any change that increases the City’s appropriation for services shall be subject to approval by the City Commission. Termination For Convenience: Agreement provides for termination by the City, through the City Manager, at any time and without cause, by providing written notice to Water Taxi of Fort Lauderdale. Such termination becomes effective within thirty (30) days of receipt, after which the City is discharged from all liabilities, duties, and terms arising out of or by virtue of the agreement.

FISCAL IMPACT STATEMENT

The total cost of the water taxi service during FY 2025/26 is approximately $1.2 million, consistent with the approved FY 2025/26 “one-time” operating budget enhancement of $600,000 to match a $600,000 FDOT grant. The water taxi service plan for FY 2025/26 was specifically designed to align with the approved budget while prioritizing a commuter-focused model that balances operational reliability with financial sustainability. This approach ensures the program can be delivered without requiring additional funding appropriations beyond what has already been allocated. The cost for a full year (12 months) of service is $1,312,828.

The Administration will continue pursuing state/federal grant funding for future years as well as collaborating with external agencies, including the City of Miami, Miami-Dade County, and the TPO to secure additional funding to ensure the long-term expansion and viability of the City’s water taxi service.

Does this Ordinance require a Business Impact Estimate? (FOR ORDINANCES ONLY)

If applicable, the Business Impact Estimate (BIE) was published on: See BIE at: https://www.miamibeachfl.gov/city-hall/city-clerk/meeting-notices/

FINANCIAL INFORMATION

$600,000 / 106-9615-000349-30-403-529-00-00-00-

CONCLUSION

The Administration recommends executing an agreement with Water Taxi of Fort Lauderdale due to their proposal demonstrating the greatest alignment with the City’s goals. Water Taxi of Fort Lauderdale brings an established operational presence in South Florida, familiarity with regulatory requirements and waterways, and the ability to mobilize vessels and staff quickly for a December 2025 (Art Week) launch. Water Taxi of Fort Lauderdale has already demonstrated its capacity and professionalism by providing special event water taxi service during Art Week 2024, where they delivered a high level of service, as well as through their recurring role operating water taxi service during the Miami International Boat Show for the past few years. Their commitment to delivering a commuter-focused service plan tailored to the City’s budget and goals (e.g., free fares, ambassadors, branding standards), combined with their willingness to incorporate City branding, revenue-sharing advertising provisions, and provide potential future expansions, ensures a strong partnership framework.

With KPFF’s technical support in validating the negotiated service plan and financial structure, the Administration is confident that Water Taxi of Fort Lauderdale offers the most reliable and cost-effective path forward for establishing a long-term cross-bay commuter water taxi service between Miami Beach and Miami.

Based upon the favorable negotiated terms, the Administration recommends that the City Commission adopt the Resolution, approving the material terms of the agreement, pursuant to RFQ 2025-284-ND for Water Taxi Service; and authorizing the City Manager and City Clerk to execute the agreement with Water Taxi of Fort Lauderdale.

Applicable Area

Citywide

Was this Agenda Item initially requested by a lobbyist which, as defined in Code Sec. 2-481, includes a principal engaged in lobbying? No

If so, specify the name of lobbyist(s) and principal(s): N/A

Department

Procurement

Sponsor(s)

Mayor Steven Meiner

Co-sponsor(s)

Condensed Title

Approve RFQ 2025-284-ND, Water Taxi Service. (Meiner) TR/PR

Previous Action (For City Clerk Use Only)

Contract no. 25-284-02

CONCESSION AGREEMENT

BETWEEN

City OF MIAMI BEACH, FLORIDA

AND

WATER TAXI OF FORT LAUDERDALE LLC

PURSUANT TO

REQUEST FOR QUALIFICATIONS (RFQ)-2025-284-ND

FOR WATER TAXI SERVICE

INDEX

Contents SECTION 1. TERM. ......................................................................................................................6

SECTION 2. CONCESSION AREA. .............................................................................................6

2.1

Concession Area. ..........................................................................................................6

SECTION 3. USE(S). ....................................................................................................................7

3.1

Water Taxi Scope of Services. .....................................................................................7

3.1.1

Approved Use of Concession Area........................................................................8

3.1.3

No Parking Privileges.............................................................................................8

3.1.4

Plan of Operation ...................................................................................................8

3.1.5

Program Vessels. ......................................................................................................9

3.1.5.1 Ownership of Program Vessels ..................................................................................10

3.1.6

Price Schedules.......................................................................................................10

3.1.7

Hours of Operation .................................................................................................10

3.1.8

City Commission Approval in Connection with Expansion of the Program..........11

3.1.9 .....................................................................................................................................11

3.2

City's Contribution to Program. ....................................................................................12

3.3 Marketing and Advertising. Upon the issuance of a Notice to Proceed from the City and the parties reaching an agreement as to the revenue split for advertising services, as required in Section 4.3, the advertising services on the Program Vessel may commence. Additionally, the advertising company to be used for these services shall be subject to approval by the City Manager, in the City Manager’s sole discretion. .....................................12

3.4

Penalties ......................................................................................................................14

SECTION 4. CONCESSION COMPENSATION; ADVERTISING REVENUES. .........................16

4.1

Concessionaire’s Compensation; Invoicing .................................................................16

SECTION 5. MAINTENANCE AND EXAMINATION OF RECORDS AND REPORTS. .............18

5.1

Maintenance of Records..............................................................................................18

5.2

Monthly Report of Gross Receipts...............................................................................18

5.3

Quarterly Performance Meeting...................................................................................18

5.4

Reporting Requirements..............................................................................................19

SECTION 6. INSPECTION AND AUDIT. ....................................................................................20

SECTION 7. TAXES, ASSESSMENTS, LICENSES. ..................................................................20

7.1

Taxes. ..........................................................................................................................20

7.2

Procedure If Ad Valorem Taxes Assessed. .................................................................20

7.3

Licenses.......................................................................................................................20

SECTION 8. EMPLOYEES AND INDEPENDENT CONTRACTORS. ........................................21

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8.1

Concessionaire’s Employees.......................................................................................21

8.2

Cost Adjustments;........................................................................................................22

8.3

City Manager’s designee. ............................................................................................23

SECTION 9. IMPROVEMENTS, MAINTENANCE, REPAIR, and OPERATION ........................23

9.1

Improvements. ............................................................................................................23

9.2

Maintenance/Repair.....................................................................................................24

9.3

Orderly Operation. .......................................................................................................25

9.4

No Dangerous Materials. .............................................................................................25

9.5

Security........................................................................................................................25

9.6

Inspection. ...................................................................................................................25

SECTION 10. INSURANCE. .......................................................................................................26

SECTION 11. INDEMNITY.........................................................................................................28

SECTION 12. FORCE MAJEURE..............................................................................................29

12.6

Waiver of Loss from Hazards. .....................................................................................30

SECTION 13. DEFAULT AND TERMINATION...........................................................................30

13.1

Bankruptcy...................................................................................................................30

13.2

Default in Payment. .....................................................................................................31

13.3

Non-Monetary Default..................................................................................................31

13.5

City's Remedies for Concessionaire's Default. ............................................................31

13.7 Surrender of Concession Area / Removal by Concessionaire of Equipment/Improvements........................................................................................................32

13.8

Substitute Performance. ..............................................................................................32

13.9

Termination for Convenience of the City. ....................................................................32

13.10

City Manager Emergency Powers. ..........................................................................33

SECTION 14. PERFORMANCE BOND OR ALTERNATE SECURITY. .....................................34

SECTION 15. ASSIGNMENT......................................................................................................34

SECTION 16. SPONSORSHIPS.................................................................................................34

SECTION 17. NO IMPROPER USE. ..........................................................................................34

SECTION 18. NOTICES. ..........................................................................................................35

SECTION 19. LAWS. ..................................................................................................................35

19.1

Compliance..................................................................................................................35

19.2

Governing Law.............................................................................................................36

19.3

Equal Employment Opportunity. ..................................................................................36

19.4

No Discrimination.........................................................................................................36

19.5

Accessibility and Assistance Obligations.....................................................................36

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19.5

Florida Public Records Law. ........................................................................................37

SECTION 20. MISCELLANEOUS. .............................................................................................42

20.1

No Partnership.............................................................................................................42

20.2

Modifications................................................................................................................42

20.12

No Waiver. ...............................................................................................................44

20.13

No Third Party Beneficiary.......................................................................................45

20.14

No Lien. ...................................................................................................................45

SECTION 21. LIMITATION OF LIABILITY. ................................................................................45

SECTION 22. VENUE/WAIVER OF JURY TRIAL. .....................................................................45

Exhibit 1. Service Route and Concession Area .......................................................................47

Exhibit 2. Concept Plan for Vessels ........................................................................................50

Exhibit 3. Fares for Water Taxi Services .................................................................................52

Exhibit 4. Plan of Operation .....................................................................................................53

Exhibit 5. Plan of High-Impact Operation/Special Events).......................................................55

Exhibit 5.1 Special Event Service: Art Week 2025 ..................................................................56

Exhibit 6. Budget......................................................................................................................58

Exhibit 9. Non-Alcoholic Exclusive Pouring Rights City Contracts ..........................................63

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CONCESSION AGREEMENT BETWEEN City OF MIAMI BEACH, FLORIDA AND WATER TAXI OF FORT LAUDERDALE LLCFOR WATER TAXI SERVICE

THIS CONCESSION AGREEMENT (the “Agreement”) made on _________________, 2025, with an effective date of December 1, 2025 (“Effective Date”), between the City OF MIAMI BEACH, a municipal corporation of the State of Florida, having its principal address at 1700 Convention Center Drive, Miami Beach, Florida, 33139 (hereinafter called the "City"), and WATER TAXI OF FORT LAUDERDALE LLC, a Florida limited liability company, with offices at 1366 South East, 17 Street Fort Lauderdale , FL 33316 (hereinafter called "Concessionaire").

WITNESSETH

WHEREAS, the Mayor and the City Commission recognize the importance of transportation options for City residents and commuters and look to reduce traffic and vehicle emissions in the area by providing waterborne transportation options; and

WHEREAS, the City prohibits commercial transactions, activities or operations at the City’s parks, boat ramps, beach structures, building or other property or place owned, maintained or operated by the City; unless expressly authorized by the City Manager upon its public property, or pursuant to a concession agreement, that is approved by the City Commission; and

WHEREAS, illegal and unauthorized commercial transactions, activities and operations upon City property, creates a dangerous and hazard situation, which is a direct threat to the residents and visitors of the City for potential unscrupulous conduct; and

WHEREAS, on June 25, 2025, the Mayor and City Commission adopted Resolution No. 2025-33708, accepting the recommendation of the City Manager authorizing the Administration to negotiate an agreement with Water Taxi of Fort Lauderdale LLC pursuant to Request for Qualifications No. 2025-284-ND, for Water Taxi Service (the for ”RFQ”; and

WHEREAS, accordingly, the City and Concessionaire have negotiated the following Agreement for the turnkey, implementation, management, operation (including dock operations), and maintenance of a public waterborne transportation (water taxi) service from the Purdy Avenue Dock (as defined in Subsection 2.1 herein) located at the Maurice Gibb Memorial Park (the "Program").

NOW THEREFORE, in consideration of the premises and the mutual covenants and conditions herein contained and other good and valuable consideration, the receipt and adequacy of which are hereby conclusively acknowledged, it is agreed by the parties hereto as follows:

The City hereby grants to the Concessionaire, and the Concessionaire hereby accepts from the City, the right to operate the Program (as further described herein) within the Concession Area (as defined herein), in conformance with the purposes and for the period stated herein and subject to all the terms and conditions herein contained and set forth.

5

Commented [KK1]:

Commented [KK2R1]: @city please confirm if this is the appropriate location and text here to define goals for service.

Commented [RM3R1]: I would do it as a separate section somewhere below

Commented [KK4R1]: @Gisela and Legal to please advise to location

SECTION 1. TERM.

1.1

1.2

1.3

1.4

The term of this Agreement shall have an initial term of approximately five (5) years, commencing on December 1, 2025 (“Commencement Date”) and expiring on September 30, 2030.).

For purposes of this Agreement, a "Contract Year" shall be defined as the 365-day period, commencing on October 1 st of each fiscal year and expiring on September 30 th of the following fiscal year, with the first fiscal year being a partial year, with the first Contract Year being a partial Contract Year. The City, through its City Manager, will have the option to extend the Agreement for two (2) optional one (1)-year renewal terms at the City Manager‘s sole discretion. The initial term and the renewal term, if approved by the City Manager, may be collectively referred to herein as the ”Term”.

The initial term of this Agreement shall commence on December 1, 2025 and continue through September 30, 2026 (the “Initial Term”). Upon expiration of the Initial Term, this Agreement shall automatically renew for a four-year term beginning on October 1, 2026 and ending on September 30, 2030, unless earlier terminated in accordance with the provisions herein. Any subsequent renewal terms, if applicable, shall be aligned with the fiscal year, running from October 1 through September 30.

Notwithstanding the set term of the Agreement, provided Concessionaire is compliant with the terms and conditions of this Agreement, the continuation of the Agreement for each Contract Year of the initial term and the renewal term, if approved by the City Manager, shall be subject to funding approval by the City Commission during the City’s budgetary process and/or the City’s receipt of any additional third-party funding sources (as more particularly described in Section 4. Provided that the City is able to secure funding and is happy with the services being provided by Concessionaire The City Manager’s designee shall use reasonable efforts to advise Concessionaire, at least sixty (60) days prior to the expiration of a given Contract Year, to what extent, or if at all, the Program will be funded and extended.

Commented [RM6R5]: Gisela, can we use this language for the term?

SECTION 2. CONCESSION AREA.

The City hereby grants to the Concessionaire the right, during the Term of this Agreement, to operate the Program, as described herein, upon the Concession Area defined in Subsection 2.1 and identified in Exhibit 1 to this Agreement (hereinafter, the “Concession Area”):

2.1

Commented [EL5]: Propose to align this with the fiscal year.

Concession Area.

The Concession Area shall be located at the Maurice Gibb Memorial Park (the “Park”), and specifically at the south side of the northern most dock of the Barry Kutun Boat Ramp (the “Purdy Avenue Dock”), as more particularly depicted in Exhibit “1.1” hereto, and may also include any adjacent or surrounding area where Concessionaire is permitted to install a customer service booth or other related equipment necessary for the operation of the Program (the “Concession Area Improvements”). Any Concession Area Improvements shall require the prior written approval of the City Manager, which approval, if provided at all, shall be at the City Manager’s sole and absolute discretion, and Exhibit “1.1” shall be amended to incorporate the approved Concession Area Improvements.

Concessionaire shall not install or operate any Program sites, nor identify additional or alternate locations for same (other than as identified in Exhibit 1), without the prior written

6

Commented [KK7R5]: Gisela to review, suggest simplifying with an approx one-year term and revisiting.

Commented [VV8R5]: RFP language: TERM OF CONTRACT. The term of the Agreement resulting from this RFQ shall be for an initial term of five (5) years. 2. OPTION TO RENEW. The City, through its City Manager, will have the option to extend for one (1) two-year renewal term at the City Manager's sole discretion. The successful Contractor shall maintain, for the entirety of any renewal period, the same terms and conditions included within the originally awarded contract. Continuation of the contract beyond the initial period, and any option subsequently exercised, is a City prerogative and not a right of the successful Contractor

Commented [KK9]: Longevity in contract language gives concessionaire leverage for future boat purchase.

approval of the City Manager, which, if provided at all, shall be at the City Manager’s sole and absolute discretion. Commented [KK10]: This says they have to ask for allowance. Do you want to include periodic check ins about service area expansion? Perhaps that is covered in another performance section.

2.2 Destinations The destinations (“Destinations”) which will be included in the Program as part of the City’s service route (“Route”) are described in Exhibit “4” hereto, and any changes to the approved Destinations and Route will require the prior written approval of the City Manager (or of the City Commission if the change constitutes an Expansion of the Program as defined in subsection 3.1.8), prior to implementing the said changes, and Exhibit “4”

Commented [RM11R10]: I think it's good as is

Commented [KK12]: Confirm exhibit number, current 4 is “Plan of Operation”

Commented [EL13R12]: Confirmed

SECTION 3. USE(S).

The Concessionaire is hereby authorized to conduct the following kind(s) of businesses and provide the following kind(s) of services related to the operation of the Program within the Concession Area, all at its sole cost and expense:

3.1

Water Taxi Scope of Services. The Concessionaire shall provide services to the City in accordance with and pursuant to the terms and conditions of this Agreement. The services may be adjusted to facilitate increased ridership, including, but not limited to, changes in the schedule, Routes and designated stops. All changes must be reflected in a written amendment executed by the Concessionaire and the City Manager. Any change that increases the City’s appropriation for services shall be subject to approval by the City Commission and memorialized in a written amendment to this Agreement, executed by the Concessionaire and the City Manager.

3.1.1

The Concessionaire shall provide a year-round transportation program to provide the City of Miami Beach residents and visitors ("Riders") with a convenient and efficient transportation option between Miami Beach and Miami. The services should be hospitality- oriented and may include supplementary service during special events.

3.1.2

Water Taxi Goals of Service

The goals of the services to be provided by the Concessionaire are to accomplish the following:

• •

Operate a water transportation system throughout the boundaries of the Service Area indicated in Exhibit "1." All rides shall either commence or terminate at the designated stops described in Exhibit “1.” Provide a safe and pleasing passenger experience with capable, qualified, and courteous staff who will serve as ambassadors, as more specifically described in Section 3.1.10. Allow Riders to reach their destinations within the Service Area without driving, parking, or even owning a personal vehicle. Reduce traffic and vehicle emissions in the Service Area.

• •

• •

• •

7

Commented [KK14]: Should this be defined? Water Taxi service can sometimes be defined as on-call, but perhaps we refer to the service section.

3.1.1

Approved Use of Concession Area.

The Concession Area shall be used by Concessionaire on a non-exclusive basis, and solely and exclusively for the loading and unloading of passengers and customer service in connection with the Program and for no other use. In the event that Concessionaire uses the Concession Area for any purpose (s) and/or uses not expressly permitted in this subsection, such use shall be considered a default under the Agreement, and the City shall be entitled to all remedies including termination of this Agreement, as set forth in Subsection 13.5. In addition, notwithstanding any other terms of this Agreement, the City shall be entitled to seek immediate relief, whether at law or equity, to restrain such improper use.

3.1.2

Program Exclusivity.

During the Term of this Agreement, Concessionaire shall be the exclusive operator for the Program, and, provided Concessionaire is in good standing and free from default under the terms of this Agreement, the City will not contract with any other operator for the provision of a public water taxi service from the Purdy Avenue Dock, as more particularly described in the Service Route described in Exhibit “1”. Notwithstanding the foregoing, the City shall not be prevented from authorizing the commercial use of the Park, including the Purdy Avenue Dock, to other parties in connection with other types of water borne activities or services, including, without limitation, boat tour operators, jet ski operators, paddle boat operators, or any other commercial activity which the City, in its sole option and discretion, may authorize.

Moreover, the public’s right to use the Park, including the Purdy Avenue Dock, for non- commercial purposes is primary to the privileges which the City has granted Concessionaire under this Agreement; therefore, the Program exclusivity language contained in this subsection shall not be construed as limiting, in any way, the public’s right to use of the Park, including the Purdy Avenue Dock, for non-commercial purposes. Finally, the exclusivity granted under the terms of this subsection shall be related solely to the Purdy Avenue Dock, and shall not prevent and/or prohibit the City from contracting for and/or operating a water taxi service in other locations in the City.

3.1.3

No Parking Privileges

No parking privileges shall be provided to Concessionaire, Concessionaire’s employees, or passengers of the Program Vessel in connection with this Agreement or the Program.

3.1.4

Plan of Operation

3.1.4.1 Regular Operation. Concessionaire acknowledges that the Program is secondary to the public’s use of the Park or any of the Park facilities, including, without limitation any docks, boat ramps, parking facilities or office spaces, and shall ensure that the Park and its facilities are accessible and their use not negatively impacted by the Program. To that end, prior to commencing operations, the Concessionaire shall provide the City Manager or City Manager’s designee with the Plan of Operation for regular water taxi operations, establishing a minimum level of operation for the Program, including, without limitation, establishing the routes and hours of operation for the Program, which Plan of Operation shall be

8

Commented [EL15]: Missing Clause on Service Disruption: Suggest including a clause addressing service disruptions, covering:

1.Restoration Period: A clear timeframe (e.g., two hours) within which a back-up vessel must be deployed to restore service. 2. Performance Remedies: If service is not restored within the agreed timeframe, penalties should apply — for example, a monetary charge per missed trip once the restoration period has elapsed If fares were in the contract it could be based on lost fares alternatively could be based on service cost per missed RT or hour (e.g. $500/hr or some other number)

Commented [RM16R15]: Yes, we should add a restoration period. Can have 2 hours as a placeholder for now. for the second part, if there is no service, we should not pay the hourly rate for the missing trips. Below if what we had in Poseidon, as an addition to that: 13. 4 Failure to Operate. Except as set forth in Sections 12. 1 and 12. 2, the failure of Concessionaire to operate the Program at the Concession Area for a period of time exceeding two ( 2) continuous days shall constitute a material default under this Agreement with no cure period.

Commented [RM17R15]: that said, we need to define an hourly rate per vessel somewhere

Commented [KK18R15]: Added section regarding service disruption and failure to operate in Concessionaire fees.

subject to approval by the City Manager or City Manager’s designee. Additionally, in order to ensure the orderly operation of the Program, the City Manager may modify the Plan of Operation as deemed necessary, by the City Manager, in the City Manager’s sole discretion. The Plan of Operation, as may be amended from time to time by the City Manager, shall be attached to the Agreement as Exhibit “4”. The City Manager shall be authorized to enhance the water taxi services including, but not limited to, increasing the frequency of the services and adding additional elements to the services, subject to funding availability for any enhancements to the service (“Enhanced Services”), and provided that any increase in the contract cost associated with the Enhanced Services shall not exceed the City Manager’s purchasing authority. Any costs associated with the Enhanced Services which exceed the City Manager’s purchasing authority shall require the prior approval of the City Commission.

Commented [KK19]: Confirm this is the right exhibit reference

3.1.4.2 High Impact Events. During high impact events in the City (e.g., hotel events, conventions, Art Basel, Miami Beach Wine and Food Festival, and other similar events) (“High Impact Events”), Concessionaire shall secure the written approval of the City Manager or City Manager’s designee to modify the Plan of Operation, including the hours of operation for the water taxi services, to commence prior to the start of a high impact event and end after the event has ended, executed by the parties, and attached to the Agreement as composite Exhibit ”5” shall be amended to include the Plan of Operation for each high- impact event. The budget for High Impact Events shall be appropriated and funded each fiscal year during the City’s budgetary approval process and based on the hourly rate established in Exhibit ”5” for high impact events. 3.1.4.2.1 Subcontracting during High-Impact Events. Additionally, and exclusively during high-impact events, Concessionaire may be permitted to sub-contract a portion of the services under this Agreement, as may be approved by the City Manager, in writing, in the City Manager’s sole discretion, which approval, if granted at all, may be conditioned upon Concessionaire providing the City with evidence that the subcontractor meets the contractual requirements contained herein, such as, without limitation, the insurance requirements set forth in Section 10.

Commented [KK20]: Reference service plan exhibit 1

Commented [KK21R20]: Do we need to add any reporting requirements about these high impact events, any restrictions or assurances that minimum service thresholds are met?

Commented [RM22R20]: It can be part of an exhibit. I have a feeling that we would need an amendment each time for specific events, or make the exhibit somewhat general saying that if s separate budget is identified, CM can approve special event service. idk, need ask Gisela on authority

Concessionaire shall be liable for its services, responsibilities and liabilities under this Agreement and the costs, services, responsibilities and liabilities of any sub-contractors (if any), and any other person or entity acting under the direction or control of Concessionaire (if any). In this regard, Concessionaire must furnish the City with all information relating to the sub-contractors which is requested by the City. When the term "Concessionaire" is used in this Agreement, it shall be deemed to include any sub-contractors (if any) and/or any other person or entity acting under the direction or control of Concessionaire (if any). All sub-contractors (if any) must be disclosed in writing to the City prior to their engagement by Concessionaire.

3.1.5 Program Vessels. Commented [KK23]: Do we want to add discussion of back up vessels or is that covered in a separate section?

Commented [RM24R23]: That should be separate. Eve had a comment on that for 3.1.4 can be added there.

The City hereby approves of Concessionaire’s concept plan design as to the type of vessel, which plan is attached as Exhibit “2” hereto (the “Program Vessel(s)”). Any amendments to Exhibit “2”, without limitation, as to type of Program Vessel, must be

Commented [KK25]: Check exhibit number and leave specifics in the exhibit.2

9

approved, in writing, by the City Manager prior to such changes being implemented, and Exhibit “2” shall be amended accordingly.

Notwithstanding the above, the City and Concessionaire hereby acknowledge and agree that the City’s approval in this subsection, as to the type of Program Vessel, is given by the City solely in its proprietary, and not in its regulatory, capacity. Notwithstanding such approval, in the City’s proprietary capacity, Concessionaire agrees to secure, at its sole cost and expense, all required approvals from all governmental authorities having jurisdiction over the Program, in connection with the operation of the Program.

3.1.5.1 Ownership of Program Vessels. The Program Vessels shall be the sole and exclusive property of Concessionaire during the Term of this Agreement. Notwithstanding the foregoing, subject to the prior written approval of the City Manager, Concessionaire may hire a vessel (“Vessel for Hire”) in connection with providing water taxi services pursuant to this Agreement. Said approval, if provided at all, shall be contingent upon Concessionaire providing the City with evidence that the vessels are in compliance with the requirements of this Agreement, including, without limitation, the insurance requirements set forth in Section 10.

3.1.6

Price Schedules.

Concessionaire shall provide water taxi services in the Concession Area and the Venetian Marina & Yacht Club (“Venetian Dock”). Initially, the services shall be provided free of charge to everyone, as described in Exhibit 3. All subsequent price schedule changes must be approved, in writing, by the City Manager, and upon approval, Exhibit “3” shall be amended accordingly. The City shall have the final right of approval for all such price schedules, including requested price changes contained therein.

Concessionaire’s compensation for the initial Contract Year shall remain fixed, based upon the Budget attached hereto as Exhibit “6”. Any subsequent increases to Concessionaire’s compensation shall be subject to the process set forth in Section 8.2.1.

3.1.7

Hours of Operation

A. The Concession Area and the Venetian Dock operations thereon shall be open to the public, weather or events of force majeure permitting, at a minimum, during the hours and days of the week set forth in Exhibit “4” hereto for regular operations. Any change with respect to the Hours of Operation shall require the written approval of the City Manager, prior to implementing the new hours, and Exhibit “4” shall be amended accordingly.

B. For public safety considerations, during emergency situations, including, without limitation, a threatened tropical storm or hurricane, the City Manager may immediately suspend service or adjust the Hours of Operation.

C. For public safety considerations, during emergency situations, including, without limitation, a threatened tropical storm or hurricane, Concessionaire may immediately suspend service or adjust hours of operation and notify the City Manager or designee

10

Commented [KK26]: Price schedules=fares, needs to be discussed. During this first term there are no fares proposed, however we did discuss keeping in the fare exhibit so that it can be revised when/if fares are proposed in the future. Look to make terminology consistent with exhibit and insure reference is consistent.

in writing of the suspension or temporary schedule adjustment as soon as reasonably possible.

3.1.8

City Commission Approval in Connection with Expansion of the Program.

Notwithstanding anything to the contrary contained in this Agreement, any expansion of the Program exceeding the approved Plan of Operation (excluding high impact events, which typically increase the demand for water taxi services and are approved through a separate appropriation), must be reflected in a written amendment and executed by Concessionaire and the City Manager. Any change that increases the City’s appropriation for services shall be subject to approval by the City Commission prior to implementation. Expansion of the Program shall mean an increase in the number of destinations or days of operation from the approved Plan of Operation set forth in Exhibit “4” hereto.

3.1.9

Oversight. Concessionaire shall hire an employee, who will be stationed at or near the Concession Area, whose responsibility will be to provide on-site monitoring of the Program including the Concession Area

Commented [KK27]: Confirm. There will be an office and a shoreside person. Clarify with Water Taxi and amend.

Commented [KK28R27]: Could expand this section to speak to the type of oversight you are looking for: crowd management, ticketing sales, etc and identity the “why” or purpose of having personnel there for oversight.

3.1.10 Ambassadors. Concessionaire shall hire an ambassador to be stationed on the Miami Beach side of the route to provide on-site monitoring of the Program including, without limitation, for crowd and queue management, customer support, and security. At the City Manager’s option, Concessionaire shall similarly include an ambassador at the Venetian Dock, thereby doubling the portion of the cost for an ambassador, as reflected in the Budget, attached hereto as Exhibit “6”.

Commented [KK31R30]: Could expand this section to speak to the type of oversight you are looking for: crowd management, ticketing sales, etc and identity the “why” or purpose of having personnel there for oversight.

3.1.11 Music. Additionally, only ambient music shall be permitted on the Program Vessels

during the Hours of Operation for the Program. At the City Manager’s discretion, upon providing Concessionaire with written notice, music shall not be played during Hours of Operation for the Program.

3.1.12 Sale of Alcoholic and Non-Alcoholic Beverages on Program Vessels. Concessionaire shall be permitted to sell alcoholic beverages on the Program Vessels while the water taxi service is in operation. The alcoholic beverages must be served and consumed on the Program Vessel. Concessionaire shall ensure that Riders do not leave the Program Vessel with open containers of alcoholic beverages, in that, the City of Miami Beach prohibits the consumption, service, sale, and possession of open containers of alcoholic

beverages in public places.

Concessionaire will also be permitted to sell non-alcoholic beverages while the water taxi service is in operation; provided, however, that only non-alcoholic beverages from the Pepsi and Red Bull brands are sold. the City’s exclusive pouring rights agreement with PepsiCo d/b/a PepsiCo Beverage Sales, LLC, for all non-alcoholic beverage categories, including but not limited soda, water, juice, iced tea, isotonics; and an exclusive pouring rights agreement with Red Bull for the energy drink beverage category; as such, the dispensing or sale of any competing products is prohibited under this Agreement. The current product list for Pepsi and Red Bull are incorporated herein by reference and attached hereto as Exhibit 9. Additionally, Concessionaire will be required to purchase these exclusive products from the distributors designated by the City.

11

Commented [RM29R27]: Crowd/queue management, customer support, maybe security?

Commented [KK30]: Confirm. There will be an office and a shoreside person. Clarify with Water Taxi and amend.

Commented [RM32R30]: Crowd/queue management, customer support, maybe security?

The City will provide Concessionaire with written notice of any changes to, or terminations of, these City vending contracts.

All revenues generated by Concessionaire from the sale of alcoholic and non-alcoholic beverages on the Program Vessels shall be retained by Concessionaire.

3.2

City's Contribution to Program. The City agrees to also provide Concessionaire with the following non-monetary assistance for the Program:

A. B.

link for Program on City's website; inclusion in Miami Beach Magazine (PSA's, Editorials and/or other placements). Concessionaire shall provide camera-ready artwork, which artwork shall be subject to the approval of the City Manager; inclusion in bi-weekly e-blast during the Term; public service announcements on Channel 77 for the first six (6) months following the Commencement Date, to announce Program implementation, and thereafter, on at least a quarterly basis throughout the Term; and At the City Manager’s sole discretion, the City may include the Program in additional public announcements or advertisements.

C. D.

E.

3.3 Marketing and Advertising. Upon the issuance of a Notice to Proceed from the City and the parties reaching an agreement as to the revenue split for advertising services, as required in Section 4.3, the advertising services on the Program Vessel may commence. Additionally, the advertising company to be used for these services shall be subject to approval by the City Manager, in the City Manager’s sole discretion.

3.3.1

Branding

Program Vessel exterior branding/design, installation and any necessary maintenance shall be borne by Concessionaire.

3.3.2 City Branding/Advertising & Sponsorship/Public Benefit. The City would be entitled to name the Miami Beach Water Taxi and promote it as such, including using the Miami Beach logo when applicable. The City would also be able to brand the water taxi, not just yellow, but in colors which align with the Miami Beach brand and include the Miami Beach logo. The City would be able to have signage inside and outside the Program Vessels. Upon thirty (30) days notice, Concessionaire will reserve space on the Program Vessel for the City’s advertisement. The City would be able to procure sponsors and

advertising for the water taxi Program, including doing samplings and wrapping the Program Vessels.

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Commented [KK33]: Confirm with the City

Commented [RM34R33]: that all is good

3.3.3 Advertisement on Vessels

A. While the City understands the need to maximize advertising revenue, the City is also interested in maintaining a pleasant and aesthetic image and ensuring the quality-of-life of its residents.

B. The Concessionaire shall have the right to solicit and sell advertising to be installed on vessels and have the right to enter into separate agreements with advertisers for the placement of advertising on the vessels and negotiate the advertising rates. The Concessionaire, at its sole cost and expense, shall be responsible for the design, development, production, redesign, removal, and installation of such advertising.

C. The Concessionaire shall adhere to generally accepted principles of advertising in relation to good taste and truth in advertising. No advertising which is considered objectionable and offensive in its content or method of presentation shall be displayed.

D. Prior to its installation, the Concessionaire is required to submit the advertisement content to the City’s Contract Manager, for City’s review and approval.

E., The Concessionaire is required to remove any and all non-compliant advertisement content, as detailed below, within 24 hours after receipt of official notice from the City Manager or City’s Project Manager. Additionally, any outdated advertisement shall be removed from the Program Vessels at no cost to the City.

F. The Concessionaire shall comply with the following:

1. All advertisements accepted for placement on the Program Vessel must comply with Federal, State, Miami-Dade County, and existing City of Miami Beach laws, laws, ordinances, rules and regulations. 2. The following categories of advertisement shall not be permitted: a. unlawful or illegal goods, services or activities; b. medical marijuana, tobacco or tobacco-related products, including e- cigarettes; c. firearms; d. sexual services, programs or products; e. political candidates or political issues;

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f. competitive products for any City of Miami Beach citywide exclusive sponsorship agreement, which currently is Pepsi and Red Bull; and g. alcoholic beverages, as defined by Section 561.01, Florida Statutes.

3. No advertisement shall contain the words “STOP”, “LOOK”, “DRIVE IN”, “DANGER” or any other word, symbol, or displays designed to distract vehicular traffic.

4. No advertising shall contain material that is immoral, lascivious, or obscene as defined in Section 847.001, Florida Statutes.

5. No advertising shall be for businesses engaged in any activity that requires the exploitation of minors pursuant to Chapter 847, Florida Statutes.

6. No advertising shall contain libelous material or material detrimental to the operation or goals of the City.

7. Any advertisement that the City deems unacceptable including, without limitation, advertisement that is offensive, objectionable, inappropriate or that does not reflect

favorably upon the City’s Program, its residents and visitors.

8. Any such additional category of advertising that the City Manager, in the City Manager’s sole discretion, may determine to be reasonable, as notified in writing to Concessionaire.

3.4

Penalties 3.4.1 Sanitation:

• •

Interior and exterior of Program Vessels must be kept in pristine condition, 100% of the time. o Penalty: $200 per recorded event (first event) o Penalty: $400 per recorded event (any event thereafter within one-month period)

3.4.2

Reporting:

• •

All applicable reports (including, but not limited to, ridership reports, service interruption reports and invoices) must be filed within the specified time frame, 100% of the time. o Penalty: $200 per recorded event

3.4.3

Safety:

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• •

Licensed captain must shall follow all applicable navigational regulations, 100% of the time. o Penalty: $200 per recorded event

3.4.4

Fines:

• •

Concessionaire shall operate and manage the Program Vessels free from any penalties which may be imposed on the CITY by local, state, and federal agencies, 100% of the time. o Penalty: $200 per recorded event

3.4.5

Reliability:

• •

95% on-time performance (no more than 5 minutes late as compared to the average headway goal to any pre-determined stop location within the Service Area. o Penalty: $200 per recorded event

3.4.6

Equipment Malfunction:

• •

Repairs of any malfunctioning Program Vessel related to vehicle or passenger safety shall result in immediate Program Vessel out-of-service with notice to the City’s Contract Manager within two (2) hours, 100% of the time. A spare Program Vessel shall be dispatched immediately upon interruption in service. The spare Program Vessel shall commence service no later than four (4) hours after service disruption. Concessionaire shall not be compensated for any time elapsed without service for the particular Program Vessel.

o

Penalty: Failure to provide backup service within four (4) hours of “Plan of Operation” as outlined in Exhibit 4 shall result in a penalty of $350.00 per missed departure per occurrence.

o

Penalty: Failure of Concessionaire to operate the Program at the Concession Area or the Venetian Port for a period of time exceeding two (2) continuous days shall constitute a material default under this Agreement shall constitute a cause for immediate termination.

3.4.7

• • •

3.4.8

Customer service:

Respond to customer complaint within 48 hours, 95% of the time. Captains properly uniformed and groomed 100% of the time. Captains, crew members and ambassadors must adhere to the AMBASSADOR Service Style Customer Service attached as Exhibit 7 hereto. Penalty: $200 per recorded event

Radio Communication:

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• •

Effective radio communication through the use of two-way radios between dispatchers, captains and ambassadors, 100% of the time. Two-way radios shall have separate frequencies enabling dispatchers to communicate to individual Program Vessels, rather than all Program Vessels, unless needed in emergencies. Penalty: $200 per recorded event

The CITY reserves the right to request the removal of any Captain, crewmember, or ambassador from the Service Area upon noncompliance of performance standards dictated above.

3.5 Additional Services. The City may request additional services during, which exceed the initial Scope of Services (“Additional Services”). Concessionaire shall provide the City with a proposal for Additional Services. Concessionaire shall only commence any Additional Services, or portions thereof, until the City and Concessionaire have reached agreement, memorialized pursuant to a signed amendment to the Agreement. Any increase in the contract cost associated with Additional Services shall be subject to funding availability and shall not exceed the City Manager’s purchasing authority. Any costs associated with the Additional Services which exceed the City Manager’s purchasing authority shall require the prior approval of the City Commission.

SECTION 4. CONCESSION COMPENSATION; ADVERTISING REVENUES.

4.1

Concessionaire’s Compensation; Invoicing

4.1.1 Funding. The City has appropriated or secured the following operating subsidy for the Program for the first Contract Year, as follows: (i) $600,000.00 from City funds and (ii) $600,000 from a matching grant agreement, in the total amount of $1,200,000.00. P rovided that Concessionaire is in compliance with the terms and conditions of this Agreement, the City will pay the Concessionaire in arrears an operating subsidy (the "Subsidy ”), in twelve (12) equal installments of One Hundred Twenty Thousand and 00/ 100 Dollars ($120,000.00) per month to reimburse Concessionaire for

the Program costs for the prior month, which Subsidy payments shall be used solely for expenses relating to the administration and operation of the Program and for no other purpose. At the end of each calendar month during the Term (or on the last day of the Term if occurring prior to the end of the month), Concessionaire shall send an invoice to the City in the amount of $120,000.00 (pro-rated for any partial month), along with the required reports for the period concerned. Provided that Concessionaire has fully complied with its obligations under this Agreement, the City shall process and pay each such invoice within forty- five (45) days of receipt of the invoice and required reports. The parties intend that the Subsidy shall be paid by the City only during the first Contract Year of the Term and that the Program will be self- sufficient if subsequent Contract Years are approved. Any Subsidy for additional approved Contract Years shall be subject to approval by the City Commission during the City’s budgetary process and Exhibit 6 shall be

amended accordingly.

4.1.2 Pass-Through Excessive Fuel Charges. The Budget for the first Contract Year is based upon fuel charges of $3.50 per gallon prices (“Base Price”). In the event that the fuel charges

16

exceed the Base Price by more than 20% from the prior month’s Base Price, Concessionaire shall be entitled to bill the City for the cost of fuel over the Base Price. For the sake of example, if the price of fuel increases to $4.55 per gallon, the City will be responsible for reimbursing Concessionaire for $1.05 per gallon of fuel purchased by Concessionaire. Concessionaire shall have the burden of submitting the receipts reflecting the price per gallon paid and total amount of gallons purchased for a given month. If Concessionaire fails to submit a request for a given month within thirty (30) days from the end of a given month, Concessionaire shall be deemed to have waived the request for reimbursement for the given month.

4.2

Interest for Late Payment.

Any payment which Concessionaire is required to make to the City which is not paid on or before the respective date provided for in this Agreement shall be subject to interest at the rate of eighteen percent (18%) per annum, or the maximum interest allowable pursuant to Florida law, whichever is less, from the due date of payment until such time as payment is actually received by the City.

4.3

Advertising Revenue Sharing. Upon the issuance of a Notice to Proceed for the commencement of advertising services on the Program Vessel, as authorized in Section 3.3, the Parties shall reach an agreement as to the revenue split and calculation thereof. Any negotiated revenue split which nets the City less than

50% of the Net Advertising Revenues (as defined herein) that are generated and received by the Concessionaire shall require the prior approval of the City Commission. Net Advertising Revenues shall mean the total Gross Receipts (as defined herein) less

the cost to design, install and maintain the advertising signage or wrap (“Advertising Expenses”); however, said Advertising Expenses shall not include any commission to a third party for securing the advertiser, which if paid by Concessionaire, shall be absorbed by Concessionaire. Gross Receipts as referenced in this Agreement shall be the total revenue collected and received by

Concessionaire from the sale and display of advertising on the Program Vessel, as permitted under the terms of this Agreement; however, Gross Receipts shall not include passthrough amounts relating to the payment of Federal, State, or City sales tax, use tax or other tax, governmental imposition, assessment, charge or expense of any kind collected by Concessionaire from advertising customers and required by law to be remitted to the taxing or other governmental authority. The City shall be permitted to

apply its share of such Net Advertising Revenues towards subsidizing the Compensation paid to Concessionaire for operating the Program. The City’s share of the Net Advertising Revenues shall be paid to the City on a monthly basis, by no later than the fifteenth (15 th ) day of the following month and shall include a report reflecting the gross amount of the advertising revenues for the month and any related Advertising Expenses. At the City Manager’s designee’s request, Concessionaire shall provide any back-up information requested, relating to the monthly report, which may include, without limitation, copies of the pertinent advertising contracts and receipts for the Advertising Expenses. The Concessionaire shall furnish said copies within ten (10) days of receipt of such a

17

request. Nothing in this section should be deemed to constitute a guarantee that the Concessionaire will sell advertising space or generate any revenue by selling advertising on the Program Vessels during the Term, and the City expressly acknowledges that no such guarantee has been made by the Concessionaire.

SECTION 5. MAINTENANCE AND EXAMINATION OF RECORDS AND REPORTS.

5.1

Maintenance of Records.

Concessionaire shall maintain current, accurate, and complete financial records (on an accrual basis) related to its operations herein. Systems and procedures used to maintain these records shall include a system of internal controls and all accounting records shall be maintained in accordance with generally accepted accounting principles and shall be open to inspection and audit by the City Manager or his designee, upon reasonable prior notice, whether verbal or written, and during normal business hours. Such records and accounts shall include, at a minimum, a breakdown of gross receipts, expenses, and profit and loss statements. In the event Concessionaire accepts cash as a form of payment, it shall maintain accurate receipt-printing cash registers or the like which will record and show the payment for every sale made or service provided in the Concession Area or in connection with the Program; and such other records shall be maintained as would be required by an independent certified public accountant in order to audit a statement of annual gross receipts and profit and loss statement pursuant to generally accepted accounting principles.

5.2

Monthly Report of Gross Receipts.

In the event that the advertising services are commenced pursuant to Section 3.3, a monthly report of Gross Receipts for advertising revenues, and at the option of the City, Advertising Expenses and Net Advertising Revenues, shall be certified to be accurate by Concessionaire, and must be submitted to the City, through the City Manager’s designee, to be received together with the payment of the City’s share of the advertising revenues, as negotiated pursuant to Section 4.3 throughout the Term. This monthly report shall be in a form which is acceptable to the City Manager’s designee, and in addition to any other reports which may be required under this Agreement.

5.3 Maintenance Reports Additionally, upon the request of the City Manager or designee, Concessionaire shall submit a quarterly (or at such greater intervals, i.e. semi-annually or annually, as requested by the City) a maintenance report reflecting routine maintenance performed on the Program Vessels.

5.3

Quarterly Performance Meeting.

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 quarter of the Term, Concessionaire shall meet with the City Manager

18

or his designee to review Concessionaire’s performance under the Agreement and the Program. At the meeting, Concessionaire and City may discuss quality, operational, maintenance, and any other issues regarding Concessionaire’s performance under the Agreement and the Program.

Commented [EL35]: Misha, I don’t see any customer feedback / survey instrument and corresponding reporting (this report could be quarterly).

5.4

Reporting Requirements.

A. Monthly Reports. Concessionaire shall maintain a daily log of the following information : 1. Schedule and trip completions 2. Number of tickets sold by trip and fare category 3. Ridership by sailing 4. Departures leaving more than 5 minutes after the scheduled departure time; average wait times; 5. Ridership demographics 6. Number of incidents 7. Survey data as to satisfaction of service

Commented [RM36R35]: Maybe add the number of complaints/incidents?

Commented [KK37]: Confirm monthly.

Commented [RM38R37]: Monthly is okay (maybe just add somewhere that City might request any report if needed. Especially in the begining I would need almost daily ridership reports

B. On a monthly basis, within ten (10) days from the end of each month, Concessionaire shall provide the City with a report containing the ridership for the Purdy Avenue Dock and Venetian Marina and confirmation of all marketing efforts in which Concessionaire has engaged to promote the Program, all in a form acceptable to the City Manager’s designee. Commented [KK39]: Suggest monthly-@misha to confirm

Commented [RM40R39]: Yes

C. Educational Materials. As part of its documentation for new members in the Program and for any users of this Program, Concessionaire agrees to provide the following educational materials, which will be provided by the City to Concessionaire:

1. Destination stops for the Program; 2. Routes for the City trolley system; 3. Locations of the City parking lots and garages; 4. Public bus stop routes within the City (to be provided by the City); and 5. Any other materials as may be requested by the City.

Commented [KK41]: Confirm this is still applicable

Commented [RM42R41]: It's okay for now. Maybe we will develop the brochure to have on board of the vessels

5.5 At the City’s request, the Concessionaire shall provide a real-time on-line data portal where all relevant data sources are housed, and the City’s Project Manager and staff can track pre-determined metrics. The Concessionaire shall be responsible for tracking and reporting data required in the foregoing Section 5.4. Contractor shall assign a project manager to coordinate with the City’s Project Manager and act as the point person for the Concessionaire in all communications with the City, who shall coordinate and participate in monthly meetings with the City’s Project Manager. The Contractor shall report to the City’s Project Manager and shall work closely with the City to ensure successful implementation and service improvements throughout the Term of the Agreement.

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SECTION 6. INSPECTION AND AUDIT.

Concessionaire shall maintain its financial records pertaining to its operations at the Purdy Avenue Dock throughout the Term of the Agreement and for a period of three (3) years after the expiration or other termination of this Agreement, and such records shall be open and available to the City Manager or his designee, as deemed necessary by them. Concessionaire shall maintain all such records at its principal office, currently located at 244 Biscayne Boulevard, No. 2708-N, Miami, Florida 33132, or, if moved to another location, all such records shall be relocated, at Concessionaire’s expense, to a location in Miami Beach, within ten (10) days' notice (written or verbal) from the City.

The City shall be responsible for paying all costs associated with such audits, unless the audit(s) reveals a deficiency of five (5%) percent or more in Concessionaire's statement of Gross Receipts for advertising revenues for any year or years audited, in which case Concessionaire shall pay to the City, within thirty (30) days of the audit being deemed final by the City, the cost of the audit and a sum equal to the amount of the deficiency revealed by the audit, plus interest. These audits are in addition to periodic audits by the City of Resort Tax collections and payments, which are performed separately. Nothing contained within this section shall preclude the City’s audit rights for Resort Tax collection purposes.

SECTION 7. TAXES, ASSESSMENTS, LICENSES.

7.1

Taxes. Concessionaire agrees and shall pay before delinquency all taxes (including but not limited to Resort Taxes) and assessments of any kind levied or assessed upon a Concession Area or the Venetian Dockand/or on Concessionaire by reason of this Agreement, or by reason of Concessionaire’s business and/or operations within a Concession Area or the Venetian Dock. Concessionaire will have the right, at its own expense, to contest the amount or validity, in whole or in part, of any tax by appropriate proceedings diligently conducted in good faith. Concessionaire may refrain from paying a tax to the extent it is contesting the imposition of same in a manner that is in accordance with law. However, if, as a result of such contest, additional delinquency charges become due, Concessionaire shall be responsible for such delinquency charges, in addition to payment of the contested tax, if so ordered.

7.2

Procedure If Ad Valorem Taxes Assessed. If ad valorem taxes are assessed against the Concession Area (or any portion thereof) or the Venetian Dock by reason of Concessionaire’s business and/or operations thereon, Concessionaire shall be solely responsible for prompt and timely payment of same.

7.3

Licenses. Concessionaire shall also be solely responsible (at its sole cost and expense) for obtaining and maintaining current any applicable licenses or permits, as required for the operations contemplated in this Agreement including, without limitation, any occupational licenses required by law for the proposed uses contemplated in Section 3; the U.S. Coast Guard licenses for captains and the Certificates of Inspection for the vessels; the State of Florida license; the Department of Environmental Resources Management (DERM) Marine Operational Permit, and any applicable City licenses.

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SECTION 8. EMPLOYEES AND INDEPENDENT CONTRACTORS.

8.1

Concessionaire’s Employees.

8.1.1

Concessionaire shall select, train and employ such number of employees or contractors as is necessary or appropriate for Concessionaire to satisfy its responsibilities hereunder. Concessionaire shall have the sole authority to hire, terminate and discipline any and all personnel employed by Concessionaire.

8.1.2

Concessionaire shall designate a competent full-time employee to oversee the day-to-day operations, and who shall act as the contract administrator for the Program and serve as Concessionaire’s primary point-person with the City. This individual shall have the requisite amount of experience in operating, managing, and maintaining the Program as contemplated herein. The employee shall be accessible to the City Manager or his designee at all times during normal business hours to discuss the management, operation and maintenance of the Program, and during non-business hours in the event of emergency. Consistent failure by the employee to be accessible shall be reported to Concessionaire’s principal(s), and if not rectified, shall be grounds for replacement of the employee. Concessionaire’s employees and/or contractors shall wear identification badges and uniforms approved by the City Manager or his designee, during all hours of operation when such employee or contractor is acting within the scope of such employment or such contractor relationship. All employees and/or contractors shall observe all the graces of personal grooming. The Concessionaire shall hire people to work in its operation who are neat, clean, well groomed, and who shall comport themselves in a professional and courteous manner. The Concessionaire and any persons hired or otherwise retained by Concessionaire, shall never have been convicted of a felony.

8.1.3

Personnel Background Checks. Concessionaire shall comply with the requirements of Section 435.04, Florida Statutes (“Section 435.04”) and ensure that only those employees who have successfully passed the background screening required by Section 435.04, and who meet the standards established by Section 435.04, be allowed to perform Services under this Agreement (referred to herein as “Personnel”).

The Personnel shall undergo the aforestated background screening and a drug screening, as well as a credit history check for those positions that require the handling of money (collectively referred to herein as “Background Check Process”) prior to providing Services pursuant to this Agreement. The Background Check Process will be conducted by Concessionaire at Concessionaire’s sole cost. Concessionaire will also bear the cost of any fees imposed by the Florida Department of Law Enforcement to maintain the records related to the background screening provided with the respect to Concessionaire and its Personnel.

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Concessionaire will provide the City Manager’s designee with the results of background checks of each Personnel. Employment shall be contingent upon satisfactory results, as determined by the City, in writing. The Personnel shall not be permitted to perform Services under this Agreement until such time as the Background Check Process has been completed and the Personnel cleared by the City to perform duties under this Agreement. If any Personnel is away from the job for a period of 45 or more days, a new Background Check Process shall be performed.

The City and Concessionaire agree and acknowledge that the failure of Concessionaire to perform any of the duties described in this subsection shall constitute a material breach of this Agreement, for which the City reserves the right to terminate immediately and without further liability to the City. Concessionaire agrees to indemnify and hold harmless the City, its officers and employees of any liability in the form of physical or mental injury, death or property damage resulting in Concessionaire’s failure to comply with the requirements of this Subsection or Section 435.04.

Concessionaire agrees to require all of its Personnel to notify the Concessionaire and the City of any arrest(s) or conviction(s) of any offense within 24 hours of its occurrence. Concessionaire further agrees to immediately notify the City upon becoming aware that one of its Personnel, who was previously certified as completing the Background Check Process, is subsequently arrested or convicted of any disqualifying offense. Failure by Concessionaire to notify the City of such arrest or conviction within 24 hours of being put on notice shall constitute a material breach of this Agreement entitling the City to terminate this Agreement immediately, without further liability to the City.

8.2

Cost Adjustments; Living Wage Requirement.

8.2.1 Cost Adjustments. Commencing on or before June 1 st following the first full Contract Year, and on or before each June 1 st of each Contract Year thereafter, Concessionaire may request a cost adjustment to its compensation, to be effective during the upcoming fiscal year (October 1 st through September 30 th ) based on the lesser of 3% or the annual increase in the Consumer Price Index for ____________(“CPI”), on a non-cumulative basis, utilizing the prior Contract Year’s CPI index for the month of January as the base year, as compared to the CPI index for the month of January for the current Contract Year of adjustment. The Concessionaire’s request shall include sufficient detail to substantiate the requested cost adjustment. Concessionaire’s failure to submit its cost adjustment request may result in the City’s automatic

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rejection of said request. The City, in the City Manager’s sole discretion, reserves the right to approve or deny a requested cost adjustment. Prior to informing the Concessionaire of its decision, the City may request additional information or documentation from the Concessionaire. All approved cost adjustments shall be implemented in the upcoming fiscal year, as any cost adjustment approved by the City Manager will be subject to approval by the City Commission during the City’s budgetary process and memorialized in an amendment to Exhibit “6”, executed by the City and Concessionaire.

8.2.2 Pursuant to Sections 2-407 thru 2-410 of the Miami Beach City Code ("Living Wage Ordinance"), as the same may be amended from time to time, Concessionaire shall be required to pay all employees who provide services pursuant to this Agreement, the hourly living wage rates listed below:  $13.01 per hour with health benefits; or $16.46 per hour without benefits. The living wage rate and health care benefits rate may, by Resolution of the City Commission, be indexed annually for inflation using the Consumer Price Index for all Urban Consumers (CPI-U) Miami/Ft. Lauderdale, issued by the U.S. Department of Labor's Bureau of Labor Statistics, in which case Concessionaire shall be required to pay its employees such adjusted Living Wage rate under this Agreement. Notwithstanding the preceding, no annual index shall exceed three percent (3%). The City may also, by resolution, elect not to index the living wage rate in any particular year, if it determines it would not be fiscally sound to implement same (in a particular year).

Concessionaire's failure to comply with this provision shall be deemed a material breach under this Agreement, entitling the City to terminate this Agreement immediately, without further liability to the City, and/or may further subject Concessionaire to additional penalties and fines, as provided in the City's Living Wage Ordinance, as amended. Any payroll request made by the City during the Term shall be submitted electronically via the City’s electronic compliance portal, LCP Tracker (LCPTracker.net).

8.3

City Manager’s designee. Except for those responsibilities expressly set forth in this Agreement for, respectively, the City Commission and/or the City Manager, the City Manager’s designee for this Agreement shall serve as the administrator of this Agreement for the City. The City Manager’s designee shall be the City’s Department of Transportation Operations Supervisor or Department of Transportation Director. The City Manager’s Designee will designate a contract manager (“City’s Project Manager”) to be the day to day representative and point person for this Agreement.

SECTION 9. IMPROVEMENTS, MAINTENANCE, REPAIR, and OPERATION

The Concessionaire accepts the use of any and all Concession Area provided in this Agreement "AS IS," "WHERE IS," and "WITH ALL FAULTS," existing as of the Effective Date.

Commented [KK43]: Maurice Gibs ADA access will require ramp to bridge 2 ft freeboard discrepancy. Agreement to identify who is paying for and making sure that happens.

9.1

Improvements.

Concessionaire shall not install any improvements in the Concession Area without the City Manager’s written approval, which approval, if provided at all, shall be at the City Manager’s sole discretion. Concessionaire shall be solely responsible (including cost) and shall pay for the design, fabrication, construction, and installation of any and all approved

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Concession Area Improvements (as approved pursuant to Subsection 2.1), which may be required to operate the Program.

9.2

Maintenance/Repair.

The Concessionaire shall maintain, at its sole cost and expense, the Concession Area Improvements within the Concession Area and any equipment thereon (as required to operate the Program), as well as the Program Vessels. The City shall maintain the Purdy Avenue Dock to address normal wear and tear of the dock; however, Concessionaire shall be responsible for reimbursing the City for any costs related to the maintenance and repair cost related to the operation of the Program at the Purdy Avenue Dock, including any damage which may be caused by the Concessionaire, its employees, contractors, agents or invitees. Any such maintenance and repairs shall be performed by the City, as deemed appropriate by the City Manager, in the City Manager’s sole discretion, and Concessionaire shall reimburse the City within ten (10) days after rendition of a bill or statement.

Concessionaire shall be solely responsible for the day-to-day operation, and shall maintain any equipment on the Concession Area and all Program Vessels in good working order and condition. Concessionaire shall keep the Program Vessels free of graffiti. No repairs to the Program Vessels may be made on-site. Any Program Vessel needing maintenance shall be removed from circulation and serviced at Concessionaire's repair center. Program Vessels cannot be stored at the Purdy Avenue Dock.

All damage of any kind to the Concession Area Improvement or the Program Vessels shall be the sole obligation of Concessionaire, and shall be repaired, restored or replaced promptly by Concessionaire, at its sole cost and expense, to the reasonable satisfaction of the City Manager or his designee. In the event any Program Vessel is damaged or non- operational for any reason, Concessionaire shall replace the non-operational Program Vessel within four (4) hours so that the Program is fully operational no later than four (4) hours from the time Concessionaire first becomes aware (or should be aware) that the Program Vessel is not operational.

All of the aforesaid repairs, restorations and replacements shall be in quality and class equal to or better than the original work (or equipment) and shall be done in good and workmanlike manner.

If Concessionaire fails to make such repairs, restorations and/or replacements to the Concession Area Improvements or the Program Vessels, the same may be made by the City, at the City's sole option and discretion; however, the City shall not have an obligation to do so. Concessionaire shall be responsible for any costs associated therewith, and shall reimburse the City within ten (10) days after rendition of a bill or statement.

It shall be Concessionaire's sole obligation to ensure that any renovations, repairs and/or improvements made by Concessionaire to the Concession Area Improvements or Program Vessels complies with all applicable building codes and life safety codes of governmental authorities having jurisdiction.

Concessionaire agrees, also at its sole cost and expense, to pay for all garbage disposal generated by its operations.

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Commented [KK44]: confirm

Commented [RM45R44]: Yes, either keep it here or in 3.1.4. Here is fine :)

Commented [GT46R44]: Is it 2 hours or 4. Please make it consistent

9.3

Orderly 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, including any equipment thereon, and the Program Vessels.

The Concessionaire shall make available for examination by the City, at any time requested by the City Manager or his designee, the Concession Area Improvements or any Program Vessel.

9.4

No Dangerous Materials.

The Concessionaire agrees not to use or permit the storage and/or use of gasoline, fuel oils, diesel, illuminating oils, oil lamps, combustible powered electricity producing generators, turpentine, benzene, naphtha, propane, natural gas, or other similar substances, combustible materials, or explosives of any kind, or any substance or thing prohibited in the standard policies of fire insurance companies in the State of Florida, on or within the Concession Area or on any City property and/or right of way.

Concessionaire shall indemnify and hold City harmless from any loss, damage, cost, or expense of the City, including, without limitation, reasonable attorney’s fees, incurred as a result of, arising from, or connected with the placement by Concessionaire of any “hazardous substance” or “petroleum products” on, under, in or upon the Concession Area as those terms are defined by applicable Federal and State Statute, or any environmental rules and environmental regulations promulgated thereunder; provided, however, Concessionaire shall have no liability in the event of the willful misconduct or gross negligence of the City, its agents, servants or employees. The provisions of this Subsection 9.4 shall survive the termination or earlier expiration of this Agreement.

9.5

Security.

The Concessionaire shall be responsible, at its sole option, to employ or provide reasonable security measures, as it may deem necessary to protect the Concession Area and any equipment thereon. Under no circumstances shall the City be responsible for any stolen or damaged equipment, nor shall City be responsible for any stolen or damaged personal property of Concessionaire's employees, contractors, agents, patrons, guests, invitees, and/or other third parties.

Concessionaire shall not employ any recorded video surveillance without the prior written approval of the City Manager.

9.6

Inspection.

The Concessionaire agrees that any Concession Area (including, without limitation, any equipment thereon) and any Program Vessel may be inspected at any time by the City Manager or his designee, or by any other municipal, County, State officer, or officers of

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any other agency(ies) having responsibility and/or jurisdiction for inspections of such operations. The Concessionaire hereby waives all claims against the City for compensation for loss or damage sustained by reason of any interference with the concession operation as a result of inspection by any public agency(ies) or officials, (including, without limitation, by reason of any such public agency or official in enforcing any laws, ordinances, or regulations as a result thereof). Any such interference shall not relieve the Concessionaire from any obligation hereunder.

SECTION 10. INSURANCE.

10.1

Without limiting its liability under this Agreement, Concessionaire shall, at all times during the Term of this Agreement, procure and maintain, at its sole expense (and Concessionaire shall require its Concessionaire, subcontractors, laborers, materialmen and suppliers to provide, as applicable), insurance of the types and in the minimum amounts stated below, and provide a certificate with applicable endorsements on a form that is acceptable to the City’s Division of Insurance and Risk Management evidencing the following required coverages to the City (including coverage of all Program Vessels which shall be used by Concessionaire to operate the Program):

1.

This insurance shall cover the Concessionaire (and to the extent its subcontractors and sub-contractors are not otherwise insured, its subcontractors and sub-contractors) for those sources of liability which would be covered by the latest edition of the standard Workers’ Compensation policy, as filed for use in the State of Florida by the National Council on Compensation Insurance (NCCI), without any restrictive endorsements other than the Florida Employers Liability Coverage Endorsement (NCCI Form WC 09 03), those which are required by the State of Florida, or any restrictive NCCI endorsements which, under an NCCI filing, must be attached to the policy (i.e., mandatory endorsements). In addition to coverage for the Florida Workers’ Compensation Act, where appropriate, coverage is to be included for the Federal Employers’ Liability Act, USL&H and Jones Act, to extent coverage is not provided by the Protection and Indemnity policy and any other applicable federal or state law.

A.

Worker’s Compensation Insurance for all employees of the vendor as required by Florida Statute 440, and Employer Liability Insurance for bodily injury or disease. Should the Vendor be exempt from this Statute, the Vendor and each employee shall hold the City harmless from any injury incurred during performance of the Contract. The exempt Vendor shall also submit (i) a written statement detailing the number of employees and that they are not required to carry Workers’ Compensation insurance and do not anticipate hiring any additional employees during the term of this contract or (ii) a copy of a Certificate of Exemption.

B.

Garage Keepers Legal Liability Insurance on an occurrence basis, including products and completed operations, contractual liability, property damage, bodily injury and personal & advertising injury for vehicles while in the Contractor’s care, custody and control with limits no less than $1,000,000 per occurrence, and $2,000,000 general aggregate.

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C.

Marine Contractors Liability Insurance on an occurrence basis, including products and completed operations, property damage, contractual liability, bodily injury and personal & advertising injury with limits no less than $1,000,000 per occurrence.

D.

Contractors’ Pollution Legal Liability (if project involves environmental hazards), with limits no less than $1,000,000 per occurrence or claim, and $2,000,000 policy aggregate.

E.

Liquor Liability Insurance on an occurrence basis, including property damage, bodily injury and personal & advertising injury with limits no less than $1,000,000 per occurrence. (Required, if necessary.)

Additional Insured - City of Miami Beach must be included by endorsement as an additional insured with respect to all liability policies (except Professional Liability and Workers’ Compensation) arising out of work or operations performed on behalf of the contractor including materials, parts, or equipment furnished in connection with such work or operations and automobiles owned, leased, hired or borrowed in the form of an endorsement to the contractor’s insurance.

Notice of Cancellation - Each insurance policy required above shall provide that coverage shall not be cancelled, except with notice to the City of Miami Beach c/o EXIGIS Insurance Compliance Services.

Waiver of Subrogation – Vendor agrees to obtain any endorsement that may be necessary to affect the waiver of subrogation on the coverages required. However, this provision applies regardless of whether the City has received a waiver of subrogation endorsement from the insurer.

Acceptability of Insurers – Insurance must be placed with insurers with a current A.M. Best rating of A:VII or higher. If not rated, exceptions may be made for members of the Florida Insurance Funds (i.e. FWCIGA, FAJUA). Carriers may also be considered if they are licensed and authorized to do insurance business in the State of Florida.

Verification of Coverage – Contractor shall furnish the City with original certificates and amendatory endorsements, or copies of the applicable insurance language, effecting coverage required by this contract. All certificates and endorsements are to be received and approved by the City before work commences. However, failure to obtain the required documents prior to the work beginning shall not waive the Contractor’s obligation to provide them. The City reserves the right to require complete, certified copies of all required insurance policies, including endorsements, required by these specifications, at any time.

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CERTIFICATE HOLDER MUST READ: City of Miami Beach c/o Exigis Insurance Compliance Services P.O. Box 947 Murrieta, CA 92564

Kindly submit all certificates of insurance, endorsements, exemption letters to our servicing agent, EXIGIS, at:

Certificates-miamibeach@riskworks.com

Special Risks or Circumstances - The City of Miami Beach reserves the right to modify these requirements, including limits, based on the nature of the risk, prior experience, insurer, coverage, or other special circumstances.

Compliance with the foregoing requirements shall not relieve the vendor of his liability and obligation under this section or under any other section of this agreement.

SECTION 11. INDEMNITY.

11.1

In consideration of a separate and specific consideration of Ten ($10.00) Dollars and other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, Concessionaire shall indemnify, hold harmless and defend the City, its officials, directors, employees, contractors, agents, and servants from and against any and all actions (whether at law or inequity), claims, liabilities, losses, and expenses, including, but not limited to, attorneys’ fees and costs, for personal, economic or bodily injury, wrongful death, loss of or damage to property, which may arise or be alleged to have arisen from: (1) wholly or in part from the negligent acts, errors, omissions or other misconduct of Concessionaire, its officers, director, members, employees, agents, contractors, subcontractors, or any other person or entity acting under Concessionaire’s control or supervision; (2) Concessionaire’s breach of the terms of this Agreement or its representations and warranties herein; (3) the operation of the Program; or (4) the use of the Concession Area, the Concession Area Improvements, the Venetian Dock or the Program Vessels by the City, its employees, guests, (licensees or invitees) or the general public. To that extent, Concessionaire shall pay all such claims and losses and shall pay all such costs and judgments which may issue from any lawsuit arising from such claims and losses, and shall pay all costs and attorneys’ fees expended by the City in the defense of such claims and losses, including appeals.

11.2

In addition, in consideration of a separate and specific consideration of Ten and 00/100 ($10.00) Dollars and other good and valuable consideration the receipt and sufficiency of which are hereby acknowledged, Concessionaire shall indemnify, hold harmless and defend the City, its officials, directors, employees, contractors, agents, and servants from and against any claim, demand or cause of action of whatever kind or nature arising out

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of any misconduct of Concessionaire, its officials, directors, employees, contractors, agents, and servants not included in the paragraph in the subsection above and for which the City, its officials, directors, employees, contractors, agents, and servants are alleged to be liable.

11.3

Subsections 11.1 and 11.2 shall survive the termination or expiration of this Agreement. Subsections 11.1 and 11.2 shall not apply, however, to any such liability that arises as a result of the willful misconduct or gross negligence of the City.

SECTION 12. FORCE MAJEURE.

12.1

A “Force Majeure” event is an event that (i) in fact causes a delay in the performance of the Concessionaire or the City’s obligations under the Agreement, and (ii) is beyond the reasonable control of such party unable to perform the obligation, and (iii) is not due to an intentional act, error, omission, or negligence of such party, and (iv) could not have reasonably been foreseen and prepared for by such party at any time prior to the occurrence of the event. Subject to the foregoing criteria, Force Majeure may include events such as war, civil insurrection, riot, fires, epidemics, pandemics, terrorism, sabotage, explosions, embargo restrictions, quarantine restrictions, transportation accidents, strikes, strong hurricanes or tornadoes, earthquakes, or other acts of God which prevent performance. Force Majeure shall not include technological impossibility, inclement weather, or failure to secure any of the required permits pursuant to the Agreement.

12.2

If the City or Concessionaire’s performance of its contractual obligations is prevented or delayed by an event believed by to be Force Majeure, such party shall immediately, upon learning of the occurrence of the event or of the commencement of any such delay, but in any case within fifteen (15) business days thereof, provide notice: (i) of the occurrence of event of Force Majeure, (ii) of the nature of the event and the cause thereof, (iii) of the anticipated impact on the Agreement, (iv) of the anticipated period of the delay, and (v) of what course of action such party plans to take in order to mitigate the detrimental effects of the event. The timely delivery of the notice of the occurrence of a Force Majeure event is a condition precedent to allowance of any relief pursuant to this section; however, receipt of such notice shall not constitute acceptance that the event claimed to be a Force Majeure event is in fact Force Majeure, and the burden of proof of the occurrence of a Force Majeure event shall be on the requesting party.

12.3

No party hereto shall be liable for its failure to carry out its obligations under the Agreement during a period when such party is rendered unable, in whole or in part, by Force Majeure to carry out such obligations. The suspension of any of the obligations under this Agreement due to a Force Majeure event shall be of no greater scope and no longer duration than is required. The party shall use its reasonable best efforts to continue to perform its obligations hereunder to the extent such obligations are not affected or are only partially affected by the Force Majeure event, and to correct or cure the event or condition excusing performance and otherwise to remedy its inability to perform to the extent its inability to perform is the direct result of the Force Majeure event with all reasonable dispatch.

12.4

Obligations pursuant to the Agreement that arose before the occurrence of a Force Majeure event, causing the suspension of performance, shall not be excused as a result

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of such occurrence unless such occurrence makes such performance not reasonably possible. The obligation to pay money in a timely manner for obligations and liabilities which matured prior to the occurrence of a Force Majeure event shall not be subject to the Force Majeure provisions.

12.5

Notwithstanding any other provision to the contrary herein, in the event of a Force Majeure occurrence, the City may, at the sole discretion of the City Manager, suspend the City’s payment obligations under the Agreement, and may take such action without regard to the notice requirements herein. Additionally, in the event that an event of Force Majeure delays a party’s performance under the Agreement for a time period greater than thirty (30) days, the City may, at the sole discretion of the City Manager, terminate the Agreement on a given date, by giving written notice to Concessionaire of such termination. If the Agreement is terminated pursuant to this section, Concessionaire shall be paid for any Services satisfactorily performed up to the date of termination; following which the City shall be discharged from any and all liabilities, duties, and terms arising out of, or by virtue of, this Agreement. In no event will any condition of Force Majeure extend this Agreement beyond its stated term.

12.6

Waiver of Loss from Hazards.

The Concessionaire hereby expressly waives all claims against the City for loss or damage sustained by the Concessionaire resulting from any Force Majeure contemplated in Section 12 or any other interruption of the operation of the Program, including, without limitation, any City maintenance or construction activity at the Park, 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 13.4 shall constitute events of default under this Agreement. An event of default by Concessionaire shall entitle the City to exercise any and all remedies described as City’s remedies under this Agreement, including but not limited to those set forth in Subsection 13.5.

13.1

Bankruptcy.

If either the City or Concessionaire shall be adjudged bankrupt or insolvent, or if any receiver or trustee of all or any part of the business property of either party shall be appointed, or if any receiver of all or any part of the business property shall be appointed and shall not be discharged within sixty (60) days after appointment, or if either party shall make an assignment of its property for the benefit of creditors, or shall file a voluntary petition in bankruptcy, or insolvency, or shall apply for reorganization or arrangement with its creditors under the bankruptcy or insolvency laws now in force or hereinafter enacted, Federal, State, or otherwise, or if such petitions shall be filed against either party and shall not be dismissed within sixty (60) days after such filing, then the other party may immediately, or at any time thereafter, and without further demand or notice, terminate this

30

Agreement without being prejudiced as to any remedies which may be available to it for breach of contract.

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 One Hundred and Fifty ($150.00) Dollars per day for such late payment, in addition to interest at the highest rate allowable by law. If any payment and accumulated penalties are not received within ten (10) days after the payment due date, and such failure continues for ten (10) days after written notice thereof, then the City may, without further demand or notice, terminate this Concession Agreement without being prejudiced as to any remedies which may be available to it for breach of contract.

13.3

Non-Monetary Default.

Unless otherwise set forth in this Agreement, in the event that Concessionaire or the City fails to reasonably perform or observe the non-monetary covenants, terms or provisions under this Agreement, and such failure continues ten (10) days after written notice thereof from the other party hereto, such non-defaulting party may immediately or at any time thereafter, and without further demand or notice, terminate this Agreement without being prejudiced as to any remedies which may be available to it hereunder. 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 thirty (30) days from the date of written notice thereof. In the event Concessionaire cures any default pursuant to this Subsection, it shall promptly provide the City Manager with written notice of same.

13.4

The failure of the Concession Area to be operational for a period of time exceeding Two (2) continuous days shall constitute a material default under this Agreement, and no cure period shall apply.

13.5

City's Remedies for Concessionaire's Default.

If any of the events of default, as set forth in this Section, shall occur, the City may, after expiration of the cure periods, as provided above, at its sole option and discretion, institute such proceedings as in its opinion are necessary to cure such defaults and to compensate City for damages resulting from such defaults, including but not limited to the right to give to Concessionaire a notice of termination of this Agreement. If such notice is given, the term of this Agreement shall terminate upon the date specified in such notice from City to Concessionaire. On the date so specified, Concessionaire shall then quit and surrender the Concession Area(s) to City pursuant to the provisions of Subsection 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.

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In addition to the rights set forth above, the City shall have the rights to pursue any and all of the following:

a. the right to injunction or other similar relief available to it under Florida law against Concessionaire; and or

b. the right to maintain any and all actions at law or suits in equity or other proper proceedings to obtain damages resulting from Concessionaire's default.

13.6

If an event of default by the City shall occur, the Concessionaire may, after expiration of the cure periods, as provided above, terminate this Agreement upon written notice to the City. Said termination shall become effective upon receipt of a written notice of termination by the City, but in no event shall Concessionaire specify a termination date that is less than sixty (60) days from the date of the written termination notice. On the date specified in the notice, Concessionaire shall quit and surrender the Concession Area(s) to City pursuant to the provisions of Subsection 13.7.

13.7 Surrender of Concession Area / Removal by Concessionaire of Equipment/Improvements.

Upon expiration, or earlier termination of this Agreement, Concessionaire shall surrender the Concession Area in the same condition as the Concession Area was prior to the Commencement Date, reasonable wear and tear excepted. Concessionaire shall, at its sole expense and at no charge to the City, remove all equipment from the Concession Area, (as well as any Concession Area Improvements) no later than thirty (30) days after the conclusion of the Term, (or from the date of other termination of this Agreement) unless a longer time period is agreed to, in writing, by the City Manager).

Concessionaire’s obligation to observe or perform this covenant shall survive the expiration or other termination of this Agreement. Continued occupancy of any Concession Area 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 ($1,000.00) Dollars per day per Concession Area as liquidated damages for such trespass and holding over.

13.8

Substitute Performance.

In the event that the Concessionaire fails to properly perform the removal of any equipment and restoration of the Concession Area to their original condition in accordance with the terms of the Agreement, then the City shall have the right to undertake and/or purchase, as the City Manager deems appropriate, any such supplies, materials, services, etc., covered herein and to charge Concessionaire for all actual costs thereby incurred by the City. Concessionaire shall be responsible for paying all of said costs.

13.9

Termination for Convenience of the City.

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THE CITY MAY ALSO, THROUGH ITS CITY MANAGER, AND FOR ITS CONVENIENCE AND WITHOUT CAUSE, TERMINATE THE AGREEMENT AT ANY TIME DURING THE TERM BY GIVING WRITTEN NOTICE TO CONCESSIONAIRE OF SUCH TERMINATION, WHICH SHALL BECOME EFFECTIVE WITHIN THIRTY (30) DAYS FOLLOWING RECEIPT BY THE CONCESSIONAIRE OF SUCH NOTICE, FOLLOWING WHICH THE CITY SHALL BE DISCHARGED FROM ANY AND ALL LIABILITIES, DUTIES, AND TERMS ARISING OUT OF, OR BY VIRTUE OF, THIS AGREEMENT.

13.10 City Manager Emergency Powers.

A. Notwithstanding anything to the contrary contained in this Agreement, and in addition to any other remedy which the City may have under this Agreement or pursuant to applicable law, if the performance by Concessionaire under this Agreement or the Program is creating a public health, welfare or safety concern, as determined by the City Manager, in the City Manager’s sole discretion, the City Manager may immediately suspend the performance of services under this Agreement, including the Program, until such time as the condition has been remedied to the satisfaction of the City Manager.

B. Removal of Concessionaire’s Property during Emergency Situations. The City Manager or his/her designee may direct or require the Concessionaire to immediately remove, relocate and/or store all or part of the Concession Area Improvements and/or Program Vessels (“Concessionaire’s Property”) for public safety considerations in emergency situations, including, without limitation, a threatened tropical storm or hurricane. Upon written and/or verbal notification by the City Manager of a tropical storm/hurricane warning or alert, or other major weather event that may adversely impact the City, or upon the designation by the United States National Weather Service or National Hurricane Center of a tropical storm/hurricane warning or alert, whichever occurs first, the Concessionaire shall, within no more than two hours of same, remove and store all of Concessionaire’s Property to secure Concessionaire’s Property in response to the threatened storm or other emergency, and shall take all other measures which may be necessary for the protection of the public with respect thereto. The notification by the City Manager of a hurricane or other major weather event, or the issuance of a hurricane warning, shall constitute a public emergency situation. The failure of the City to direct the Concessionaire to remove or safety store Concessionaire’s Property shall not relieve the Concessionaire of its obligation to remove and store Concessionaire’s Property in response to a threatened storm event as outlined herein.

Should Concessionaire fail to remove Concessionaire’s Property within said two (2) hour period, or in the event the City Manager or his/her designee determines, at his/her sole discretion, that Concessionaire’s removal, storage and other efforts are otherwise not satisfactory, Concessionaire shall thereafter be assessed a fee of $50.00 per hour, until such time as all of Concessionaire’s Property have been removed to the City Manager’s satisfaction. In addition, the City Manager, without any obligation to do so, may immediately proceed to remove, relocate, and/or store the Concessionaire’s Property that has otherwise not been removed by the Concessionaire, at the Concessionaire’s sole cost and expense, , with payment to the City for all such costs due within thirty (30) days of City’s invoice to Concessionaire.

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Concessionaire shall be solely responsible for any damage to City property or other property resulting from Concessionaire’s failure to remove and store Concessionaire’s property, or otherwise implement appropriate measures in response to a threatened storm or hurricane.

Concessionaire’s failure to comply with this Section shall constitute a default under this Agreement. The remedies identified herein for Concessionaire’s failure to comply with this Section are cumulative, and in addition to, all remedies that may be available to the City at law and in equity.

SECTION 14. PERFORMANCE BOND OR ALTERNATE SECURITY.

Intentionally Omitted.

SECTION 15. ASSIGNMENT.

Except as permitted pursuant to subsection 3.1.4.2.1 or 3.1.5.1, Concessionaire shall not assign all or any portion of its duties or obligations under this Agreement without the prior written consent of the City Commission, which consent shall be at the sole and absolute discretion of the City Commission. Concessionaire shall notify the City Manager of any proposed assignment, in writing, at least sixty (60) days prior to the proposed effective date of such assignment. In the event that any such assignment is approved by the City Commission, the assignee shall agree to be bound by all the covenants of this Agreement required of Concessionaire.

SECTION 16. SPONSORSHIPS.

16.1

The City reserves unto itself all present and future rights to negotiate all forms of endorsement and/or sponsorship agreements based on the marketing value of any City trademark, property, brand, logo and/or reputation. Any and all benefits derived from an endorsement and/or sponsorship agreement based on the marketing value of a City trademark property, brand, logo and/or reputation, shall belong exclusively to the City. Concessionaire shall be specifically prohibited from entering into, or otherwise creating any, sponsorships and/or endorsements with third parties which are based solely or in any part on the marketing value of a City trademark, property, brand, logo and/or reputation.

It is further acknowledged that the name, likeness, equipment, concepts, logos, designs and other intellectual property rights of Concessionaire shall remain in the exclusive possession and control of Concessionaire at all times; provided, however, that Concessionaire hereby grants City a license to use any Concessionaire trademark, brand, and/or logo, for purposes of the City’s promotion of the Program and including, without limitation, the right to use such trademarks, brand, and/or logo in all media (for such public marketing purposes) whether now existing or as may exist in the future.

SECTION 17. NO IMPROPER USE.

The Concessionaire will not use, nor suffer or permit any person to use in any manner whatsoever, any Concession Area or improvements on equipment thereon, for any illegal, improper, immoral or offensive purpose, or for any other purpose in violation of any Federal, State, County, or municipal ordinance, rule, order or regulation, or of any governmental rule or regulation now in effect or hereafter enacted or adopted.

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The Concessionaire will protect, indemnify, and forever save and keep harmless the City, its officials, employees, contractors, and agents from and against damage, penalty, fine, judgment, expense or charge suffered, imposed, assessed or incurred for any violation, or breach of any law, ordinance, rule, order or regulation occasioned by any act, neglect or omission of the Concessionaire, or any official, director, agent, contractor, or servant regarding the concession. In the event of any violation by the Concessionaire, or if the City or its authorized representative shall deem any conduct on the part of the Concessionaire to be objectionable or improper, the City shall have the right to suspend concession operation should the Concessionaire fail to correct any such violation, conduct, or practice to the satisfaction of the City Manager or his designee within twenty-four (24) hours following written notice of the nature and extent of such violation, conduct, or practice. Such suspension to continue until the violation is cured to the satisfaction from the City Manager or his designee.

SECTION 18. NOTICES.

All notices from the City to the Concessionaire shall be deemed duly served upon receipt, if mailed by registered or certified mail return receipt to the Concessionaire at the following address:

All notices from the Concessionaire to the City shall be deemed duly served upon receipt, if mailed by registered or certified mail return receipt requested to the City of Miami Beach at the following addresses:

City of Miami Beach 1700 Convention Center Drive Miami Beach, FL 33139 Attn: Transportation Department Director

With copy to:

City of Miami Beach 1700 Convention Center Drive Miami Beach, FL 33139 Attn: City Manager

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.

Any notifications to the City or Concessionaire relating to operational issues may be sent to the following e-mail addresses; however, the parties may change the e-mail addresses at any time upon giving the other party written notification:

To Concessionaire: E-mail: To the City: E-mail: josegonzalez@miamibeachfl.gov

SECTION 19. LAWS.

19.1

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.

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19.2

Governing Law.

This Agreement shall be governed by and construed in accordance with the laws of the State of Florida.

19.3

Equal Employment Opportunity.

Neither Concessionaire nor any affiliate of Concessionaire performing services hereunder, or pursuant hereto, will discriminate against any employee or applicant for employment because of race, creed, sex, color, national origin, sexual orientation, and disability (as defined in Title I of ADA). Concessionaire will take affirmative steps to utilize minorities and females in the work force and in correlative business enterprises.

19.4

No Discrimination.

All operations and services offered in the Concession Area and the Venetian Dock shall be made available to the public, subject to the right of the Concessionaire and the City to establish and enforce reasonable rules and regulations to provide for the safety, orderly operation, and security of the Concession Area and improvements and equipment thereon and at the Venetian Dock.

Concessionaire hereby agrees to comply with the City of Miami Beach Human Rights Ordinance, codified in Chapter 62 of the City Code, as may be amended from time to time, prohibiting discrimination in employment (including independent contractors), housing, public accommodations, public services, and in connection with its membership or policies because of actual or perceived race, color, national origin, religion, sex, intersexuality, gender identity, sexual orientation, marital and familial status, age, disability, ancestry, height, weight, hair texture and/or hairstyle, domestic partner status, labor organization membership, familial situation, or political affiliation.

19.5 Accessibility and Assistance Obligations Americans with Disabilities Act of 1990 (ADA)

The Concessionaire shall comply with all applicable provisions of the Americans with Disabilities Act of 1990 as amended, and its implementing regulations, including Titles II and III, as they relate to public transportation and passenger vessels.

Compliance with Federal DOT Accessibility Regulations

The Concessionaire shall comply with all applicable requirements of the U.S. Department of Transportation regulations set forth in Title 49, Code of Federal Regulations (CFR), Subtitle A, Part 39, Subpart F, as amended. These obligations apply to all passenger ferry services operated under this Agreement.

Assistance to Passengers with Disabilities

A. The Concessionaire shall ensure that any passenger with a disability who can readily embark or disembark the vessel without assistance is permitted to do

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so without being required to accept assistance, unless such assistance is routinely provided to all passengers. B. For any passenger with a disability who cannot readily get on or off the vessel without assistance, the Concessionaire shall promptly provide appropriate assistance to ensure safe and effective boarding and disembarkation. C. The Concessionaire may use any available means of assistance to which the passenger consents, including but not limited to lifts, ramps, boarding chairs, or assistance by vessel personnel, consistent with 49 CFR §39.83(c).

Staff Training and Procedures

The Concessionaire shall maintain written procedures and provide periodic training to vessel personnel regarding:

A. Recognition of passengers who may require assistance; B. Safe and respectful methods for providing boarding and disembarkation assistance any available means to which the passenger consents (e.g., lifts, ramps, boarding chairs, assistance by vessel personnel).

Monitoring and Reporting

The Concessionaire shall cooperate with the City to monitor compliance with this provision. The Concessionaire shall promptly report any incident involving a failure or delay in providing assistance under this section and shall document corrective measures taken.

19.5

Florida Public Records Law.

19.5.1 Contractor shall comply with Florida Public Records law under Chapter 119, Florida Statutes, as may be amended from time to time. Records made or received in connection with this Agreement are public records under Florida law, as defined in Section 119.011(12), Florida Statutes.

19.5.2 Pursuant to Section 119.0701 of the Florida Statutes, if the Contractor meets the definition of “Contractor” as defined in Section 119.0701(1)(a), the Contractor shall:

(A)

Keep and maintain public records required by the City to perform the service;

(B)

Upon request from the City’s custodian of public records, provide the City with a copy of the requested records or allow the records to be inspected or copied within a reasonable time at a cost that does not exceed the cost provided in Chapter 119, Florida Statutes or as otherwise provided by law;

(C)

Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed, except as authorized by law, for the duration of the contract term and following completion of the Agreement if the Contractor does not transfer the records to the City;

(D)

Upon completion of the Agreement, transfer, at no cost to the City, all public records in possession of the Contractor or keep and maintain public records

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required by the City to perform the service. If the Contractor transfers all public records to the City upon completion of the Agreement, the Contractor shall destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. If the Contractor keeps and maintains public records upon completion of the Agreement, the Contractor shall meet all applicable requirements for retaining public records. All records stored electronically must be provided to the City, upon request from the City’s custodian of public records, in a format that is compatible with the information technology systems of the City.

19.5.3 Request for Records; Noncompliance.

19.5.4

(A)

A request to inspect or copy public records relating to the City’s contract for services must be made directly to the City. If the City does not possess the requested records, the City shall immediately notify the Contractor of the request, and the Contractor must provide the records to the City or allow the records to be inspected or copied within a reasonable time.

(B)

Contractor’s failure to comply with the City’s request for records shall constitute a breach of this Agreement, and the City, at its sole discretion, may: (1) unilaterally terminate the Agreement; (2) avail itself of the remedies set forth under the Agreement; and/or (3) avail itself of any available remedies at law or in equity.

(C)

A Contractor who fails to provide the public records to the City within a reasonable time may be subject to penalties under s. 119.10.

Civil Action.

(A)

If a civil action is filed against a Contractor to compel production of public records relating to the City’s contract for services, the court shall assess and award against the Contractor the reasonable costs of enforcement, including reasonable attorney fees, if:

1.

The court determines that the Contractor unlawfully refused to comply with the public records request within a reasonable time; and

2. At least 8 business days before filing the action, the plaintiff provided written notice of the public records request, including a statement that the Contractor has not complied with the request, to the City and to the Contractor.

(B)

A notice complies with subparagraph (1)(b) if it is sent to the City’s custodian of public records and to the Contractor at the Contractor’s address listed on its contract with the City or to the Contractor’s registered agent. Such notices must be sent by common carrier delivery service or by registered, Global Express Guaranteed, or certified mail, with postage or shipping paid by the sender and with evidence of delivery, which may be in an electronic format.

(C)

A Contractor who complies with a public records request within 8 business days after the notice is sent is not liable for the reasonable costs of enforcement.

19.5.5 IF

THE CONTRACTOR HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE

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CONTRACTOR’S DUTY TO PROVIDE PUBLIC RECORDS RELATING TO THIS AGREEMENT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS AT:

City OF MIAMI BEACH ATTENTION: RAFAEL E. GRANADO, City CLERK 1700 CONVENTION CENTER DRIVE MIAMI BEACH, FLORIDA 33139 E-MAIL: RAFAELGRANADO@MIAMIBEACHFL.GOV PHONE: 305-673-7411

19.6

E-VERIFY

(A)

To the extent that Concessionaire provides labor, supplies, or services under this Agreement, Concessionaire shall comply with Section 448.095, Florida Statutes, "Employment Eligibility" (“E-Verify Statute”), as may be amended from time to time. Pursuant to the E-Verify Statute, commencing on January 1, 2021, Concessionaire shall register with and use the E-Verify system to verify the work authorization status of all newly hired employees during the Term of the Agreement. Additionally, Concessionaire shall expressly require any subcontractor performing work or providing services pursuant to the Agreement to likewise utilize the U.S. Department of Homeland Security’s E-Verify system to verify the employment eligibility of all new employees hired by the subcontractor. If Concessionaire enters into a contract with an approved subcontractor, the subcontractor must provide the Concessionaire with an affidavit stating that the subcontractor does not employ, contract with, or subcontract with an unauthorized alien. Concessionaire shall maintain a copy of such affidavit for the duration of this Agreement or such other extended period as may be required under this Agreement.

(B)

TERMINATION RIGHTS.

(1)

If the City has a good faith belief that Concessionaire has knowingly violated Section 448.09(1), Florida Statutes, which prohibits any person from knowingly employing, hiring, recruiting, or referring an alien who is not duly authorized to work by the immigration laws or the Attorney General of the United States, the City shall terminate this Agreement with Concessionaire for cause, and the City shall thereafter have or owe no further obligation or liability to Concessionaire.

(2)

If the City has a good faith belief that a subcontractor has knowingly violated the foregoing Subsection 10.9(A), but the Concessionaire otherwise complied with such subsection, the City will promptly notify the Concessionaire and order the Concessionaire to immediately terminate the contract with the subcontractor. Concessionaire’s failure to terminate a subcontractor shall be an event of default under this Agreement, entitling City to terminate this Agreement for cause.

(3)

A contract terminated under the foregoing Subsection (B)(1) or (B)(2) is not in

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breach of contract and may not be considered as such.

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(4)

The City or Concessionaire or a subcontractor may file an action with the Circuit or County Court to challenge a termination under the foregoing Subsection (B)(1) or (B)(2) no later than 20 calendar days after the date on which the contract was terminated.

(5)

If the City terminates the Agreement with Concessionaire under the foregoing Subsection (B)(1), Concessionaire may not be awarded a public contract for at least 1 year after the date of termination of this Agreement.

(6)

Concessionaire is liable for any additional costs incurred by the City as a result of the termination of this Agreement under this Section.

19.7 Prohibitions Regarding Sale or Use of Expanded Polystyrene Food Service Articles, Single-Use Plastic Beverage Straws, and Single-Use Plastic Stirrers.

19.7.1 Concessionaire hereby agrees and acknowledges that, pursuant to Section 82-7 of the City Code, as may be amended from time to time, Concessionaire shall not sell, use, provide food in, or offer the use of expanded polystyrene food service articles (as defined in City Code Section 82-7) on City property, which includes the Program Vessel while on City waters and the Concession Area. A violation of this section shall be deemed a default under the terms of this Agreement. Notwithstanding the above, this section shall not apply to expanded polystyrene food service articles used for prepackaged food that have been filled and sealed prior to receipt by Concessionaire.

19.7.2 Additionally, Concessionaire agrees and acknowledges that, pursuant to Section 82-8 of the City Code, as may be amended from time to time, Concessionaire shall not sell, use, provide food in, or offer the use of single-use plastic beverage straws or single-use plastic stirrers (as defined in City Code Section 82-8) ) on City property, which includes the Program Vessel while on City waters and the Concession Area. A violation of this section shall be deemed a default under the terms of this Agreement. Notwithstanding the above, the requirements of Section 82-8 shall not restrict Concessionaire from providing a beverage with, or offering the use of, a single-use plastic beverage straw or single-use plastic stirrer to an individual with a disability or medical condition that impairs the consumption of beverages without a single-use plastic beverage straw or single-use plastic stirrer.

19.7.3 As additional consideration for this Agreement, separate and apart from the requirements of Sections 82-7 and 82-8 of the City Code, Concessionaire agrees:

a. not sell, use, provide food in, or offer the use of expanded polystyrene food service articles on the Concession Area, the Venetian Dock, or the Program Vessel. A violation of this section shall be deemed a default under the terms of this Agreement. Notwithstanding the above, this section shall not apply to expanded polystyrene food service articles used for prepackaged food that have been filled and sealed prior to receipt by Lessee; and

b. not sell, use, provide food in, or offer the use of single-use plastic beverage straws or single-use plastic stirrers on the Concession Area, the Venetian Dock, or the Program Vessel. A violation of this section shall be deemed a default under the terms of this

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Agreement. Notwithstanding the above, Lessee shall be permitted to providing a beverage with, or offering the use of, a single-use plastic beverage straw or single-use plastic stirrer to an individual with a disability or medical condition that impairs the consumption of beverages without a single-use plastic beverage straw or single-use plastic stirrer.

19.8

CONCESSIONAIRE’S COMPLIANCE WITH ANTI-HUMAN TRAFFICKING LAWS

Concessionaire agrees to comply with Section 787.06, Florida Statutes, as may be amended from time to time, and has executed the Anti-Human Trafficking Affidavit, containing the certification of compliance with anti-human trafficking laws, as required by Section 787.06(13), Florida Statutes, a copy of which is attached hereto as Exhibit 7.

19.9

PROHIBITION ON CONTRACTING WITH A BUSINESS ENGAGING IN A BOYCOTT

Concessionaire warrants and represents that it is not currently engaged in, and will not engage in, a boycott, as defined in Section 2-375 of the City Code. In accordance with Section 2- 375.1(2)(a) of the City Code, Concessionaire hereby certifies that Concessionaire is not currently engaged in, and for the duration of the Agreement, will not engage in a boycott of Israel.

19.10 PROHIBITION ON CONTRACTING WITH AN INDIVIDUAL OR ENTITY WHICH HAS PERFORMED SERVICES FOR COMPENSATION TO A CANDIDATE FOR CITY ELECTED OFFICE

Concessionaire warrants and represents that, within two (2) years prior to the Effective Date, Concessionaire has not received compensation for services performed for a candidate for City elected office, as contemplated by the prohibitions and exceptions of Section 2-379 of the City Code.

For the avoidance of doubt, the restrictions on contracting with the City pursuant to Section 2- 379 of the City Code shall not apply to the following:

(a) Any individual or entity that provides goods to a candidate for office. (b) Any individual or entity that provides services to a candidate for office if those same services are regularly performed by the individual or entity in the ordinary course of business for clients or customers other than candidates for office. This includes, without limitation, banks, telephone or internet service providers, printing companies, event venues, restaurants, caterers, transportation providers, and office supply vendors. (c) Any individual or entity which performs licensed professional services (including for example, legal or accounting services).

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19.11 PROHIBITION AGAINST CONTRACTING WITH FOREIGN COUNTRIES OF CONCERN WHEN AN INDIVIDUAL’S PERSONAL IDENTIFYING INFORMATION MAY BE ACCESSED [NOTE: ONLY INCLUDE IF APPLICABLE]

Concessionaire hereby agrees to comply with Section 287.138, Florida Statutes, as may be amended from time to time, which states that as of January 1, 2024, a governmental entity may not accept a bid on, a proposal for, or a reply to, or enter into, a contract with an entity which would grant the entity access to an individual’s personal identifying information (PII), unless the entity provides the governmental entity with an affidavit signed by an officer or representative of the entity under penalty of perjury attesting that the entity does not meet any of the criteria in Paragraphs 2(a)-(c) of Section 287.138, Florida Statutes: (a) the entity is owned by a government of a foreign country of concern; (b) the government of a foreign country of concern has a controlling interest in the entity; or (c) the entity is organized under the laws of or has its principal place of business in a foreign country of concern (each a “Prohibited Entity”). A foreign country of concern is defined in Section 287.138 (1)(c), Florida Statutes, as may be amended from time to time, as the People’s Republic of China, the Russian Federation, the Islamic Republic of Iran, the Democratic People’s Republic of Korea, the Republic of Cuba, the Venezuelan regime of Nicolas Maduro, or the Syrian Arab Republic, including any agency of or any other entity of significant control of such foreign country of concern. Additionally, beginning July 1, 2025, a governmental entity may not extend or renew a contract with a Prohibited Entity. Concessionaire warrants and represents that it does not fall within the definition of a Prohibited Entity, and as such, has caused an authorized representative of Concessionaire to execute the “Prohibition Against Contracting with Entities of Foreign Countries of Concern Affidavit”, incorporated herein by reference and attached hereto as Exhibit 8.

SECTION 20. MISCELLANEOUS.

20.1

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.

20.2

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.

20.3

Complete Agreement.

This Agreement, together with all exhibits incorporated hereto, constitutes all the

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understandings and Agreements of whatsoever nature or kind existing between the parties with respect to Concessionaire's operations, as contemplated herein.

20.4

Headings.

The section, subsection and paragraph headings contained herein are for convenience of reference only and are not intended to define, limit, or describe the scope or intent of any provision of this Agreement.

20.5

Binding Effect.

This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.

20.6

Clauses.

The illegality or invalidity of any term or any clause of this Agreement shall not affect the validity of the remainder of the Agreement, and the Agreement shall remain in full force and effect as if such illegal or invalid term or clause were not contained herein unless the elimination of such provision detrimentally reduces the consideration that either party is to receive under this Agreement or materially affects the continuing operation of this Agreement.

20.7

Severability.

If any provision of this Agreement or any portion of such provision or the application thereof to any person or circumstance shall be held to be invalid or unenforceable, or shall become a violation of any local, State, or Federal laws, then the same as so applied shall no longer be a part of this Agreement but the remainder of the Agreement, such provisions and the application thereof to other persons or circumstances, shall not be affected thereby and this Agreement as so modified shall.

20.8

Right of Entry.

The City, at the direction of the City Manager, shall at all times during hours of operation, have the right to enter into and upon any and all parts of the Concession Area(s) for the purposes of examining the same for any reason relating to the obligations of parties to this Agreement.

20.9

Not a Lease.

It is expressly understood and agreed that no part, parcel, building, facility, equipment or space is leased to the Concessionaire, that it is a concessionaire and not a lessee; that the Concessionaire's right to operate the concession shall continue only so long as this Agreement remains in effect.

20.10 Signage.

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Concessionaire shall provide, at its sole cost and expense, any signs utilized for its Program. All signage and postings shall be approved by the City Manager, and shall be in accordance with all applicable Municipal, County, State and Federal laws and regulations. Any signage posted by Concessionaire shall be subject to the prior approval of the City as to size, shape and placement of same, and no such approvals will be unreasonably withheld.

The City shall be responsible for providing, at its sole cost and expense, and as (or if) it deems necessary in its sole and reasonable judgment and discretion, any traffic, regulatory or public safety signs, whether related directly or indirectly to the Program.

20.11 Procedure for Approvals and/or Consents.

In each instance in which the approval or consent of the City Manager or his designee is allowed or required in this Agreement, it is acknowledged that such authority has been expressly provided herein to the City Manager or his designee by the Mayor and City Commission of the City. In each instance in which the approval or consent of the City Manager or his designee is allowed or required in this Agreement, Concessionaire shall send to the City Manager a written request for approval or consent (the "Approval Request").

The City Manager or his designee shall use reasonable efforts to provide written notice to Concessionaire approving of consent to, or disapproving of the request, within thirty (30) days from the date of Approval Request (or within such other time period as may be expressly set forth for a particular approval or consent under this Agreement). However, the City Manager or his designee's failure to consider such request within this time provided shall not be deemed a waiver, nor shall Concessionaire assume that the request is automatically approved and consented to. The City Manager or his designee shall not unreasonably withhold such approval or consent. This Subsection shall not apply to approvals required herein by the Mayor and City Commission.

20.12 No Waiver.

It is mutually covenanted and agreed by and between the parties hereto that the failure of the City to insist upon the strict performance of any of the conditions, covenants, terms or provisions of this Agreement, or to exercise any option herein conferred, will not be considered or construed as a waiver or relinquishment for the future of any such conditions, covenants, terms, provisions or options but the same shall continue and remain in full force and effect. A waiver of any term expressed herein shall not be implied by any neglect of the City to declare a forfeiture on account of the violation of such term if such violation by continued or repeated subsequently and any express waiver shall not affect any term other than the one specified in such waiver and that one only for the time and in the manner specifically stated.

The receipt of any sum paid by Concessionaire to the City after breach of any condition, covenant, term or provision herein contained shall not be deemed a waiver of such breach, but shall be taken, considered and construed as payment for use and occupation, and not as rent, unless such breach be expressly waived in writing by the City.

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20.13 No Third Party Beneficiary.

Nothing in this Agreement shall confer upon any person or entity, including, but not limited to sub concessionaires, other than the parties hereto and their respective successors and permitted assigns, any rights or remedies by reason of this Agreement.

20.14 No Lien.

In the event any notice or claim of lien shall be asserted against the interest of the City on account of or arising from any work done by or for Concessionaire, or any person claiming by, through or under Concessionaire, or for improvements or work, the cost of which is the responsibility of Concessionaire, Concessionaire agrees to have such notice or claim of lien cancelled and discharged within fifteen (15) days after notice to Concessionaire by City. In the event Concessionaire fails to do so, City may terminate this Agreement for cause without liability to City.

SECTION 21. LIMITATION OF LIABILITY.

The City desires to enter into this Agreement placing the operation and management of the Concession Area in the hands of a private management entity only if so doing the City can place a limit on its liability for any cause of action for breach of this Agreement, so that its liability for any such breach never exceeds the sum of Five Thousand ($5,000.00) Dollars. Concessionaire hereby expresses its willingness to enter into this Agreement Five Thousand ($5,000.00) Dollars limitation on recovery for any action for breach of contract. Accordingly, and in consideration of the separate consideration of Five Thousand ($5,000.00) Dollars, the receipt of which is hereby acknowledged, the City shall not be liable to Concessionaire for damages to Concessionaire in an amount in excess of Five Thousand ($5,000.00) Dollars, for any action for breach of contract arising out of the performance or on-performance of any obligations imposed upon the City by this 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 22. VENUE/WAIVER OF JURY TRIAL.

This Agreement shall be deemed to have been made and shall be construed and interpreted in accordance with the laws of the State of Florida. This Agreement shall be enforceable in Miami- Dade County, Florida, and if legal action is necessary by either party with respect to the enforcement of any and all the terms or conditions herein, exclusive venue for the enforcement of same shall lie in Miami-Dade County, Florida.

CITY AND CONCESSIONAIRE HEREBY KNOWINGLY AND INTENTIONALLY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING THAT CITY AND CONCESSIONAIRE MAY HEREIN AFTER INSTITUTE AGAINST EACH OTHER WITH RESPECT TO ANY MATTER ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE CONCESSION AREA(S).

THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.

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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

________________________ Rafael E. Granado, City Clerk

________________________________ Eric T. Carpenter, City Manager

Date: ________________

Attest:

WATER TAXI OF FORT LAUDERDALE LLC

______________________

_________________________

______________________ Print Name and Title

_________________________ Print Name and Title

Date: ________________

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Exhibit 1. Service Route and Concession Area

The Concessionaire shall operate the water taxi/ferry service along the designated route described below.

1. Route

• •

Service shall operate between the following two (2) docks: o Maurice Gibb Memorial Park (18 Street and Purdy Avenue, Miami Beach) and o Venetian Marina & Yacht Club (1635 N Bayshore Drive, Miami) The Concessionaire is responsible for all arrangements related to the Venetian Marina & Yacht Club (Sea Isle Marina), including paying docking fees, securing agreements, and ensuring compliance with all marina regulations

• •

2. Route Map

• •

A map identifying the approved service route and all designated stops is included below. Any modification to the approved route or the addition/removal of stops shall require the prior written consent of the City Manager.

47

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3. Route Description

• •

Vessels shall travel the most direct and navigable course between designated stops, consistent with U.S. Coast Guard regulations, safety requirements, and low-wake operational practices. The approved route does not require or include any bridge openings. Estimated travel time between stops: 22 minutes (subject to weather, traffic, and navigational conditions), in accordance with the Plan of Operation described in Exhibit “4”

• •

4. Concession Area. A sketch of the proposed Concession Area is attached hereto as Exhibit 1.1 [Please insert Exhibit 1.1]

5. Wayfinding Signage within the Concession Area shall be designed, produced, and installed by the City, at the City’s sole expense. The Concessionaire shall coordinate with the City as needed to ensure that installation activities do not interfere with ongoing operations or public access.

48

Exhibit 1.1 Concession Area

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49

Exhibit 2. Concept Plan for Vessels Commented [RM47]: Let's add picture of the vessel

The Service shall be performed utilizing two (2) vessels that meet or exceed the following minimum specifications:

1. Vessel Specifications

• • • • •

Passenger Capacity: Fifty-Five (55) passengers Crew: one (1) licensed Captain and one (1) Deckhand Length: 42’0” Breadth (Width): 11’3” Draught (Depth): 3’2”

2. Certification & Compliance

• •

United States Coast Guard (USCG) Certified for passenger service Equipped with 100HP Electric Motor

3. Onboard Features & Equipment

• •

Enclosed unisex restroom (head)

50

• •

Installed sound/public address system

4. Vessel Condition & Value

• •

Vessels shall be maintained in good working order, seaworthy at all times, and suitable for safe passenger transportation

5. Back-Up Vessel

In the event a Program Vessel becomes unavailable, inoperable, or otherwise unable to perform the required services, the Concessionaire shall use all commercially reasonable efforts to ensure continuous operation by providing a backup vessel of comparable size, class, condition, and amenities.

The backup vessel shall:

• •

Have a minimum certified passenger capacity of forty-nine (49) passengers; Be in good working order and maintained in a clean and presentable condition consistent with the standards of the primary vessel; Comply with all applicable safety, environmental, and regulatory requirements; and Be promptly reported to the City prior to use

• •

The City reserves the right to inspect or reject any backup vessel that, in its reasonable discretion, does not meet the standards or requirements of this Agreement.

51

Exhibit 3. Fares for Water Taxi Services Commented [KK48]: Create separate exhibit and delete from this doc

At the commencement of this Agreement, no fares shall be charged, and Water Taxi service shall be provided free of charge.

The establishment of future fares, including the establishment of discounted rates, may only be implemented upon mutual agreement of the Parties and shall be subject to the prior written approval of the City Manager. The Concessionaire shall post a suitable card in large type, easily readable, in each Water Taxi for hire explaining and describing the Fares. Fares shall be displayed in a manner and form that can be readily understood by passengers. Upon the request of a passenger, Concessionaire shall supply the passenger with a written receipt showing the fare paid by the passenger and the date of the transaction. Concessionaire shall conspicuously post notice of this requirement in each of the water taxis.

Should fares be implemented in the future, fares may not be waived by Concessionaire unless approved in advance by the City Manager or his designee. If a passenger boards a water taxi and it is determined while in transit that the passenger is unable to pay the applicable Fare, the passenger shall be required to disembark at the next scheduled stop.

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Exhibit 4. Plan of Operation Commented [KK49]: See separate exhibit document

(Regular Operation)

Concessionaire shall provide passenger-only water taxi/ferry services in accordance with the following operational plan:

1. Service Days & Hours

• •

• •

Service shall operate five (5) days per week, Monday through Friday, excluding weekends, commencing December 8, 2025 and shall not operate on the following federal holidays, unless otherwise agreed in writing: o Thursday, December 25, 2025 — Christmas Day o Thursday, January 1, 2026 — New Year’s Day o Monday, January 19, 2026 — Martin Luther King Jr. Day o Monday, February 16, 2026 — Washington’s Birthday (Presidents’ Day) o Monday, May 25, 2026 — Memorial Day o Friday, June 19, 2026 — Juneteenth National Independence Day o Friday, July 3, 2026 — Independence Day (Observed) o Monday, September 7, 2026 — Labor Day Daily Service Hours: 07:00 a.m. to 7:50 p.m. (local time). The following schedule indicates the minimum required service:

Depart Arrive Depart Arrive Venetian Purdy Purdy Venetian 7:00 7:20 7:30 7:50 8:00 8:20 8:30 8:50 9:00 9:20 9:30 9:50 10:00 10:20 10:30 10:50 11:00 11:20 11:30 11:50 12:00 12:20 12:30 12:50 13:00 13:20 13:30 13:50 14:00 14:20 14:30 14:50 15:00 15:20 15:30 15:50 16:00 16:20 16:30 16:50 16:30 16:50 17:00 17:20 17:00 17:20 17:30 17:50 17:30 17:50 18:00 18:20 18:00 18:20 18:30 18:50 18:30 18:50 19:00 19:20 19:00 19:20 19:30 19:50

Boat A Boat A Boat A Boat A Boat A Boat A Boat A Boat A Boat A Boat A Boat B Boat A Boat B Boat A Boat B Boat A

2. Frequency of Service

• •

Vessels shall operate on a regular, published schedule, with departures at intervals not exceeding thirty (30) minutes during peak service hours and not exceeding sixty (60) minutes during off-peak service hours.

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3. Routes & Stops

Commented [EL50]: To be updated based on service schedule selected

• •

Service shall be provided along the designated route as approved by the City Manager. Primary embarkation and disembarkation points shall include: o The Purdy Avenue Dock, located within Maurice Gibbs Memorial Park o The Venetian Marina Any changes to routes or stops must be approved in advance by the City Manager.

• •

4. Staffing & Crew

• •

Each vessel shall be operated by one (1) licensed Captain and one (1) Deckhand at all times while in service. Crew shall be properly trained in passenger safety, emergency procedures, and ADA assistance.

• •

5. Contingency Operations

• •

Concessionaire shall maintain a plan for substitute vessel service in the event of breakdown, maintenance, or other operational interruptions. Concessionaire shall promptly notify the City Manager of any service disruption and provide an estimated timeline for resumption.

• •

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Exhibit 5. Plan of High-Impact Operation/Special Events)

1. Purpose

This Exhibit establishes the terms and conditions under which Concessionaire shall provide vessel service in connection with Special Events, as defined herein.

2. Definition of High Impact Operation

For purposes of this Agreement, “Special Events” shall mean cultural, civic, or other high-impact events designated by the City, including but not limited to Art Basel, large-scale festivals, holiday celebrations, and sporting events, which require modifications to the standard service schedule.

3. Notification and Scheduling

• •

The City shall provide Concessionaire with not less than twenty (20) calendar days’ prior written notice of a Special Event.

• •

Within ten (10) calendar days following receipt of such notice, Concessionaire shall submit to the City Manager a proposed High Impact Operations operating plan, including schedule, vessel deployment, staffing, and cost estimates, for the City Manager’s review and written approval.

4. Cost Allocation

• •

The incremental costs associated with Special Event service shall be paid for by the City

5. Service Requirements

• •

Vessel Deployment: Number and type of vessels to be deployed for the event.

• •

Operating Hours: Expanded or modified hours of operation.

• •

Frequency/Headways: Required service intervals (e.g., 15 minutes, 30 minutes).

• •

Capacity Planning: Any additional capacity measures to handle expected ridership

6. Staffing and Crew

• •

Concessionaire shall provide sufficient licensed crew and support staff for safe and reliable service.

• •

Additional ambassadors (e.g., crowd management, ticketing if applicable) may be required depending on the event.

7. Fares (if applicable)

8. Coordination and Approval

• •

Final Special Event operating plan must be approved in writing by the City Manager before implementation.

9. Compensation for Special Event Services

Hourly Rate: $339.00

55

Exhibit 5.1 Special Event Service: Art Week 2025

Purpose and Description. This Exhibit establishes the scope, schedule, and compensation for the Special Event Ferry Service to be provided by the Concessionaire under the Agreement between the City and Concessionaire. The purpose of this service is to support increased passenger demand during the designated Art Week 2025. The service shall be operated as a passenger-only ferry connecting two designated stops identified by the City.

Service Dates and Hours of Operation. The Concessionaire shall provide Special Event Ferry Service from December 1, 2025 through December 7, 2025 (seven consecutive days). Service hours shall be as follows:

• •

Monday through Saturday: 10:00 a.m. to 12:00 midnight. Sunday: 10:00 a.m. to 10:00 p.m.

Vessel Deployment. The Concessionaire shall operate four (4) vessels on Monday and Tuesday and seven (7) vessels from Wednesday through Sunday. The Concessionaire shall ensure that sufficient vessel capacity, staffing, and maintenance are in place to sustain reliable and continuous service during the scheduled hours.

Service Locations and Ambassadors. Service shall operate between two stops, the Venetian Marina and Purdy Dock, as designated by the City Manager. The Concessionaire shall assign an ambassador at each dock to assist passengers, manage queuing, provide event information, and coordinate boarding and disembarkation. Ambassadors shall be present during all service hours and shall receive training in accordance with accessibility and customer service requirements outlined in the base Agreement and applicable federal law.

Reporting and Coordination. The Concessionaire shall provide daily operational reports to the City, summarizing passenger counts by sailing, on-time performance, safety incidents, and any service interruptions.

Compensation. The total cost to perform the Special Event Ferry Service described in this Exhibit shall be one hundred ninety-nine thousand, one hundred ninety-two ($199,192). This amount is inclusive of all costs, including vessel operation, crew wages, ambassadors, fuel, maintenance, insurance, administration, and overhead. No additional compensation shall be due unless specifically authorized in writing by the City.

Performance and Compliance. The Concessionaire shall maintain all performance standards outlined in the base Agreement, including safety, customer service, and accessibility obligations.

Term of Exhibit. This Exhibit shall be effective only for the Special Event period described herein. Upon completion of service and acceptance by the City, this Exhibit shall expire automatically without further action unless extended in writing.

Exhibit 6. Budget

City of Miami Beach

10-Month Pilot Service

Full year

12/8/2025-9/30/2026

10/1/2026-9/30/2027

Marine Labor Management One Ambassador Fuel $3.50 per gallon Maintenance includes labor Boat cost Dockage Insurance Uniforms/Drug Testing $ 319,410 $ 110,500 $ 39,000 $ 70,840 $ 168,250 $ 100,000 $ 93,000 $ 85,375 $ 8,000 $ 370,448 $ 110,500 $ 45,000 $ 80,500 $ 191,000 $ 100,000 $ 103,200 $ 85,375 $ 8,000

WT Contribution $ 198,875 $ 218,805

Total

$ 1,193,250.00

$ 1,312,828.00

Number of Service Days Hours per Service Period

205 1,890.00

247 2,192.00

Hourly Cost for 2 vessels 1 vessel

$ 631 $ 316

$ 599 $ 299

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Exhibit 7. Anti-Human Trafficking Affidavit

In accordance with Section 787.06 (13), Florida Statutes, the undersigned, on behalf of Concessionaire hereby attests under penalty of perjury that Concessionaire does not use coercion for labor or services as defined in Section 787.06, Florida Statutes, entitled “Human Trafficking”.

I understand that I am swearing or affirming under oath to the truthfulness of the claims made in this affidavit and that the punishment for knowingly making a false statement includes fines and/or imprisonment.

The undersigned is authorized to execute this affidavit on behalf of Concessionaire.

CONCESSIONAIRE:

________________________________, a _______________ corporation.

____________________________________

_________________________________

Name/Title: __________________________ (Address)

State of

__________________

County of

__________________

The foregoing instrument was acknowledged before me by means of ☐ physical presence or ☐

online notarization, this _____ day of ___________________, 202__ by

______________________________, as __________________________, of

____________________________, a __________________ corporation, known to me to be the

person described herein, or who produced ______________________________ as

identification, and who did/did not take an oath.

NOTARY PUBLIC:

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_______________________________

(Signature)

_______________________________

(Print Name)

My commission expires: ___________

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Exhibit 8. Prohibition against Contracting with Foreign Countries of Concern Affidavit

In accordance with Section 287.138, Florida Statutes, incorporated herein by reference, the undersigned, on behalf of Concessionaire, hereby attests under penalty of perjury that Concessionaire does not meet any of the following criteria in Paragraphs 2(a)-(c) of Section 287.138, Florida Statutes: (a) Concessionaire is owned by a government of a foreign country of concern; (b) the government of a foreign country of concern has a controlling interest in Concessionaire; or (c) Concessionaire is organized under the laws of or has its principal place of business in a foreign country of concern.

I understand that I am swearing or affirming under oath, under penalties of perjury, to the truthfulness of the claims made in this affidavit and that the punishment for knowingly making a false statement includes fines and/or imprisonment.

The undersigned is authorized to execute this affidavit on behalf of Concessionaire.

CONCESSIONAIRE:

________________________________, a _______________ corporation.

____________________________________

_________________________________

Name/Title: __________________________ (Address)

State of

__________________

County of

__________________

The foregoing instrument was acknowledged before me by means of ☐ physical presence or ☐ online notarization, this _____ day of ___________________, 202__ by ______________________________, as __________________________, of ____________________________, a __________________ corporation, known to me to be the person described herein, or who produced ______________________________ as identification, and who did/did not take an oath.

NOTARY PUBLIC:

_______________________________

61

(Signature)

_______________________________

(Print Name)

My commission expires: ___________

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Exhibit 9. Non-Alcoholic Exclusive Pouring Rights City Contracts (Current Product List)

63

RESOLUTION NO.

-------

A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, APPROVING, IN SUBSTANTIAL FORM, A CONCESSION AGREEMENT WITH WATER TAXI OF FORT LAUDERDALE, LLC, PURSUANT TO REQUEST FOR QUALIFICATIONS NO. 2025-284-ND FOR WATER TAXI SERVICE; AND AUTHORIZING THE CITY MANAGER TO FINALIZE THE AGREEMENT; AND FURTHER AUTHORIZING THE CITY MANAGER AND CITY CLERK TO EXECUTE THE FINAL AGREEMENT.

WHEREAS, on March 19, 2025, the Mayor and City Commission approved the issuance of the Request for Qualifications (RFQ) No. 2025-284-ND for Water Taxi Service; and

WHEREAS, on May 5, 2025, the City received three (3) proposals from Aqua-Jet Miami LLC d/b/a Aqua Party Boat, Code Name E-Lixr Inc., and Water Taxi of Fort Lauderdale LLC; and

WHEREAS, on May 23, 2025, the City Manager, via Letter to Commission No. 203- 2025, appointed an Evaluation Committee; and

WHEREAS, the Evaluation Committee convened on May 23, 2025, to review and score the proposals; and

WHEREAS, the Evaluation Committee received an overview of the project, information relative to the City's Cone of Silence Ordinance and the Government Sunshine Law, general information on the scope of services, and a copy of each proposal; and

WHEREAS, the Evaluation Committee was instructed to score and rank each proposal pursuant to the evaluation criteria established in the RFQ; and

WHEREAS, the Evaluation Committee process resulted in the proposers being ranked by the Evaluation Committee as indicated below:

1st ranked - Water Taxi of Fort Lauderdale LLC 2nd ranked - Aqua-Jet Miami LLC d/b/a Aqua Party Boat 3rd ranked - Code Name E-Lixr Inc.; and

WHEREAS, on June 25, 2025, via Resolution 2025-33708, the Mayor and City Commission authorized the Administration to enter into negotiations with Water Taxi of Fort Lauderdale LLC, as the top-ranked proposer; further, if the Administration is not successful in negotiating an Agreement with Water Taxi of Fort Lauderdale LLC, authorizing the Administration to enter into negotiations with Aqua-Jet Miami LLC d/b/a Aqua Party Boat, as the second-ranked proposer; further, if the Administration is not successful in negotiating an Agreement with Aqua-Jet Miami LLC d/b/a Aqua Party Boat, authorizing the Administration to enter into negotiations with Code Name E-Lixr Inc., as the third-ranked proposer, with the agreement being subject to approval by the City Commission; and

WHEREAS, the Administration and Water Taxi of Fort Lauderdale LLC ("Concessionaire") have negotiated the following essential terms for the water taxi services:

(1) Concessionaire: Water Taxi of Fort Lauderdale, LLC, or a newly formed single purpose entity, wholly owned by Water Taxi of Fort Lauderdale, subject to the Agreement being guaranteed by Water Taxi of Fort Lauderdale, LLC; (2) Term: Initial term of five (5) years, commencing on December 1, 2025, with two (2) optional one-year renewal terms, with each Contract Year subject to budget appropriation and approval during the City's annual budgetary process; (3) Termination for Convenience: The City may terminate upon thirty (30) days notice; (4) Concessionaire's Compensation: First Contract Year (December 1, 2025- September 30, 2025) with initial budget of $1,200,000.00 for ten (1 O months during First Contract Year, payable on a monthly basis, in the amount of $120,000.00 per month; plus pass-through payments for portion of fuel charges that exceed 20% above the current $3.50 per gallon price; (5) Cost: a. $1,193,250 during FY 2025/26 (December 8, 2025 -- September 30, 2026); and b. $1,312,828 for a full year (12 months) of service; (6) Special Event Service: Art Week 2025 - a one (1 )-week enhanced launch service from December 1, 2025 through December 7, 2025. The total cost is approximately $200,000, funded through a separate "one-time" FY 2025/26 operating budget enhancement allocation; (7) Fares: free for everyone; (8) Vessels: Two (2) 40-foot vessels, 55-passenger capacity each; (9) Service Days: for First Contract Year: Monday - Friday (excluding national holidays); (10) Headways: • AM Peak (7.00 - 10.00 AM); 60 minutes; • Midday (10:00 AM-4:30 PM): 60 minutes; • PM Peak (4:30 - 7:20 PM); 30 minutes; (11) Stops: Venetian Marina (Miami) and Purdy Dock (Miami Beach); (12) Ambassador: Initially one ambassador at Purdy Dock; during hours of operation; (13) Branding and Advertising: Vessel branding to be designed by the City. Additionally, the water taxi service will operate under the "Miami Beach Water Taxi" name/brand. Concessionaire may solicit advertising subject to approval by the City. City's share of advertising revenues to be negotiated, with minimum advertising revenue to the City, in the amount of 50% of net advertising revenues; (14) Performance Oversight/Penalties: Monthly performance meetings, submittal of monthly ridership reports, vessel maintenance reporting obligations, and performance penalties based on non-compliance with on-time performance goals. (15) Ambassadors: Required at all dock locations during hours of operation, subject to funding availability. At a minimum, Water Taxi of Fort Lauderdale will have ambassador staffing at the Maurice Gibb Memorial Park dock; and (16) Service Adjustments/Expansion: Agreement allows for adjustments and expansion of service, including, but not limited to additional service hours, additional vessels and routes. All changes must be reflected in a written amendment executed by Water Taxi of Fort Lauderdale and the City Manager. Any change that increases the City's appropriation for services shall be subject to approval by the City Commission; and

WHEREAS, based upon the favorable terms, the City Manager recommends approving, in substantial form, the draft Concession Agreement attached to the City Commission Memorandum accompanying this Resolution, containing the essential business terms set forth herein.

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 approve, in substantial form, a Concession Agreement with Water Taxi of Fort Lauderdale, LLC, pursuant to Request for Qualifications No. 2025-284-ND for Water Taxi Service; and authorize the City Manager to finalize the Agreement; and further authorize the City Manager and City Clerk to execute the final Agreement.

PASSED and ADOPTED this

ATTEST:

Rafael E. Granado, City Clerk

day of 2025.

Steven Meiner, Mayor

APPROVED AS TO

FORM & LANGUAGE ~ECUTION

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olz2Jes

City Attorney,¥

Date