Amendment No. 1 to the Concession Agreement with Boucher Brothers Miami Beach 21 & 46 St., LLC do is-- ...”/
AMENDMENT NO. 1 TO THE CONCESSION AGREEMENT BETWEEN THE CITY
OF.MIAMI BEACH AND BOUCHER BROTHERS MIAMI BEACH 21 &46 ST, LLC
DATED DECEMBER 17, 2015
This Amendment No. 1 is made and entered into this day of ' , 2016,
by and between the CITY OF MIAMI BEACH, FLORIDA, a municipal corpor tion having
its principal office at 1700 Convention Center Drive, Miami Beach, Florida, 33139
("City"), and BOUCHER BROTHERS MIAMI BEACH 21 & 46 ST, LLC, a limited liability
company of the State of Florida, with offices at 420 Lincoln Road, Suite 265, Miami
Beach, Florida, 33139 ("Concessionaire"), and hereby amends the Concession
Agreement between City and Concessionaire dated December 17, 2015 ("Concession
Agreement") as follows:
RECITALS
WHEREAS, on October 14, 2015, the Mayor and City Commission adopted
Resolution No. 2015-29166, approving the award of RFP 2015-205WG for the
management and operation of concession stands and beachfront concessions located
east of Collins Avenue Near 21st and 46th Street to Concessionaire, and authorizing the
Mayor and City Clerk to execute a concession agreement upon conclusion of
negotiations; and
WHEREAS, the Concession Agreement was executed on December 17, 2015;
and
WHEREAS, the parties desire to amend the Concession Agreement to clarify
certain terms and conditions contained therein; and
WHEREAS, capitalized terms used and not defined herein shall have the
meaning given to such terms in the Agreement.
NOW, THEREFORE, the City and Concessionaire hereby amend the
Concession Agreement as follows:
1. Section 12.4 of the Concession Agreement is hereby deleted in its
entirety and replaced with the following:
12.4. Force Majeure. Neither party shall be obligated to perform
hereunder and neither party shall be deemed to be in default if
performance is prevented by: <<
a. fire which renders at least thirty percent (30%) of the
Concessionaire's cumulative facilities and equipment unusable and which
is not caused by the negligence of Concessionaire;
b. earthquake; hurricane; flood; act of God; direct act of terrorism; or
civil commotion occurring on the Concession Area(s) or during or in
connection with any event or other matter or condition of like nature;
c. beach erosion significant enough that, in the determination of the
City, does not allow for the setup of beach equipment; or
d. any law, ordinance, rule, regulation or order of any public or military
authority stemming from the existence of economic or energy controls,
hostilities, or war(in any such event, "an event of Force Majeure").
Concessionaire acknowledges that City shall have no obligation to undertake any beach
re-nourishment efforts to restore the footprint of the Beachfront Concession Areas in the
event of Force Majeure. The parties further acknowledge that Concessionaire's
obligations and benefits hereunder may be negatively affected by an event of Force
Majeure. Accordingly, upon the occurrence of an event of Force Majeure that renders a
given Concession Area unusable for more than thirty (30) consecutive days during a
contract year, and provided further that Concessionaire's MG payment to the City for
that contract year is greater than the applicable PG, then the City Manager, in his or her
sole discretion, may extend the Term of this Agreement with respect to the affected
Concession Area for a reasonable period of time corresponding to the period of
interruption related to the Force Majeure event, subject to Concessionaire's agreement
as to any extension of the Term. Concessionaire agrees to use its reasonable efforts
to recommence business operations as soon as feasible following an event of Force
Majeure, and shall keep the City apprised of the status thereof.
2. Section 3.5.1 of the Concession Agreement is hereby deleted in its
entirety and replaced with the following:
3.5.1. The final design approval from the City's Planning Department for
Concessionaire's dispensing facilities and storage facilities is attached hereto in
Amended Exhibit 3.5.1. City acknowledges and agrees that, prior to having obtained
such final design approval, Concessionaire's set up for dispensing facilities and storage
facilities was consistent with the Concession design standards set forth in Addendum 2
of the RFP.
a. The location of facilities must also be approved by the City
Manager or his/her designee, and shall be designated within Concessionaire's approved
site plan (as referenced in Exhibit 3.1.3).
b. Once approved by the City, Concessionaire shall not deviate from
or change the type, design, and/or location of its proposed dispensing or storage
facilities without the prior written consent of the City Manager or his/her designee.
3. Section 3.2.1 of the Concession Agreement is hereby deleted in its
entirety and replaced with the following:
3.2.1. Concessionaire shall be permitted to sell and serve, within the
Concession Areas, pre-cooked, prepared, and/or prepackaged foods and non-alcoholic
beverages, such as those set forth in the attached Exhibit 3.1, in accordance with all
applicable codes, regulations and laws concerning the sale of food items to the public.
(a) Cooking of food items shall not be allowed at the Beachfront Concession Areas
identified in Section 2.1.2 and 2.2.2 of the Agreement, provided, however, that
pre-cooked, prepared and/or pre-packaged food items may be sold and served
within the Beachfront Concession Areas.
(b) The heating of pre-cooked, prepared and/or pre-packaged foods shall be
permitted at the Concession Buildings identified in Section 2.1.1 and 2.2.1. For
purposes of this Agreement, "heating" means the use of appliances of 120 volts
or less to create an increase in temperature to warm a pre-cooked, prepared or
pre-packaged food item, including but not limited to microwaves, hot dog
warmers or other warmers, panini grills, small pizza ovens, or similar appliances
that may be operated safely in accordance with all applicable code requirements
and within the parameters of the physical infrastructure of the Concession
Buildings.
(c) The City herein approves the types of food and beverages, and prices for same,
as set forth in Exhibit 3.1. Any amendments to Exhibit 3.1, whether as to type of
food and beverages to be sold, or as to changes in prices for same, must be
approved, in writing, by the City Manager or his/her designee prior to such
changes being implemented within the Concession Area(s) (and, if approved, an
updated Exhibit 3.1 will be incorporated into this Agreement). All non-alcoholic
beverage products shall be in compliance with the City's Coca Cola Agreement
dated January 12, 2012, during the term of such agreement.
4. Section 3.2.2 and Exhibit 3.2.2 are hereby deleted in their entirety.
5. Section 3.2.7 of the Concession Agreement is hereby deleted in its
entirety and replaced with the following:
3.2.7. In addition to Concessionaire's general maintenance obligations
for the Concession Areas, as set forth in Section 10 hereof, all food and beverage
dispensing facilities, and the immediately surrounding 50-foot areas, shall at all times be
maintained in a clean and sanitary manner. All food and beverage dispensing facilities
within the Concession Buildings where heating of food occurs shall be properly cleaned,
and Concessionaire shall ensure that products used to heat or serve food are properly
disposed of. At least one supervisory employee must possess a Food Service
Management Certification issued by a County Public Health Department in Florida. In
addition, each food and beverage dispensing facility must be licensed by the Florida
Department of Business Regulation, Division of Hotels and Restaurants, the Department
of Agriculture, and as may further be required by State law and/or by corresponding
agencies.
•
6. Section 10.6 of the Concession Agreement is hereby modified as
follows:
10.6. No Dangerous Materials. Concessionaire agrees not to use or
permit the storage in the Concession Areas 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. Any such substances or materials found
within the Concession Areas shall be immediately removed. This subsection shall not
apply to any substances permitted by the City's Rules and Regulations for Beachfront
Concession Operations, as same may be amended from time to time; provided the use
and storage of such substances comply with such Rules and Regulations.
Notwithstanding any contrary provisions of this Agreement, Concessionaire, shall
indemnify and hold City harmless from any loss, damage, cost, or expense of the City,
including, without limitation, reasonable attorney's fees, incurred as a result of, arising
from, or connected with the placement by Concessionaire of any "hazardous substance"
or "petroleum products" on, under, in or upon the Concession Areas, as those terms are
defined by applicable Federal and State Statute, or any environmental rules and
environmental regulations promulgated thereunder. The provisions of this Subsection
10.5 shall survive the termination or earlier expiration of this Agreement. The City shall
provide Concessionaire written notice of any indemnifiable claim arising under this
Subsection 10.5 incurred by the City, including with such notice all documentation
relating thereto, and the Concessionaire shall retain counsel to defend any such
demand, claim or lawsuit. Thereafter, the City shall be permitted to participate in such
defense at its own expense.
7. Exhibit 6 of the Agreement is hereby deleted in its entirety and substituted
with the Amended Exhibit"6" attached hereto.
8. Exhibit 3.1.1 of the Agreement is hereby deleted in its entirety and
substituted with Amended Exhibit 3.1.1.
9. Section 6 of the Agreement is deleted in its entirety and replaced with the
following:
Section 6. Inspection and Audit. Concessionaire shall maintain financial records
pertaining to its operations pursuant to this Agreement for a period of three (3) years
after the conclusion of any Agreement year, and such records shall be open and
available to the City Manager or his/her designee, as deemed necessary by the City
Manager or his/her designee, but shall not be subject to photocopying without the
Concessionaire's prior consent. Concessionaire shall maintain all such records at its
principal office, currently located at 1451 Ocean Drive, Suite 205, Miami Beach, Florida,
33139. If moved to another location outside of the City of Miami Beach, all such records
shall be relocated, at Concessionaire's expense, to a location in Miami Beach, within ten
(10) days' written notice from the City Manager or his/her designee.
The City Manager or his/her designee shall be entitled to audit (but shall not be subject
to photocopying without the Concessionaire's prior consent), Concessionaire's records
pertaining to its operations pursuant to this Agreement as often as it deems reasonably
necessary throughout the Term of this Agreement, and three (3) times within the three
(3) year period following termination of this Agreement, regardless of whether such
termination results from the natural expiration of the Term or for any other reason. The
City shall be responsible for paying all costs associated with such audits, unless the
audit(s) reveals a deficiency of five percent (5%) or more in Concessionaire's statement
of Gross Receipts for any year or years audited, in which case the Concessionaire shall
pay to the City, within thirty (30) days of the audit being deemed final (as specified
below), the out-of-pocket cost of such audit and a sum equal to the amount of the
deficiency revealed by the audit, plus interest at the rate of twelve percent (12%) per
annum from the date payment was otherwise due with respect to such deficiency;
provided, however, the audit shall not be deemed final until Concessionaire has received
the audit and has had a reasonable opportunity to review the audit and discuss the audit
with the City. These audits are in addition to periodic audits by the City of Resort Tax
collections and payments, which are performed separately. Nothing contained within this
Section shall preclude the City's audit rights for Resort Tax collection purposes.
Concessionaire shall submit at the end of each Agreement year, an annual statement of
Gross Receipts, in a form consistent with Amended Exhibit 6. Additionally, such
statement shall be accompanied by a report from an independent CPA firm which shall
perform certain agreed upon procedures, as described in the attached Amended.Exhibit
6.
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 Agreement year, Concessionaire and the City Manager or his/her
designee may meet to review Concessionaire's performance under this Agreement for
the previous Agreement year. At the meeting, Concessionaire and City may discuss
quality, operational, maintenance and any other issues regarding Concessionaire's
performance under this Agreement.
10. The City and Concessionaire acknowledge that, among other things, the City's
award of this Agreement to Concessionaire is currently the subject of a challenge in the
case styled M&M Beach Concessions, Inc. v. City of Miami Beach, Florida and Boucher
Brothers 21st and 46t" Street, LLC, Case No. 2015-024855-CA-01, currently pending in
the Eleventh Judicial Circuit in and for Miami-Dade County (the "Litigation"). The
Concessionaire hereby expressly acknowledges that the City shall have no liability
whatsoever to Concessionaire for any matter arising out of or related to the Litigation, or
the matters that are the subject of the Litigation.
11. No Further Modifications. Except as provided in this Amendment No. 2, the
Agreement remains unmodified and in full force and effect. All references to the
Agreement in the Agreement or in any other document referencing the Agreement shall
be deemed to refer to the Agreement as amended hereby.
(REMAINDER OF PAGE LEFT INTENTIONALLY BLANK)
•
IN WITNESS WHEREOF, this Amendment 1 has been executed by
the parties hereto as of the day and year first above written.
ATTEST: CITY OF MIAMI': r ;'FLORIDA
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Rafa .!=do, -• ,ierk Philip ,� , a` �,e
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BOUCHER BROTHERS MIAMI BE °CH 21
&46ST, LLC
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Corpo to Secretary Nam- ,' d Title of Signatory
PeIeR,Y 130'4 GC-f e k Jameb Aog4cLsr /1701411 n /l4mb,e'
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Arv.tea EXHIBIT 6 (page 1 of 3)
City of Miami Beach
Boucher Brothers Miami Beach 21 &46 St, LLC
Agreed-Upon Procedures
1) Inquire of management and obtain and review documentation on the nature of the
company's business and the factors that affect sales. Inquire about and document any
major changes made during the period.
a) Review procedures for recording sales for all sources of beachfront rental income.
b) Obtain the operating policies and procedures from the concessionaire.
c) Interview key company representatives to determine procedures used.
d) Observe the utilization and effectiveness of the procedures through quarterly site visits
to beach concession locations.
2) Test to determine that the concessionaire maintained proper internal controls and
documentation to support the reported gross receipts figure for each open and dosed
section.
a) Document the procedures, if any, for determining how sections are recorded as open
and closed.
b) For months, test manual Open and Closed Sections sheet to Daily Rental sheets
for days to determine if for sections opened revenues are recorded and that for
closed sections, proper supervisory approval is evidenced. Agree earned revenue to
entries on master Consolidated Sales schedule.
c) Determine that all daily rental sheets have been accounted for.
d) Verify the notations of "Inclement weather" or "special events" for days in which the
revenues are unusually low.
e) Document the findings.
3) Obtain a Consolidated Sales schedule for the year ended, prepared in conformity with the
concession agreement between the City of Miami Beach and Boucher Brothers Miami
Beach 21 & 46 St, dated December 17th, 2015. Recalculate concession fees for the period
based on sales per the schedule and the terms of the concession agreement.
4) Review the concession agreement(s) and inquire about major changes, if any; in the
definition of which sales are included and excluded from the Consolidated Sales schedule.
5) Perform an analytical test of sales by obtaining a schedule summarizing sales by revenue
type (i.e. food and beverage, water sports, etc.) Analyze this schedule and critically
evaluate explanations for significant variations that are unusual in amount or nature.
6) Obtain or prepare a reconciliation of total sales recorded in the general ledger for the period
to the Consolidated Sales schedule provided to the City of Miami Beach. Also, obtain or
prepare an analysis of sales summarized by revenue type. Perform the following
procedures:
a)Test the analysis by selecting a few categories, and compare the amounts shown with
those recorded in the sales schedule. Document the items selected for testing. Agree
the sales schedule balances to the general ledger.
b)Review the analysis, and identify any unusual trends or variations within the period or the
prior period.
•
EXHIBIT 6 (page 2 of 3)
c)Obtain sound business reasons for large or unusual variations in the amounts included in
the analysis.
7) Scan the accounting records for large and unusual transactions, review evidence and
document any findings.
8) Perform a test of sales completeness by applying the.following procedures:
a)Using safes documentation or daily cash register recaps, select 1 (one) day per month
throughout the year, including weekdays and weekends. Document the items selected
for testing.The sales documentation or daily cash register recaps should include original
sales documents(including cash sales and credit card sales),credit memos, etc.
b)Agree the summary information on the daily cash register recap or daily collection sheet
to the supporting documents (which maybe sales tickets, cash register tape, etc.).
Determine that details are appropriately reflected Gn the summary and that all collection
sheets have been accounted for.
c)Agree the amounts on the daily cash register recaps to proper recording in the sates
schedule and general ledger,as appropriate.
d)Determine that proper accounting treatment has been applied to these sales
transactions.
e)Agree deposits per the daily register recap to the daily collection sheets and ultimately to
the bank statement.
f) Agree sundries to supporting inventory sales sheets.
g)Test the propriety of the numerical sequence of the executed water sports
agreements/wavers.
h)Agree revenues from equipment rentals to Daily Sheets. Check for proper sign- off
approval by attendant and supervisor.
i) Agree daily deposits to daily, revenue sheets and bank statements.
j) Foot and cross foot selected months of Consolidated Sates schedule and other
linked spreadsheets to verify their accuracy.
k)Compare total sales for selected months to sales tax returns filed with the applicable
taxing jurisdictions.
9) Verify that the concessionaire's rental payments were remitted timely in adherence to the
dates designated by the City
10)Review, the products and prices charged by the concessionaire and his sub-concessionaire
to determine if the City Manager or his designee has approved them
a)Obtain pricing from site visits to beach locations.
b)Compare prices to agreement terms. Recalculate any increase to determine if it falls with
the limits of the agreement.
c)Determine if the city has authorized any price increases and verify if the Company has
the authorization in its files.
11)Verify the status of operations in both 21st Street and the 46t"Street Concession Areas.
a)Conduct site visit to determine the level of operations.
b)Review provided documents to determine the period of activity.
c)Discuss and document any variances with Boucher Brothers Management for
explanation.
EXHIBIT 6 (page 3 of 3)
12) Verify that the sub concessionaire has timely paid all resort taxes to the City's Finance
Department and ensure the correct calculation of resort tax due.
13) Review the records maintained of all secret shoppers and determine:
a)The shoppers'results and corresponding actions taken by management.
b)That all locations (including Monty's kiosks) were periodically covered by secret
shoppers.
c)The frequency and timing of the shoppers on a quarterly basis.
d)That all revenues were recorded in the Consolidated Sales schedule.
14)Determine and document how management verifies which Monty's kiosks were open in
a particular day.
a)Agree food and beverage sales to sub concessionaire reports. Agree amounts sold to
daily inventory sheets.
b)Using sales documentation or daily cash registers recaps, select one day per month
throughout the year, including weekdays and weekends. Document the items selected
for testing. The sales documentation or daily cash register recaps should include original
sales documents(including cash sales and credit card sales), credit memos, etc.
c)Agree the summary information on the daily cash register recap or daily collection sheet
to the supporting documents (which maybe sales tickets, cash register tape, etc.).
Determine that details are appropriately reflected on the summary and that all collection
sheets have been accounted for.
d)Agree the amounts on the daily cash register recaps to proper recording in the sales
schedule and general ledger,as appropriate.
e)Verify the notations of "inclement weather" or "special events" for days in which the
revenues are usually low.
f) Select days and ensure that both the attendant and a supervisor sign-off on the
applicable daily inventory sheet attesting to the accuracy of the beginning and ending
Inventory counts as well as any other inventory charges for the day.
g)For the days selected above, ensure that the ending inventory agrees to the next day's
opening inventory. Document any discrepancies.
h)Review management's periodic reconciliations of the food and beverage revenues
performed by analyzing the inventory reports and cash register tapes. Document any
discrepancies and management follow-up.
•
Pn„.eAdk Q Exhibit 3.1.1
Inventory
(Up to the following levels)
Quantity-by Area Totals Date Acquired Condition
Beach Equipment 21st Street 46th Street
Standard Lounge Chair 225 100 325
12/01/2015 new
Luxury Lounges 400 100 500 12/01/2015 new
Umbrella 300 100 400 12/01/2015 new
Cabana 60 20 80 12/01/2015 new
Luxury Lounge Bed 30 10 40 12/01/2015 new
Conversion Factors 1 Daybed=1 Cabana w/2 chairs=2.85 Chairs w/Umbrella