Amendment No. 1 to the Concession Agreement with Boucheer Brothers Miami Beach LLC a016961C/fl
AMENDMENT NO. 1 TO THE CONCESSION AGREEMENT BETWEEN
CITY OF MIAMI BEACH
AND
BOUCHER BROTHERS MIAMI BEACH LLC
FOR
MANAGEMENT AND OPERATION OF PUBLIC BEACHFRONT CONCESSIONS
This Amendment No. 1 is made and entered into this I5 day of
November, 2016, by and between the CITY OF MIAMI BEACH, FLORIDA, a municipal
corporation ("City"), having its principal office at 1700 Convention Center Drive, Miami
Beach, Florida, 33139, and BOUCHER BROTHERS MIAMI BEACH LLC, a limited
liability company of the State of Florida ("Concessionaire"), with offices at 1451 Ocean
Drive, Suite 205, Miami Beach, Florida, 33139 hereby amends the Concession
Agreement between City and Concessionaire dated February 2, 2012 ("Agreement") as
follows:
WITNESSETH
WHEREAS, on December 14, 2011, the Mayor and the City Commission
adopted Resolution No. 2011-27811, approving that certain Agreement between the
City and Boucher Brothers Miami Beach LLC, for the exclusive right to operate certain
concessions in Lummus Park, Ocean Terrace, North Shore Open Space Park and
South Pointe Park Beach; and
WHEREAS, the Agreement was executed on February, 2012; and
WHEREAS, the Agreement was for an initial term of five (5) years, commencing
retroactively on November 5, 2011 and ending on November 4, 2016 ("Initial Term"),
with one (1) renewal term, for a period of five (5) years, subject to the approval of the
Mayor and City Commission; and
WHEREAS, on September 14, 2016, the Mayor and City Commission adopted
Resolution No. 2016-29549, approving this Amendment No. 1 to the Agreement to
provide for the renewal of the Agreement for a period of five years, and modify other
terms and conditions applicable for the Renewal Term, as specified more fully herein;
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 agree as follows:
1. Renewal Term. The term of the Agreement is hereby extended for a period of
five (5) years, commencing on the 5th day of November, 2016 (the "Commencement
Date"), and ending on the 4th day of November, 2021 ("Renewal Term").
2. Definition of "Agreement Year". The term "Agreement year" or "contract year,"
for purposes of reporting and other requirements of this Agreement, as amended,
1
means a year, other than the first and last year of the Renewal Term, consisting of
twelve (12) consecutive calendar months, beginning on January 1st and continuing
thereafter through the December 31st of each year. With respect to the first and last
Agreement year of the Renewal Term:
2.1. The first Agreement year means the period from November 5, 2016 (the
first day of the Renewal Term), continuing thereafter through December 31, 2017; and
2.2. The final Agreement year means the period from January 1, 2021,
continuing thereafter through November 4, 2021 (the date of expiration of the Renewal
Term).
3. Uses. Section 3 of the Agreement, entitled "USE(S)", is hereby amended as
follows:
3.1. Value-Added Enhancements:
a. Concessionaire shall offer a personal beach storage vault rental
program, at a cost of $5.00 each, to any Concession patrons wishing to store personal
items.
b. Concessionaire shall provide, at its sole cost and expense, City-
approved individual, disposable ashtrays for all patrons smoking within each
Concession Area. Said ashtrays shall be branded consistent with the Miami Beach litter
campaign.
3.2. Exhibit 3.1.1 of the Agreement is hereby deleted in its entirety and
substituted with Amended Exhibit 3.1.1 (attached hereto).
4. Concession Fees. Section 4, entitled "CONCESSION FEES", is hereby
amended as follows:
4.1. Minimum Guarantee (MG): In consideration of the Renewal Term of the
Agreement, and subject to reduction solely as may be expressly provided for in the
Agreement, Concessionaire shall pay to the City a Minimum Guaranteed Annual
Concession Fee (MG), in the total amount of $900,000, for food and beverage sales,
Beach Equipment rentals, the sale of Beach-Related Sundries/Skin Care Products, and
Watersports Equipment Rentals.
a. Concessionaire shall pay the MG for each Agreement year in three
(3) installments, as follows:
i. The first installment of the MG shall be in the amount of $300,000,
and shall be due and payable to the City on January 1st of each Agreement year; and
ii. The second installment of the MG shall be in the amount of
$300,000, and shall be due and payable to the City on June 1st of each Agreement year,
and
2
iii. The third installment of the MG shall be in the amount of $300,000
and shall be due and payable to the City on November 1st of each such year during the
Term.
b. In addition to the foregoing, in the first Agreement year of the
Renewal Term, Concessionaire shall pay to the City an additional MG in the amount of
$140,548.00 (for a total MG of $$1,040,548.00 for the first Agreement year), to account
for the period from November 5, 2016 to December 31, 2016. The additional MG
required by this Section 4.1(b) shall be due on execution of this Amendment No. 1.
4.2. Percentage of Gross (vs.) MG (PG):
a. For each Agreement year during the Renewal Term,
Concessionaire shall pay to the City the difference between the MG provided in Section
4.1 above, and a percentage of the gross receipts that exceeds the amount of the MG
for food and beverage sales, the sale of Beach-Related Sundries/Skin Care Products,
Beach Equipment rentals, and Watersports Equipment rentals (the "Percentage of
Gross" (PG)), as follows:
Food and Beverage Sales 15%
Beach-related Sundries/Skin Care Products Sales 20%
Beach Equipment Rentals 20%
Watersports Equipment Rentals 20%
b. The PG for the first Agreement year of the Renewal Term shall be
the percentage of gross sales for the period from November 5, 2016 to December 31,
2017 which exceeds $1,040,548.00 (the total MG payable for the first Agreement year
pursuant to Section 4.1 above).
The payment of the PG shall be due and payable to the City no later than March 1st of
each Agreement year.
5. Monthly Reports of Gross Receipts. Section 5 of the Agreement, entitled
"MAINTENANCE AND EXAMINATION OF RECORDS", is hereby amended as follows:
Upon request of the City, Concessionaire shall submit a monthly report of
gross receipts to the City's Finance Department's Revenue Supervisor,
and shall submit any such report no later than thirty (30) days following
City's request.
6. Deadline for Annual Statement of Gross Receipts. Section 6 of the
Agreement, entitled "INSPECTION AND AUDIT", is hereby amended as follows:
Concessionaire shall submit, no later than May 31St of each Agreement
year, an annual statement of gross receipts, in a form consistent with
generally accepted accounting principles.
3
7. Except as otherwise specifically amended herein, all other terms and conditions
of the Agreement by and between the City and Concessionaire shall remain in full force
and effect. In the event there is a conflict between the provisions provided herein and
the Agreement, the provisions of this Amendment No. 1 to Concession Agreement shall
govern.
IN WITNESS WHEREOF, this Amendment No. 1 to Concession Agreement has
been duly executed by the parties hereto as of the day and year first written above.
Attest: CITY OF MIAMI BE • `' "' ORIDA
/
IA i , g 414,
Raf_el Granado, C ty ler.� P. " Q,_� hilip Lev' 2V'!yor
• 7 /
Attest: .INCORP ORATED: ;UCH' - BROTHERS MIAMI BEACH
��......
2 6�, Mgr
•
Signature Steven, . :ou her, anaging Member
/14,4,2 m .s/Ts
Print Name
CORPORATE SEAL
(affix seal here)
gnature
A-04 C1E4414
Print Name
F:\RHCD\$ALL\ECON\$ALLWSSET\BOUCHER BROTHERS\Boucher Brothers Amendment No 1(08-08-16)-docx
APPROVED AS TO
FORM&LANGUAGE
&FOR EXECUTION
• 2(Z31��
My Attorney (2f Date
4
EXHIBIT 3.1.1 (amended)
Beach Equipment Inventory
Lounge Luxury Luxury Beds Bed 8X8 Food&Bev
Area Lounge Cushions Lounge Cushions Frames Cushions Sand Chairs Umbrellas Cabanas Storage Hut Storage Trailers
5th St 100 100 25 25 4 4 5 50 15 2 1 0
6th St 100 100 25 25 5 5 5 50 15 2 1 1
7th St 200 200 60 60 10 10 20 200 45 4 4 2
8th St 100 100 100 100 6 6 10 50 12 3 2 1
9th St 200 200 90 90 6 6 10 100 25 2 2 1
10th St 200 200 50 50 8 8 10 50 12 2 2 1
11th St 100 100 150 150 8 8 10 50 12 3 2 1
12th St 200 200 100 100 10 10 10 50 12 2 2 1
13th St 200 200 50 50 5 5 10 50 25 3 2 1
14th St 100 100 200 200 8 8 10 50 12 3 2 1
Ocean Terr 100 100 0 0 0 0 10 50 5 0 2 1
NSOS Park 100 100 0 0 0 0 10 50 5 0 2 1
'South Pointe 0 0 0 0 0 0 0 0 0 0 0 0
Total 1700 1700 850 850 70 70 120 800 195 26 24 12
'South Pointe Park only will be activated subject to the approval of the City.
The above equipment count is based on peak season requirements. Concessionaire will move equipment off the beach during the off season months
Concessionaire reserves the right to move equipment within the Concession Areas as needed to meet customer demand,special events or life safety.
5