HomeMy WebLinkAbout2006-26102 Reso RESOLUTION NO. 2006-26102
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF
THE CITY OF MIAMI BEACH APPROVING AN AMENDMENT TO
THAT CERTAIN AMENDED AND RESTATED BEACHFRONT
CONCESSION AGREEMENT BY AND BETWEEN THE CITY AND
BOUCHER BROTHERS MIAMI BEACH, LLC FOR THE
OPERATION AND MANAGEMENT OF BEACHFRONT
CONCESSIONS ON THE BEACHES SEAWARD OF LUMMUS
PARK, OCEAN TERRACE, AND NORTH SHORE OPEN SPACE
PARK; SAID AMENDMENT PROVIDING FOR RENEWAL OF THE
AGREEMENT FOR FIVE (5) YEARS, SAID RENEWAL TERM
COMMENCING ON NOVEMBER 5, 2006, AND ENDING ON
NOVEMBER 4, 2011; AND PROVIDING FURTHER FOR CERTAIN
VALUE ADDED ITEMS TO BE PROVIDED BY BOUCHER
BROTHERS, AT NO ADDITIONAL COST TO THE CITY
WHEREAS, on February 21,2001, the Mayor and City Commission of the
City of Miami Beach, Florida (City), authorized the issuance of a Request for
Proposals (RFP) for the operation and management of beachfront concessions on
the beaches seaward of Lummus Park, Ocean Terrace, and North Shore Open
Space Park, and same was subsequently issued; and
WHEREAS, on July 18, 2001, the Mayor and City Commission authorized
the City Administration to negotiate with Boucher Brothers Miami Beach, LLC, as
the successful proposer; and
WHEREAS, the City Administration successfully negotiated said Concession
Agreement with Boucher Brothers Miami Beach, LLC, for the operation and
management of beachfront concessions including beach equipment rentals, food
and beverage sales, and watersport rentals on the beaches seaward of Lummus
Park, Ocean Terrace and North Shore Open Space Park; said Agreement
commenced on November 5, 2001, and is set to expire November 4, 2006, with an
option to renew for an additional five (5) year term as provided herein; and
WHEREAS, said Concession Agreement provided for the City and Boucher
Brothers Miami Beach LLC, after the end of each contract year, to meet to review
their performance for the previous contract year to discuss and address quality,
operational, maintenance and other issues; and
WHEREAS, as a result of said review process, the City and Boucher
Brothers Miami Beach LLC entered into the Amended and Restated Concession
Agreement dated May 18, 2005 (the "Amended and Restated Agreement"); and
WHEREAS, on November 10, 2005, the City's Finance and Citywide
Projects Committee did not recommend reopening any issues with respect to the
renewal term under the Amended and Restated Agreement, except for certain
"value added" enhancements offered by Boucher Brothers, and that the balance of
the provisions of the Amended and Restated Agreement will not change, and as
same relate to the acquisition of new capital equipment, ancillary concession-related
capital improvements, and minimum monetary guarantee will remain; and
WHEREAS, the Administration would recommend that the Mayor and City
Commission approve the attached Amendment to the Amended and Restated
Agreement, providing for the renewal term, which will commence on November 5,
2006, and end on November 4, 2011, and further providing for the inclusion of
certain value added items, to be provided by Concessionaire at no cost to the City.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE MAYOR AND CITY
COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA, that the Mayor and
City Clerk be authorized to execute an amendment to that certain Amended and
Restated Beachfront Concession Agreement by and between the City and Boucher
Brothers Miami Beach, LLC for the operation and management of beachfront
concessions on the beaches seaward of Lummus Park, Ocean Terrace, and North
Shore Open Space Park; said amendment providing for renewal of the agreement
for five (5) years, said renewal term commencing on November 5, 2006, and ending
on November 4, 2011; and providing further for certain value added items to be
provided by Boucher Brothers, at no additional cost to the City.
PASSED AND ADOPTED THIS 11th day of January, 2006.
Attest:
CITY CLERK
MAYOR
Robert Parcher
David Dermer~
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F:\DDHP\$ALL~,SSE'IABEACH FR N\PUBLIC\RFP_20OI\BOUCHER\BBMBLLC_AMEN DMENTTOAM EN DEDRESTATED. RES.DOC
COMMISSION ITEM SUMMARY
Condensed Title:
IA Resolution Approving an Amendment to the Boucher Brothers BeachfrOnt Concession Agreement
Key Intended Outcome Supported:
IIncrease community satisfaction with City services
Issue:
IShall the Mayor and City Commission adopt the Resolution?
Item Summary/Recommendation:
On 10/17/01, the City approved a 5 year concession agreement with Boucher Brothers for the rental of
lounge chairs, beach umbrellas, and personal watercraft, and sale of sundries, food and beverage on the
beaches of Lummus Park, Ocean Terrace, and North Shore Open Space Park. The Agreement allows for
one additional 5 year extension option, provided that Boucher Brothers is not in default. The Agreement
further provided that the City and Boucher Brothers meet after the first contract year to discuss operational
issues and concerns. Said discussions resulted in the an Amended and Restated Concession Agreement
(ARCA) that was approved by the City on 5/18/05. Boucher informed of their intent to negotiate the 5 year
renewal oPtion. Since all previously outstanding concerns were addressed in the recently approved ARCA,
only the approval of the 5 year extension option and newly proposed "Value Added" provisions are being
requested. Said Value Added items Boucher would provided are: 1) $10,000 in annual donations towards
City approved marine, environmental, or child related philanthropic organizations; 2) assistance in
supervision of cleanliness in Lummus Park; 3) sand sifting equipment and staff; 4) a minimum of 600
imprinted (message content at City discretion) lounge chair towels.
It is recommended that the Mayor and City Commission adopt the Resolution
Advisory Board Recommendation:
Finance and Citywide Projects Committee: Approval subject to seeking recommendations from
Beach Preservation Committee and Marine Authority and input from the public.
Marine Authority: Approval with a recommendation that all personal watercraft have a visbile,
identifiable mark of ownership.
Beach Preservation Committee: Recommended that Boucher more closely monitor guidelines related
to number of lounge chairs, and stacking and positioning of same.
Financial Information:
Financial Impact Summary:
City Clerk's Office Legislative Tracking:
Jose Damien, Extension 6727
n-Offs:
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BLLC_AmendmentToAm/n~edRestate~r~rM.doc
MIAMiBEACH
AGENDA ITEM
DATE
Rq F_..
MIAMIBEACH
City of Miami Beach, 1700 Convention Center Drive, Miami Beach, Florida 33139, ww~v.miamibeachfl.gov
COMMISSION MEMORANDUM
TO:
FROM:
DATE:
SUBJECT:
Mayor David Dermer and Members of the City Commission
Jorge M.January 1G°nzaleZ' City Manager (~,~//'"1, 2006
A RESOLUTION OF THE MAYOR AND CITY COMMISSION OF THE CITY OF
MIAMI BEACH APPROVING AN AMENDMENT TO THAT CERTAIN AMENDED
AND RESTATED BEACHFRONT CONCESSION AGREEMENT BY AND
BETWEEN THE CITY AND BOUCHER BROTHERS MIAMI BEACH, LLC FOR
THE OPERATION AND MANAGEMENT OF BEACHFRONT CONCESSIONS ON
THE BEACHES SEAWARD OF LUMMUS PARK, OCEAN TERRACE, AND
NORTH SHORE OPEN SPACE PARK; SAID AMENDMENT PROVIDING FOR
RENEWAL OF THE AGREEMENT FOR FIVE (,5) YEARS, SAID RENEWAL
TERM COMMENCING ON NOVEMBER $, 2006, AND ENDING ON
NOBVEMBER 4, 2011; AND PROVIDING FURTHER FOR CERTAIN VALUE
ADDED ITEMS TO BE PROVIDED BY BOUCHER BROTHERS, AT NO
ADDITIONAL COST TO THE CITY,
ADMINISTRATIVE RECOMMENDATION
Adopt the Resolution.
ANALYSIS
On October 17, 2001, the Mayor and City Commission approved (via Resolution 2001-
24646) a concession agreement between the City and Boucher Brothers Miami Beach LLC
(BBMB) for the management and operation of beachfront concessions, including rental of
lounge chairs, beach umbrellas, and personal watercraft, as well as the sale of sundries, and
food and beverage on the beaches seaward of Lummus Park, Ocean Terrace, and North
Shore Open Space Park (Concession Agreement). Said Concession Agreement provides for
an initial five (5) year term, with one 5 year extension option, provided that BBMB was not in
default.
In accordance with the terms of the Concession Agreement the City and BBMB met on
several occasions after the first contract year to discuss concerns and operational issues
that arose during the front-end of the initial contract term. Said discussion resulted in the
development of an Amended and Restated Concession Agreement (ARCA) that was
approved unanimously by the Mayor and City Commission on May 18, 2005 (via Resolution
2005-25884).
In a letter dated September 21, 2005, BBMB through their attorney, Abigail .C. Watts-
FitzGerald, of Hunton & Williams, LLP (attached as Exhibit A), notified the City of their intent
to negotiate the five (5) year renewal option provided for in the Concession Agreement.
Notice, which was timely provided, is required to be served upon the City during the 4th
City Commission Memorandum-Boucher Brothers
January 11, 2006
Page 2 of 4
contract-year of the initial term. The Agreement further provides that the City and BBMB
initiate negotiatiOns, in good faith and using best efforts, no later than 180 days prior (i.e.
May 1,2006, approximately) to the end of the current term (i.e. November 4, 2006). The City
Administration recommended that the matter be referred to the Finance and Citywide
Projects Committee for d!scussion, and on October 19, 2005, the Mayor and City
Commission referred same.
In light of the fact that outstanding issues and concerns were addressed in the recently
approved ARCA, BBMB and the Administration have agreed that there are no contractual
issues that require renegotiation at this time. As such, except for those "Value Added"
provisions specifically outlined below, the balance of the provisions of the AP, CA will not
change, and will remain as provided in the ARCA and in AP, CA Exhibit 1.2 as it relates to the
acquisition of new capital equipment, ancillary concession-related capital improvements, and
minimum monetary guarantee (attached hereto as Exhibit B).
On November 10, 2005, the Finance and Citywide Projects Committee reviewed and
discussed the extension option and the items being proposed by BBMB for inclusion in this 5
year extension amendment are of a "Value Added" nature and would include, but not be
limited to, new provisions which would require BBMB would provide:
,
An annual donation to the City, in the amount of five thousand ($5000) dollars per
year, throughout the renewal term, to be utilized by the City for scholarships and
contributions to philanthropic organizations with emphasis on marine related and
children-related recipients, based upon final determination as to recipient
.organization by the City.
.
,
An annual donation to the City, in the amount of five thousand ($5000) dollars per
year, throughout the renewal term, to be utilized by the City in support of
environmental organizations and/or programs such as Environmental Coalition of
Miami Beach (ECOMB), based upon final determination as to recipient organization
by the City.
!
Assistance (throughout the renewal term) in supervision of cleanliness in Lummus
.Park (including the area outside of the Concession Area(s) beginning at the west
foot of the sand dunes and extending westerly to, and including the east sidewalk of
Ocean Drive. Additionally, Concessionaire will provide, at its sole cost and expense,
sand sifting equipment and staff appropriately certified to operate same (within
Concession Areas), as an additional requirement of its maintenance responsibilities.
.
Concessionaire shall establish and maintain, throughout the renewal term, a lounge
chair towel program in the "Luxury" areas of the Concession Areas that would
provide for the promotion of the City of Miami Beach. Said "promotional towel"
program would provide for a minimum of 600 imprinted lounge chair towels (which
shall be replaced with 600 new imprinted towels at least once during the five (5) year
renewal term), with the content of the imprinted message to be determined by the
City, at its sole discretion.
The proposed "Value Added" items have been offered by BBMB as their continued efforts to
support the Miami Beach community.
The Finance and Citywide Projects Committee supported the extension and the concept of
the "Value Added" provisions and recommended that input be sought from the Marine
Authority and Beach Preservation Committee. They also recommended that public comment
City Commission Memorandum-Boucher Brothers
January 11, 2006
Page 3 of 4
be sought on the matter. The Administration recently conducted an informal polling of beach
patrons, on three separate days, within the beach concession areas seaward of Lummus
Park. Approximately 60 patrons were approached and asked about their level of satisfaction
with the services received; of the 35 patrons who participated, all responded positively with
regard to the service received, rating the service either 4 or 5 (on scale of 1 to 5, with 5
being the best).
On'Tuesday December 13, 2005, the matter was presented to the Marine Authority and
Beach Preservation Committee which provided the following comments and suggestions:
· Marine Authority: Recommended that Boucher Brothers mark all personal watercraft
have a visible, identifiable mark of ownership.
Beach Preservation' Committee: Recommended that Boucher Brothers more closely
monitor compliance with contractual guidelines related to number of lounge chairs on
the beachfront, and stacking and positioning of same.
Additionally, it was mutually agreed that a duly noticed joint meeting of the Marine Authority
and Beach Preservation Committee be held on January 10, 2006, to obtain public comment
on the issue. A verbal report on the results of the public comments received at said joint
meeting will be provided to the Mayor and City Commission this Wednesday, January 11,
2006.
It is recommended that final recommendation of recipients of the. "value added"
environmental and scholarship funding be made in concert with recommendations made by
the Finance and Citywide Projects Committee, Beach Preservation Committee, and Marine
Authority.
Below is an outline of the salient points that will be addressed, going forward, in accordance
with the provisions of the 5 year extension term:
· Sub-section 1.2 of the ARCA provides that if the renewal option is approved, the
purchase of new. beach equipment would be required.
"Concessionaire shall deliver to City, at least 180 days prior to the expiration
of the initial term, i) a schedule of any eqUipment which was replaced during
the initial term, and ii) an itemized list of proposed replacement equipment;
both to be delivered to, reviewed, and approved by the City prior to
commencement of negotiations for a renewal term."
The list of replaced equipment (Exhibit C) during the initial term and
proposed' new capital equipment and ancillary concession-related capital
improvements (Exhibit D) are also attached hereto.
Replacement schedule new equipment is to be delivered after 120 days of
commencement of the renewal term, and have a minimum threshold value of
no less than of $500,000, and a maximum value of $800,000. The attached
schedules also reflect that if the City determines that the full $800,000 be
expended, then $680,000 shall be expended on new equipment and the
balance of $120,000 shall be used to purchase ancillary concession-related
capital improvements.
City Commission Memorandum-Boucher Brothers
January fl, 2006
Page 4 of 4
The New Minimum Guarantee amount due to the City during the 5 year
renewal term shall be calculated in accordance with the terms outlined in
ARCA Exhibit 1.2.
Other considerations with regard to Equipment Replacement Schedules,
relative to Ancillary Expenses, would include the replacement of personal
watercraft (e.g. wave-runners and/or jet Skis), concession storage facilities,
concession dispensing facilities, all terrain vehicles, towels, etc.
CONCLUSION
The Administration recommends that the Mayor and City Commission adopt the attached
Resolution approving a First Amendment to that certain Amended and Restated Beachfront
Concession Agreement by and between the City and Boucher Brothers Miami Beach, LLC,
including authorization of the five (5) year extension option and those certain "Value Added"
items to be provided by Boucher Brothers at no additional cost to the City.
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T:V~GEN DA~2006~jan 1106\Regular\BBMBLLC_AmendmentToAmended Restated. MEM.doc
HUNTON &'WILLIAMS LLP
: ,, :~,: ,::~ 1111 BRICKELL AVENUE
.... ' SUtT'E~25007 T.
MiAI~I~, ~LORIDA 33131-i802
F^x 305.8]0- 2460
September 21,2005
ABIGAIL WATTS-FITZGERALD
DIRECT DIAL: 305-810-2513
EMAIL: awf~hunton.com
FILE NO: 59348.11
Mr. Jorge M. Gonzalez
City Manager
City of Miami Beach
1700 Convention Center Drive
Miami Beach, FL 33139
Re:
Notice of Intent to Negotiate the Renewal of that certain Amended and
Restated Concession Agreement between the City of Miami Beach, Florida and
Boucher Brothers Miami Beach, LLC for Management and Operation'of
Beachfront Concessions Pursuant to Request for Proposals No. 22-00/01,
dated May 18, 2005 (the "Beach Concession Agreement")
Dear Mr. Gonzalez:
I represent Boucher Brothers Miami Beach, LLC. Please allow this letter to serve as a
notice of intent to negotiate the renewal of the Beach Concession Agreement between
the City of Miami Beach and Boucher Brothers Miami Beach, LLC.
On behalf of my client, we hereby give formal written notice of our intent to negotiate
the renewal of the Beach Concession Agreement pursuant to Section 1.2 on or about
November 7, 2005:
Provided that the Concessionaire is not in default under Section 13 hereof,
commencing upon written notice from Concessionaire to the City, which notice
shall be given in the fourth contract year of the initial term (November 5, 2004 -
November 4, 2005) and then no later than 180 days prior to expiration of said
term, Concessionaire and the City shall negotiate exclusively with each other in
good faith for a period of sixty (60) days to extend the term of this Agreement
for ar; additional five (5) year period. Each of the parties agrees to use its
respective best efforts to ne~otiai~ ;,~c,", an ex~nsion on such reasonable
te.~r.,~e _and conditions that are mutually agreed upon, excepting the financial
terms Set forth in Exhibit 1.2 hereto. The parties acknowledge and agree that
the financial terms set forth in Exhibit 1.2 for such renewal term are fair and
reasonable. In the event of such renewal, the financial terms contained in
EXHIBIT A
Mr. Jorge M. Gonzalez
September 21,2005
Page 2
Exhibit 1.2 shall be the financial terms of the agreement pertaining to the
renewal term of the Agreement. Any such renewal shall require
Concessionaire to purchase new equipment for the renewal term, subject to the
prior written approval of the City. Concessionaire shall deliver to City, at least
180 days prior to the expiration of the initial term, (i) a schedule of any
equipment which was replaced during the initial term, and (ii) an itemized list of
proposed replacement equipment; both to be delivered to, reviewed, and
approved by the City prior to commencement of negotiations for a renewal
term.
We acknowledge and agree that any renewal would be subject to the Boucher
Brothers continuing compliance for the remaining term under the current agreement.
Please note that the advance payment of the final year of the initial term (leaving only
the year end 'q'rue Up"); will take place prior to any negotiation of the Renewal Term.
The Boucher Brothers recognize the honor and privilege of operating the Beach
Concession for the City of Miami Beach. My clients look forward to the continuance of
a wonderful relationship with your Administration and City Commission; while servicing
the public on Miami Beach. We look forward to your response.
Abigail C. Watts-FitzGerald
CC:
Boucher Brothers Miami Beach, LLC
Murray Dubbin, Esq.
Raul Aguilar, Esq.
Robert Middaugh
Jose Damien
Robert Reboso
99999.000303 MIAMI 306188vl
EXHIBIT 1.2
FINANCIAL TERMS APPLICABLE TO RENEWAL TERM
,
.
,
With regard to the equipment, as same is defined in Exhibit 3.1.3 (i.e. chairs,
umbrellas, sun canopies, storage/work facilities, storage, and food and beverage
trailers), contemplated to be used by Concessionaire during the renewal term,
Concessionaire shall acquire by purchase or lease (provided, in the event of a
lease, the terms of the lease shall be subject to the approval of the City Manager or
his designee), within 120 days after the commencement of the renewal term, new
equipment. Such equipment shall have a value of no less than five hundred
thousand dollars ($500,000), and no greater than eight hundred thousand dollars
($800,000); provided, that in the event that the City requires that Concessionaire
acquire equipment having a value of eight hundred thousand dollars ($800,000),
Concessionaire shall acquire equipment having a value of at least $680,000, and
Concessionaire shall acquire ancillary concession-related capital improvements
having a value of at least $120,000; provided, however, to the extent
Concessionaire acquires ancillary concession-related capital improvements having
a value of less than $120,000, then Concessionaire agrees to acquire equipment
having a value equal to the difference between $120,000 and the value of the
ancillary concession-related capital improvements so acquired. The City Manager or
his designee shall approve any proposed acquisition of equipment contemplated in
this Paragraph 1 prior to Concessionaire's order of same.
The yearly fee due to the City as a result of beachfront equipment rentals and the
sale of Skin Care Products shall be the greater of (a) the amount of the beachfront
equipment and sale of Skin Care Products fee minimum guarantee ($388,288,
without options; $449,549 with options) applicable to the fifth year of the original term
of the Agreement, and (b) the amount of the average, over the original five year term
of the Agreement, of the annual percentage beachfront equipment and sale of Skin
Care Products fee with or without options, as applicable. This yearly fee (i.e., the
greater of (a) and (b)) will be escalated annually at the rate of 5% during the renewal
term.
The yearly fee due to the City as a result of food and beverage sales shall be the
greater of (a) the amount of the food and beverage fee minimum guarantee
($143,581) to the City applicable to the fifth year of the original term of the
Agreement, and (b) the amount of the average, over the original five year term of the
Agreement, of the annual percentage food and beverage fee to the City. This yeady
fee (i.e., the greater of (a) and (b)) will be escalated annually at the rate of 5% dUring
the renewal term.
EXHIBIT B
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Z
IAI
Z
0
0 0 0 0 0 0 0 0
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0
0
0
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0 0
0 0
0 0 0 0 0
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0 0 0 ~ 0 ~ 0 0 ~ 0 ~
0
0
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X
ILl
.Descripti on Type Quantity
Standard Choirs Equipment 2,100 $
Luxury Chairs Equipment 300 $
Standard Pads Equipment 2,100 $
Luxury Pads Equipment 300 $
Umbrellas Equipment 840 $
Cabanas Equipment 135 $
Towels Ancillary 900 $
Total '
Amount Extension
110.00 $ 231,000.00
225.00 $ 67,500.00
39.00 $ 81,900.00
94.00 $ 28,200.00
1 35.00 $ 11 3,400.00
315.00 $ 42,525.00
15.00 $ 13,500.00
$ 578,025.00
Supplimental Equipment 2001-2005 See Schedule
$ 102,951.00
Grand Total
680,976.00
EXHIBIT D