HomeMy WebLinkAboutAmendment No. 1
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AMENDMENT NO.1
TO THAT CERTAIN CONCESSION AGREEMENT BETWEEN
CITY OF MIAMI BEACH, FLORIDA AND
BROTHER'S VENDING, INC.
FOR OPERATION OF VENDING MACHINES
PURSUANT TO REQUEST FOR PROPOSALS NO. 09/04-05
THIS AMENDMENT NO.1 TO THE CONCESSION AGREEMENT made this 6th day
of December, 2006, but effective retroactively to November 1, 2006 (the "Effective
Date"), between the CITY OF MIAMI BEACH, a municipal corporation of the State of
Florida (hereinafter called "City"), having its principal address at 1700 Convention
Center Drive, Miami Beach, Florida, 33139, and BROTHER'S VENDING, INC., a
corporation established pursuant to the laws of the State of Florida, with offices at 1722
NW 2nd Court, Miami, Florida 33169 (hereinafter called "Concessionaire").
WITNESSETH
WHEREAS, on February 23, 2005, the Mayor and City Commission authorized
the Administration to issue Request for Proposals No. 09/04-05 to solicit proposals for
the operation of vending machine concessions at various locations on City-owned
properties and facilities (the RFP); and
WHEREAS, on July 27, 2005, the Mayor and City Commission adopted
Resolution No. 2005-25966, authorizing the Administration to enter into negotiations
with Brother's Vending, Inc., as the successful proposer, for the operation of said
vending machine concessions; and
WHEREAS, the Administration successfully negotiated a Concession
Agreement with Brother's Vending, Inc., for an initial two (2) year term, said Agreement
commencing on November 1, 2005, and expiring on October 31, 2007, with three (3)
additional one year renewal options, each at the City's sole discretion; and
WHEREAS, on October 19, 2005, the Mayor and City Commission adopted
Resolution No. 2005-26042, approving and authorizing the Mayor and City Clerk to
execute the forgoing Concession Agreement; and
WHEREAS, said Concession Agreement provided for the City and Brother's
Vending, Inc. 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 Administration would
recommend that, due to unforeseen difficulties with the placement and location of
several vending machines, the City and Brother's Vending, Inc. have agreed to enter
into an amendment to the Concession Agreement, which would provide for a new
minimum guarantee and percentage of gross.
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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 to amend the Concession Agreement, as follows:
1. Section 4, entitled "Minimum Guarantee (MG)" is amended as follows (deleted
language strlJe.'< th::elJgh and inserted language underlineQ):
4.2 Minimum Guarantee (MG).
In consideration of the City executing this Agreement and granting the
rights provided in this Agreement, commencing on November 1, 200aQ,
and thereafter on November 1st of each year during the Term of the
Agreement, the Concessionaire shall pay to the City a Minimum
Guaranteed (MG) Annual Concession Fee of +flil:ty Twentv Eight
Thousand ~ Eiaht Hundred ($J8,100) ($28.800) Dollars, plus
applicable Sales and Use Taxes (as provided in Section 4.6 herein); said
MG subject to the annual increases in Subsection 4.2.1. Commencina on
November 1. 2006. and thereafter on the first dav of everv month
thereafter throuahout the Term herein. Concessionaire shall pav the MG in
eaual monthlv installments.
4.2.1 COFFlmcmcin!i) with the second eontract year, said In the event
Concessionaire elects to increase the price(s) on anv or all
vendina machine products. and said increase(s) is approved in
accordance with Subsection 3.2.5.1 then the MG shall be
automatically increased annllally, 01'1 the aFlFlivemary sf the
COFFlmenceFFlent Date af the I\greement (or ~lsvember 1st), by
the Consumer Price Index (CPI). which increase shall be
effective as of. and based on. the month of the contract vear in
which the price increase becomes effective. CPI shall mean that
consumer price index established by the Bureau of Labor
Statistics of the United States Department of Labor which is
entitled "Consumer Price Index, All Urban Consumers, South
Region All Items, (1982-84 = 100, CUUR0300SAO)" or in the
event said index is no longer provided by said Bureau of Labor
Statistics, the index furnished by said Bureau or other agency
which is most accurate, completely replaces, and/or is the
equivalent of the above referenced index, whichever is greater.
The basis for calculating the CPI increase shall be the Index for
the calendar month durina which the price increase becomes
effective sf /\ugust immediately prior to the ComFFlencemeFlt
Gate (Base Month). The Base Month Index shall be compared
with the Index for the same calendar month (1\1lgUSt) for the
previous vear each sulJsequent year (coml'lariSOFl month) eluring
the Term heresf, and any increase shall be due and payable to
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the City on NovemlJer 1st ef each year duriFl!i) the Term of this
I\!i)rcement upon written demand from the Citv.
In the event that there is no increase, or there is a decrease in
the CPI, then the MG shall remain as is.
4.2.2 Initial Contract Year Bonus.
Concessionaire agrees, as per Concessionaire's response to
the RFP, to pay to the City, an "Initial Year Bonus", in the
amount of Three Thousand ($3,000) Dollars, due upon
execution of this Agreement.
4.3 Percentaae of Gross Metered Receipts (PGMR) vs. MG.
During the Term of the Agreement, in the event that the amount equal to
thirty t\'/enly percent (30%) (20%) of Concessionaire's annual Gross
Metered Receipts (PGMR) exceeds the Minimum Guarantee (MG) amount
provided in Section 4.2 above (as increased aRFlually periodicallv pursuant
to Subsection 4.2.1, then the Concessionaire shall also pay to the City the
difference between the amount of the PGMR and the MG amount, no later
than December 31, of each year during the Term of this Agreement,
including renewal terms.
The term "gross metered receipts" is understood to mean all income
registered at each and every Vending Machine, whether collected or
accrued, derived by the Concessionaire under the privileges granted by
this Agreement. Any amounts that may be due for any Federal, State, or
City sales tax, or other tax, governmental imposition, assessment, charge
or expense of any kind and required by law to be remitted to the taxing
authority, or other governmental authority, shall be the sole responsibility
of Concessionaire.
4.4 Non-Cash Remuneration.
During each contract year, in additional to all remuneration due, or which
shall be due to the City by Concessionaire in accordance with Subsections
4.1, 4.2, 4.2.1, 4.2.2 and 4.3 and any other applicable section(s) or
subsection(s) contained in the Agreement, Concessionaire shall also
provide the City with products, and/or services which may include, but not
be limited to use of food trailers and vehicles, with a verifiable (based on
actual current market value at the time requested) cumulative retail value
of no less that Sixty-eight Thousand ($68,000.00) Dollars as more
specifically described in part in Exhibit 4.4. Determination of type of
products and/or services to be included will be at the sole discretion of the
City, and shall be made available to the City on an annual basis effective
upon Commencement Date.
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4.5 Late Payment.
Any payment which Concessionaire is required to make to City which is
not paid on or before the respective date provided for in this Agreement
shall be subject to be a penalty of $50.00 per day assessed for late or
delinquent payments, along with simple interest accruing to the City at the
rate of ten (10%) percent per annum, from the due date of payment until
such time as payment is actually received by the City. Payments shall be
considered late when paid five (5) days after the due date. Interest shall
accrue beginning with the tenth (10th) day following due date.
4.6 Sales and Use Tax.
It is also understood that, if applicable, the required Florida State Sales
and Use Tax shall be added to Concessionaire's payments and forwarded
to the City as part of said payments. It is the City's intent that it is to
receive all payments due from Concessionaire as net of such Florida State
Sales and Use Tax.
2. Except as amended hereby, the Concession Agreement remains in full force and
effect and is reconfirmed for all purposes.
3. This Amended Agreement may be executed in counterparts and facsimile
signatures are as effective as an original signature and constitute valid delivery
thereof.
IN WITNESS WHEREOF, the parties hereto have caused their names to be
signed and their seals to be affixed, all as of the da and ear first above written,
indicating their agreement.
Attest:
~r r~~
Robert Parcher, City Clerk
BEACH, FLORIDA
~
, resident
Attest:
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APPROVED AS TO
FORM & LANGUAGe
& FOR EXECUTION
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